Plaintext
Anarchy, Status Updates, and
Utopia
James Grimmelmann*
Social software has a power problem.1 Actually, it has two.
The first is technical. Unlike the rule of law, the rule of software
is simple and brutal: whoever controls the software makes the
rules. And if power corrupts, then automatic power corrupts au-
tomatically. Facebook can drop you down the memory hole; Pay-
Pal can garnish your pay. These sovereigns of software have
absolute and dictatorial control over their domains.
Is it possible to create online spaces without technical
power? It is not, because of social software’s second power prob-
lem. Behind technical power, there is also social power. When-
ever people come together through software, they must agree
which software they will use. That agreement vests technical
power in whoever controls the software. Social software cannot
be completely free of coercion—not without ceasing to be social,
or ceasing to be software.
Rule-of-law values are worth defending in the age of soft-
ware empires, but they cannot be fully embedded in software it-
self. Any technical design can always be changed through an
exercise of social power. Software can help by making this coer-
cion more obvious, or by requiring more people to join together
in it, but software alone cannot fully protect users. Whatever
limits make social software humane, free, and fair will have to
come from somewhere else—they will have to come from We the
* Professor of Law, University of Maryland Francis King Carey School of Law.
I presented earlier versions of these ideas to the Technology and Intellectual
Property Group Conference at the University of Toronto in March 2008 and at
the Governance of Social Media Workshop at Georgetown University in No-
vember 2011. My thanks for their comments to the attendees, and to Aislinn
Black, Brandy Karl, and Timothy B. Lee. This essay may be freely reused
under the terms of the Creative Commons Attribution 4.0 International li-
cense, https://creativecommons.org/licenses/by/4.0/.
1. Social software is “software that supports group interaction.” Clay
Shirky, A Group Is Its Own Worst Enemy, CLAY SHIRKY’S WRITINGS ABOUT THE
INTERNET (July 1, 2003), http://www.shirky.com/writings/group_enemy.html.
135
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Users.
I. Technical Power
The Fifth Amendment provides that “No person shall . . . be
deprived of life, liberty, or property, without due process of law.”2
But the Fifth Amendment doesn’t apply to social software. Just
ask Marc Bragg. He was a player in Second Life,3 where almost
anything you can imagine can be brought to life with a little
sculpting, a little painting, and a little programming.4 Like
many other players, Bragg wanted a parcel of virtual land to
make his home. On April 30, 2006, he won a land auction, pay-
ing $300 for a parcel named Taessot.5 Two days later, though,
Bragg received a warning from Second Life’s administrators, al-
leging fraud in the auction.6 At this point, a normal government
could have taken him to court to set the sale aside. But Second
Life doesn’t have a normal government. The one it has rules by
software. Second Life’s administrators went into its database of
land titles and took Marc Bragg’s name off the records for Taes-
sot, instantly ousting him from possession and locking him out.7
And then, as if to further prove who was boss, Second Life took
away all his other land as well—and sold it at auction to the
highest bidder.8 So much for “property” and “due process of law.”
Or ask Vi Hart, a “recreational mathemusician,” who cre-
ates stop-motion videos that mix obsessive doodling with whim-
sical soundtracks to explore mathematics in an inviting hands-
on way.9 She posted her videos to YouTube, where she has over
800,000 subscribers and millions of views.10 But then Google
2. U.S. CONST. amend. V.
3. SECOND LIFE, http://secondlife.com/ (last visited Oct. 22, 2014).
4. See Complaint at 2, Bragg v. Linden Research, Inc., No. 06-08711
(Chester Cnty. Pa. Ct. Comm. Pl. Oct. 4, 2006), removed, 487 F. Supp. 2d 593
(E.D. Pa. 2007).
5. Id. at 20.
6. Id. at 21.
7. Id.
8. Id. at 22.
9. Kenneth Chang, Bending and Stretching Classroom Lessons to Make
Math Inspire, N.Y. TIMES, Jan. 17, 2011, at D3.
10. See Vi Hart, Videos, YOUTUBE,
http://www.youtube.com/user/Vihart/videos (last visited Oct. 15, 2014).
2014 ANARCHY, STATUS UPDATES, AND UTOPIA 137
merged its Google+ social network with YouTube, requiring a
Google+ account to post comments on YouTube.11 The move en-
couraged more people to use the struggling Google+, but it also
displaced fans’ voices in favor of “popular G+ users . . . . a very
small segment of mostly male, professional, egotistical, entitled
people” who leave distracting and harassing comments.12 This
put Vi Hart and everyone like her to an unpleasant choice: start
using Google+ and its incoming wave of haters, or give up on
YouTube entirely. As she explained,
I invested so much into my YouTube channel, and
they’re taking that investment and threatening to
throw it away if I don’t also start investing in
Google+. No thank you Google, but you’ve already
made me regret investing so much into you the
first time. Do you really think I’m going to do it
again? . . . . Making huge forced changes to a plat-
form is problematic for people whose livelihood de-
pends on certain things being a certain way. I
would not recommend making YouTube or
Google+ a large part of your business . . . . 13
Or take Mailpile, a project to create a “modern, fast web-
mail client with user-friendly encryption and privacy features.”14
It carried out an online fundraiser, bringing in $163,192 and 54
11. See Nundu Janakiram & Yonatan Zunger, We Hear You: Better Com-
menting Coming to YouTube, YOUTUBE OFFICIAL BLOG (Sept. 24, 2013),
http://youtube-global.blogspot.com/2013/09/youtube-new-comments.html.
