 So the internet law program is in part a program about how cyberspace gets regulated and in this lecture We set a framework for thinking about regulation in the context of cyberspace that builds upon Insights that have been developed about the way cyberspace is architected and the way law interacts with that architecture to affect certain important regulations Now in the beginning of cyberspace and the talk about cyberspace as a place of social behavior There was a certain particularly important and pronounced view about Whether cyberspace could be regulated or how the government might interact with cyberspace and in that beginning that view was that cyberspace would be Unregulable now this view was advanced by certain important and brilliant Contributors to the early debate. This is John Gilmore who early on said that the net would interpret censorship as damage and simply route around it or John Perry Barlow who was one of the famous early founders of rhetoric around what we call net libertarianism Here's his declaration of independence for cyberspace governments of the world you weary giants of flesh and steel I come from cyberspace The new home of the mind on behalf of the future I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather Now the puzzle about this early view was that if government can't Regulate cyberspace then why were so many people obsessed and worried about the way government might in fact regulate cyberspace and our view is that the worry betrayed and Understanding that many of these people had from the very beginning and that was that there was in fact a way that the government might Interact with cyberspace to affect its regulation and that we needed to understand At least this mode of interaction if we were to defend values that were important and to protect ideals that we needed cyberspace to assure So let's see a picture of how in fact cyberspace is Regulated or how we might think about the interaction between legislative policy and the architecture of cyberspace Now I begin by just setting up a framework of the things that typically are involved in regulation What I call what things regulate as a way to understand something more general than what lawyers typically Understand when they think about the nature of regulation so in the center of this picture is the pathetic red dot this Target of regulation which will be the subject of the analysis which we present here The target of this regulation the red dot is obviously and as lawyers think Primarily regulated by the law and the law Regulates that red dot by stating rules like the rule that says you may only drive 70 miles per hour those rules are Stated before behavior is to occur They are ex ante rules and they threaten an ex post punishment that punishment Imposed by the state is a way for the state to create incentives for people to comply with the rules Now ex ante just means that the rules have to be stated before the fact an ex post of course is that the punishment is Applied after you've broken the rule, but the ex ante rule that's enforced by the state is the paradigm of regulation Again as lawyers think about it primarily But in addition to the law as an effective regulator, there are many other regulators that affect how people behave Probably the most important in many societies is the way that norms regulate behavior The norms of a society will impose rules on Individuals within that society about how they must behave or what their behavior with respect to other individuals must be those rules are governed not so much by strict absolute requirements But often are governed by Understandings of members within a community So when you're driving on a highway you might have an understanding to pull to the side to avoid a certain Kind of interaction with other cars on the highway those rules are not so much imposed by the state They might instead be understandings that people have in the context of highway driving or in the context of just walking on a sidewalk Now those rules are also ex ante rules in the sense that we understand whether implicitly or explicitly what these rules require and They are punished again after the fact ex post But now the punishment is imposed by this by the neighbors in your community not so much by the state So when you deviate from a requirement of a norm you feel a certain punishment And for many people it might be even more significant than the punishments imposed by the state but the punishment gets imposed by people within the society and not by Organized governments that enforce or require the behavior that the norm supports a Third kind of regulator functions differently and is also Important and should be thought of as a distinct modality of regulation, too This is the regulation of the market the market sets conditions on which you're allowed to interact with others through Property and contract these conditions set for example prices that Establish the relationship between the amount of one good that you get in exchange for another So they set the relationship between for example how many hours you have to work in order to afford your Rent every month or how many hours you have to work in order to afford to go to university These conditions are set in a competitive market as the sum of many individual decisions across the market They are Simultaneously imposed as a price so for example here in California We have to pay somewhere up to two dollars and fifty cents a gallon for gasoline That's a condition on the ability to get access to gasoline that regulates our ability to drive cars easily if the price were Lower people would feel freer to drive cars in California if the price were significantly higher They would be more constrained now this constraint functions as a simultaneous condition on people's ability to get access to resources and it's enforced by people within the system of the market and That market itself, of course is Constructed against the background of a set of legal regulations and against the background of a set of moral or norm regulations the law establishes the rule for contract and property and Norms