Code and Other Laws of Cyberspace.

• Author: Hetcher, Steven
• Position: Review

CODE: AND OTHER LAWS OF CYBERSPACE. By Lawrence Lessig. New York: Basic Books. 1999. Pp. xii, 297. Cloth, $30; paper, $15.

Space. The final frontier. Not so, say the doyennes of the first-generation Internet community, who view themselves as the new frontiersmen and women staking out a previously unexplored territory -- cyberspace. Numerous metaphors in the Internet literature picture cyberspace as a new, previously unexplored domain. Parallels are frequently drawn to the American colonies, the Western frontier, or outer space. In Code: And Other Laws of Cyberspace, Lawrence Lessig(1) says, "Cyberspace is a place. People live there."(2) In this place, we will build a "new society" (p. 4). A sense of this background is helpful in appraising Lessig's claims.

He argues that "we" need a "constitution" for cyberspace.(3) This seems reasonable, a new social compact for a new society.(4)

While Lessig has his legal training in the U.S. system, as a former law clerk to Justice Antonin Scalia and a recognized American constitutional law scholar, in Code, he uses the word "constitution" in its British rather than its American sense.(5) For the British, a constitution is an unwritten common understanding about fundamental social values and social practices that merits institutional protection from the vicissitudes of ordinary politics.(6) The purview of Lessig's project, then, is constitutional theory understood as the theory of social order, a broader inquiry than the top-down, text-based American constitutional theory.(7)

Lessig implores us to begin the search for a way of life in cyberspace that protects "fundamental values" (p. 6). Either we do so very soon, he insists, or we risk locking ourselves into an architecture of computer code that will destroy liberty,(8) as a by-product of promoting the interests of global electronic commerce.(9) Given the libertarian leanings of the Internet community,(10) it is ironic, Lessig observes, that the forces of the market, Adam Smith's invisible hand, will wield the hammer.(11) After all, it is the libertarian creed that markets create liberty, not destroy it. According to Lessig, the overly zealous commitment to libertarianism on the part of the first-generation community blinds them to this threat, however.

While Lessig paints a foreboding picture of the dark clouds of oppression gathering on the online horizon, he notes as well that a brighter future is possible.(12) Code is by nature mutable and may be used to secure a constitutional structure for cyberspace that promotes political freedom. Lessig contends that we as a society have yet to realize that a choice must be made with regard to the degree of liberty we want in cyberspace (pp. 6-7). The goal is to choose -- from among all the possible cyberspaces -- the one with an architectural code that best promises to support liberty and other fundamental values we choose to import into cyberspace (p. 6).

Lessig goes so far as to say "[c]ode is law" (pp. 6, 59). Taken at face value, this is an extraordinary claim, given the dominance of positivism in modern jurisprudence.(13) Whatever Lessig's overall jurisprudence of cyberspace, one thing is certain; conceiving of code as law makes the choice of code political. Indeed, for Lessig, as for his intellectual forebears, code is quintessentially political.(14) One of the book's most important contributions is that it raises the basic and crucial proposition regarding the normativity of code to a new level of sophistication, demonstrating the applicability of the thesis to issues of privacy, speech, and other core constitutional values (pp. 109-209).

Lessig has written the first book devoted to the political theory of computer code. "Code," as the term is used by Lessig, refers, however, both to computer code --- the code written by programmers -- and to legal code -- the code written by legislators. One of the book's leitmotifs is a comparison between the properties of computer code and those of legal code, or, as Lessig quips, "West Coast code" versus "East Coast code" (p. 53). The overarching similarity is that both regulate human behavior.

The regulation of human behavior, "regulability," is a second key topic of the book. Regulability refers to the "capacity of a government to regulate behavior within its proper reach."(15) On the account Lessig develops, there are four important regulators of behavior: law, norms, architecture, and markets (pp. 87-89). Lessig argues that in cyberspace, network computer architecture is a "newly powerful regulator" of human behavior (p. 86). Nevertheless, a full account of the social order of cyberspace requires an examination of the interplay of all four regulatory forces.

