Law encoded: Towards a free speech policy model based on net decentralised architectures

The free exchange of data between many interconnected nodes, in the absence of a central point of control, has been at the heart of the Internet’s architecture since its inception. For its engineering architects “if the Web was to be a universal resource, it had to grow in an unlimited way”, thus “its being ‘out of control’ was very important” (Berners-Lee and Fischetti, 1999). Yet, this simple deign choice has had a serious impact on conventional legal thinking. This paper highlights the importance of online decentralized architecture as the perfect substantiation of the autonomy rational underpinning the right to free speech. In doing so the paper analyses the core principles supporting the Internet’s architecture on their merit to the promote the user’s autonomy and self-realisation through speech. Following the free speech rationale for autonomy, it is observed how some simple engineering decisions for an open decentralised communicatory platform can build a user-centric ecology for speech. To validate this hypothesis two main architectural choices are examined as to the potential they hold for free speech: the principles of Modularity and End-to-End (E2E). The paper concludes that in terms of free speech, law and net architecture should be seen as complementing factors instead of opposite controlling deities. In this respect, Lessig’s mantra that “code is law” is paraphrased to read as “law encoded”, meaning that the law should strive to maintain the core architectural Internet values promoting human rights, and free speech in particular