establish what sorts of things ones allowed to trade in the market So these things aren't totally separate. They overlap in important ways But the market functions in this sense differently from how norms or law function Finally and most importantly in thinking about the way Cyberspace will be regulated is the regulation of what I'm calling architecture Now by architecture I mean the way in which we find the world or the physical space within which we find ourselves Even if the way we find the world has been Constructed by individuals not just by nature These constructions impose constraints on our freedom and those constraints are in many senses a kind of regulation So your car is regulated by the law and it's a statement that you can only travel at 70 miles per hour But the architecture of the car might be regulated such that its maximum speed Significantly higher than 70 miles per hour still is a maximum speed perhaps a speed of 160 miles per hour That like the market is a simultaneous condition or constraint in the sense that it's not like the Roadrunner cartoons where When races off the edge of the cliff and then subsequently falls the constraint of gravity in real space not cartoon space is simultaneous with the behavior But it's enforced not by people but by nature and that enforcing or enforced constraint is in the scheme which we will discuss here today Also an important part of regulation Now the map that I've provided that adds together the regulations affected by architecture and by the market and by norms and by law Tends to belittle law because law is now just one of four regulations and the important insight to Reinforce the position of lawyers and I of course produce lawyers for a living So I'm eager to make lawyers feel like they continue to have an important role in this story is that of these four regulations or modalities of regulation the law Has an important role in affecting these other modalities the law affects Things that regulate so let's go back to our picture of the pathetic dot the law can be used to transform Norms and those norms then transformed will regulate behavior differently The law can be used to change the constraints of the market so that the market will then Regulate differently and the law can be used to change the constraints of architecture so that architecture will regulate differently, let's take a particular example quite salient here in California where I now teach This is the example of smoking In California, there are rules some federal some states that regulate by law who can smoke So for example, you must be over 18 to buy cigarettes in addition to those rules We have certain norms that have in part been constructed by Advertisements that the law has through the government Supported so advertisements that try to convey the idea that smoking kills or that smoking is unhealthy or that smoking Goes with a certain lifestyle that is stigmatized all of those efforts at Propaganda to change how people think about people who smoke are Efforts by the state to change the norms and the way the norms constrain Individuals ability to engage in the behavior of smoking in addition to norms. We also have government efforts to change the cost of smoking through taxes for example that raise the cost of cigarettes Significantly and by raising the cost reducing the demand for cigarettes, of course Inconsistently in the United States. We both subsidized tobacco and tax cigarettes So it's not as if the government's necessarily consistent But the point is the government has a lever through the market to restrict the access or the demand for cigarettes and Finally the government has it various moments in its history contemplated regulating the architecture of cigarettes to reduce the demand for cigarettes by reducing the addictiveness of cigarettes so in the Clinton administration the FDA considered Regulating a cigarette as a nicotine delivery device and by regulating it as a nicotine delivery device They would reduce the amount of nicotine within a cigarette and if you reduce the nicotine in a cigarette and changed the architecture To make it less addictive you could make it easier for people to choose not to smoke if in fact that was their preference now this fourth Conception of architecture as a regulator is the one that we will focus on in the context of cyberspace But is the one that's least familiar and it's least familiar especially in the context of real-space regulation And so I want something you to consider some examples just to make it clear that the kind of regulation We're talking about here with architecture is not Totally new to cyberspace So for example, Napoleon the third who was a tyrant running Paris Regulated Paris in a certain way by regulating the architecture of Paris Napoleon the third didn't like the fact that it was very easy for Revolutionaries to bring Paris to a standstill Because the back roads make it easy for them to create barricades that would block the access of Parisians to various parts of the city and blocking access of Parisians made it easy for The revolutionaries to make demands that the government had to respond to so Napoleon the third's response to this dynamic was to Rebuild Paris with very broad Boulevards those broad boulevards would make it very hard for a revolutionary force to affect any revolutionary Strike within Paris because to block a boulevard requires much greater effort than just a small street And so in this way Napoleon was able to change the architecture of Paris to make it easier to regulate Parisians a second example, which is a little bit Unfamiliar and a lot embarrassing to the history of the United States is the example of Robert Moses Who was a public administrator in New York? During the time when segregation continued to be a popular public policy Even though the Supreme Court of the United States had declared segregation Inconsistent with the requirements of the 14th amendment to the United States Constitution so Robert Moses was in responsible for public works programs and is part of his responsibility he had the ability to design the way roads and