11/01/1999
Controlling Cyberspace
The Internet is proving to be no more immune to being tamed than the Wild West. What are the consequences of this more regulated world?
Book Review of Code And Other Laws of Cyberspace, By Lawrence Lessig
The rapid commercialization of the World Wide Web in the last five years hasn't had much effect on the popular perception of the Internet as a final frontier, inherently incapable of being regulated by government because its anonymous, incorporeal, global structure transcends the physical boundaries and real-world conduct that sovereigns can police. That's a fundamental misconception, according to Harvard Law School professor Lawrence Lessig, who argues that the Net is approaching "a future of control in large part exercised by technologies of commerce, backed by the rule of law." His Code and Other Laws of Cyberspace is a deconstruction of Internet mythologies-utopian or dystopian ones, depending on whether you are happy about the potentially liberating effect of instant, uncensored one-to-many communication or worried about untrammeled access to things like pornography and hate speech. Lessig defamiliarizes and hence repoliticizes-our assumptions about cyberspace. He gives us the tools to see the Net as an artifact, the product of human choice, rather than as a fact of nature. And once he has pointed out the human choices already involved in building cyberspace, Lessig urges us to consider making new and better ones.
Lessig had his 15 minutes of fame beyond the legal world a year ago, when he was conflicted out of acting as a special master in the Microsoft antitrust trial because of the company's allegations that he was biased against it. He's a prolific writer for industry publications, as well as for the law reviews, although his journalism is much less acute than his scholarship, a reversal of the usual relationship between short, popular pieces and long academic ones. Code and Other Laws of Cyberspace is a lively, thoughtful, and ultimately persuasive analysis of the relationship of software architecture to legal and social spaces.
Describing cyberspace as an inherently stateless realm isn't just the consequence of an a historical lack of perspective. The Internet, like most other information technology, originated from U.S. military R&D projects, and Lessig asserts that much of its current governance is the product of state intervention. The myth that the Internet cannot be regulated reflects an unthinking bias against "government" and devalues the founding principle of American constitutionalism: that without government, there can be no freedom. The purpose of politics is to figure out the proper relationship between government and society, not to just bash state power. Lessig argues that a constitution is more than just a written text. It is "an architecture that structures and constrains social and legal power, to the end of protecting values held fundamental."
What, then, is the "constitution" of cyberspace, and how does it relate to the structure of real, physical space? What fundamental values should be protected in cyberspace, and how? How is the explosion of electronic commerce affecting the Net, and what is the relationship between the accountability and traceability that business requires and other forms of social control? Code is less a set of answers to these questions-although Lessig is refreshingly explicit about what he thinks the right ones are-than a brilliant model of how to ask them in the first place.
At one level, the architecture of "code" (the actual software programs and hardware platforms that instantiate the Net) shapes the way personal interactions in cyberspace are structured. Lessig contrasts the user experience on AOL-where people can create multiple identities using different screen names but cannot easily communicate with the AOL user base collectively to protest or to seek change from AOL-with other types of online communities that do not permit anonymity but facilitate one-to-many communication and set rules by online plebiscite. There's nothing "natural" about these very different structures. Each structure enables and inhibits various behaviors, and each one is designed to serve specific commercial and political interests.
But the crux of Code is a more penetrating insight: that information technology requires us to rethink basic assumptions about free speech, privacy, and intellectual property rights and their relation to each other. Take privacy. Is it possible, Lessig asks, to "translate," via conventional common law, the idea of physical searches and seizures to the invisible electronic realm? Or does it require a more radical exercise, because the change in the social context of Fourth Amendment law from the Framers' era to our own is so great that altogether new choices are required about the degree to which people can control others' access to and use of information about them?
Lessig argues that it's not possible to preserve an "original intention" of the Framers about what privacy consists of in the context of cyberspace. Information technology has called into question the assumptions embedded in the Fourth Amendment, about how protecting physical property would also safeguard personal privacy, in a way the Framers could never have anticipated. In 1789, or 1889, it was not possible for the government to search "persons, houses, papers, and effects" without a disruptive and humiliating physical ransacking. That posed an economic as well as psychological barrier to the scope of government control: Effectively policing people's conduct in their living rooms or bedrooms would require more cops and more time than the government could possibly pay for, irrespective of what laws were on the books. But the emergence of the wired world changes all that. The information economy is driven by ever-falling costs of collecting and mining data. In 1999 the government can automate searches and seizures in a way that makes it cost-effective to surveil, intercept, and read virtually any electronic communication by anyone. For example, technology is available today that would permit government worms to police the Internet, and every computer connected to it, looking for unauthorized copies of classified data-without people even being aware that their "persons" or "papers" had been searched.
