I. INTRODUCTION II. COMPARING LEGAL RULES AND ARCHITECUTRAL REGULATION A. DIFFERENTIATING LEGAL RULES AND ARCHITECTURAL REGULATION B. COMPARING THE CAREERS OF LEGAL RULES AND ARCHITECTURAL REGULATION 1. LEGAL RULES HAVE CAREERS 2. ARCHITECTURAL REGULATIONS HAVE DIFFERENT CAREERS C. ARCHITECTURAL REGULATION AND ITS VICISSITUDES 1. LAW AS LAW: ISSUES OF VISIBILITY OR RECOGNITION 2. NORMS AND SOCIAL PRACTICES III. HOW HIGH TECHNOLOGY EXACERBATES ARCHITECTURAL REGULATION'S PROBLEMS A. ENACTMENT, AUTHORSHIP, AND THE CONTENT OF ARCHITECTURAL NORMS 1. SYSTEMS AND TIME 2. INTERMEDIARIES AND THE MULTIPLE ACTOR PROBLEM B. TECHNICAL IGNORANCE C. OPPORTUNITIES FOR GOVERNMENT MANIPULATION D. NORMS AND UNCOMMON KNOWLEDGE IV. CONCLUSION
Current legal scholarship on architectural regulation of software focuses on how its lack of transparency may frustrate public accountability or, by the same token, enhance its effectiveness. Tins paper argues that architectural regulation poses deeper dangers to the very concept of law. Ordinarily, we think of law as rules that a person thinks about when deciding how to act, and which human beings must decide to enforce. Law as architecture operates differently: instead of affecting out calculus of choice, it structures the very conditions of action, such as social settings and the resources available in those settings. Thus, architectural regulation operates surreptitiously and may net even be perceived as governmental action. Architectural regulation thus allows government to shape out actions without out perceiving that out experience has been deliberately shaped, engendering a loss of moral agency. Because our norms are often the product of social experience with and discourse about new technologies, architectural regulation poses the danger that government can distort the evolution of constitutional norms like privacy.
We normally think of law in terms of textual rules. The ubiquity and malleability of computer software, however, has led scholars like Joel Reidenberg and Larry Lessig to coin and popularize another concept, that of architectural regulation. (1) These scholars argue that software, or computer "code", regulates human action as de codes of law. (2) As Lessig puts it, software "constrain[s] some behavior (for example, electronic eavesdropping) by making other behavior possible (encryption)." (3)
Code and law regulate our behavior in different ways; while the law typically regulates behavior after the fact, code or architecture regulates "more directly," as "present constraints." (4) These differences are important, as a practical matter, to the "legal engineering" choice of how to regulate different kinds of activities.
But code-as-law--and architectural regulation more generally--also raises normative issues that transcend both technology and regulatory craftsmanship. Lessig argues that architectural regulation poses a transparency problem, warning that government regulation in the architectural mode can "hide its pedigree." (5) He thus contends that "[w]hat a code regulation does should be at least as [apparent] as what a legal regulation does." (6) Neal Katyal, on the other hand, argues that the transparency problem is overstated and recommends more government use of architectural regulation. (7)
Lessig is right that architectural regulation poses a serious transparency problem, especially where privacy and "high-tech" architectures are concerned. I suggest, however, that architectural regulation has more transparency problems than Lessig identifies. His concern--that architectural regulation can hide its pedigree--is indeed significant. But it is not that different from the transparency problem posed by many ordinary legal rules. Much law in the modern administrative state is obscure. …