Review of "Code and Other Laws of Cyberspace", by Lawrence Lessig

According to Lawrence Lessig in "Code and Other Laws of Cyberspace", regulation in cyberspace is necessary. Technologies themselves must conform to certain rules to be usable on the Internet, making the inevitable foundation of this assertion. This regulation, though, cannot come from "the invisible hand" as so many libertarians would like. In order to protect the values people hold strongly, such as free speech or privacy, regulations must be created and enforced by some agent. Lessig believes that this is the reason for the creation of real world governments, and, therefore, governments might be the best regulating agent for the Internet.

The methodoloogies available to governing bodies have different ways of affecting the cyberspace as a whole. The law, social norms, the market, and code (the software and protocols that makes up information technologies) all regulate cyberspace in some way. The law regulates through the punishments it threatens. Norms regulate through the stigma that a community imposes on those who break those norms. The costs associated with the markets place limitations on what people can do or purchase. Code creates methodologies and architectures that should be followed and makes it difficult or burdensome not to follow those methodologies or architectures.

All of these can regulate directly or indirectly. Indirect regulation can be easier to implement than direct. An example of indirect regulation was forcing car manufacturers to install seatbelts in all their cars when the goal is to have drivers use seatbelts more often. Creating a law that mandates drivers use seatbelts is more difficult to enforce than one requiring manufacturers to simply install them. After time, it became easier to create mandates for drivers to use seatbelts, but those mandates were more easily obtained because of the prior, indirect regulation.

Indirect regulation creates a ethical problems. Such regulation confuses the chain of responsibility for certain restrictions, which, in turn, confuses the politics behind those regulations. They make it difficult to see the link between regulation and its consequence. Lessig states, "The state has no right to hide its agenda." When dealing with law, transparency with regard to the government and the law is mandatory for true liberty. As the government hides more of its intentions, citizens and other branches of the government lose the ability to monitor and check regulatory actions. With regard to private interests creating regulations, consumers and members of the communities affected by those regulations are also unable to make informed decisions regarding such regulations. Accountability is again weakened.

Unfortunately, as things are today, direct regulation can be just as problematic. Lessig believes there are three limitations that we must overcome in order to be able to choose and enforce the regulations necessary for cyberspace. The necessary regulations are those that must exist to protect the values that are important to us. The three sets of limitations are those placed on the courts, those placed on legislation, and those placed on the ways of thinking about code.

Courts are not allowed to be creative. It is assumed that when courts create new answers to new questions, those answers are less valid than answers based on traditional legal thought. Unfortunately, the founders of our legal system could not have fathomed the world we live in today, and we must therefore allow judges to be creative though translation of old law to new applications. Additionally, the judiciary's scope of constitutional review is to narrow and excludes the most important aspect of cyberspace's law: code. Allowing the courts to enforce the rights of privacy or free speech within software code that takes away those rights, for example, will strengthen the regulation of those values.

Legislation is often considered the wrong tool for regulating cyberspace. Lessig argues to the contrary. Government is a better body to regulate cyberspace than private organizations. Government has oversight and elections, which allows citizens to have a say in the legislative process, changing the regulations so they more completely embrace important values. Private organizations, on the other hand, have private agendas. They do not have to listen to those who are affected by their regulations. The checks and balances that the public can place on private organizations are limited and flawed. Government regulation when coupled with a transparent set of laws and procedures facilitates public interaction and empowerment.

Code and the architecures of cyberspace need to be questioned, discussed, and debated. Though a great deal of software is designed to be a tool to satisfy a specific need, the way software is designed and integrated can make a large difference in the environment that software creates. For example, software designed to allow complete access to a person's computer to anyone on the Internet contradicts the value many people place on personal privacy. The code we choose to build cyberspace must reflect the values that are important to the users of that code.

Lessig offers some suggestions on how these limitations can be addressed. First, we should allow the courts to make value judgements based on core values. To improve legislation, we should allow for more informed decisions and opinions by the people who then in turn inform the government, who will make better laws and regulations based on the values of its constituency. Just as with government, transparency is the highest value with code, whether the code be open or closed source. This will ensure people can make a choice with regard to the code they use instead of being forced into conforming to the values of a certain vendor or software designer.

Code will build the rules and laws of cyberspace. This code must be developed in an environment that supports the values of those who will use it. To ensure that this environment is maintained, informed government action, at the judicial and legislative levels, must regulate how code is built and works at its core. To quote Lessig, "Governments should intervene, at a minimum, when private action has public consequences; when shortsighted actions threaten to cause long-term harm; when failure to intervene undermines significant constitutional values and important individual rights; and when a form of life emerges that may threaten values we believe to be fundamental."

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All contents Copyright 2004, Daniel Adinolfi.