Code and Other Laws of Cyberspace.

• Author: Nadel, Mark S.

Code and Other Laws of Cyberspace, by Lawrence Lessig, Basic Books, 1999, 230 pages.

1. INTRODUCTION

   Just as Rachel Carson's classic Silent Spring awakened the world to environmental pollution in 1962, Larry Lessig's insightful Code and Other Laws of Cyberspace(1) (Code) seeks to warn longtime inhabitants of cyberspace of a major danger to the wild, unregulated, "1960s-like" environments to which they have grown accustomed. Code challenges the presumption of early Internet heroes, like John Perry Barlow, that technology has created an inherently free environment that can only remain so if governments leave it alone. Code observes, rather, that cyberspace is quite susceptible to alteration and that the gravest threats to online civil liberties in the United States are posed, not by laws, but by computer code--particularly those designed to commercialize the Web for e-commerce.

   Code explains how the business community's efforts (with government support) to make it easier to confirm cyberspace buyers' identities also unintentionally facilitate regulation of other conduct. Lessig's particular concern is with those civil liberties and other values central to American society, that the framers of the Constitution left without explicit legal protection; the limits of the technology of the time already safeguarded them. Now that the Internet and other new media have eliminated many physical and economic constraints on intrusive conduct-like the tracking of every page that an Internet suffer views--Code pleads for citizens to defend those privacy and other values they consider fundamental, lest they be diminished--if not eliminated--by code.

   In fact, the introduction of e-commerce-friendly Internet code is somewhat analogous to the genetic engineering of agricultural products. As Europeans--and increasingly Americans--have come to recognize, the manipulation of such basic codes may have widespread effects not limited to their targeted product markets or by national boundaries.(2) This has led many to demand public debate on the issue of what many call "Frankenfoods," and its effects on world ecosystems and human health. While Lessig certainly does not oppose e-commerce code, he advocates collective decision making where code may have major consequences with respect to important societal liberties.

   From an economist's perspective, Lessig understands that the "externalities" of e-commerce code--in terms of harm to social values--are too significant to expect private sector code writers to design a socially optimal architecture guided solely by Adam Smith's invisible hand. Rather, democratic principles require that, prior to the adoption of important varieties of what he terms "West Coast [computer],"(3) there be public discussions comparable to those associated with the adoption of "East Coast [legal] code."(4) Decisions about how much control over information society wants to allow and by whom, call for democratic decision making. With concerns similar to those of political activist Jeremy Rifkin,(5) Lessig implores citizens not to maintain blind faith in the social value judgments of the commercial marketplace where externalities may be given short shrift, if not ignored altogether, until irreversible harm is done.

   While Code focuses on issues arising from Internet technology, it also discusses the more general relationship between technology and law. Code observes that four principal forces regulate people's behavior: laws, norms, prices, and technology (although it calls the latter forces "market" and "architecture"). It explains how each of these limit individuals' actions, how the forces can work directly or indirectly in combinations, and how improvements in technology can dramatically alter the composite constraint on people's conduct. The middle third of Code is entirely devoted to identifying how technology--primarily the Internet--is significantly altering the net effect of these four forces on behaviors. In particular, as technological progress has dramatically lowered the economic costs of collecting and controlling information, liberties resulting from the "inefficiencies" of previous technologies are now vulnerable to elimination. Society must now reexamine these behaviors and decide whether it wants to prohibit, encourage, or tolerate them.

   Although Lessig does not lack ideas for responding to the dangers he identifies, he is not particularly concerned with identifying the best solution. His primary and overriding goal is to raise and clarify important questions and to urge careful discussion, analysis, and decision making concerning intellectual property, privacy, free speech, and sovereignty. Thus, Code highlights the best insights and arguments of those individuals whom Lessig recognizes as experts on each issue.(6) Unfortunately, Code is very pessimistic about the ability of society, including the three branches of government and the public, to take appropriate action.

   Code observes that, historically, the courts have served to protect liberties. When new technologies threaten liberties, courts can quickly preserve them by "translating" the Constitution into the present context in order to preserve the framers original meaning.(7) In many cases, however, Lessig finds that technological changes are revealing "latent ambiguities" in constitutional law--questions that cannot be resolved by translation or any other bona fide approach to constitutional interpretations.

   Even in these cases, when the Constitution proves unhelpful, Lessig urges the hundreds of bright and creative federal judges to participate more actively in the debate on these issues of constitutional dimensions when faced with relevant cases. He begs judges to analyze the issues and resolve them in favor of the best public policy results and to "kvetch" about their inability to apply that analysis if they find an issue of liberty to be a nonjusticiable political matter. Ideally, he would ask judges to go so far as to adopt the approach proposed by former professor, now judge, Guido Calabresi, of resolving such issues in a way most likely to induce a democratic response. Acknowledging that many ridicule this approach, Lessig nevertheless prefers to "err on the side of harmless activism than on the side of debilitating passivity.(8) Yet he does not expect his advice to be heeded.

   Lessig is a little more optimistic about the ability of the legislative and executive branches to resolve these important matters.

   One would have thought that collective choices were problems of governance. Yet very few of us would want government to make these choices. Government seems the solution to no problem we have, and we should understand why this is. .... ... We believe, rightly or not, that [our legislative] processes have been captured by special interests more concerned with individual than collective values. Although we believe that there is a role for collective judgments, we are repulsed by the idea of placing the design of something as important as the Internet into the hands of governments. Despite this despair, however, Lessig is no libertarian. In fact, as its last chapter expressly announces, Code is clearly a clarion call to Internet libertarian activists, like Declan McCullagh,(10) whose reflexive opposition to (and focus on) government appears to blind them to the harms to liberty from the actions of e-commerce firms. "If we hate government, it is because we have grown tired of our own government. We have grown weary of its betrayals, its games, the interests that control it."(11) But Lessig ultimately concludes that "[w]e must find a way to get over it"(12) for he recognizes that the need for collectivist action necessitates a role for the government.

   Lessig's attempt to spread his important message to a wide audience leads him to keep Code relatively concise. Unfortunately, this leads him to omit much useful historical perspective on how the government has regulated other media, including the postal service, the telephone industry, and cable television system operators. These would provide a particularly helpful context for his chapter on free speech. Fortunately, readers can already obtain such background from Ithiel de Sola Pool's marvelously readable Technologies of Freedom.(13) Similarly, Lessig's apparent desire to publish Code while it can still affect public policy has diminished his attention to solutions which might have encouraged him to be more optimistic. Still, he is likely to remedy this latter deficiency in due time with a regular column for the weekly magazine, The Industry Standard,(14) as well as a Web site for the book,(15) which permits readers to communicate with him directly and help him nurture fresh approaches to the problems Code describes.

   Renowned sociologist Daniel Bell likens Code to a Stanley Kubrick film,(16) and this reader also sensed a bit of cinematic crafting (whether intentional or not), including frequent surprising and...