Constructing reality bit by bit
Code and Other Laws of Cyberspace, by Lawrence Lessig. New York: Basic Books, 1999, 297 pp.
John Leslie King
Lawrence Lessig’s book Code and Other Laws of Cyberspace begins and ends with two key themes: that our world is increasingly governed by written code in the form of software and law and that the code we are creating is decreasingly in the service of democratic objectives. Linked to these themes is a broad array of issues, including the architecture of social control, the peculiarities of cyberspace, the problems of intellectual property, the assault on personal privacy, the limits of free speech, and the challenge to sovereignty. The book is compelling and disturbing. It is a must-read for those who believe that the information revolution really is a revolution.
Lessig is a constitutional scholar. He wrote the book while on the faculty of the Harvard Law School and thereafter moved to Stanford Law School. That move recapitulates one of Lessig’s main claims: that the code of cyberspace, long dominated by West Coast software developers, is coming under the control of East Coast law developers. After reading his book, one is tempted to conclude that Lessig moved across the country to help the losing side.
The book’s story line is often difficult to follow because the ideas build up in layers, and each chapter explores multiple layers. Although a diligent reader is rewarded with valuable insights, a superficial reading will leave most readers baffled and a little depressed. A little decoding is helpful.
Lessig’s main thesis is rooted in the touchstone of the Enlightenment: that power corrupts. The objective of democratic society is to limit the exercise of power by substantive means, deciding what can and must be controlled; and by structural means, explicating how control will be exerted. In cyberspace, however, structures are turned inside out. Physical space and borders no longer exist, political jurisdictions hold no meaning, and the conventional mechanisms of security are powerless to stop viruses and worms. Much has been written about the liberating aspects of cyberspace, a realm where laws, both physical and social, do not apply. Lessig might be willing to concede the point to physical laws, but he does not agree that social laws are powerless to control cyberspace. In fact, what bothers him most is the fear that social law will be invoked and written into software in ways that put an end to whatever frontier sprouted briefly in cyberspace. The particular danger is that the increasing dominance of software produced by large companies will increasingly reflect the encoded social law preferred by those companies.
The mechanism by which social law infects cyberspace in Lessig’s account is not the stuff of libertarian nightmares; there are no black helicopters and spooky government agencies involved. Rather, the disease vector is electronic commerce, and the pathogen is authentication. In order to achieve reliable exchange of value between parties linked only by pictures and text strings, it will be necessary for all parties in the transaction to be able to identify with certainty all the other parties. There is no room for anonymity in this world. The elimination of anonymity is an essential part of what Lessig calls the architecture of control.
Control can be exerted by proscribing the behaviors of individuals–for example, by prohibiting certain actions under penalty of civil or criminal prosecution. However, this is expensive and often unreliable. It is much more effective to exert control by making proscribed actions difficult or dangerous in the first place. This can be accomplished by changing the software code so that the proscribed behaviors cannot occur, or by monitoring behavior in such a way that it is a trivial matter to find the perpetrator. In this manner, the East Coast code of law is applied to force the West Coast code of software into the service of social control.
The general drift of Lessig’s argument is that large and powerful interests are increasingly using both East Coast and West Coast code to do away with cherished aspects of open and democratic society. The interests of most concern are the large software and systems builders on whom most people depend for their information infrastructure, but Lessig includes as well those who depend on that infrastructure for doing their business via electronic commerce, publishing, entertainment, and so on. Some cherished aspects of our society are relatively recently acquired, such as the ability to be anonymous on the Internet. Others are long-standing privileges such as the fair use of copyrighted material, maintenance of personal privacy, and free speech.
Ultimately, there is the concern that the power of the sovereign state to ensure democratic freedoms can be eroded by the construction of software that makes those freedoms moot. The state is not always the guarantor of freedom: The 20th century provided ample evidence to the contrary. One need not recite the horrors of Nazi and communist tyranny; one can look at abuses within the U.S. government itself during the Nixon era. Nevertheless, Lessig observes, there is little hope of individual freedom without the collective guarantor of the state, and democratic government has done a pretty good job overall of providing such guarantees.
Again, the mechanisms by which freedoms might be lost are not the stuff of conspiracy theory or the brute exercise of power. Rather, there is a gradual accumulation of advantage to particular interests, ultimately to the detriment of other interests. Lessig’s analysis of intellectual property rights provides a good example of this. He begins by dismissing the assertion that the ubiquity of and easy access to the Internet makes copyright protection impossible. Universal authentication would instantly reveal those who are violating copyright, making enforcement a simple affair. The problem Lessig notes is a shift away from the tradition of “copy duty” that obligated copyright holders to release property for recognized “fair use” purposes. Fair use is an exception to copyright law’s grant of exclusive ownership to the copyright holder of a copyrighted work.
