Introduction:
A few years ago, at a conference on the “Law of Cyberspace” held at the University of Chicago, Judge Frank Easterbrook told the assembledlisteners, a room packed with “cyberlaw” devotees (and worse), that there was no more a “law of cyberspace” than there was a “Law of the Horse”; that the effort to speak as if there were such a law would just muddle rather than clarify; and that legal academics (“dilettantes”) should just stand aside as judges and lawyers and technologists worked through the quotidian problems that this souped-up telephone would present. “Go home,” in effect, was Judge Easterbrook’s welcome.
As is often the case when my then-colleague speaks, the intervention, though brilliant, produced an awkward silence, some polite applause, and then quick passage to the next speaker. It was an interesting thought — that this conference was as significant as a conference on the law of the horse. (An anxious student sitting behind me whispered that he had never heard of the “law of the horse.”) But it did not seem a very helpful thought, two hours into this day-long conference. So marked as unhelpful, it was quickly put away. Talk shifted in the balance of the day, and in the balance of the contributions, to the idea that either the law of the horse was significant after all, or the law of cyberspace was something more.
Some of us, however, could not leave the question behind. I am one of that some. I confess that I’ve spent too much time thinking about just what it is that a law of cyberspace could teach. This essay is an introduction to an answer. Easterbrook’s concern is a fair one. Courses in law school, Easterbrook argued, “should be limited to subjects that could illuminate the entire law.”3 “[T]he best way to learn the law applicable to specialized endeavors,” he argued, “is to study general rules.”4 This “the law of cyberspace,” conceived of as torts in cyberspace, contracts in cyberspace, property in cyberspace, etc., was not.
My claim is to the contrary. I agree that our aim should be courses that “illuminate the entire law,” but unlike Easterbrook, I believe that there is an important general point that comes from thinking in particular about how law and cyberspace connect.
This general point is about the limits on law as a regulator and about the techniques for escaping those limits. This escape, both in real space and in cyberspace comes from recognizing the collection of tools that a society has at hand for affecting constraints upon behavior. Law in its traditional sense — an order backed by a threat directed at primary behavior — is just one of these tools. The general point is that law can affect these other tools — that they constrain behavior themselves, and can function as tools of the law. The choice among tools obviously depends upon their efficacy. But importantly, the choice will also raise a question about values. By working through these examples of law interacting with cyberspace, we will throw into relief a set of general questions about law’s regulation outside of cyberspace.
I do not argue that any specialized area of law would produce the same insight. I am not defending the law of the horse. My claim is specific to cyberspace. We see something when we think about the regulation of cyberspace that other areas would not show us.
My essay moves in three parts. I begin with two examples that are paradigms of the problem of regulation in cyberspace. They will then suggest a particular approach to the question of regulation generally. In the balance of Part I, I sketch a model of this general approach.
In Part II, I apply this general approach to a wider range of examples. It is in the details of these examples that general lessons will be found. These lessons reach beyond the domain of cyberspace. They are lessons for law generally, though the non-plasticity of real-space regulation tends to obscure them.
The final Part describes three of these lessons — the first about the limits on law’s power over cyberspace, the second about transparency, and the third about narrow tailoring.
The first lesson is about constitutional constraints — not constitution in the sense of a legal text, but a constitution understood more generally. Just as the division of powers sets constraints on how far the federal government might reach, so, too, do the features of cyberspace that I will describe set limits on how far government may reach.
The lesson about transparency is more familiar, though I suspect its relationship to cyberspace is not. By making “non-transparency” easy and seemingly natural, cyberspace provides a special opportunity to appreciate both the value and costs of transparency. The final lesson, about narrow tailoring, is less familiar still, though it is potentially the most significant feature of the interaction between cyberspace, and real-space law. In the examples of regulation in cyberspace, we will see the threat that a failure to “tailor” presents. The lessons about transparency and narrow tailoring both carry significance beyond the world of engineers. Or better, the regulations by engineers will have important implications for us.
I conclude with an answer to Easterbrook’s challenge. If my argument sticks, then these three lessons raise regulatory questions as troubling in real-space law as they are in cyberspace. They are, that is, general concerns, not particular. They suggest a reason to study cyberspace law for reasons beyond the particulars of cyberspace.