To the extent that it is hard to identify who people are, it is harder to trace behavior back to a particular individual. These features of TCP/IP have consequences for the "regulability" of behavior on the Internet. This code is neutral about the data, and ignorant about the user. This exchange occurs without the networks knowing the content of the data, or without any true idea of who in real life the sender of a given bit of data is. These protocols enable the exchange of data among interconnected networks. The basic code of the Internet implements a set of protocols called TCP/IP.
The law in cyberspace-code-will displace them. For unless we understand how cyberspace can embed, or displace, values from our constitutional tradition, we will lose control over those values. My aim in this short essay is to give a sense of this regulation, and a sense of how it is changing. Cyberspace will change from a place that protects anonymity, free speech, and individual control, to a place that makes anonymity harder, speech less free, and individual control the province of individual experts only.
And as this code changes, the character of cyberspace will change as well. In a host of ways that one cannot begin to see unless one begins to understand the nature of this code, the code of cyberspace regulates. It affects who sees what, or what is monitored. It determines whether access to information is general or whether information is zoned. It determines how easy it is to protect privacy, or how easy it is to censor speech. This code, or architecture, sets the terms on which life in cyberspace is experienced.
This regulator is code-the software and hardware that make cyberspace as it is. We therefore don't see the threat to liberty that this regulation presents. But so obsessed are we with the idea that liberty means "freedom from government" that we don't even see the regulation in this new space. The reforms of the market, and the safety nets that surround it, were erected in response. Many of the progressives in the twentieth century worried about the injustices of the market. John Stuart Mill worried about the regulation by social norms in nineteenth-century England his book On Liberty is written against that regulation. Our founders feared a newly empowered federal government the Constitution is written against that fear. Every age has its potential regulator, its threat to liberty.
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