Revisiting Code-as-Law: Regulation and Extended Reality
Brittan Heller | 26 Vand. J. Ent. & Tech. L. 655 (2024)
In the wake of Judge Frank Easterbrook’s critique of the development of specific laws for cyberspace, Lawrence Lessig’s 1998 proposition of “code-as-law” framed the internet’s regulatory landscape through the interplay of four modalities—law, norms, market, and architecture. Today, at the start of the era of spatial computing, also known as extended reality (XR), it is timely to reassess Lessig’s insights for this burgeoning digital frontier. This Article seeks to (1) update Lessig’s framework to suit 3D computing, (2) envision governance for these novel systems, and (3) reimagine technological governance amidst failing traditional institutions.
Revisiting code-as-law, the dynamic interplay of Lessig’s modalities in digital governance shows how norms have played a central role. The internet’s formative years echo today’s nascent XR landscape in terms of legal ambiguity and technical volatility, as the parallel between the 1990s internet and current XR statistics underscores.
Leading corporations’ large investments in XR suggests that immersive technology will dominate future computing. XR demands new governance models due to its layering of digital environments onto real spaces, its profound sensory and psychological impact on users, and the commercial drive for content within virtual worlds, contrasting with the origins of the internet, with the impetus coming from outside the private sector.
The uniqueness of XR, and more explicitly the differences from traditional flat screen computing, presents new governance challenges. When traditional modalities fail, society often reverts to hard law for intervention. This Article ponders the inflection points that could lead to such demands within XR pertaining to privacy concerns and the reemergence of online harms in a new medium. It questions the adequacy of Lessig’s model in addressing systemic inefficiencies and the renegotiation of modalities in light of power imbalances.
In sum, the study of cyberspace—and by extension, spatial computing—should transcend technical specifics and consider how emerging technologies can become inclusive or exclusionary. Drawing parallels with the early internet, this Article advocates for deliberate creation of networked spaces that embrace new modes of governance, thereby shaping a more equitable digital future.