The doctrine of fair use has evolved to cover many things, including the quotation of material for educational and research purposes, as in a published review of the work. Since such uses are fair, the copyright holder is by implication obliged to release the copyrighted work for such purposes. In fact, this “copy duty” has been eclipsed by the difficulty copyright holders face in tracing down every minor use of a work. Copyright holders have therefore tended to pursue legal action only against egregious infringers. As software code increasingly makes it possible for copyright holders to monitor and control even the most minute uses of material, the onus on the user to prove fair use grows. Without active government intervention to force copyright holders to perform their “copy duty,” there would be little to stop a general decline in the tradition of fair use, which has been an important component of democratic traditions.
Not all of the implications of code are as clear-cut in their likely effects. Lessig points out that concerns about personal privacy in cyberspace often underestimate the power of technology to protect against unwarranted access and inspection. A good example is encryption, whereby code scrambling and descrambling algorithms make it impossible for anyone but the key holders to gain access to information. Although the government has the power to force someone to reveal the key for purposes of national security or the pursuit of justice, the burden of justifying such forcible action would be on the government.
The important issue is reciprocity: To what extent are various interests held in check by each other? Reciprocity is basically the ability of each side in a relationship to impose costs or damage on the other side, thereby forcing all parties to pay attention to the concerns of the others. Lessig is less discouraged about the implications for privacy than he is about the implications for intellectual property and copyright, but he points out that the maintenance of privacy will still depend on the presence of an activist government to ensure that code, both legal and software, is written to preserve reciprocity.
Lessig’s position on sovereignty is quite interesting and in many ways illustrates the tension between the physical and the virtual. Like many fans of cyberspace, Lessig acknowledges the important differences between the physical realm of social interaction and the ethereal world of cyberspace interaction. As a New Yorker cartoon pointed out, on the Internet nobody knows if you are a dog. It is easy to dismiss online activity as a kind of fictional realm, but Lessig insists that life on the Internet is in key respects just as real as any other kind of life. The consequences of things said and actions taken in cyberspace might not be exactly the same as they are in the physical realm, but they are real nonetheless. What makes this reality somewhat “unreal” to our everyday experience has to do with the disembodiment of the person acting in cyberspace. Every person, including those working in cyberspace, is in the physical realm. All physical realms are subject to sovereign interests, such as the local government’s jurisdiction. Those who enter cyberspace remain in that physical realm, but they are also in an altogether different realm where different rules might apply.
People in cyberspace can pretend to be what they are not, sometimes with serious consequences for those with whom they interact. A person residing physically in a state that forbids gambling can engage in cyber-gambling hosted by servers in a jurisdiction where gambling is legal. Similarly, a person in cyberspace can view pornography provided by a server in a liberal jurisdiction while physically residing in a jurisdiction where pornography is strictly prohibited. When these two realms are governed by different sovereigns, conflicts of authority will arise. Who governs what, and when? The answer to this question has not yet been fully ironed out.
Governments, as the main nexes of sovereignty, should and will act to protect that sovereignty. But it is not clear that they will do so intelligently or in ways that foster democratic freedoms. Moreover, irrespective of what governments do to establish sovereignty, the code of software will be created to govern the immediate actions of those in cyberspace. Much of this code will be created by particular interests, such as Internet service providers, online game makers, and chat room operators. There is no way to tell in advance what values or interests these entities will hold, or how they will balance their own interests against the collective good.
The sophisticated mechanisms we have evolved to ensure the involvement of community in the construct of governance might not be applicable or influential in the creation of this software code. To the extent that narrow interests such as corporate competitive advantage guide the creation of codes of governance in cyberspace, important social values can be left behind. There is nothing inherently wrong with corporate values; for example, the pursuit of competitive advantage remains recognized as a key ingredient of economic efficiency. However, community expectations have evolved over decades to put severe limits on the pursuit of competitive advantage when it means polluting the environment, abusing workers, corrupting the political process, and so on. It is not yet clear how the evolution of similar social values will assert itself in cyberspace.
In the end, Lessig is simultaneously enamored of the promise of cyberspace and pessimistic about whether that promise will be attained. In principle, he says, enlightened political leadership should be capable of writing East Coast code that shapes West Coast code in support of democratic values. In fact, he fears that the deeply corrupting influence of money in the political process will guarantee the ascendance of privilege for powerful special interests. At first glance, one might be tempted to classify Lessig with the libertarian utopianists of Silicon Valley. After all, he is sounding the alarm about the problematic influence of the ultimate East Coast code machine: Washington, D.C. But Lessig is far from a libertarian: He recognizes that the very existence of cyberspace was due to government action and that appropriate government action is necessary in any case to ensure key rights involving property, privacy, and free speech. Lessig’s deeper fear is that government itself is too easily turned to the service of powerful corporate and other elite interests who have no desire to see cyberspace as a free and empowering domain.
John Leslie King is dean and professor in the School of Information at the University of Michigan.