Bridges were constructed and he used that power to make it so that people would quote naturally Choose to segregate themselves when they went to public beaches and the way he did this was to build Bridges over certain roads very low So that buses could not pass on those roads and that meant that people who relied upon public Transportation could not get to the beaches on the other side of those bridges and because the income distribution was skewed in favor of white people and against immigrants and African-Americans that meant that only white people could easily get to those particular beaches and Immigrants and African-Americans would have to go to other beaches. Well, this Tipped the balance of the beaches such that the beaches were in this sense naturally segregated, but of course It wasn't nature that was segregating the beaches Instead it was the design that Robert Moses had affected for the way the roads and highways and bridges interacted and Finally and not as depressing as that example is the example of the Americans with Disabilities Act Which was a statute passed by Congress designed to re-architect the way many public and important commercial buildings were constructed if you were a person who experiences the world in a Wheelchair you would consistently have the sense of how architecture is a regulator of you Because when you confronted stairs you would recognize that these stairs Blocked your ability to gain access to certain facilities the Americans with Disabilities Act made it so that builders of buildings and built people Reconstructing buildings would have to build those buildings so that the architecture was no longer a barrier to the involvement of people with handicaps to public Life and so that the architecture was no longer a constraint for them This is a self-conscious effort to change architecture to change the ability of people to participate in important aspects of public life So architecture has long been a regulator architecture is an important regulator in the context of real space regulation But our focus today is on cyberspace and the regulation in cyberspace Now cyberspace is itself just an architecture It is a set of technologies that through software and hardware embed in its design certain capabilities and Disable certain other capabilities it is an architecture Which was built to facilitate a certain kind of communication and it has facilitated because of its end-to-end design many types of Interactions that were never originally Intended but that design is the function of certain choices made by the original network architecture architects the original Core suite of protocols that built this architecture is typically referred to as the tcpip protocols that's a name that collects within its Intended scope a range of protocols that facilitate different functionalities that we now associate with the internet At its core the very beginning of this protocol was simply a protocol for facilitating the shipment of data across a network and that Shipment can be captured in a graphical form in this example that I'm presenting on the screen If you start with an email message What the tcpip protocol does is first decide how to carve the message up into? packets of data and then those packets of data are then marked with a Header and the header information Includes an address on the network called an IP address the internet protocol address is a logical location on the internet to which each of these packets of data will travel so once the packets of data have been Identified with this header information that then spit out on to the network and each packet Conceptually could pack pass in a totally different way as it worked its way across the internet to the intended recipient of the email message now once the email message is received in these packets at the other end of Communication then the packets are reassembled into the email and then the email Appears on the computer Clients of the intended recipient now the important point is to recognize that certain things follow from this Textural design Certain important facts about the ability to regulate or the ability to control What people do in this particular network? And I'm going to simplify those but here's the core of what follows from that design You can't know because of this design necessarily who it is who is Spending the packets across the internet you can't know from the early version of this design essentially what the packets of data are because they're just wrapped in an envelope and marked with an address and you can't really know where the packets are going from the simple TCP IP protocol design itself Because the IP addresses as I said are just logical locations on the internet They have no necessary connection to any particular Geographical location so from the perspective of the data which is conveyed Automatically to a user in the context of a communication across the internet We can't know who the person sending the data is What the data is that they're sending or where the data is going or more Precisely if you were just watching the data going across the network you the third party snoop Couldn't necessarily know who what or where this data was affiliated This produces what we can call a kind of relative anonymity in life in cyberspace not Absolute anonymity because there are techniques to learn who someone is or where they come from or what the data is that they're sending but relative anonymity in the sense that the system or the architecture does not self or automatically Produce information about this inform this these facts which might be necessary to identify People or places or the activity being engaged in and therefore relative anonymity means it's relatively difficult to regulate for the government and Secondly and in different for different reasons, but just as important. It's very difficult for commerce on this existing first architecture of the internet to regulate commercial behavior or what I call marculate like regulate in the sense that it's difficult for the commercial entities to engage in commerce with people at the other end of the