12. Hank Green, HANK’S TUMBLR (Nov. 8, 2013), http://edward-
spoonhands.com/post/66425515182/ok-so-my-friend-emma-puts-this-video-of-
her.
13. Vi Hart, Google+ YouTube Integration: Kind of Like Twilight, Except
in This Version When +Cullen Drinks BellaTube’s Blood They Both Become
Mortal, But +Cullen Is Still an Abusive Creep, Also It Is Still Bad, VI HART
(Nov. 12, 2013), http://vihart.com/google-youtube-integration-kind-of-like-twi-
light-except-in-this-version-when-cullen-drinks-bellatubes-blood-they-both-
become-mortal-but-cullen-is-still-an-abusive-creep-also-it-is-still-bad/.
14. Mailpile – Let’s Take E-mail Back, INDIEGOGO, http://www.indie-
gogo.com/projects/mailpile-taking-e-mail-back (last visited Oct. 13, 2014). See
also MAILPILE, http://www.mailpile.is (last visited Oct. 13, 2014).
138 PACE LAW REVIEW Vol. 35:1
Bitcoins.15 But $45,000 of those donations came through Pay-
Pal,16 which froze the money, refusing to let Mailpile have it un-
til the developers provided “an itemized budget and your devel-
opment goal dates for your project.”17 Only after a wave of online
bad publicity did PayPal release the funds.18 PayPal has a “long
history of similar things;”19 it has blocked fundraisers for Wik-
iLeaks20 and Bradley Manning.21
This is not the place to reargue these cases. Indeed, even
calling them “cases” is a misnomer. In the first instance—before
Bragg, Hart, and Mailpile were deprived of their rights and priv-
ileges within Second Life, YouTube, and PayPal—there was no
litigation at all. The companies simply modified the software on
which their platforms ran, and that was it: Bragg’s land was
gone, Hart was stuck with Google+ boors, Mailpile’s money was
inaccessible.
They were all victims of technical power: the authority exer-
cised over any software-mediated space by the person or entity
that controls the software. Code is law, and the platform opera-
tor controls the code. A few tweaks to settings in a database can
banish a user, silence her, or confiscate all her digital goods. Vir-
tual worlds, social networks, and payment processors hold tech-
nical power. So do Internet service providers (“ISPs”) such as
Comcast, web hosts such as Tumblr, and the millions of other
15. See Mailpile: Donate, MAILPILE, https://www.mailpile.is/donate/ (last
visited Oct. 13, 2014).
16. See Lee Hutchinson, PayPal Freezes $45,000 of Mailpile’s Crowd-
funded Dollars, ARSTECHNICA (Sept. 5, 2013, 10:33 AM) http://arstech-
nica.com/business/2013/09/paypal-freezes-45000-of-mailpiles-crowdfunded-
dollars/.
17. Brennan, PayPal Freezes Campaign Funds, MAILPILE (Sept. 5, 2013),
http://www.mailpile.is/blog/2013-09-05_PayPal_Freezes_Cam-
paign_Funds.html.
18. See Mike Masnick, Insanity: PayPal Freezes Mailpile's Account, De-
mands Excessive Info to Get Access, TECHDIRT (Sept. 5, 2013, 9:33 AM),
http://www.techdirt.com/articles/20130905/08233824411/insanity-paypal-
freezes-mailpiles-account-demands-excessive-info-to-get-access.shtml.
19. Id.
20. See Kevin Poulsen, PayPal Freezes WikiLeaks Account, WIRED (Dec. 4,
2010, 3:31 PM), http://www.wired.com/threatlevel/2010/12/paypal-wikileaks/.
21. See PayPal Cuts Service to Alleged WikiLeaks Whistle-Blower Support
Effort, FREE CHELSEA MANNING (Feb. 24, 2011), http://www.chelseaman-
ning.org/news/paypal-cuts-service-to-alleged-wikileaks-whistle-blower-sup-
port-effort.
2014 ANARCHY, STATUS UPDATES, AND UTOPIA 139
middlemen who run the systems on which the Internet runs.
Technical power gives rise to a distinctive anxiety: the God
problem. The exercise of legal power, no matter how dictatorial,
is restrained by the fact that any legal threats must be carried
out by humans, fallible humans. They can be bribed, persuaded,
seduced, overwhelmed, or distracted. Legal power can be re-
sisted, passively or violently. But technical power cannot: those
who wield it are as gods. PayPal changed a status field in the
database entry corresponding to Mailpile’s account and that was
that. Mailpile’s money was beyond its reach. Google combined
Google+ and YouTube overnight, without so much as a hearing
or a notice in the Federal Register. Second Life foreclosed on
Taessot and ousted Bragg from possession with a few key-
strokes. Mortgage lenders can only dream of such remedies.
These software monarchs have metaphysical jurisdiction over
their domains—absolute control over what happens, over what
exists.22
II. Social Power
But focusing on technical power raises its own question: why
didn’t Marc Bragg and Mailpile head for the exit when things
got bad, the way Vi Hart did?23 Yes, Second Life and PayPal
changed the way their systems worked, but so what? Database
entries only matter if they control your access to something that
matters in the real world. Technical power only has bite to the
22. For discussions of technical power in virtual worlds, see generally
JULIAN DIBBELL, MY TINY LIFE: CRIME AND PASSION IN A VIRTUAL WORLD (1998);
GREG LASTOWKA, VIRTUAL JUSTICE: THE NEW LAWS OF ONLINE WORLDS (2010);
Joshua A.T. Fairfield, The God Paradox, 89 B.U. L. REV. 1017 (2009); James
Grimmelmann, Virtual Power Politics, in THE STATE OF PLAY: LAW, GAMES, AND
VIRTUAL WORLDS (Jack M. Balkin & Beth Simone Noveck eds., 2006); James
Grimmelmann, Virtual Worlds as Comparative Law, 49 N.Y.L. SCH. L. REV.
