My fear about cyberspace is that we will respond in the first way — that the courts, the institutions most responsible for articulating constitutional values, will stand back while issues of constitutional import are legislatively determined. My sense is that they will step back because they feel (as the balance of this book argues) that these are new questions that cyberspace has raised. Their newness will make them feel political, and when a question feels political, courts step away from resolving it.
I fear this not because I fear legislatures, but because in our day constitutional discourse at the level of the legislature is a very thin sort of discourse. The philosopher Bernard Williams has argued that because the Supreme Court has taken so central a role in the articulation of constitutional values, legislatures no longer do[31]. Whether Williams is correct or not, this much is clear: The constitutional discourse of our present Congress is far below the level at which it must be to address the questions about constitutional values that will be raised by cyberspace.
How we could reach beyond this thinness of discourse is unclear. Constitutional thought has been the domain of lawyers and judges for too long. We have been trapped by a mode of reasoning that pretends that all the important questions have already been answered, that our job now is simply to translate them for modern times. As a result, we do not quite know how to proceed when we think the answers are not already there. As nations across the world struggle to express and embrace constitutional values, we, with the oldest written constitutional tradition, have lost the practice of embracing, articulating, and deciding on constitutional values.
I return to this problem in Chapter 15. For now, my point is simply descriptive. Translation is one way to deal with the choices that cyberspace presents. It is one way of finding equivalence across contexts. But in the four applications that follow, I press the question: Is the past enough? Are there choices the framers did not address? Are they choices that we must make[32]?
Chapter 10. Intellectual Property
Harold Reeves is among the best research assistants I have had. (But alas, the law has now lost him — he’s become a priest!). Early into his second year at the University of Chicago Law School, he came to me with an idea he had for a student “comment” — an article that would be published in the law review[1]. The topic was trespass law in cyberspace — whether and how the law should protect owners of space in cyberspace from the kinds of intrusions that trespass law protects against in real space. His initial idea was simple: There should be no trespass law in cyberspace[2]. The law should grant “owners” of space in cyberspace no legal protection against invasion; they should be forced to fend for themselves.
Reeves’s idea was a bit nutty, and in the end, I think, wrong[3]. But it contained an insight that was quite brilliant, and that should be central to thinking about law in cyberspace.
The idea — much more briefly and much less elegantly than Reeves has put it — is this: The question that law should ask is, What means would bring about the most efficient set of protections for property interests in cyberspace? Two sorts of protections are possible. One is the traditional protection of law — the law defines a space where others should not enter and punishes people who enter nonetheless. The other protection is a fence, a technological device (a bit of code) that (among other things) blocks the unwanted from entering. In real space, of course, we have both — law, in the form of trespass law, and fences that supplement that law. Both cost money, and the return from each is not necessarily the same. From a social perspective, we would want the mix that provides optimal protection at the lowest cost. (In economics-speak, we would want a mix such that the marginal cost of an additional unit of protection is equivalent to the marginal benefit.)
The implication of this idea in real space is that it sometimes makes sense to shift the burden of protection to citizens rather than to the state. If, for example, a farmer wants to store some valuable seed on a remote part of his farm, it is better for him to bear the cost of fencing in the seed than to require the police to patrol the area more consistently or to increase the punishment for those they catch. The question is always one of balance between the costs and benefits of private protection and state protection.
Reeves’s insight about cyberspace follows the same line. The optimal protection for spaces in cyberspace is a mix between public law and private fences. The question to ask in determining the mix is which protection, on the margin, costs less. Reeves argues that the costs of law in this context are extremely high — in part because of the costs of enforcement, but also because it is hard for the law to distinguish between legitimate and illegitimate uses of cyberspaces. There are many “agents” that might “use” the space of cyberspace. Web spiders, which gather data for web search engines; browsers, who are searching across the Net for stuff to see; hackers (of the good sort) who are testing the locks of spaces to see that they are locked; and hackers (of the bad sort) who are breaking and entering to steal. It is hard, ex ante, for the law to know which agent is using the space legitimately and which is not. Legitimacy depends on the intention of the person granting access.
So that led Reeves to his idea: Since the intent of the “owner” is so crucial here, and since the fences of cyberspace can be made to reflect that intent cheaply, it is best to put all the incentive on the owner to define access as he wishes. The right to browse should be the norm, and the burden to lock doors should be placed on the owner[4].
Now put Reeves’s argument aside, and think for a second about something that will seem completely different but is very much the same idea. Think about “theft” and the protections that we have against it.
• I have a stack of firewood behind my house. No one steals it. If I left my bike out overnight, it would be gone.
• A friend told me that, in a favorite beach town, the city used to find it impossible to plant flowers — they would immediately be picked. But now, he proudly reports, after a long “community spirit” campaign, the flowers are no longer picked.
• There are special laws about the theft of automobiles, planes, and boats. There are no special laws about the theft of skyscrapers. Cars, planes, and boats need protection. Skyscrapers pretty much take care of themselves.
Many things protect property against theft — differently. The market protects my firewood (it is cheaper to buy your own than it is to haul mine away); the market is a special threat to my bike (which if taken is easily sold). Norms sometimes protect flowers in a park; sometimes they do not. Nature sometimes conspires with thieves (cars, planes, and boats) and sometimes against them (skyscrapers).
These protections are not fixed. I could lock my bike and thereby use real-space code to make it harder to steal. There could be a shortage of firewood; demand would increase, making it harder to protect. Public campaigns about civic beauty might stop flower theft; selecting a distinctive flower might do the same. Sophisticated locks might make stolen cars useless; sophisticated bank fraud might make skyscrapers vulnerable. The point is not that protections are given, or unchangeable, but that they are multiplied and their modalities different.
31.
See Bernard Williams, "The Relations of Philosophy to the Professions and Public Life," unpublished manuscript.
32.
For a strong argument against a strong role for judicial review in matters such as this, see Orin Kerr, "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,"
1.
Harold Smith Reeves, "Property in Cyberspace,"
2.
This in the end was not his conclusion. He concluded instead, not that boundaries should not be protected in cyberspace, but rather that the unconventional nature of cyberspace requires that boundaries be set along nontraditional context-specific lines. This conclusion, Reeves asserts, requires the law to understand both the environment of cyberspace and the interests of those who transact in that space; see ibid., 799.
3.
Cf. Yochai Benkler, "Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain,"
4.
Maureen O'Rourke has extended the idea of the technological fences that cyberspace might provide, describing techniques that websites, for example, might use to control, or block, links from one site to another; see "Fencing Cyberspace: Drawing Borders in a Virtual World,"