JULIE E. COHEN
Among legal scholars of technology, it has become commonplace to acknowledge that the design of networked information technologies has regulatory effects. For the most part, that discussion has been structured by the taxonomy developed by Lawrence Lessig, which classifies “code” as one of four principal regulatory modalities, alongside law, markets, and norms.1 As a result of that framing, questions about the applicability of constitutional protections to technical decisions have taken center stage in legal and policy debates. Some scholars have pondered whether digital architectures unacceptably constrain fundamental liberties, and what “public” design obligations might follow from such a conclusion. Others have argued that code belongs firmly on the “private” side of the public/private divide because it originates in the innovative activity of private actors.
In a forthcoming book, I argue that the project of situating code within one or another part of the familiar constitutional landscape too often distracts legal scholars from more important questions about the quality of the regulation that networked digital architectures produce.2 The gradual, inexorable embedding of networked information technologies has the potential to alter, in largely invisible ways, the interrelated processes of subject formation and culture formation. Within legal scholarship, the prevailing conceptions of subjectivity tend to be highly individualistic, oriented around the activities of speech and voluntary affiliation. Subjectivity also tends to be understood as definitionally independent of “culture.” Yet subjectivity is importantly collective, formed by the substrate within which individuality emerges. People form their conceptions of the good in part by reading, listening, and watching—by engaging with the products of a common culture—and by interacting with one another.