147 (2004) [hereinafter Grimmelman, Virtual Worlds as Comparative Law];
James Grimmelmann, Virtual World Feudalism, 118 YALE L.J. POCKET PART
126 (2009); Jennifer L. Mnookin, Virtual(ly) Law: The Emergence of Law in
LambdaMOO, 2 J. COMPUTER-MEDIATED COMM. 1 (1996); Nicolas Suzor, The
Role of the Rule of Law in Virtual Communities, 25 BERKLEY TECH. L.J. 1817
(2010).
23. See Hart, supra note 13 (“As for me, I’ll continue posting on my own
RSS-enabled site and making my videos available as torrents, and maybe I’ll
follow in the footsteps of the many other prominent YouTubers who are moving
discussion of their videos off YouTube.”).
140 PACE LAW REVIEW Vol. 35:1
extent you use a software system—walk away from the keyboard
and the software can’t follow.
To understand where this argument goes wrong, consider
what it suggests for our disappointed victims of technical power.
Marc Bragg didn’t need Second Life: he could have drawn a pic-
ture of Taessot on a napkin and continued to enjoy his imaginary
property. Mailpile didn’t need PayPal; it could have drawn pic-
tures of Benjamin Franklin on napkins and used those. You
don’t need Facebook; just take a Sharpie to your living-room
wall. You don’t need YouTube for cute cat videos; just film your
own damn cat.
These suggestions are so unsatisfying because they miss the
inherently social nature of social software. The fun and the
value of these systems come from sharing them with others.
YouTube’s other users provide me with better cat videos than I
could film for myself; Facebook tells me what my friends are ac-
tually up to, not just what I imagine they’re up to. Countless
online journalists use social platforms to publish their work. Vir-
tual property in Second Life, like a domain name or like a
LinkedIn account, is valuable only because it’s networked. To
withdraw from the network in which the property is embedded
is to give up something of real value, however virtual the prop-
erty itself may be.
This, then, is a point about social power: The person or en-
tity who controls the terms on which a community comes to-
gether enjoys authority over that community. The threat to boot
you from YouTube if you don’t accept Google+ comments isn’t
just about cat videos: it’s also about the people who make and
watch those cat videos. The threat to boot you off of a mailing
list isn’t just about the emails; it’s about your access to the other
people on the mailing list. The threat to boot you from eBay isn’t
just about the stars next to your name; it’s about the community
of people who know what those stars mean, who give those stars
their meaning.
Facebook, for example, has a privacy problem the way alco-
holics have sobriety problems. But it is Facebook’s users who
enable its addiction to personal information. Facebook’s soft-
ware exists in a constant state of flux; the user community built
around that software is the source of stability. Each time Face-
book redesigns its sharing settings to be more profligate with
2014 ANARCHY, STATUS UPDATES, AND UTOPIA 141
users’ private lives, it subjects them to technical power. Each
time users swallow hard and keep on using Facebook because
their friends are there, they subject each other to social power.
They are trapped in a dysfunctional codependent relationship
with Facebook—and with each other.
This is the Cheers24 problem: you want to go where every-
body knows your name. Leaving a social software platform
means leaving a social network. Whoever controls that network
has you locked in. It’s extraordinarily difficult for any individual
user in a truly social medium to escape from policies she consid-
ers oppressive without giving up all the benefits of being in the
same place as the rest of her social circle. This too is a form of
power: if no one wants to be the first to leave, no one will leave.
Whoever controls the agenda by which the community settles on
the software it will use—like Facebook’s programmers pushing
out an “improvement” to its “privacy” controls—can take ad-
vantage of this social power to confer technical power on himself
or herself themselves. Wherever there is a software platform,
there will be the potential for abuse. Technical power is ines-
capable because it is inescapably social.
III. Anarchy
There is no way to redesign the technologies of social soft-
ware so that technical power disappears, for the reason that it is
the social power that gives the technical power its bite.25 We
think of social software as being “social” because it enables social
connections among users. But it is also “social” because it is so-
cially constructed. If I use a drawing program to doodle for my
own amusement, no one else cares what software I use. But if
you and I want to share our doodles, we need to agree on which
software to use, which requires us to agree on what that software
is. It does no good for me to post to doodle.ly26 while you are on
24. Cheers (NBC television broadcast 1982-1993).
25. For historical documentation of arguments for and against embedding
anarchist and libertarian values in software, see generally CRYPTO ANARCHY,
CYBERSTATES, AND PIRATE UTOPIAS (Peter Ludlow ed., 2001) (collection of es-
says).
