Code and Other Laws of Cyberspace, by Lawrence Lessig

Code and Other Laws of Cyberspace, by Lawrence Lessig

Lawrence Lessig is one of the leading experts on constitutional law as it applies to cyberspace. This book is a sobering look at the different pressures at work in the realm of computers, and what legal and behavioral effects those might have.

The first thing Lessig does is tackle the misconception that the net is necessarily oriented towards freedom and liberty. Cyberlibertarians routinely refer to slogans such as "Information wants to be free" or "The Internet interprets censorship as damage, and routes around it." Lessig describes an all-too-plausible scenario where corporations, encouraged by government, develop nearly perfect ways of tracking our movements online, for the benefit of the bottom line. We are already moving steadily in this direction, as anybody who actually tries to maintain their privacy is well aware. Companies track our movements, put cookies on our hard drives, and sell their subscription lists as their most valuable asset when they go out of business.

After putting the scare in us, Lessig looks into regulating behavior, which he splits into four categories: law, norms, market and architecture. Law tells us not to do something, and if we do it, we get punished. Norms will get us shunned socially instead. Market forces will cost us money, and architecture will simply not permit us to do it. For instance, to prevent somebody from breaking into our house, we can pass laws threatening to put them in jail if they do, we can threaten to shun them, or we could put locks on our door to prevent them from doing so (architecture). Lessig's main thrust of the book is that code is the network's version of architecture, and we have unprecedented control of what that architecture will be.

This means that we have unprecedented control of what behavior on the network will be, since we can control the code (similar to Jaron Lanier's concept of karma vertigo). And unless we think about exactly what kind of behavior we want to encourage with code, others will do it for us. And that is the process that can lead to the scenario with which he starts the book.

One interesting sidelight to me was his discussion of how law applies to the network. The constitutional framers lived in an entirely different world than us, and it is hard to interpret how they would rule on several of our current dilemmas. Lessig (and the constitutional law community apparently) focusses on the right that the framers were trying to protect, and translates that protection into the present day. The tricky part comes when it is unclear which right they were trying to protect - where two rights were inseparable at that time, and are now separate due to more advanced technology.

One example he uses is of an internet worm that is designed to look for an National Security Agency document. It propagates from computer to computer, touching nothing, and only reporting back if it finds the document. Otherwise, it erases itself leaving no trace. Since the user would be completely unaware of the worm, what are the implications of this from a law perspective?

Quoting Lessig (p. 22):
"The worm tells a different story still. Though it is a technology for searching, the worm functions differently from searching in the ordinary case. The ordinary or paradigm case is a search that carries costs: the burdens of the search, the insecurities it might create, the exposure it might make possible to invasions beyond a legitimate reach. The worm erases those costs: the burden is gone, the search is (practically) invisible, and the searching technology is programmed to find only what is illegal. This is a search without the ordinary costs of a search, and it raises a question about how such a search should, under the Constitution, be understood.

A fair view of the Constitution's protections could go in either of two ways. It may be that we see the worm's invasion as inconsistent with the dignity that the amendment was written to protect, or it may be that we see the invasion of the worm as so unobtrusive as to be reasonable. The answer could be either, which means that the change reveals a latent ambiguity in the original constitutional value. Either answer is possible, so now we must choose one or the other."

These legal questions are fascinating to me, but more importantly is Lessig's emphasis on choice. We are at a pivotal time when code, the architecture of the net, is being written that will constrain our behavior for years to come. We may not think there are any consequences, but as the Y2K crisis showed, code written without thought for the future can easily cause all sorts of problems.

Lessig alerts us to these possibilities. This is not a book of answers or policy prescription, but a book designed to make us ask questions. Code is architecture. When we write code, we are dictating behavior. So what kind of behavior do we want to encourage or discourage? Lessig leaves us with that question.

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