The Cato Institute – Ten Years of Code

Here the Cato Institute has asked some of the leading theorists in Internet policy to re-asses Lawrence Lessig’s seminal work, Code and other laws of Cyberspace to mark the ten-year anniversary of its publication.

The theorists are Declan McCullagh, Jonathan Zittrain, Adam Thierer, and finally Lawrence Lessig himself.

McCullagh

From What Larry Didn’t Get

Excerpts:

Code offered a burgeoning protest movement this unifying theme and philosophy: Code is a form of law and can be a potent force for social liberation or control. How the Internet’s underlying architecture is shaped, Lessig argued, is important enough that lawyers, programmers, and government officials should pay close attention to choices made in software design.

But the last chapters of the book go further and claim that the choice of rules is too important to be “left to the market.” Instead, it should be entrusted to politicians and (even better) judges, who are better equipped to confront constitutional questions.

Lessig writes: “Not only can the government take these steps to reassert its power to regulate, but (it) should. Government should push the architecture of the Net to facilitate its regulation, or else it will suffer what can only be described as a loss of sovereignty… We need to be able to make political decisions at the level of the Net. A political judgment needs to be made about the kind of freedom that will be built into the Net.”

But critiquing bad policy proposals (and there were plenty of them in the late 1990s) is hardly do-nothingism. It’s possible to agree with Lessig that code is important, that architectures promoting liberty are worth defending, and that some government actions are preferable to inaction — while being suspicious of sweeping indictments of “commercial” activities and calls for expansions of government authority.

Zittrain

The arguments over cyberlibertarianism sparked by the release of Code aren’t due to gaping ignorance or even dueling ideologies. They’re more about emphasis. Should the gov or the people moderate the internet?

Lessig sees value in having democratic political systems shape and ratify our technological choices, while the cyberlibertarian might just as soon let chance (which is to say, the market) take its course.

there’s a separate, straightforward anti-libertarian case that lots of people would want to make for increased government policing of the Internet because of the bad things that can and do take place on it. This week’s example is the “Craigslist killer,” who assaulted people he met through that site. In his wake, several U.S. state attorneys general are pressuring Craigslist to shut down its “erotic services” section.

The debate between Larry and the libertarians is more subtle. Larry says: I’m with you on the aim — I want to maintain a free Internet, defined roughly as one in which bits can move between people without much scrutiny by the authorities or gatekeeping by private entities. Code’s argument was and is that this state of freedom isn’t self-perpetuating. Sooner or later government will wake up to the possibilities of regulation through code, and where it makes sense to regulate that way, we might give way — especially if it forestalls broader interventions. So, for example, Larry has favored government incentives to private bounty hunters to track down spammers. Declan’s been skeptical, but more because he thinks it won’t work very well. His preferred alternatives are technical measures and … suing spammers. Which, if it’s allowed, seems like another way of saying: a bounty awarded by the state to those who step forward with evidence against the bad guys.

The problems with not letting the goverment intervene are that The first risk is that government won’t stay powerless. For example, Code raised the possibility of a “zoned” Internet, one where your location would greatly define what you can and can’t do. That some people with enough technical skill and determination can evade these blocks doesn’t do much for the vast majority who shrug and move on to other, safer content.

I think we can get locked into these platforms as we (rightly, unfortunately) fear the wildness of the open Internet and general purpose PC, and as we shift and accumulate more and more of our data and relationships there. After the markets coalesce to these tamer gated communities, governments can later come along and insist that these platforms be tuned towards surveillance and control far more successfully than the wilder Internet that preceded them.

Moreover, Wikipedia licenses all its content so that anyone can walk away with a copy of the whole encyclopedia and start a competing one at any time. Those who see Wikipedia governance as corrupt can take everyone’s ball and start anew.

In that sense, I get the limitations both of traditional regulation and of the classical firm-based market in producing some of the platforms we’ve come to hold dear, and in dealing with some of the problems that come up within them. That’s why I’m part of efforts to forge technologies that can help a critical mass of people contribute to some of the Net’s most pressing problems. Civic technologies seek to integrate a respect for individual freedom and action with the power of cooperation. Too often libertarians focus solely on personal freedoms rather than the serious responsibilities we can undertake together to help retain them, while others turn too soon to government regulation to preserve our values. I don’t think .gov and .com never work. We too easily underestimate the possibilities of .org — the roles we can play as netizens rather than merely as voters or consumers.

Thierer

Lessig

The primary idea, as expressed in the title, is the notion that computer code (or “West Coast Code”, referring to Silicon Valley) may regulate conduct in much the same way that legal code (or “East Coast Code”, referring to Washington, D.C.) does. More generally, Lessig argues that there are actually four major regulators — Law, Norms, Market, Architecture — each of which has a profound impact on society and whose implications must be considered.

Taken from Continuing the Work of Code

That for the Internet, we (circa 1999) were paying plenty of attention to changes in law. We were not paying enough attention to changes in code. And indeed, for obvious reasons, those who controlled much of the code (what I unhelpfully called “commerce”) circa 1999 had plenty of reasons to change that code in ways that better enabled their own control, and as a byproduct (whether intended or not), control by the government. As I wrote, “Commerce, like government, fares better in a well-regulated world. Commerce would, whether directly or indirectly, help supply resources to build a well-regulated world.” (p. xiii)

Thus, a liberty-loving democratic government must at least monitor to assure that the mix of regulating modalities doesn’t weaken liberty, or at least the liberty the democracy wants

All of these technologies (and many others as well) have been built by “commerce.” None has been developed by the government. They all have been built to serve legitimate commercial ends. But the argument of Code was that the unintended consequence of this “new and improved” Internet (from the perspective of commerce at least) would be newly empowered governments. And governments, as Zittrain rightly shows, are slowly coming to recognize this valuable gift.

Whether hackers can crack the iPhone or not, the vast majority of the Internet lives life as the code permits.