Furthermore it is a mistake to say that code is law

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Furthermore, it is a mistake to say that code is law, 49 just as it is a mistake to say that physics, biology, architecture or automobile design is law. Yes, the physical or engineering limits on automobile design limit or otherwise affect the role of law: we do not have to regulate the interaction between automobiles and airliners in flight because automobiles do not yet fly. So, in this sense we might say that the limits of practical automobile design “take the place” of law. We might say the same about code: to the extent that code prevents activity that might otherwise raise concern that could be addressed through law, it takes the place of law. Furthermore, it is entirely possible for law to regulate code, just as law can regulate automobile design. In this regard, code is a tool of law, 50 and may be shaped by law, but is not a replacement for law. Finally on this point, another way of understanding the relationship between code and law is to understand code as autonomous activity by at least some group of people, with some set of incentives. Some have argued that through decentralized production of autonomous governance, individual actors will produce satisfactory governance. 51 To the extent that this group has incentives to write code so that what would otherwise be legal concerns are addressed, then this autonomous “social norm” type of code may take the place of law. But we know that social norms do not preempt every type of law. 52 Rather, there are circumstances in which law is a more efficient solution to the problem of cooperation. Law can also guide the development of social norms toward selected equilibria. In fact, the line between autonomous norms and law is not as clear as sometimes assumed. We might say that the state, and its powers, developed and are constantly changing through autonomous action, including governance mechanisms that we now 49 L AWRENCE L ESSIG , C ODE , AND O THER L AWS OF C YBERSPACE (1999); W ILLIAM M ITCHELL , C ITY OF B ITS 111 (1996); see also James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors , 66 U. C IN . L. R EV . 177 (1997). 50 See, e.g., Rajiv C. Shah & Jay P. Kesan, Manipulating the Governance Characteristics of Code , Illinois Public Law Research Paper No. 03-18, available at . 51 For a recent argument, see David R. Johnson, Susan P. Crawford, & John G. Palfrey, The Accountable Net: Peer Production of Internet Governance , draft of March 25, 2004, at . 52 See Kaushik Basu, Social Norms and the Law , 3 T HE N EW P ALGRAVE D ICTIONARY OF E CONOMICS AND THE L AW 476 (1998).
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Global Cyberterrorism, Jurisdiction, and International Organization 30 bundle together as “the state”. Yet, in appropriate historical and anthropological perspective, this is only different in degree from what we label “social norms.” b. Cybercrime and Cyberterrorism: the Council of Europe Cybercrime Model On November 23, 2001, 30 states, including the U.S., Canada, Japan and South Africa, signed the Council of Europe’s Cybercrime Convention.
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