26. See DOODLE.LY, doodle.ly/ (last visited Oct. 15, 2014).
142 PACE LAW REVIEW Vol. 35:1
Madoodle,27 not if we want to see each other’s work. Sharing a
social medium requires running the same software. But it is this
agreement—to interoperate at a technical level—that creates
the possibility for technical power.28
Because it is rooted in human agreement rather than in any
specific details of software, technical power can be surprisingly
tenacious. What makes Facebook the Facebook we know and
love/hate? It’s not just Facebook the company and its control
over a server farm and a domain name. Facebook is also Face-
book because its users choose to type “facebook.com” into their
browsers—that is, to converge and coordinate on the Facebook
software-mediated community.
Even systems specifically designed to escape technical
power run afoul of social power. Take Diaspora*. Diaspora* is a
peer-to-peer social network platform explicitly founded as an al-
ternative to Facebook.29 It allows (and encourages) users to host
their own Diaspora* servers and gives them the software under
a free software license so they can configure their servers as they
wish.30 Its developers explained, “Like the Internet itself, Dias-
pora* isn’t housed in any one place, and it’s not controlled by any
one entity (including us).”31
What makes Diaspora* a coherent community? Not the con-
trol over Diaspora* servers by one company, but rather the
agreement to run a common set of software, with common proto-
cols that interoperate in particular ways. And so there is tech-
nical power here, too. It resides in the current configuration of
the Diaspora* protocols and the common software, and it flows
from the practical ability to push an “upgrade” out to a user com-
munity that will agree to run it.
27. See MADOODLE, http://madoodle.com/ (last visited Oct. 22, 2014).
28. For further discussion of the link between interoperability and power
on the Internet, see generally LAWRENCE LESSIG, CODE AND OTHER LAWS OF
CYBERSPACE (1999); JONATHAN L. ZITTRAIN, THE FUTURE OF THE INTERNET AND
HOW TO STOP IT (2008).
29. DIASPORA*, https://diasporafoundation.org (last visited Oct. 12, 2014).
30. See Notes on Installing and Running Diaspora, GITHUB (Oct. 22,
2013), https://github.com/jhass/old_diaspora_wiki/blob/master/Notes-on-In-
stalling-and-Running-Diaspora.md.
31. Dan [Grippi] et al., Diaspora* Means a Brighter Future for Us All, THE
DIASPORA PROJECT (Sept. 21, 2011), https://web.ar-
chive.org/web/20111002003516/http://blog.diasporafounda-
tion.org/2011/09/21/diaspora-means-a-brighter-future-for-all-of-us.html.
2014 ANARCHY, STATUS UPDATES, AND UTOPIA 143
Or take Reddit. This “place friendly to thought, relation-
ships, arguments, and to those that wish to challenge those gen-
res” has what seems like a gold-plated exit option to preserve
user freedom. Any user (or “redditor”) can create a new section
of the site (or “subreddit”), automatically becoming its new mod-
erator32 and establishing its rules.33 But the tale of its politics
subreddit (“/r/Politics”) shows why that option is often unsatis-
fying. /r/Politics has over three million readers,34 and some of
them became concerned in November 2013 about what they saw
as the rightward political slant of the moderators.35 The moder-
ators kept a list of “banned domains” that produced “sensation-
alist titles” and “bad journalism”—a list that included Salon, the
Huffington Post, and Mother Jones.36 In explaining why dissat-
isfied redditors didn’t simply depart for a more left-leaning po-
litical subreddit, one journalist and redditor wrote:
First, let’s remember what’s at stake here: a vi-
brant community of three million subscribers. So
‘start another reddit’ is not a fair response to red-
ditors who already built this community over most
of a decade, only to watch it taken over and locked
down by amateur dictators.37
What made /r/Politics worth fighting over—that “vibrant
community of three million subscribers”—is also what made the
fight necessary. The great value of a subreddit is that redditors
32. See Frequently Asked Questions, REDDIT, http://www.red-
dit.com/wiki/faq (last visited Oct. 15, 2014) (“If you create a subreddit you will
automatically become its moderator.”).
33. See id. (“[M]oderators are free to run their subreddits however they
so choose . . . .”).
34. See /r/Politics, REDDIT (last visited Oct. 8, 2014), http://www.red-
dit.com/r/politics/.
35. See Will Oremus, Reddit Moderators Apologize for Handling of “Bad
Journalism” Ban, SLATE (Nov. 2, 2013, 3:11 PM),
http://www.slate.com/blogs/future_tense/2013/11/01/reddit_politics_r_poli-
tics_mods_ban_mother_jones_others_for_bad_journalism.html.
36. See id.
37. PJ Vogt, What It’s Like When Redditors Ban Your Interview About
Redditors’ Content Bans, ON THE MEDIA (Nov. 1, 2013, 10:05 AM), (quoting An-
gela Motorman), http://www.onthemedia.org/story/what-its-when-redditors-
ban-your-interview-about-reddits-content-bans/.
144 PACE LAW REVIEW Vol. 35:1
are talking to each other rather than to themselves; if you split
the community, you hurt it. But once you have a single commu-
nity, someone has to be the moderator, and that someone has the
power to determine which publications end up on the “banned”
list.
