Edited by Sean A. Pager and Adam Candeub
Chapter 7: Internet Creativity, Communicative Freedom and a Constitutional Rights Theory Response to ‘Code is Law’
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 magazine.com/2000/01/code-is-law.html (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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