Cryptography Reference
In-Depth Information
home, the dark screens of
Minitel
terminals—France's first stab at cyber-
space—stood as silent reproaches to the technological ineptitude of French
“dirigisme” and its excessive thirst for regulation.
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Worse, the Internet's
ability to evade censorship, mock copyright, and seamlessly cross borders
made nation-states and their reliance on the rule of law seem positively
antiquated, institutional relics of a past ill equipped to deal with the utter
modernity of electronic networks.
The issue was not particular to France. In the United States, legal schol-
ars and practitioners debated whether the lawlessness of cyberspace could
be tamed using existing statutes and concepts, or whether it required
something completely new: a body of
cyberlaws.
In a famous debate, Frank
Easterbrook, a judge, and Lawrence Lessig, an academic, articulated the
positions of, respectively, the rearguard and the vanguard. Easterbrook
argued that cyberlaw advocates treaded treacherous ground: “Beliefs
lawyers hold about computers, and predictions they make about new
technology, are highly likely to be false. This should make us hesitate to
prescribe legal adaptations for cyberspace. The blind are not good trailblaz-
ers.”
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If American law had barely begun catching up with the impact of
photocopying on intellectual property, “What chance do we have for a
technology such as computers that is mutating faster than the virus in
The
Andromeda Strain
?” His recommendations for future action were strikingly
conservative: “Well, then, what can we do? By and large, nothing. If you
don't know what is best, let people make their own arrangements. Next
after nothing is: keep doing what you have been doing.”
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Lessig responded that in fact, electronic networks operated in ways that
required careful analysis of law's ability to regulate behavior. Regulation,
he proposed, is effected through four simultaneous yet distinct mecha-
nisms: law obviously, but also markets, social norms, and
architecture
.
Although regulation by architecture is common in “real space” (e.g., speed
bumps or automatic seatbelts), it acquires a special valence in networks:
“The software and hardware that make cyberspace what it is constitute a
set of constraints on how you can behave. . . . The code or software or
architecture or protocols set these features; they are features selected by
code writers; they constrain some behavior by making other behavior pos-
sible, or impossible. The code embeds certain values or makes certain
values impossible. In this sense, it too is regulation, just as the architectures
of real-space codes are regulations.”
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