Not even Bitcoin,38 the libertarian peer-to-peer electronic
currency “designed to allow people to buy and sell without cen-
tralized control by banks or governments,” can escape from the
problem of social power wielded through technical means.39
Consider, carefully, how Bitcoin works. The global log of trans-
actions is jointly maintained by users’ computers; distributed
cryptography substitutes for centralized anti-forgery controls.40
The supply of Bitcoins is controlled by a function embedded in
the cryptographic protocols, not by a single authority with the
power to confiscate them or to make more.41
But where do Bitcoin’s cryptographic rules come from? Not
from the mysterious “Satoshi Nakamoto” who originally de-
signed the protocol.42 Rather, as a practical fact, Bitcoin’s rules
come from its users’ agreement to use specific compatible soft-
ware, and from their agreement about which transactions have
actually happened. Get enough users to agree on a different set
of transactions and those transactions become the new Bitcoin
reality.43 This isn’t just a theoretical possibility. In March of
38. See Frequently Asked Questions, BITCOIN, https://bitcoin.org/en/faq
(last visited Oct. 22, 2014).
39. Thomas Lowenthal, Bitcoin: Inside the Encrypted, Peer-to-Peer Digital
Currency, ARS TECHNICA (June 8, 2011, 9:00 AM), http://arstechnica.com/tech-
policy/news/2011/06/bitcoin-inside-the-encrypted-peer-to-peer-currency.ars.
See generally Reuben Grinberg, Bitcoin: An Innovative Alternative Digital Cur-
rency, 4 HASTINGS SCI. & TECH. L.J. 160 (2011).
40. See Lowenthal, supra note 39, at 1 (“The Bitcoin solution uses cryp-
tography and an open transaction register. Whenever you spend a Bitcoin, you
cryptographically sign a statement saying that you have transferred the coin
to a new owner and you identify the new owner by their public crypto key. . . .
As soon as a transaction takes place, the recipient (who has a very strong in-
centive to ensure that you don't spend the coin twice) publishes the transaction
to the global Bitcoin network.”).
41. See id. (“[Bitcoins] are created gradually according to a precise proto-
col in order to reward those who contribute and maintain the network, control
the rate of creation of the currency, and maintain the integrity of the transac-
tion list.”).
42. See id.
43. See Ittay Eyal & Emin Gün Sirer, Majority is Not Enough: Bitcoin
2014 ANARCHY, STATUS UPDATES, AND UTOPIA 145
2013, users running different versions of the Bitcoin software
disagreed on whether certain transactions had taken place.44 To
resolve the disagreement, some developers tried to “convince a
majority of the network’s miners to voluntarily downgrade their
software.”45 It worked.46 Similar disputes happen all the time;
indeed, the Bitcoin protocol’s stability depends on community
consensus to resolve them.47
This is social power, and once again, it creates technical
power. If ninety-nine percent of Bitcoin users agree that they
need to update their software to deal with a bug and that update
requires rolling back a day’s worth of transactions, then the one
percent of Bitcoin traders who made a killing that day have just
lost out to the others. If they update their software, they lose the
Bitcoins they just made; if they don’t, those Bitcoins will be
worthless because there will be no one to trade them with.
Bitcoin has no coercive central banker, but it does have a coer-
cive global banker embedded in the software, chosen by the mass
of users.
Thus, while the God problem—the unilateral exercise of
technical power—is immediately dramatic, it exists because of
the Cheers problem—the social lock-in from agreeing to use a
common social software platform. We can never completely get
rid of technical power, and we can never make exiting any of
these platforms completely costless. To join a platform is to com-
mit to its user community, and since technical change over time
Mining Is Vulnerable (Dep’t of Computer Science, Cornell Univ., No.
arXiv:1311.0243v5 [cs.CR], 2013), available at
http://arxiv.org/pdf/1311.0243v5.pdf.
44. See Timothy B. Lee, Major Glitch in Bitcoin Network Sparks Sell-Off;
Price Temporarily Falls 23%, ARS TECHNICA (Mar. 12, 2013, 12:05 AM),
http://arstechnica.com/business/2013/03/major-glitch-in-bitcoin-network-
sparks-sell-off-price-temporarily-falls-23/ (“A block was produced that the lat-
est version of the Bitcoin software, version 0.8, recognized as valid but that
nodes still running version 0.7 or earlier rejected.”).
45. Id.
46. See Neil Fincham, What the Fork Was That? A Forking Post Mortem,
MINE FOREMAN (Mar. 14, 2013), http://mineforeman.com/2013/03/14/what-the-
fork-was-that-a-forking-post-mortem/.
47. See Ed Felten, Bitcoin Isn’t So Broken After All, FREEDOM TO TINKER
(Nov. 7, 2013), https://freedom-to-tinker.com/blog/felten/bitcoin-isnt-so-bro-
ken-after-all/.
146 PACE LAW REVIEW Vol. 35:1
is inevitable, it means also committing to living with the conse-
quences of technical decisions the community will make in the
future. The social is technical, the technical is social, and both
are always and forever political.48 Perfectly libertarian social
software does not exist.
IV. State
All is not lost. It is possible to design software that makes
it harder to misuse technical power.49 Harder, not impossible,
but that is still something. The heart of social power is the con-
sensus to use particular software with a particular design. Tech-
nical decisions cannot thwart a group of users who have reached
consensus from putting it into place—but can influence the
agenda by which the group makes its decision on which software
to use.
A simple example is it that it matters whether changes to
software can be made unilaterally by a single actor, or whether
such changes require coordinated action by individual users. Fa-
cebook, for example, has immense agenda-setting power because
it can simply update the software on its servers, automatically
changing the “Facebook” experience for everyone.50 Diaspora* is
not immune from software change, but making a change re-
quires persuading a critical mass of users to switch, since each
user must make an individual decision to upgrade.51 This won’t
stop a majority of users from forcing an unwilling minority to
48. For further canonical discussions of the power and limits of exit op-
tions on the Internet, see generally David R. Johnson & David Post, Law and
Borders: The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1398-1402
(1996); Neil Weinstock Netanel, Cyberspace Self-Governance: A Skeptical View
from Democratic Theory, 88 CALIF. L. REV. 395, 425-28 (2000); David G. Post,
Against “Against Cyberanarchy”, 17 BERKELEY TECH. L.J. 1365, 1381-82 (2002).
