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Transnational Culture in the Internet Age

Transnational Culture in the Internet Age

Elgar Law, Technology and Society series

Edited by Sean A. Pager and Adam Candeub

The insightful contributions shed new light on insufficiently examined issues and highlight connections that cut across the many different domains in which such regulations operate. Building upon the framework presented by David Post – one of the first and most prominent scholars of cyber law and a contributor to this volume – the authors address the implications and economics of the Internet’s astronomical scale, jurisdiction and enforcement of the web as it relates to topics including libel tourism and threats to free speech, and the power of global communication to dissolve and recreate identities.

Chapter 7: Internet Creativity, Communicative Freedom and a Constitutional Rights Theory Response to ‘Code is Law’

Christoph B. Graber

Subjects: innovation and technology, technology and ict, law - academic, intellectual property law, international economic law, trade law, internet and technology law, politics and public policy, public policy


7. Internet creativity, communicative freedom and a constitutional rights theory response to “code is law” Christoph B. Graber1 7.1 INTRODUCTION “Code is law” is the famous formula coined by Lawrence Lessig to describe that the technological architecture of the Internet functions as a regulator – in addition to state law, social norms and the market.2 Joel Reidenberg was one of the first to emphasize that the technological architecture of the network imposes rules on access and use of information.3 Technological architectures may prohibit certain actions on the network, such as access without security clearances, or may impose certain flows, such as mandatory address routing data for electronic messages. Technology may also offer policymakers a choice of information flow rules through configuration decisions. Reidenberg called these rules Lex Informatica. Accordingly, Lex Informatica is a rule system that is embedded in technological standards and that exists parallel to the law of the state.4 The author would like to thank William Gallagher, Shubha Ghosh, Peter Yu and Thomas Steiner for comments on an earlier draft of the chapter. 2 Lawrence Lessig, Code and other Laws of Cyberspace, New York, USA: Basic Books, 1999. Lawrence Lessig, ‘Code is Law. On Liberty in Cyberspace’ (January–February 2000) Harvard Magazine, available online at http://harvard (all online sources were accessed 25 September 2010). 3 Joel R. Reidenberg, ‘Lex Informatica: The Formulation of Information Policy Rules Through Technology’ (1998) Texas Law Review, 76, pp. 553–84, at p. 568. See also Joel R. Reidenberg, ‘Governing Networks and...

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