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cyberlaw:code [2019/01/24 14:32]
witta
cyberlaw:code [2019/09/05 13:57] (current)
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 As law students, we are familiar with thinking of regulation primarily as law. The law generally threatens those who misbehave, or fail to abide by legal rules, with punishment. As Grimmelmann explains, the law '​encourages individuals to choose the "​right"​ course of action by associating sufficient sanctions with the "​wrong"​ one to make it comparatively unattractive"​.((James Grimmelmann,​ '​Regulation by Software'​ (2005) 1725 https://​www.yalelawjournal.org/​pdf/​209_jbwrex6h.pdf)) We have different bodies of law, causes of action and remedies for resolving disputes between "​right"​ and "​wrong"​ courses of action. The law, however, is not the only form of regulation in everyday life. In his famous book, **[Code, and Other Laws of Cyberspace](https://​harvardmagazine.com/​2000/​01/​code-is-law-html)**,​ Lawrence Lessig explains that there are four key **["​modalities of regulation"​](https://​www.youtube.com/​watch?​v=EXOv1doHp88)** that attempt to limit or restrain people'​s behaviour. These modalities are **(1) law, (2) architecture,​ (3) norms and (4) the market.** ​ As law students, we are familiar with thinking of regulation primarily as law. The law generally threatens those who misbehave, or fail to abide by legal rules, with punishment. As Grimmelmann explains, the law '​encourages individuals to choose the "​right"​ course of action by associating sufficient sanctions with the "​wrong"​ one to make it comparatively unattractive"​.((James Grimmelmann,​ '​Regulation by Software'​ (2005) 1725 https://​www.yalelawjournal.org/​pdf/​209_jbwrex6h.pdf)) We have different bodies of law, causes of action and remedies for resolving disputes between "​right"​ and "​wrong"​ courses of action. The law, however, is not the only form of regulation in everyday life. In his famous book, **[Code, and Other Laws of Cyberspace](https://​harvardmagazine.com/​2000/​01/​code-is-law-html)**,​ Lawrence Lessig explains that there are four key **["​modalities of regulation"​](https://​www.youtube.com/​watch?​v=EXOv1doHp88)** that attempt to limit or restrain people'​s behaviour. These modalities are **(1) law, (2) architecture,​ (3) norms and (4) the market.** ​
  
-It is useful here to explain ​the conception of Lessig'​s other modalities of regulation. First, architecture refers to physical reality, or "the human built environment"​.((James Grimmelmann,​ '​Regulation by Software'​ (2005) 1725 https://​www.yalelawjournal.org/​pdf/​209_jbwrex6h.pdf)) Speed humps are an everyday example of regulation as physical architecture. Speed humps have speed control elements that, in conjunction with drivers taking note of warning signs, attempt to reduce the speed of a vehicle in line with target speed limits. Architects and town planners, among others, regularly design and deploy a wide variety of physical restraints, like speed humps, in line with regulatory agendas. Second, even in the absence of black letter law, social norms constrain some forms of behaviour. Take, for instance, norms of everyday conduct that many of us are socially conditioned to adhere to: '​Don'​t talk to strangers',​ '​follow instructions given by authority figures',​ '​respect your elders'​ and so forth. Norms are informal yet pervasive codes of conduct. Finally, the marketplace can regulate behaviour by putting a price tag on certain behaviours. Examples of market-based regulation include raising the price to petrol to combat speeding, pollution permits for certain industries, and accreditation,​ licensing and membership certifications. The market can efficiently regulate some scare resources and, like architecture and norms, improve regulation carried out my laws.  ​+It is useful here to explain Lessig'​s ​conception of the other modalities of regulation. First, architecture refers to physical reality, or "the human built environment"​.((James Grimmelmann,​ '​Regulation by Software'​ (2005) 1725 https://​www.yalelawjournal.org/​pdf/​209_jbwrex6h.pdf)) Speed humps are an everyday example of regulation as physical architecture. Speed humps have speed control elements that, in conjunction with drivers taking note of warning signs, attempt to reduce the speed of a vehicle in line with target speed limits. Architects and town planners, among others, regularly design and deploy a wide variety of physical restraints, like speed humps, in line with regulatory agendas. Second, even in the absence of black letter law, social norms constrain some forms of behaviour. Take, for instance, norms of everyday conduct that many of us are socially conditioned to adhere to: '​Don'​t talk to strangers',​ '​follow instructions given by authority figures',​ '​respect your elders'​ and so forth. Norms are informal yet pervasive codes of conduct. Finally, the marketplace can regulate behaviour by putting a price tag on certain behaviours. Examples of market-based regulation include raising the price to petrol to combat speeding, pollution permits for certain industries, and accreditation,​ licensing and membership certifications. The market can efficiently regulate some scare resources and, like architecture and norms, improve regulation carried out my laws.  ​
  
