Is 2000 Code Book

[Arnold Gilgen]

Tableof Contents Title 64.2. Wills, Trusts, and Fiduciaries Subtitle IV. Fiduciaries and Guardians Part D. Guardianship of Incapacitated Persons Chapter 20. Guardianship and Conservatorship Article 1. Appointment 64.2-2000. Definitions

"Conservator" means a person appointed by the court who is responsible for managing the estate and financial affairs of an incapacitated person and, where the context plainly indicates, includes a "limited conservator" or a "temporary conservator." "Conservator" includes (i) a local or regional program designated by the Department for Aging and Rehabilitative Services as a public conservator pursuant to Article 6 ( 51.5-149 et seq.) of Chapter 14 of Title 51.5 or (ii) any local or regional tax-exempt charitable organization established pursuant to 501(c)(3) of the Internal Revenue Code to provide conservatorial services to incapacitated persons. Such tax-exempt charitable organization shall not be a provider of direct services to the incapacitated person. If a tax-exempt charitable organization has been designated by the Department for Aging and Rehabilitative Services as a public conservator, it may also serve as a conservator for other individuals.

"Facility" means a state or licensed hospital, training center, psychiatric hospital, or other type of residential or outpatient mental health or mental retardation facility. When modified by the word "state," "facility" means a state hospital or training center operated by the Department of Behavioral Health and Developmental Services, including the buildings and land associated with it.

"Guardian" means a person appointed by the court who has the powers and duties set out in 64.2-2019, or 63.2-1609 if applicable, and who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and, if not inconsistent with an order of involuntary admission, residence. Where the context plainly indicates, the term includes a "limited guardian" or a "temporary guardian." The term includes (i) a local or regional program designated by the Department for Aging and Rehabilitative Services as a public guardian pursuant to Article 6 ( 51.5-149 et seq.) of Chapter 14 of Title 51.5 or (ii) any local or regional tax-exempt charitable organization established pursuant to 501(c)(3) of the Internal Revenue Code to provide guardian services to incapacitated persons. Such tax-exempt charitable organization shall not be a provider of direct services to the incapacitated person. If a tax-exempt charitable organization has been designated by the Department for Aging and Rehabilitative Services as a public guardian, it may also serve as a guardian for other individuals.

"Guardian ad litem" means an attorney appointed by the court to represent the interests of the respondent and whose duties include evaluation of the petition for guardianship or conservatorship and filing a report with the court pursuant to 64.2-2003.

"Incapacitated person" means an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment alone shall not be considered sufficient evidence that the individual is an incapacitated person within the meaning of this definition. A finding that a person is incapacitated shall be construed as a finding that the person is "mentally incompetent" as that term is used in Article II, Section 1 of the Constitution of Virginia and Title 24.2 unless the court order entered pursuant to this chapter specifically provides otherwise.

"Individualized education plan" or "IEP" means a plan or program developed annually to ensure that a child who has a disability identified under the law and is attending an elementary or secondary educational institution receives specialized instruction and related services as provided by 20 U.S.C. 1414.

"Individual receiving services" or "individual" means a current direct recipient of public or private mental health, developmental, or substance abuse treatment, rehabilitation, or habilitation services and includes the terms "consumer," "patient," "resident," "recipient," or "client."

"Limited conservator" means a person appointed by the court who has only those responsibilities for managing the estate and financial affairs of an incapacitated person as specified in the order of appointment.

"Mental illness" means a disorder of thought, mood, emotion, perception, or orientation that significantly impairs judgment, behavior, capacity to recognize reality, or ability to address basic life necessities and requires care and treatment for the health, safety, or recovery of the individual or for the safety of others.

Every age has its potential regulator, its threat to liberty. Our founders feared a newly empowered federal government; the Constitution is written against that fear. John Stuart Mill worried about the regulation by social norms in nineteenth-century England; his book On Liberty is written against that regulation. Many of the progressives in the twentieth century worried about the injustices of the market. The reforms of the market, and the safety nets that surround it, were erected in response.

Ours is the age of cyberspace. It, too, has a regulator. This regulator, too, threatens liberty. But so obsessed are we with the idea that liberty means "freedom from government" that we don't even see the regulation in this new space. We therefore don't see the threat to liberty that this regulation presents.

This regulator is code--the software and hardware that make cyberspace as it is. This code, or architecture, sets the terms on which life in cyberspace is experienced. It determines how easy it is to protect privacy, or how easy it is to censor speech. It determines whether access to information is general or whether information is zoned. It affects who sees what, or what is monitored. In a host of ways that one cannot begin to see unless one begins to understand the nature of this code, the code of cyberspace regulates.

This regulation is changing. The code of cyberspace is changing. And as this code changes, the character of cyberspace will change as well. Cyberspace will change from a place that protects anonymity, free speech, and individual control, to a place that makes anonymity harder, speech less free, and individual control the province of individual experts only.

My aim in this short essay is to give a sense of this regulation, and a sense of how it is changing. For unless we understand how cyberspace can embed, or displace, values from our constitutional tradition, we will lose control over those values. The law in cyberspace--code--will displace them.

The basic code of the Internet implements a set of protocols called TCP/IP. These protocols enable the exchange of data among interconnected networks. This exchange occurs without the networks knowing the content of the data, or without any true idea of who in real life the sender of a given bit of data is. This code is neutral about the data, and ignorant about the user.

These features of TCP/IP have consequences for the "regulability" of behavior on the Internet. They make regulating behavior difficult. To the extent that it is hard to identify who people are, it is harder to trace behavior back to a particular individual. And to the extent it is hard to identify what kind of data is being sent, it is harder to regulate the use of particular kinds of data. These architectural features of the Internet mean that governments are relatively disabled in their ability to regulate behavior on the Net.

In some contexts, for some, this unregulability is a virtue. This feature of the Net, for example, protects free speech. It codes a First Amendment into the architecture of cyberspace, because it makes it relatively hard for governments, or powerful institutions, to control who says what when. Information from Bosnia or East Timor can flow freely to the world because the Net makes it hard for governments in those countries to control how information flows. The Net makes it hard because its architecture makes it hard.

But in other contexts, in the view of others, this unregulability is not a virtue--take the German government confronted by Nazi speech, for example, or the U.S. government faced with child pornography. In these contexts, the architecture disables regulation as well. But in these contexts, unregulability is viewed as a vice.

And not just with Nazi speech and child porn. The most important contexts of regulation in the future will affect Internet commerce: where the architecture does not enable secure transactions; where it makes it very easy to hide the source of interference; where it facilitates the distribution of illegal copies of software and music. In these contexts, commerce at least will not view unregulability as a virtue; unregulability here will interfere with the ability of commerce to flourish.

There are many who think that nothing can be done: that the unregulability of the Internet is fixed; that there is nothing we can do to change it; that it will, so long as it is the Internet, remain unregulable space. That its "nature" makes it so.

But no thought is more dangerous to the future of liberty in cyberspace than this faith in freedom guaranteed by the code. For the code is not fixed. The architecture of cyberspace is not given. Unregulability is a function of code, but the code can change. Other architectures can be layered onto the basic TCP/IP protocols, and these other architectures can make behavior on the Net fundamentally regulable. Commerce is building these other architectures; the government can help; the two together can transform the character of the Net. They can and they are.

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