network if they can't know who those people are or What or where they come from because those facts are at least necessary to be able to engage in a commercial transaction? so that's the idea here of regulation and one in first important point that follows from this is to understand that these features of this original internet these features of The way the internet was and what follows from the way the internet was are not necessarily Given permanently They're not necessarily features that the internet will always have They are just the consequences of a particular internet design and Because that design is just the design of a computer system or a particular network that design could be different And so we have to be careful not to look at a particular design To see the way the network is and believe that we know something about the way the network will always have to be We can't engage in what I call a kind of is ism That says here's the way the internet is and therefore here's the way the internet will always be Because that way of thinking will mislead us about the potential for the internet either to solve some of these problems of Regulation or to enable commerce to engage more easily in commerce because as the architecture of the internet Changes or what I call the code of cyberspace changes then those changes can change the consequences that I described that the internet has so for example as Governments or the laws and the market or commerce change the relative anonymity of cyberspace Through technologies such as this technology here cookies We will see changes in the consequence of what? Markets and governments can do so for example think about the way the cookies technology interacted with the internet Originally The internet was designed so that it was very difficult for those engaged in transactions on the internet to Know who and what people were trying to do at the other end of the network So for example the original architecture of the internet Made it so that when you went with a browser to a website That was a Stateless Transaction meaning that the web server had no automatic way to know who you were and therefore no way Automatically to know that you were the person who was there five minutes ago Or you were the person who was looking at a different book on a different page of the website this stateless architecture of course protected relative anonymity, but the problem was that it made it hard for the Technology to enable the web server to track the desire of customers to for example consume or purchase items and so to respond to this particular problem what the designers of early net architecture did was to develop a technology, which we have called cookies to enable the website to Track what people are doing within the context of the website and they do that by just allowing the web server to deposit or mark a bit of data on the client or the browser side of the web Transaction and so what that means is when you go to the Amazon website the Amazon website will take a bit of information and place it on your Browsers computer on the hard disk and so that when you move around the website the web server has a way of knowing You are the person who was just looking at a particular book and you're the person who's now Looking at the new book and more importantly it gives the web server a simple way to know that when you say I want to buy 15 copies of a particular book when you go to the checkout Counter that you are remembered as the person who bought 15 copies of a particular book So this is a technology originally designed to make it easy to engage in the transactions associated with Engaging in commerce on the web and that was its original objective Now that objective was a good one and it was extremely important that the internet Enable that if the internet was going to be a technology to facilitate lots of growth and lots of commerce But the important point to recognize is that that small change in the design of the network had a very important consequence to the relative anonymity of people behaving in the network because it made it much easier for Computers on the network to begin to monitor behavior of people on the network because we now had a relatively Automatic way to identify people and to track what they do at least within the context of a particular website Think about a second technology that also has this effect what we can call sniffer technology as I said the internet cuts everything into packets and these packets are spewed out onto the network and the packets are ordinarily just considered by Examining the header on the packet which means just examining the address Information about where the packets coming from and where it is intended to go nobody In the original design here was looking beyond that particular bit of header information and the consequence of that I said was that it was hard to know what was going on inside the packet But there's no reason why you couldn't build technology to begin to look inside the packet and therefore Technology to make it easier to identify what in fact the packet is a packet of and so this sniffer technology is technology to capture packets or make copies of packets as it goes across the network and examine the contents of the packets and based upon the types of applications that run in the network make a fairly strong judgment about Exactly what the behavior is that's involved with that particular packet of data So if you're using a kaza file server to serve peer-to-peer In a peer-to-peer fashion music across the internet packet sniffers would make it possible to identify the particular packet of data Which might be one tiny chunk of one small song being sent across the internet as a packet of data associated with a peer-to-peer client and therefore make it possible for the website owner I'm sorry for the network owner to enforce a policy about whether the network can be used for that particular type of data so this Sniffer reveals the information that this packet is Containing data from an mp3 and if the network owner for example at a university doesn't want to permit mp3 