 ##Code is Law ##Code is Law
  
-Shortly after early cyber-libertarians like Barlow declared the internet to be free from regulation, Lawrence Lessig fundamentally changed debates about internet governance and regulation ​by arguing that "code is law".((Lawrence Lessig, Code 2.0 (2006), pp 121–26 http://​codev2.cc/​download+remix/​Lessig-Codev2.pdf)) Lessig argues that code is a form of physical architecture that can control online communication,​ or behaviours, just as effectively as the legal rules of nation states. The hidden ways in which code regulates online behaviours often goes unnoticed, but in every piece of software, in every algorithm, there are hidden assumptions about how the world works or should work. Sometimes this is accidental - for example, many websites are inaccessible to people with print disabilities because they are not designed with this user group in mind. It takes a lot of vigilance to ensure that technologies are developed in a way that does not unintentionally exclude or limit the access of certain groups of people. Other times, though, code acts in a much more sinister way. We have no real understanding of the algorithms that Facebook or Google use to determine which content is visible to us. The news items that popup in our feeds, or the results of our searches, are all determined according to a set of algorithms that are ultimately designed to further the interests of private corporations. These are powerful algorithms -- powerful mechanisms of regulation that we really do not understand, and certainly do not know whether or how we should regulate their design or use.+Shortly after early cyber-libertarians like Barlow declared the internet to be free from regulation, Lawrence Lessig's famous phrase "code is law" ​fundamentally changed debates about internet governance and regulation.((Lawrence Lessig, Code 2.0 (2006), pp 121–26 http://​codev2.cc/​download+remix/​Lessig-Codev2.pdf)) Lessig argues that code is a form of physical architecture that can control online communication,​ or behaviours, just as effectively as the legal rules of nation states. The hidden ways in which code regulates online behaviours often goes unnoticed, but in every piece of software, in every algorithm, there are hidden assumptions about how the world works or should work. Sometimes this is accidental - for example, many websites are inaccessible to people with print disabilities because they are not designed with this user group in mind. It takes a lot of vigilance to ensure that technologies are developed in a way that does not unintentionally exclude or limit the access of certain groups of people. Other times, though, code acts in a much more sinister way. We have no real understanding of the algorithms that Facebook or Google use to determine which content is visible to us. The news items that popup in our feeds, or the results of our searches, are all determined according to a set of algorithms that are ultimately designed to further the interests of private corporations. These are powerful algorithms -- powerful mechanisms of regulation that we really do not understand, and certainly do not know whether or how we should regulate their design or use.
  