Code's main normative thesis is that we must resist the migration toward a more regulable Internet. More specifically, Lessig argues for a "commons" in the key architectural code of cyberspace (p. 8). This commons will result if the application layer of the Internet is dominated by open source code (p. 100). Open source code is to be understood by contrast with closed source code. Simply understood, open code reveals its source and closed code does not. Because open code carries its source code along with the object code, modifications are more easily possible. Lessig is an unabashed proponent of the open source code movement, which he sees as revolutionary (p. 8). Open code will make cyberspace less regulable because it puts coding in the hands of more people, and, thus, code will be less subject to centralized control.(16) Lessig conceptualizes the situation in constitutional terms. The citizenry will be safe from the tyranny of government only if the awesome potential for power held by code is distributed broadly among the programming world rather than concentrated in a small number of hands.(17)

Lessig's overall argument is spread throughout the book's seventeen chapters, which are divided into four parts. The main arguments of Code, which will be the focus of this Review, are set out in Parts 1 and 2, entitled "Regulability," and "Code and Other Regulators." Part 3, entitled "Applications," applies the arguments of Parts 1 and 2 to four important issues: intellectual property, privacy, free speech, and sovereignty. Part 4, entitled "Responses," outlines responses to actual and hypothetical objections to the book's main arguments.

Chapter One (as well as the Preface) provides a straightforward overview of the book. In Chapter Two, Lessig introduces the book's four themes and illustrates them by means of four stories; the themes are 1) Regulability, 2) Regulation by Code, 3) Competing Sovereigns, and 4) Latent Ambiguity.(18) Lessig explains, "[m]y aim in the balance of this book is to work through the issues raised by these four themes" (p. 19). As Lessig says, he uses the four themes to "understand cyberspace as it is" and as "[he] believe[s] it is becoming" (p. 23).

Below, I first set out and evaluate the thirteen propositions (positive and normative) which I argue provide a logical foundation to Lessig's main themes. Since propositions are more specific than Lessig's "themes" (propositions have truth values, themes do not), this analytic device will facilitate clarity in the evaluation of the themes.

BASIC PROPOSITIONAL STRUCTURE OF LESSIG'S ARGUMENT

The following set of propositions is meant to capture the interconnecting structure of the core arguments implicit in Lessig's four themes. In reading the propositions in the following summary form, note that they fall into a logical sequence. This sequence is implicit in the structure of Code. Lessig's themes "describe," rather than state propositions. Hence, they do not have truth values and consequentially lack logical connectivity.(19)

1. Net95 was unregulable.(20)

2. Libertarians believe the Internet is unregulable by nature.

3. The Internet is regulable.

   Therefore:

4. Libertarians hold a faulty conception regarding the nature of the Internet.

5. Code is the most important regulator of the Internet.

6. The Internet embodies values.

7. Liberty is an important value that ought to be respected and promoted.

8. There is an inverse correlation between regulability and liberty.

   Therefore:

9. The Internet is diminishing in its capacity to promote liberty.

   Therefore:

10. The trend toward increased regulability of the Internet ought to be reversed.

11. Open source code is less regulable than closed (proprietary) source code.

    Therefore:

12. Open source code ought to be promoted.

13. We Need An Internet Constitution

    The three statements above that are italicized (numbers 7, 10, and 12) are "normative"--that is, "ought" statements, not "is" statements. Hume's Law is sometimes stated as: An ought cannot be derived from an is.(21) The proper conception of Hume's Law, however, is that an ought statement cannot be derived merely from an is statement. Lessig does not explicitly characterize his leading assertions as either positive or normative. As we work through the set of propositions that embody his argument, however, it will be important to pay attention to the connections he draws between the "ises" and the "oughts."

    In the following discussion, I evaluate, independently and then in conjunction with each other, each of the thirteen propositions that together constitute the core arguments of the book.

1. Net95 was Unregulable

   Lessig discusses what he refers to as "Net95," which is what the Internet was like, circa 1995.(22) The most significant feature of Net95 was that it was a world that could not be controlled. It is this Internet that libertarians have in mind. Lessig sets out three structural elements that were conspicuously absent in Net95. These are "credentials," "labels" and "zones" (p. 28). As Lessig notes, these elements can either be seen as "features" or "imperfections," depending on whether one favors increased regulability of the Internet (p. 27).

   Net95 lacked information about users' identities (p. 28). By...