Graber, Christoph B. --- "Internet Creativity, Communicative Freedom and a Constitutional Rights Theory Response to ‘Code is Law’" [2012] ELECD 694; in Pager, A. Sean; Candeub, Adam (eds), "Transnational Culture in the Internet Age" (Edward Elgar Publishing, 2012)

Book Title: Transnational Culture in the Internet Age

Editor(s): Pager, A. Sean; Candeub, Adam

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857931337

Section: Chapter 7

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

Author(s): Graber, Christoph B.

Number of pages: 30

Extract:

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


1 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'
(January­February 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 ...