This is what Lessig means when he says that "code is law." In cyberspace-where most people in First World countries also live now, if they use credit cards, telephones, computers, or any other information technology-"burdens [on regulation] are determined by the architectures of the space, and these architectures are plastic. If protection turns on how burdensome a search is, then we can design the space to eliminate the burdens [by, for example, requiring all computers to be government-worm-enabled]. And if we do that, then the question rightly becomes whether the protection for privacy is eliminated as well."
In other words, what does privacy consist of? Is it simply interstitial-how the mice can play while the cat's away? No cat, lots of freedom? Supercat, less or no freedom? Or is it based on a nonutilitarian theory of human dignity that says people's amour propre is violated when a search takes place, even if they aren't physically disturbed by, or even aware of, its occurrence? Or is privacy a substantive value that constrains the state's power to regulate no matter what? Such a view would hold that the purpose of the Bill of Rights was to make it prohibitively difficult to prove thought crimes like sedition, because access to the records of thought (personal papers) required probable cause and no one could be compelled to incriminate themselves-and hence, in an era when "papers and effects" include e-mail and personally identifiable information in distributed databases, these too should be protected.
The Framers didn't have to choose among these rival models of privacy, Lessig argues, because the social, political, and technological infrastructure of 1789 conflated them. Back then searches were burdensome, expensive, and disruptive, and no one imagined a time when they would not be. But we now live in such a time, and must choose, or have the matter decided for us by the emerging architecture of a highly controllable cyberspace.
Cyberspace is increasingly regulated, Lessig argues, because that's what electronic commerce requires. The fate of copyright in a new era of "trusted systems" of automated content monitoring and control is exemplary here. Article 1, Section 8 of the Constitution gives Congress the ability to grant limited monopolies on inventions to their inventors to "promote the progress of science and the useful arts." This authorization of economic return is intended to motivate individuals to do things benefiting society as a whole. But copyright law does not give authors absolute control over their works, and the first sale and fair use doctrines, among others, have traditionally permitted access to and use of copyrighted materials in ways that copyright owners can not prevent.
But the same question arises here as in the privacy realm. Is "fair use" merely the product of a world in which it was hard and expensive to make copies, and copies were easy to track? Or is "fair use" essential to the original bargain struck in the Constitution between private gain and public benefit?
The world of burdensome copying, like the world of burdensome searches, no longer exists. Information technology has made copies virtually costless and impossible to track (unless they contain digital watermarks or other embedded constraints on use and reproduction). The copyright empire wants to strike back with precisely these sorts of monitoring measures: trusted systems that can track and record all acts of reading, reproduction, and transmission of digital content. It is now possible to embed an application program or specific piece of content (like a book, DVD movie, or an MP3 music download) in a digital envelope that can regulate (in the owner's sole discretion) whether the user can only read, use, or listen to it, or copy it or transmit it to others as well, or use it once or many times, etc.
This permits perfect control over the work, and enables owners to eliminate the very possibility of first sale and fair use doctrines. Should that be allowed to happen? And what about all of the other potential modes of control that trusted systems foreshadow?
"Our past had a commons that couldn't be designed away," writes Lessig. These commons include street corners and parks where free speech or the right of association can be exercised. But the code of cyberspace permits the designing out of the barriers to regulation that inhere in real space. So we need to ask if, beyond the realm of IP protection, the monitoring and control of personal conduct in cyberspace should be enabled and encouraged within limits, if any, set solely by commercial interests, backed by the state.
Promoting the growth of e-commerce and regulation of the Net is something commercial lawyers do every day for a living, myself included. Code is a very valuable tool for thinking about the political meaning of our conduct as professionals, and a wake-up call about taking responsibility for it. It is a great irony, Lessig notes, that the U.S., the fount of constitutional doctrine and the source of would-be advisers on governance to the post-Communist states of Eastern Europe is so ill-prepared for the new mode of constitutional thinking that the wired world requires. "It is not a great time, culturally, to come across revolutionary technologies," he writes, for "we are no more ready for the revolution than the Soviets were ready for theirs a decade ago. We, like they, have been caught by a revolution. But we, unlike they, have something to lose." Indeed-knowledge workers of the world, unite! There is a cyberworld world to win.