traffic on the network that packet can then be discarded finally Think about the problem of knowing where someone comes from if this is a graphical representation of what the internet is We can begin to develop databases that try to map the IP Addresses which I said before we're not necessarily tied to any Geography to a particular list of the actual locations that those IP addresses are associated with so we can take the list of IP addresses and begin to build a table that makes IP addresses effectively identifiable at a geographical at a geographic Level so that we know where it's most likely that data or individuals on the network are Actually located when they're engaging in behavior on the network these maps facilitate a kind of IP mapping the IP mapping making it easy for us to know that an IP address for example this IP address of 1624623.1 Comes from New York City and then governments can decide whether to permit behavior or not on the basis of where the IP address Indicates that packet is going or where the packet is coming from Now when you think about these three changes each of them in some sense small changes none of them requiring massive Reconstructions of the original internet you can see that each of them makes it easier to know Who somebody is on the network? That's what the cookies technology does What they're in fact doing on the network? That's what the packet sniffing technology does and where in fact they are on the network, which makes it easier to enforce rules that are geographically specified all three of these changes in the technology each of them relatively small Radically to get change when you think about them together the relative anonymity of life on the internet So the internet might have been born in this as this space where anybody could behave and do things without fearing the Government or commercial entities could know much about you or what you were doing But what we've seen over the last 15 years of the internet's development is an increasing development of technologies That sit on top of the internet in some important sense architectures which modify the original architecture of the internet in some Relevant sense to change the relative anonymity from relative anonymity to relative Identify ability so this relatively anonymous internet becomes relatively identified and the Unregulable internet becomes Regulable so these changes Have consequences one consequence is that there's more commerce enabled on the internet But another consequence is that if there's more opportunity for governments to control behavior on the internet and this connection between commerce and Control is an important link in understanding how we should predict the evolution of the internet to Continue so that's the conclusion of the first important point to recognize about how the internet will evolve How it was is not a prediction about how it will be Isism is the mistake of Confusing a particular architecture with the necessary design of the internet in the future and rather than Taking for granted a particular design. We should decide whether we like the design or Don't like the design for other independent reasons unrelated to The original decisions of those who designed the internet the second point is that that changes that one might impose through this picture of the law as interaction between Four different modalities of regulation are themselves interrelated that the four modalities interact with each other and that More regulation in one context might mean less regulation from another of these four Modalities or Alternatively less regulation from one context might mean more regulation from another so for example, let's think about particularly ugly example, which is spam When the internet was first popular for those who would use it for email In the old days there were very strong norms Against advertising both in spaces like Usenet discussion groups And in internet email. So those norms we can imagine formed a protective barrier around the Original target of regulation here this red dot and those norms kept the level of unsolicited commercial speech down But as that network changed by having new people brought on to the network who weren't themselves Normed into behaving in this particular way We might say as America online came on to the network these norms began to dissolve So that one couldn't rely upon the behavior or norms of other people on the internet to keep Unsolicited commercial email down So that meant norms were no longer a protection and in their place Then people began to develop other protections to protect people from the burdens of unsolicited commercial email Well one protection that was developed in response to the expanding spam problem, which was predictable given the market incentives to spread spam was a architectural solution Which was brought about by net vigilantes and by vigilantes I don't mean to be pejorative about those people They are people who are trying to protect people from unsolicited commercial email in a context where there is no good law So this is vigilante in the best sense of the term But they are people who are taking in a sense the law into their own hands and what these people did was begin to develop architectures that would enable People who ran email servers or people who got email to filter or to block email that Was unsolicited or likely to be spam so that meant that architecture was competing with the market in this graphical representation to protect the individuals against the burdens of spam But those architectural solutions themselves impose cost on other people's ability to use email in the simple way in which it was originally designed in particular, let's go back to our first character John Gilmore John Gilmore Was somebody who believed very much that the internet Would remain open and free from regulation of the government because of the architecture Guaranteeing that that freedom would continue to be built into the network But John Gilmore a strong believer in civil liberties Also believes that email servers ought to be set up such that people are free to relay Email