 Lessig outlines how code, the physical architecture of the internet, as well as the other modalities of regulation work together in the online environment. For example: Lessig outlines how code, the physical architecture of the internet, as well as the other modalities of regulation work together in the online environment. For example:
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 There are a number of challenges to enforcing law on the internet. The first is the decentralised nature of the internet, in stark contrast to the traditional,​ centralised conception of government, enables users to communicate across jurisdictional boundaries.((Note that this does not necessarily mean that the internet is borderless: See Orin S. Kerr '​Enforcing Law Online, Reviewed Work(s): Who Controls the Internet?: Illusions of a Borderless ​ World by Jack Goldsmith and Tim Wu (2007) https://​www.jstor.org/​stable/​pdf/​4495619.pdf)) It is possible for users to redirect their online activities through any number of jurisdictions that might be remote, require inter-governmental cooperation,​ or lengthily and/or costly legal proceedings. The ability of users to communicate largely anonymously via the internet is another challenge for law enforcement. Anonymity makes it difficult for law enforcement agencies to do a number of things, including obtain personal information and identify a person'​s physical location, especially when a user might be using a VPN or other de-identifying software. The sheer quantity of content that users transmit over the web also creates practical challenges. It is immensely difficult for law enforcement agencies, and other societal actors like online platforms that are increasingly undertaking policy work at the behest of regulators,​((Electronic Frontier Foundation, 'Who Has Your Back? Censorship Edition 2018 https://​www.eff.org/​who-has-your-back-2018)) to effectively review and make determinations about every piece of content. These factors, among others, can raise complex legal questions about choice of law/​applicable law, choice of forum, and the recognition of foreign judgments, which we will consider in my more detail in the following Chapter. Lessig'​s modalities of regulation provide a useful framework for us to attempt to identify and evaluate different solutions to regulatory problems, like law enforcement,​ in the digital age.  ​ There are a number of challenges to enforcing law on the internet. The first is the decentralised nature of the internet, in stark contrast to the traditional,​ centralised conception of government, enables users to communicate across jurisdictional boundaries.((Note that this does not necessarily mean that the internet is borderless: See Orin S. Kerr '​Enforcing Law Online, Reviewed Work(s): Who Controls the Internet?: Illusions of a Borderless ​ World by Jack Goldsmith and Tim Wu (2007) https://​www.jstor.org/​stable/​pdf/​4495619.pdf)) It is possible for users to redirect their online activities through any number of jurisdictions that might be remote, require inter-governmental cooperation,​ or lengthily and/or costly legal proceedings. The ability of users to communicate largely anonymously via the internet is another challenge for law enforcement. Anonymity makes it difficult for law enforcement agencies to do a number of things, including obtain personal information and identify a person'​s physical location, especially when a user might be using a VPN or other de-identifying software. The sheer quantity of content that users transmit over the web also creates practical challenges. It is immensely difficult for law enforcement agencies, and other societal actors like online platforms that are increasingly undertaking policy work at the behest of regulators,​((Electronic Frontier Foundation, 'Who Has Your Back? Censorship Edition 2018 https://​www.eff.org/​who-has-your-back-2018)) to effectively review and make determinations about every piece of content. These factors, among others, can raise complex legal questions about choice of law/​applicable law, choice of forum, and the recognition of foreign judgments, which we will consider in my more detail in the following Chapter. Lessig'​s modalities of regulation provide a useful framework for us to attempt to identify and evaluate different solutions to regulatory problems, like law enforcement,​ in the digital age.  ​
  
 +### Example: Cloudflare'​s decision to drop hosting for the Daily Stormer neo-Nazi site
 +
 +**Overview video by Hazza: [The Downfall of the Daily Stormer](https://​www.youtube.com/​watch?​v=vf-INXgNpwM)**
 +
 +The neo-Nazi website, Daily Stormer, is a good example of how online content can be regulated by Internet intermediaries. Cloudflare, a content delivery network, provides many advantages to websites on their servers. One of Cloudflare'​s main selling points is its security capabilities against online attacks, especially against a Distributed Denial of Service attack. It is for this very reason that so many websites seek protection from the company, including the Daily Stormer, one of the largest neo-Nazi websites. After the administrators of the Daily Stormer made hateful comments regarding a woman'​s murder in the Charlottesville rally in 2017, Cloudflare terminated protection of the website after significant criticism from the public. It was a decision that Matthew Prince, Cloudflare’s CEO, struggled to make, being a firm believer in freedom of speech on the Internet. The tipping point for the decision was the team behind the website claiming that Cloudflare were secretly supporters of the site's hateful ideology, which was something the company could not stand for. The Daily Stormer has suffered dramatic losses in traffic and membership, and shows how Internet intermediaries can regulate online content, even if that regulation is only imperfect.
  
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