49. See David G. Post, Anarchy, State, and the Internet: An Essay on Law-
Making in Cyberspace (Article 3), J. ONLINE L. (1995).
50. See Facebook: Statement of Rights and Responsibilities, FACEBOOK,
https://www.facebook.com/legal/terms (last visited Oct. 17, 2014) (“If you down-
load or use our software, such as a stand-alone software product, an app, or a
browser plugin, you agree that from time to time, the software may download
and install upgrades, updates and additional features from us in order to im-
prove, enhance, and further develop the software.”).
51. See generally How Does Diaspora* Work?, DIASPORA*, https://diaspor-
afoundation.org/about#host (last visited Oct. 16, 2014).
2014 ANARCHY, STATUS UPDATES, AND UTOPIA 147
upgrade or quit—but it is harder to persuade a majority of users
than it is to persuade one individual. On Diaspora*, the sheer
force of social inertia protects users.
At first glance, it seems as though we could protect users by
locking a design in place for all time and giving no one at all the
ability to modify the software. Unfortunately, this approach—
get the software right and then never change it—doesn’t work,
because technical power is secondary to social power. Software
is not self-executing, so if people agree to discard a piece of soft-
ware, no safeguards embedded in it will do any good. The parties
to a contract can rescind it; the partners in a partnership can
dissolve it; the users of software can replace it.
There are also strong practical reasons not to freeze code
forever. Software is buggy, and users want someone to be able to
fix bugs. If Bitcoin’s current implementations can only process
seven transactions a second, its users will want to be able to up-
grade the protocol’s capacity.52 But once we admit of that possi-
bility, what counts as a “bug” and what counts as a “feature” is
necessarily in the eye of the beholder. Marc Bragg—according
to Second Life—took advantage of a bug to place early and arti-
ficially low bids for virtual land.53 Leaving that bug unfixed
could have broken the land-auction process for everyone else.
But a Second Life that can roll back botched land auctions is a
Second Life that can confiscate Bragg’s property without a hear-
ing.
The same goes for disagreements over how Bitcoin’s block-
chain protocol54 should operate, or how to weigh redditors’ votes
when moderating comments. The necessity of change creates
the possibility of oppression. Software is a human construct,
made for social purposes; there is no such thing as perfect soft-
ware, any more than there is a perfect human or a perfect soci-
ety.
52. See Timothy B. Lee, Bitcoin Needs to Scale by a Factor of 1000 to Com-
pete with Visa. Here’s How to Do It, WASH. POST, Nov. 12, 2013,
http://www.washingtonpost.com/blogs/the-switch/wp/2013/11/12/bitcoin-
needs-to-scale-by-a-factor-of-1000-to-compete-with-visa-heres-how-to-do-it/.
53. See Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 595-97 (E.D.
Pa. 2007).
54. See Block Chain, BITCOIN WIKI, https://en.bitcoin.it/wiki/Block_chain
(last visited Oct. 16, 2014).
148 PACE LAW REVIEW Vol. 35:1
Put another way, even software that never changes still cre-
ates technical power. It freezes a specific set of rules and power
relations in place for all time, favoring some tasks and users over
others. An electronic stock exchange that executes trades in the
order they are received favors whoever can shave the most mi-
croseconds off the time it takes their sell orders to arrive.55 An
Internet on which anonymity is easy and unmasking is hard fa-
vors harassers over victims.56 Those who come out ahead under
those rules may be disinclined to notice the technical power sus-
taining their advantages, but the power and the advantages are
still there. The computational is political.57
We return, therefore, to partial techniques that moderate
power rather than eliminate it. One is that having smaller com-
munities with more competition among them makes it easier for
users to threaten to leave. The proliferation of subreddits makes
redditors’ threats to start their own more credible. The moder-
ators of /r/Politics still have technical and social power over it;
those who depart still give something up. But they give up less
than those who leave Facebook do; the hurdles they must jump
are lower. The design of Reddit doesn’t prevent the moderators
of a subreddit from behaving atrociously; it just makes it harder
to force users to hold still while they do.
To generalize, distributed systems disperse social power;
centralized systems concentrate it. While the nature of social
software means that no technical design can eliminate the need
for agreement on some aspects of the design, some designs re-
quire greater agreement than others. Facebook is a tightly cou-
pled software system—more than one billion users58 experience
55. See Jerry Adler, Raging Bulls: How Wall Street Got Addicted to Light-
Speed Trading, WIRED (Aug. 3, 2012),
http://www.wired.com/2012/08/ff_wallstreet_trading/all/.
56. See Bryan H. Choi, The Anonymous Internet, 72 MD. L. REV. 501, 507
(2013); James Grimmelmann, The Unmasking Option, 87 DENV. U. L. REV.
ONLINE 23, 25-26 (2010).
