BUILDING SOCIAL NORMS ON THE INTERNET

Yale Journal of Law and Technology Volume 4 | Issue 1 Article 2 2002 BUILDING SOCIAL NORMS ON THE INTERNET Daniel B. Levin Follow this and additional works at: https://digitalcommons.law.yale.edu/yjolt Part of the Computer Law Commons, Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation Daniel B. Levin, BUILDING SOCIAL NORMS ON THE INTERNET, 4 Yale J.L. & Tech (2002). Available at: https://digitalcommons.law.yale.edu/yjolt/vol4/iss1/2 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law and Technology by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Levin: BUILDING SOCIAL NORMS ON THE INTERNET STUDENT NOTE BUILDING SOCIAL NORMS ON THE INTERNET DANIEL B. LEVIN INTRODUCTION I. ARCHITECTURE AND NORMS A. UnderstandingArchitecture B. UnderstandingSocial Norms 1. The Problem of Cooperation 2. Reciprocity and Trust 3. Signaling 4. Esteem Theory of Norm Formation 5. Social Meaning C. The Perverseand Complementary RelationshipBetween Architectureand Norms II. CYBERSPACE A. Norms in Cyberspace 1. Anonymity 2. Dispersion 3. Free Flow of Information B. The Internet Community: Norm Formation in Cyberspace Through Code 1. Online Auctions 2. Digital Music and File Sharing III. CONCLUSION Published by Yale Law School Legal Scholarship Repository, 2002 99 101 101 102 103 104 107 109 110 112 115 116 117 120 121 122 122 128 137 1 Yale Journal of Law and Technology, Vol. 4 [2002], Iss. 1, Art. 2 YALE JOURNAL OF LAW & TECHNOLOGY 2001-2002 BUILDING SOCIAL NORMS ON THE INTERNET Daniel B. Levin This Note examines how architecture, and particularly the design and coding of software on the Internet,helps shape social norms. The Note makes two points about architecture and norms. First, architectural decisions affect what norms evolve and how they evolve. By allowing or facilitating certain types of behavior and preventing others, architecture can promote the growth of norms. On the flip side, architecture not tailored to promote certain positive norms of cooperation or compliance with the wishes of the designer (or in some cases the law) may allow the growth of antisocial norms. Second, because design decisions affect behavior directly as well as indirectly through norms, software engineers must recognize the regulatory function of the code they create. Although online architecture can promote productive social norms, design decisions can also create a backlash by fostering the development of norms that work against the sort of behaviorthe code is written to promote. The Note begins by describinghow architecture works to regulate behavior in the physical world, examines the leading theories of social norm development, and explores the intersection of architecture and norms. The latter part of the Note transposes the generaltheory of architectureand norms to the Internet world, first describing the particular features of the Internet-anonymity, dispersion, and the free flow of information-that make the process of norm development different in cyberspace than in physical space, and then turning to two examples, online auctions and digital music, to show how https://digitalcommons.law.yale.edu/yjolt/vol4/iss1/2 2 Levin: BUILDING SOCIAL NORMS ON THE INTERNET D. LEVIN BUILDING SOCIAL NORMS ON THE INTERNET software engineers have effectively and ineffectively used code to promote the development of socialnorms. INTRODUCTION Law schools, for obvious reasons, lavish attention on law as a regulator of behavior. Since the 1960s and the emergence of the law and economics movement, however, many law scholars have come to regard the basic rules of markets outlined in microeconomic theory as an equal or perhaps more important influence on human behavior than the public law of states or the private law made by individuals. Even more recently, many have come to recognize that non-legal, non-market rules defined broadly under the rubric of social norms also profoundly affect human behavior. Receiving far less attention in legal analysis are the physical constraints that limit human behavior-the architecture of the world.1 Lawrence Lessig, in his book Code and Other Laws of Cyberspace,2 outlines the four modalities of regulation-law, markets, norms, and architecture. Law, as he describes, regulates behavior through commands of the form: If you do X (or fail to do X), you will incur penalty Y. Markets create incentives for people to behave in particular ways. Social norms threaten non-legal sanctions for certain behaviors. And, finally, architecture constrains the set of possible behaviors. Lessig's argument focuses particularly on the architecture of cyberspace: the computer code that turns electrons, semiconductors, and miles of wire and cable into the Internet. Throughout his work, he repeatedly hammers home the point that in cyberspace, code is law.3 Lessig does not mean that the laws of states or contractual agreements lack meaning in cyberspace, but that the decisions of programmers about 1Professor Neal Katyal's recent work addresses how physical architecture can serve as a tool of crime control. Neal Kumar Katyal, Architecture as Crime Control, 111 YALE L.J. 1039 (2002). 2 LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999). 'E.g., id. at 6. Published by Yale Law School Legal Scholarship Repository, 2002 3 Yale Journal of Law and Technology, Vol. 4 [2002], Iss. 1, Art. 2 YALE JOURNAL OF LAW & TECHNOLOGY 2001-2002 software design set the rules of the game. Just as the decisions of road planners and bridge builders control where you drive your car and where you cross the river, the decisions of software programmers determine how you receive and send email, view web pages, or conduct business in cyberspace. This Note examines how the architecture of cyberspace works to influence the development of norms. Generally speaking, when legal scholars refer to social norms they are referring to informal social rules that individuals adhere to because of an internalized sense of duty, because of a fear of external non-legal sanctions, or both.4 Lessig's influential insight is that the programmers writing the code that runs the Internet have become lawgivers-setting the rules of permissible behavior on the Internet.5 Neal Katyal has recently made a similar argument about the power of architecture in physical space to influence behavior and prevent crime.6 Both authors recognize that laws can shape architectural decisions, whether in cyberspace7 or physical space.8 That is, while direct legal regulation of behavior can be one tool, legal regulation of architecture, which in turn shapes behavior, is another tool. This Note examines another two-step process: how architecture, in particular the design and coding of software on the Internet, helps to shape social (...truncated)