Code and Other Laws of Cyberspace
Author: Lawrence Lessig
Publisher: New York: Basic Books, 1999
Review Published: August 2000
"We will speak, like modern Jeffersons, about nature making it so -- forgetting that here, we are nature" (233).
Lawrence Lessig is concerned about our liberty, specifically, how our liberty can be safeguarded or eroded in cyberspace. Lessig, a Stanford law professor, brings his understanding of the structuring influence of constitutional law to the Internet: "Architecture is a kind of law: it determines what people can and cannot do" (59). In cyberspace, architecture means code. According to Lessig, our behavior in cyberspace is largely a function of its code; regulate the code, and you regulate our behavior. Different code allows for different behavior, different regulability, and different implications for our freedoms. Our choice of code thus becomes a choice of values. "[D]ifferent architectures embed different values . . . and only by selecting these different architectures -- these different codes -- can we establish and promote our values" (58).
This book partly serves as a warning for those who bring an essentialist perspective to cyberspace (what Lessig calls "is-ism"), who argue that cyberspace is inherently oppressive or liberating: "Too many take this freedom as nature. Too many believe liberty will take care of itself" (58). The Net will be structured; the question is how, by whom, and according to what values. With a nod to William Mitchell, he argues that "control of code is power" (60) . Like Mitchell, he understands that digital architectures and "urban design" will "profoundly affect our access to economic opportunities and public services, the character and content of public discourse, the foms of cultural activity, the enaction of power, and the experiences that give shape and texture to our daily routines." While Lessig agrees with Mitchell that we can "find opportunities to intervene, sometimes to resist, to organize, to legislate, to plan, and to design" (Mitchell, 5), Lessig's is the more multi-faceted exploration of the many ways cyberspace is structured, and of our options for intervention.
Although he warns of his tendency as a lawyer to be "more long-winded, more obscure, more technical, and more obtuse" (xi), his writing is extremely clear. Lessig's style is straightforward and concrete. He applies his classroom method to print, presenting a wide variety of case studies of life both off- and online. The discussions that follow these case studies amount to a sort of "government 101," a taxonomy of concepts of regulation. "In real space we recognize how laws regulate -- through constitutions, statutes, and other legal codes. In cyberspace we must understand how code regulates -- how the software and hardware that make cyberspace what it is regulate cyberspace as it is" (6). At times, I was as fascinated by his examples of "real space code" as I was by his lessons about cyberspace.
Lessig spends much of the book tackling the question of how to apply our values to the new and uncertain environment of cyberspace. One approach is to "translate" established values into the new environment and structure cyberspace accordingly. Using case studies, Lessig describes the process of translation in traditional space and in cyberspace. In one example, Lessig explains how the advent of wiretapping as a new means of surveillance raised the question of whether the Fourth Amendment protection against "unreasonable searches and seizures" applied to wiretapping, since there was no invasion of a person's property. Establishing that one of the values within the Fourth Amendment was protection against invasion of privacy set the conditions for wiretapping to be covered by the Fourth Amendment.
But when a new technology environment emerges, translation forces us -- as it did in this case -- to choose between competing values. These are values that peacefully co-existed before. Lessig calls the emergence of these value conflicts "latent ambiguities." Was the Fourth Amendment a protection against trespass or invasion of privacy? Before wiretapping, we generally didn't differentiate between these two values. Today we do, and our policies reflect this.
But latent ambiguities are a moving target. Lessig offers a more contemporary example, that of a computer worm, sent out by the government to snoop silently into everyone's computer in search of stolen top-secret information. Is this a suspicionless government search, or the equivalent of a "dog sniff" of your baggage at the airport? Several values are at play here. Is our concern with its intrusiveness (it isn't, since you don't know it's there), or its invasion of privacy (it looks only for contraband, leaving personal material/documents untouched)? Lessig suggests that a third value latent in the Fourth Amendment, checking the extent of government control, is a value that provides a rationale against this type of search. In another example, he points out that today the right to read anonymously is taken for granted -- not even a value we feel a need to assert. But with the possibilities for fine-grained control over our online reading, the right to read anonymously is increasingly threatened. Is anonymous reading, then, a value we want to maintain? Again, new technology forces distinctions between values that were not apparent before. "Here too we do not have a decision of the framers to follow. We must make our own" (144).
His concern with checking the extent of government control appears elsewhere in the book, as in his discussion of the criminalization of hackers. At the same time, his is not a big-brother argument. Government belongs here; this book can also be understood as a polemic against those who argue for a 'hands-off' approach to cyberspace (in fact, his last chapter, "What Declan doesn't get," is an argument against the libertarian agenda, as espoused by Wired News writer, Declan McCullagh).
His case studies help us understand the uncertain realm of cyberspace through analogy to more familiar real-life examples, as in his illustration of the concept of engineering "slippage" into code. Using the example of the recording industry, he shows how it was often the inefficiency of previous technologies that protected our values. Analog recording technologies once inherently protected copyright by not allowing the creation of perfect copies. As digital audio technology overcame that limitation, Congress acted to require the embedding of imperfections into the copying process, in effect mimicking the imperfections of pre-digital technologies and hardwiring regulation into code.