57. For discussion of the inevitability of contested decisions embedded in
software, see Jay P. Kesan & Rajiv C. Shah, Setting Software Defaults: Per-
spectives from Law, Computer Science, and Behavioral Economics, 82 NOTRE
DAME L. REV. 583, 589-97 (2006); Clay Shirky, Social Software and the Politics
of Groups, CLAY SHIRKY’S WRITINGS ABOUT THE INTERNET (Mar. 9, 2003),
http://shirky.com/writings/group_politics.html.
58. See Facebook: About, FACEBOOK, https://www.facebook.com/face-
book/info (last visited Oct. 17, 2014).
2014 ANARCHY, STATUS UPDATES, AND UTOPIA 149
it through exactly the same server software. All one billion users
must agree on what “Facebook” is, which gives Facebook enor-
mous, concentrated power.
But other social-software systems are less tightly coupled;
they are more tolerant of the possibility that people’s experi-
ences will be inconsistent. Factoring web discussions among so-
cial platforms such as Digg, Reddit, Slashdot, Metafilter, and a
million others means that it is no longer necessary for each to
have the same software-imposed rules as the others. This tech-
nical modularity creates social modularity: fewer people need to
agree on what “Pinterest” or “Tumblr” is than on what “Face-
book” is. Reducing the need for agreement on each platform re-
duces the degree of technical power that each platform possesses
over its users.
But dispersion comes at a distinctive cost: fragmentation. It
was harder to travel from Antioch to London after the collapse
of the Roman Empire; the conversation about a photograph
splinters as it crosses from one site to another. Conversations
on /r/Liberal59 and /r/Conservative60 and /r/Neutralpolitics61 take
place in substantial isolation from each other. There will always
be a tradeoff between freedom and interoperability in social soft-
ware systems.62 And note carefully, the technical power is not
gone. It has simply been placed in more hands: a million mayors
instead of a lone emperor. The moderators of /r/Anarchism
(52,643 readers)63 enjoy the same kind of technical power as the
moderators of /r/Politics (3,085,888 readers).64 And, if
/r/Postleftanarchism (803 readers)65 is to be believed, they have
abused that power. A mailing list moderator exercises the power
59. See /r/Liberal, REDDIT, http://www.reddit.com/r/liberal (last visited
(Oct. 17, 2014).
60. See /r/Conservative, REDDIT, http://www.reddit.com/r/Conservative
(last visited Oct. 17, 2014).
61. See /r/Neutralpolitics, REDDIT, http://www.reddit.com/r/NeutralPoli-
tics (last visited Oct. 17, 2014).
62. James Grimmelmann, The Internet Is a Semicommons, 78 FORDHAM
L. REV. 2799, 2830 (2010).
63. See /r/Anarchism, REDDIT, http://www.reddit.com/r/anarchism (last
visited (Oct. 21, 2014).
64. See /r/Politics, REDDIT, http://www.reddit.com/r/politics (last visited
Oct. 21, 2014).
65. See /r/Postleftanarchism, REDDIT, http://www.red-
dit.com/r/postleftanarchism (last visited Oct. 8, 2014).
150 PACE LAW REVIEW Vol. 35:1
to decide which messages she will forward to the list and which
messages she will block, just as Facebook does. A piranha’s
teeth are as sharp as a shark’s.
Another technique for checking technical power, one so fre-
quently mentioned that it needs little elaboration, is transpar-
ency. The EdgeRank algorithms Facebook uses to decide which
stories to show to users are proprietary, secret, and inscruta-
ble.66 It is hard to detect censorship on Facebook, and even
harder to prove.67 PayPal, at least, cannot freeze a user’s ac-
count without the freeze being obvious to the user—and thus
open to public challenge.68 Bitcoin’s open-source implementa-
tion makes it accessible to users what the protocol does and does
not do.69 This fact does not prevent one group of users from in-
sisting on a change that hurts others, but it does make it harder:
the consequences of a proposed change are visible in the prof-
fered source code, which makes it easier to mobilize resistance.
V. Utopia
Technical power is dangerous because it can be abused, not
because it is bad in itself. Facebook couldn’t “give people the
power to share”70 without software and the technical power that
comes with it. PayPal, Second Life, Reddit, Bitcoin, YouTube,
and all the other social software platforms that enrich online life
use technical power to do great things for users. Rather, the
fundamental problem with technical power is that it is uncon-
strained by the rule of law.71 Software itself can be almost per-
66. Jeff Widman, EdgeRank, EDGERANK, http://edgerank.net/#What-is-
EdgeRank (last visited Oct. 21, 2014) (“Furthermore, Facebook keeps the algo-
rithm a secret, and they're constantly tweaking it.”).
67. Arbitrary and Capricious, ECONOMIST, Aug. 28, 2014,
http://www.economist.com/blogs/democracyinamerica/2014/08/facebook-cen-
sorship (“Facebook censors operate under a cloak of anonymity, with no ac-
countability to users.”).
68. See Solving Problems with Your PayPal Account, PAYPAL
https://www.paypal.com/webapps/mpp/security/solve-problems (last visited
Oct. 21, 2014) (“Has your PayPal account been limited or ‘frozen’?”).
69. See Frequently Asked Questions, BITCOIN, supra note 38 (“Bitcoin is
fully open-source and is decentralized.”).