through his server if they're trying to protect their anonymity For example if they're trying to criticize a government or criticize their employer So John Gilmore ran Email servers that would allow people this type of freedom Yet he was required because of the architecture of access to broadband To contract with a particular broadband company to get the right to connect to the internet Well that broadband company didn't like his particular system for protecting against spam And so the broadband company began to prohibit John Gilmore from developing and Providing the service he was providing because it interfered with the broadband company's view of the proper way to protect people from spam So that meant that John Gilmore's freedom to build out a service that was valuable in his view to the free speech of internet was restricted by this war that was going on to Save the world from the consequences of spam now the point to see here is that that's particular conflict is the result of a very predictable interaction between the Disappearance of norms and the strong incentives to develop Market ways cheap ways to advertise and the predictable technological response to those cheap ways to advertise And I want to use the example to suggest that we think about Alternatives to this particular solution to the spam problem which might take advantage of the interaction between these different Modalities in a more effective effective way So here again is the picture of the world governed by spam solutions that are primarily architectural the idea here is to use the law as a way to reduce the need for architecture or technical solutions to the spam problem and therefore to Simultaneously restrict the burden that spam is imposing on others by using incentives created through the law to substitute for the type of controls that are built into the technology and the intuition point to second important lesson of this lesson on regulation is that the Relationship between the need to use architecture to regulate to achieve a certain end and the law is interactive one technology might be unnecessary if there were an effective law or An effective law put differently might make irrelevant or unnecessary many technologies or many norms that would be Used otherwise to protect people from the burdens of spam so let's think about the lessons that this lecture on Regulation has been intended to convey The first critical lesson is that we thinking we who think about the internet have got to recognize that the Technology of the internet the architecture of the internet or the code of the internet is In an important sense like law the code is law It builds into its design Certain freedoms and certain possibilities and those freedoms and possibilities and also constraints determine in a large To a large degree how people can interact in this space not completely I'm not suggesting that there's any Necessary or tight connection between particular designs and particular behaviors, but that it's Like stairways or bridges on a highway or boulevards in Paris becomes an extremely important aspect of how behavior in this space is or will be regulated the second important point is that this architecture or code is not given to us by Nature this architecture or code is plastic it is bendable or changeable and will be changed as particularly powerful Interests whether the government or commerce Desire and affect that change That sometimes number three Because of the interaction between one modality and another the interaction between architecture and law or architecture and the market the law is actually helpful to avoid Regulations by another modality that might turn out to be bad So for example the absence of any legal regulation in the context of spam Creates an incentive for code regulation in the context of spam And that code regulation turns out to be very burdensome to email and therefore might be thought to be bad Regulation to control for spam. So this is the third lesson. No law can beget bad code And the fourth lesson is that good law can sometimes avoid bad code Meaning good law can sometimes make unnecessary or eliminate any incentive to produce Technologies which are attempting to serve the same policy objective, but which cannot as well Achieve that policy objective. That's the hope that good law can avoid bad code, but the importance Lesson that the original Libertarians in cyberspace taught us is something we should not forget here either That in a context as new and as vibrant as cyberspace the possibility of the law regulating effectively and smartly is Undermined by the extraordinary amount of ignorance that typically Defines legislators as they think about something technological like the internet So while there is an important lesson to be learned about the smart ways in which law and technology might interact the bottom line important lesson to remember is that there is a good reason to be skeptical that legislators will in fact understand the smart lesson well enough so that they don't use their power in Regulating the space in a way which would in fact simply weaken or destroy the great opportunities that the internet might produce so this has been a lesson About the way in which the law might interact with the internet through a understanding of regulation that tries to focus our attention a little bit more broadly than simply upon the law's Direct regulation of individuals, but instead of on the law's ability to use its power to both change individual behavior, but also to change the behavior of norm Effects through regulation or market effects through regulation or the effect of architecture The objective of any modern analysis of regulation must be to consider how these four Modalities function together and they function together not necessarily perfectly and certainly not with great insight But they function together in a way that will directly impact the freedom or opportunities that individuals have and for those Who are interested in preserving certain freedoms or preserving certain opportunities? Understanding that interaction becomes crucial. Thank you very much