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Analyzing the Production of the Law of Cyberspace
Unformatted Document Text:  3 institution, the motivations for development, influences upon the institution, the speed of the development process, and the dissemination of the code. This analysis is useful to scholars and policymakers seeking to assess code as well as those that wish to proactively shape the development of code to meet societal concerns. This Article addresses two of the shortcomings of current scholarship in communications law and policy. First, there is a lack of work on these newer communication technologies. This is of considerable concern, since these new technologies have enormous implications because of their pervasiveness. Moreover, the malleability of these newer communication technologies allows for different designs as dictated by society. For example, code can favor or disfavor values such as privacy or free speech depending upon the design of the code. The second shortcoming of existing scholarship is the dominant focus on code developed by firms. 9 Instead, there are several other societal institutions that develop code. While these other institutions may not sell code ultimately to consumers, the code they develop often influences the final code. This occurs because code is continually improved and transferred between different institutions. In this process, code often carries values or biases from a former institution. For example, consider the development of the Internet. Naughton argues that the Internet, as we know it today, would not have arisen in institutions outside academia. 10 Other institutions would have shaped the Internet much differently. For example, the military- industrial complex would not have built a network without central control and based on open standards that allows anyone to connect to the network. Similarly, the media conglomerates 9 V INCENT M OSCO , T HE P OLITICAL E CONOMY OF C OMMUNICATION : R ETHINKING AND R ENEWAL (1996); Robert McChesney, The Political Economy of Global Communication, in C APITALISM AND THE I NFORMATION A GE 1 (Robert McChesney et al. eds., 1998). Scholars in information studies are also studying the development of code, most prominently under the rubric of social informatics. Rob Kling et al., Social Informatics: An Introduction, 49 J. A M . S OC ’ Y FOR I NFO . S CI . 1047 (1998); Steve Sawyer & Howard Rosenbaum, Social Informatics in the Information Sciences: Current Activities and Emerging Directions, 3 I NFORMING S CI . 89 (2000).

Authors: Shah, Rajiv. and Kesan, Jay.
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3
institution, the motivations for development, influences upon the institution, the speed of the
development process, and the dissemination of the code. This analysis is useful to scholars and
policymakers seeking to assess code as well as those that wish to proactively shape the
development of code to meet societal concerns.
This Article addresses two of the shortcomings of current scholarship in communications
law and policy. First, there is a lack of work on these newer communication technologies. This
is of considerable concern, since these new technologies have enormous implications because of
their pervasiveness. Moreover, the malleability of these newer communication technologies
allows for different designs as dictated by society. For example, code can favor or disfavor
values such as privacy or free speech depending upon the design of the code.
The second shortcoming of existing scholarship is the dominant focus on code developed
by firms.
9
Instead, there are several other societal institutions that develop code. While these
other institutions may not sell code ultimately to consumers, the code they develop often
influences the final code. This occurs because code is continually improved and transferred
between different institutions. In this process, code often carries values or biases from a former
institution. For example, consider the development of the Internet. Naughton argues that the
Internet, as we know it today, would not have arisen in institutions outside academia.
10
Other
institutions would have shaped the Internet much differently. For example, the military-
industrial complex would not have built a network without central control and based on open
standards that allows anyone to connect to the network. Similarly, the media conglomerates
9
V
INCENT
M
OSCO
, T
HE
P
OLITICAL
E
CONOMY OF
C
OMMUNICATION
: R
ETHINKING AND
R
ENEWAL
(1996); Robert
McChesney, The Political Economy of Global Communication, in C
APITALISM AND THE
I
NFORMATION
A
GE
1
(Robert McChesney et al. eds., 1998). Scholars in information studies are also studying the development of code,
most prominently under the rubric of social informatics. Rob Kling et al., Social Informatics: An Introduction, 49 J.
A
M
. S
OC
Y FOR
I
NFO
. S
CI
. 1047 (1998); Steve Sawyer & Howard Rosenbaum, Social Informatics in the Information
Sciences: Current Activities and Emerging Directions, 3 I
NFORMING
S
CI
. 89 (2000).


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