70. Facebook: About, supra note 58.
71. For discussions of software and the rule of law, see generally Danielle
2014 ANARCHY, STATUS UPDATES, AND UTOPIA 151
fectly rule-like—automatic, precise, consistent, and utterly inde-
fatigable—but there is no way to make similar guarantees about
the people who create the software.72
It is deeply undemocratic, for example, for a government to
make new rules in secret and impose them without warning or
a chance to be heard. And yet, that’s exactly what happens when
a platform owner pushes out a new version of its software that
takes away a feature users had come to take for granted. The
handheld Nintendo 3DS comes with a stylus and a touchscreen,
enabling users to run the Swapnote program to “create hand-
written notes and then share those notes with other Swapnote
users . . . from across the room . . . or across the world.”73 But
when Nintendo decided that some users were using Swapnote to
“exchange offensive material[,]” it disabled the feature.74 No
consultation, no vote, no warning, no appeal, no refund. Tech-
nical power can be wielded without any of the checks and bal-
ances that apply in any democracy worth its salt.
The rule of law is a characteristic of a social institution, not
of a technology. When software treats users fairly, it is because
the programmers and system administrators behind it are com-
mitted to treating users fairly. Those commitments don’t just
happen. They arise when the programmers care about making
their online spaces vibrant, safe, fair, and just, and the program-
mers care when users care. Some administrators will share us-
ers’ values and act on them; others will be afraid of what will
happen if they don’t. But either way, the culture of the rule of
law must come from users. The users are the relevant political
community entitled to make policy for themselves. They are the
ones who can hold platform providers truly accountable. They
are the ones who best understand the norms and values of their
Keats Citron, Technological Due Process, 85 WASH. U. L. REV. 1249 (2007);
James Grimmelmann, Sealand, HavenCo, and the Rule of Law, 2012 U. ILL. L.
REV. 405; James Grimmelmann, Note, Regulation by Software, 114 YALE L.J.
1719 (2005) [hereinafter Grimmelman, Regulation by Software]; Michael Risch,
Virtual Rule of Law, 112 W. VA. L. REV. 1 (2009).
72. See Grimmelman, Regulation by Software, supra note 71, at 1735.
73. What Is Swapnote?, NINTENDO, http://swapnote.nintendo.com (last
visited Oct. 21, 2014).
74. Notice About Service for Nintendo 3DS Software Swapnote, NINTENDO,
http://www.nintendo.com/whatsnew/detail/UHQZFP2Jxcll_Vm-
PsZpxNIK5920bRRK (last visited Oct. 31, 2013).
152 PACE LAW REVIEW Vol. 35:1
communities. They are the ones with a deep and personal stake
in the success of those communities. They are the ones in a po-
sition to weigh the costs and the benefits to their community of
different rules: to decide, for example, whether the platform
should be relatively more tolerant of wide-ranging debate or rel-
atively more protective of its users from abuse.
In the end, following extensive debate within /r/Politics, its
moderators apologized, added an FAQ, and reopened considera-
tion of each and every banned domain.75 Whether you see them
as foiled right-wing plotters or as overworked public servants,
the debates that led them to change course look like deliberative
democracy in action.76 If the essence of the rule of law is that
the government has guns and doesn’t use them, /r/Politics comes
off looking good. Whether by force or by force of argument, its
moderators were persuaded not to use the technical power eve-
ryone agreed they possessed.77
One last example. In 2007, Digg78 users repeatedly posted
a 32-digit hexadecimal number—an encryption key for HD-
DVDs. Digg’s administrators initially complied with Digital Mil-
lennium Copyright Act (“DMCA”)79 takedown notices from the
Motion Picture Association of America (“MPAA”), which sparked
an outcry from Digg users. After a long night of the soul, Digg
co-founder Kevin Rose posted a note:
But now, after seeing hundreds of stories and
reading thousands of comments, you’ve made it
clear. You’d rather see Digg go down fighting than
bow down to a bigger company. We hear you, and
effective immediately we won’t delete stories or
comments containing the code and will deal with
75. See Oremus, supra note 35.
76. For a discussion of online spaces as deliberative communities, see A.
Michael Froomkin, Habermas@discourse.net, 116 HARV. L. REV. 749, 867-71
(2003); James Grimmelmann, Virtual Borders: The Interdependence of Real
and Virtual Worlds, 11 FIRST MONDAY 2 (2006), http://firstmonday.org/ojs/in-
dex.php/fm/article/view/1312/1232.
77. For an argument that social-software-mediated groups are always en-
gaged in a project of self-definition via debate, see Shirky, supra note 1.
78. DIGG, http://digg.com/ (last visited Oct. 26, 2014).
79. See 17 U.S.C. § 512(c) (2012).
2014 ANARCHY, STATUS UPDATES, AND UTOPIA 153
whatever the consequences might be.80
In the end, the MPAA quietly backed down. The moral of
the story is not that Digg’s software worked, but that its politics
worked. Right or wrong, its users collectively made a decision
and acted on it.
What Digg and Reddit had that PayPal and YouTube lacked
was not just a conscientious administrator in a position of power,
but also a user community that cared about how that power was
wielded. The values that good administrators act on are the val-
ues of their communities. Good administrators online, like good
governments offline, explain their policies, give fair warning
whenever possible, seek comments and feedback on changes,
and are ultimately accountable to those they serve. The tech-
nical power is still present, but its use is checked, less visibly
and less formally, by the social power behind it.
The rule of law will come to social software when We the
Users insist on it.
80. Kevin Rose, Digg This: 09-f9-11-02-9d-74-e3-5b-d8-41-56-c5-63-56-88-
c0, DIGG THE BLOG (May 1, 2007),
http://web.archive.org/web/20070504054516/http://blog.digg.com/?p=74.