Joel R. Reidenberg*
I. Introduction to Lex Informatica During the middle ages, itinerant merchants traveling across Europe
to trade at fairs, markets, and sea ports needed common ground rules to create trust and confidence for robust international trade. The differences among local, feudal, royal, and ecclesiastical law provided a significant degree of uncertainty and difficulty for merchants. Custom and practices evolved into a distinct body of law known as the "Lex Mercatoria," which was independent of local sovereign rules and assured commercial participants of basic fairness in their relationships.1
In the era of network and communications technologies, participants traveling on information infrastructures confront an unstable and uncertain environment of multiple governing laws, changing national rules, and conflicting regulations. For the information infrastructure, default ground rules are just as essential for participants in the Information Society as Lex Mercatoria was to merchants hundreds of years ago.2 Confusion and conflict over the rules for information flows run counter to an open, robust Information Society. Principles governing the treatment of digital information must offer stability and predictability so that participants have enough confidence for their communities to thrive, just as settled trading rules gave confidence and vitality to merchant communities. At present, three substantive legal policy areas are in a critical state of flux in the network environment. The treatment of content, the treatment of personal information, and the preservation of ownership rights each presents conflicting policies within nations and shows a lack of harmonization across national borders. In addition, serious jurisdictional obstacles confront the enforcement of any substantive legal rights in the network environment.3 But just as clear accounting rules reassured participants in twentieth century financial markets, ground rules for the access, distribution, and use of information will shape the trust, confidence, and fairness in the twenty-first century digital world for citizens, businesses, and governments.
Historically, law and government regulation have established default rules for information policy, including constitutional rules on freedom of expression and statutory rights of ownership of information.4 This Article will show that for network environments and the Information Society, however, law and government regulation are not the only source of rulemaking. Technological capabilities and system design choices impose rules on participants.5 The creation and implementation of information policy are embedded in network designs and standards as well as in system configurations. Even user preferences and technical choices create overarching, local default rules.6 This Article argues, in essence, that the set of rules for information flows imposed by technology and communication networks form a "Lex Informatica" that policymakers must understand, consciously recognize, and encourage.7
The Article begins in Part II with a sketch of the information policy problems inherent in the legal regulation of content, personal information, and intellectual property on global networks. Part II proceeds to show specific technical solutions and responses to these policy problems as an illustration of the rule-making power of technology and networks. These illustrations serve as a prelude to the articulation of a theory of Lex Informatica.
Part III then defines the theoretical foundation for Lex Informatica by showing technological constraints as a distinct source of rules for information flows. Lex Informatica intrinsically links rule-making capabilities well suited for the Information Society with substantive information policy choices. Lex Informatica may establish a single, immutable norm for information flows on the network or may enable the customization and automation of information flow policies for specific circumstances that adopt a rule of flexibility. …