The path of cyberlaw.

Author:Lessig, Lawrence
Position:Emerging Media Technology and the First Amendment

If you're not a cyberspace maven, but mill around a bit among those who talk about this cyberspace stuff--if you surf, as it is said, the information superhighway--there are two questions that you might ask about how this new space will get regulated.

The first question goes roughly like this: Should this new space, cyberspace, be regulated by analogy to the regulation of other space, not quite cyber, or should we give up analogy and start anew?(1) In Bruce Ackerman's terms, should we muddle into this new space as ordinary observers, just applying our old ways of thinking, or should we enter this world as scientific policymakers, armed with a comprehensive view, structuring the environment of this world to fit with this comprehensive view?(2)

The second question follows the first: Is cyberspace really anything new? Is there really a form of life here that we haven't known before, or is cyberspace just an electronic version of ordinary space, where the electronics might add something, but not really very much?

These two questions are interesting, I suggest, not just for what they will tell us about the regulation of cyberspace. They are significant too for what they will suggest about the regulation of ordinary space. For they will suggest what we must know, or where we must be, before we can regulate in ordinary space with a comprehensive view.

Consider the first question first: Will we regulate by analogy, or by something else? It should take just a second to see the strangeness in such a question. For just how could cyberspace be regulated except by analogy? Just what is it--cyberspace--apart from what we can describe by analogy? This is not a space that we know, in the sense of a space that we have inhabited. Indeed, in one sense, it is just a pattern of electrons skimming a net of computers, a construct that describes a location where a collection of activity occurs.(3) But described like this, the space could not be understood, or at least it could not be understood by us. It is understood by us only when we put things into it, when we carry into it our own language, when we colonize it, when we domesticate it. It is no accident that we speak of e-mail, or that we describe postings on "electronic bulletin boards," or that we wonder about the dynamics of real-time discussions in "CB-chat" areas. We have no choice but to take control of this space at first with our ordinary terms, if indeed we are to understand it. And it is through a practice of analogy that this occupation occurs.

The same point focuses the second question as well--whether there is really anything new here. For if we will understand this new realm at first by importing the old, then one way to understand the "new" is just that which does not fit old ways of speaking. The new will be that which we have to construct to describe--the gap between our old language and new experiences; the place where the ordinary observer's language gives out. We will discover what is new by applying, and failing to apply well, what is ordinary or old to this new space.

These two points suggest something important about how we should expect the regulation of cyberspace to proceed. For if the new in this new space is created as we use up the old, if we do not start with a world to regulate, but must build it, then what the system of cyberspace regulation will need is a way to pace any process of regulation--a way to let the experience catch up with the technology, a way to give the ordinary language a chance to evolve, and a way to encourage new languages where the old gives out.

This is the practice of the common law. But my plea here for the common law has little to do with common love for the common law: It is not because the common law best reflects some truth about the nature of cyberspace, or(4) or that the common law best reflects the customs of inhabitants of cyberspace,(5) or that the common law most efficiently orders the behavior of individuals in cyberspace.(6) What is special about the common law here is its constructive function. What recommends it is the process that it offers, with its partial answers, to repeated if slightly varied questions, in a range of contexts with a world of different talent and ideals. If, as Levi said, the common law is democratic, it is democratic not because many people get to vote together on what the law should mean, but because many people get to say what the common law should mean, each after the other, in a temporally spaced dialogue of cases and jurisdictions.(7) Unlike other lawmaking, what defines the process of the common law is small change, upon which much large change gets built; small understandings with which new understandings get made. What counsels it here is the way this process will function to create in an as yet uninhabited, unconstructed, world.

Thus in a sense what recommends the common law to cyberspace is not its efficiency, but its inefficiency. But to praise inefficiency, or better, a way to slow the regulation of cyberspace down, is not to say that cyberspace will need no regulation. Nor is it to say that we cannot yet see what the new here will be. In large part (I think) we can see what will be most important--what will be best--in this new space. What will be best ties directly to the questions addressed by this Symposium--associational and speech interests. To say that we need time to catch up is simply to note the extraordinary gap between what these associational interests are, or will be, and the world's present understanding of what exactly is at stake. Put another way, if we had to decide today, say, just what the First Amendment should mean in cyberspace, my sense is that we would get it fundamentally wrong.

What is this gap? Let me say something about what these associational interests will be, and something about the dark ages within which we now live. What is new, or to be consistent with myself, what will be new in this cyberspace stuff is not so much the new markets that this space will permit. They will be important, but they will not be importantly different from the markets we now know.(8) What will be new are the communities that this space will allow, and the constructive (in the sense of constructivist) possibilities that these communities will bring. People meet, and talk, and live in cyberspace in ways not possible in real space. They build and define themselves in cyberspace in ways not possible in real space. And before they get cut apart by regulation, we should know something about their form, and more about their potential.

We know enough to say a little about what these new forms of association are. They divide into three classes. The first we could call association in public. Here participants add to a common conversation, but with no real knowledge about who will read what they write. The best examples of these are postings to public bulletin boards. Usenet newsgroups are the most common on the net, where some 4000 different subjects are available for conversation,(9) and participants either add a new message within a topic or append a comment to comments previously made. While subjects are to be self-limiting, there is no formal mechanism for punishing those who violate subjects. Crossing subject borders may open one up to community sanction-flamings for violating rules of the Net(10)--but there are no Net police who make sure that the proper words fit in the proper place.

What results from this association is a dialogue of sorts, but one very different, I suggest, from dialogues that we now know. Like a town meeting, this is a dialogue contributed to by a wide range of people. But unlike a town meeting, because each response is appended to what went before, there is a relatively effective constraint to ensure that responses are responsive. Put another way, there is less return from being nonresponsive than in the drama of a town meeting. Moreover, because these dialogues go on over time and with relative anonymity, there is time for reflection and contribution from a wider range of participants than any single meeting would allow. Here is a place where discussion produces something, if indeed there is anything to produce.

A second form of association is more private. Call it an association in private. It functions like this: People link through the Net and chat (in real time) with others of their choosing (whether one or many) about a topic (or set of topics) of their choosing. What distinguishes this kind of association from the association in public is that this exchange is among known parties, and it lasts only so long as people are in the room. What is the same is that...

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