Vol 7 No 1 - Roger Williams University School of Law

principle in the digital/crypto world is conservative and dated.However, I am yet to be convinced that I am a dinosaur, or thatthe demise of fair use is a good thing.How do we ensure the code world and its digital property willespouse public values of user and access? The answer to thisquestion requires us to determine the source and location ofvalues inherent to digital property and their continued relevanceand enforceability.VI. THE VALUES DEFINING DIGITAL PROPERTY: DIGITALCONSTITUTIONALISMAs we have seen to this point, digital property takes definitionfrom legislation, contract and technology. The Constitution, as afoundational document bringing fairness to the exercise of power,acts as an overlay. However, U.S. constitutional law and itsfundamental values, such as free speech and equality, are onlyoperative where there is evidence of state action: legislative,administrative or judicial.379 Therefore, U.S. constitutional lawwill have limited application in the privatised world of code, whereprivate technology corporations build self-executing digitalarchitecture embedded/coded with corporate, not public values.The doctrine of state action, which perpetuates the public/privatedivide, is a crucial issue to understand. Some suggest its enduringnature in U.S. constitutional law comes from the notion of laissezfaire—the idea that people like to think their private actions areregulated by little more than the market.380 Whatever itsrationale, the notion of state action means that, in many cases,values inherent in public constitutionalism will have limitedimpact in the digital world. This challenges us to conceptualise anotion of digital constitutionalism wherein public values are379. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978); Shelley v. Kraemer, 334U.S. 1 (1948); Laurence H. Tribe, American Constitutional Law 1711 (2d ed. 1988); seealso Hudgens v. NLRB, 424 U.S. 507 (1975) (holding that picketers did not have a FirstAmendment right to enter the shopping center for the purpose of advertising theirstrike against their employer); Amalgamated Food Employees Union Local 590 v.Logan Valley Plaza, Inc., 391 U.S. 308 (1968) (holding that a shopping center whichserves as a community business block was the functional equivalent of a business blockfor First Amendment purposes); Andrew Clapham, Human Rights in the PrivateSphere (Clarendon Press, Oxford 1994).380. Paul S. Berman, Cyberspace and the State Action Debate: The Cultural Valueof Applying Constitutional Norms to “Private” Regulation, 71 U. Colo. L. Rev. 1263,1288 (2000).