Code (as architecture) represents only one form of regulation among several, along with law (what he calls "East Coast Code"), the market, and social norms (examples of how these other "laws" regulate cyberspace are through copyright law, pricing structures, and flaming). But code as architecture has an ominous efficiency to it. It allows for "fine-grained" control over behavior. And unlike laws, norms, and the market, which all require administration to be effective, code (architecture) controls by itself. In the example above, code allowed Congress to regulate behavior that would be difficult to regulate directly through laws. This also allows code to control our freedoms invisibly, which for Lessig represents a significant threat to liberty. As surveillance technologies exert a more fine-grained control over our lives, what are the values with which we will determine their limits? Do we want the convenience surveillance technologies give us in the form of ever more accurate marketing? Do we even care, since most of the time we are unaware that we are being monitored? Or, should we be concerned about the chilling effect of every greater monitoring, and the normalizing effect of the knowledge that we are under watch? Should we worry that our actions in one of our spheres of daily life will be subject to the scrutiny of a different sphere? Once again, we must choose among competing values.
Lessig's central concern is with our ability to structure freedom into cyberspace, but his scope is vast, covering free speech, intellectual property, privacy, and political sovereignty. He considers how to apply Fourth Amendment protections to cyberspace, and how to re-establish institutional trust and credibility in new forms of publishing. He showshow some architectures allow for painless monitoring of information, and how others require more invasive searches. He explains how different code creates different cyberspaces, each with different possibilities for individual and community action. He also considers issues of sovereignty, whether the architecture of cyberspace "trumps" the sovereignty of nations. In response to Walter B. Wriston's comment that control over cyberspace "is another thing slipping through their fingers," Lessig suggests that, "this architecture is a kind of sovereign governing the community that lives in this space. We must consider the politics of the architectures of the life there" (205) . This last point is a bit facile; someone controls this architecture.
Lessig summarizes and restates his main points as he moves from section to section. He clearly does not want you to miss his core argument: "They are choices about how the world will be ordered and about which values will be given precedence" (59). "Nature doesn't determine cyberspace. Code does. Code is not constant. It changes" (109). Primarily, his book is an invitation to enter the debate. For this reason, he is reluctant to promote his own perspective on what should be done.
Eventually, though, he does offer his perspective. Discussing the implications of direct and indirect regulations, Lessig argues for controls that are direct, noticeable, and accountable. "If there is speech the government has an interest in controlling, then let that control be obvious to the users" (181). When discussing the control of speech in cyberspace, Lessig argues that the transparency of filtering technology (making it invisible to the user), along with its ability to be implemented at any level of the network, makes it a more extreme threat to freedom of speech. The very intrusiveness of zoning protocols makes them, in his view, more accountable and thus a better choice for preserving liberty. Pointing out that the controls we structure into code represent different values in different contexts, he argues for code that allows private control over one's information (such as encryption and digital certificates) and against code that tracks online readers and limits an intellectual commons.
He is especially out-spoken in arguing for open code. For Lessig, open code represents a check on state power. Its changeability makes it a moving target, and so makes cyberspace more difficult to regulate. Again, Lessig is not against government regulation of cyberspace; he merely wants us to consider the same constitutional checks to government power that exist in real space. Lessig also argues, contrary to what you mightexpect, that cyberspace offers conditions for greater copyright protection than ever before. "What copyright seeks to do using the threat of law and the push of norms, trusted systems do through the code" (130). While laws and norms had struck a balance between private incentive and public use, structuring copyright controls into code creates a "more fine-grained control over access to and use of protected material" (129). This tiltsthe balance of private incentive and public use in favor of the producer, and against public use. Again, this exposes a latent ambiguity, and, as in the debate over digital audio technology, raises the question of whether a certain "slippage" should be worked into the new technology to allow for a more traditional balance between private and public use.
For someone who is loath to offer his perspective, he seems to get it across. At times, the book can be a bit disingenuous (code is not a sovereign in cyberspace, and, as he admits later in the book, code is not law), or problematic (he argues for direct and noticeable regulation, yet suggests that worms have the advantage of being invisible, and thus creating no anxiety for the user). In addition, as the book delves into a wide range of issues connected to cyberspace, liberty, and law, it is naturally at the expense of more in-depth exposition. But these are small points; his purpose here is to frame the dimensions of the threat and our options for addressing it. In this, he succeeds. As he moves from case to case, restating and reframing the main concepts in slightly different forms, he creates a sense that we are being given the tools for assessing the scope of our liberty in cyberspace.
The book is timely. The media seem to be waking up only now to the potential threats to freedom in cyberspace. Public debate on cyberspace has generally been limited to concerns with pornography in schools and libraries, or to the boom of dotcoms. Only recently, for example, have issues of privacy appeared on the public radar, in stories such as Toysmart.com's decision to sell its customer information database, or the FBI's disclosure of their new "Carnivore" Internet wiretapping system (the issues around which, incidentally, strongly parallel the monitoring and Fourth Amendment questions raised by Lessig's hypothetical worm) . Lawrence Lessig's Code and Other Laws ofCyberspace's call for a larger public debate on the architectures of cyberspace is well warranted, and the tools it provides should help us come to the debate well prepared.
1. William Mitchell, City of Bits: Space, Place and the Infobahn (MIT Press, 1997). The book is also available online.
2. Walter B. Wriston, The Twilight of Sovereignty (New York: Charles Scribner's Sons, 1992).
3. See, for example, "FBI's Internet Wiretaps Raise Privacy Concerns" and "F.T.C. Moves to Halt Sale of Database at Toysmart."
Andrew Hess is a doctoral student in International Education at New York University, finishing his doctoral thesis, "Information Technology Discourse and the Transformation of Czech Public Library Roles." His main academic interest is in the transformative relationship of information technology and education. He has been teaching English as a second language, writing, and educational technology for 16 years.
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