Lawrence Lessig: Code 2.0 (2006)

"[T]he invisible hand of cyberspace is building an architecture that is quite the opposite of its architecture at its birth. This invisible hand, pushed by government and by commerce, is constructing an architecture that will perfect control and make highly efficient regulation possible. The struggle in that world will not be government's. It will be to assure that essential liberties are preserved in this environment of perfect control." In this legal study of the Internet, Lessig contests the "cyberlibertarian" dogma that asserts the Internet is (and should be) essentially uncontrolled and uncontrollable. Lessig argues that the Internet has no "nature": it is what we make it, and we are quickly making it into something that is highly controlled (last week's NYTimes featured an article suggesting we need to build a new, more "secure," Internet). If we do not use our democratic institutions to influence how the "architecture" of the Internet is changed (that is, if we do not create appropriate legal "codes"), we will find the architecture that is developed to be excessively constraining (the technological "code" will be far worse than any governmental one). This argument conflicts with the libertarian ideology of many proponents of the Internet and, as Lessig admits, it will even appear dubious to most liberals, who have rightfully become skeptical of the capability of government institutions to pull off such an intervention. Lessig explains that "code is law," and a nearly omnipotent one. In the real world, codes (such as legal ones) are never perfect, and Lessig points out the U.S. constitution takes this into consideration. But codes in cyberspace can completely determine what a user can possibly do, and these codes often are implemented without explanation or notification. If a computer code prevents a certain behavior, unless one is a hacker, that behavior simply is no longer possible. Computer code can be introduced to achieve the goal of the legal code, but computer code's increasing capability to achieve perfect control creates or reveals ambiguities in that law. For example, copyright laws have always been admittedly imperfect, allowing a certain amount of illegal copying to occur as well as space for various "fair use" and private appropriations of copyrighted material. The law's ability to regulate behavior was limited, and that limitation guaranteed certain forms of liberty. But new intellectual property technologies promise to perfectly control copying, and therefore would eliminate this liberty. Lessig explains: "At one time we enjoyed a certain kind of liberty. But that liberty was not directly chosen; it was a liberty resulting from the high costs of control. . . . When costs of control fall, however, liberty is threatened. That threat requires a choice - do we allow the erosion of an earlier liberty, or do we erect other limits to re-create that original liberty?" Lessig argues that if we are passive and leave the evolution of the Internet to market forces or occasional government fixes, that liberty will simply disappear. Lessig teaches constitutional law at Stanford, so the argument throughout is centered on the ambiguities of interpreting the constitution. As the country changes over time, "latent ambiguities" in the constitution are revealed, situations appear that don't seem to fit the scope or framing of the original document. The constitution at such points can be "translated" to apply to the new context, or a choice can be made to change the law. As the example of copyright shows, merely trying to extend the law in a literal manner into the digital domain might eliminate some of the law's most important elements (such as contingent liberty). Lessig instead proposes that the law be changed in order to maintain those valuable elements, but remains openly pessimistic about such a project given the current political climate/culture. In effect, Lessig shows that the "force of law" is drastically different between the real world and the virtual world of the Internet. In the former, the law regulates behavior without having complete control. The law's inability to perfectly control behavior, however, is not a flaw, but one of its essential characteristics, though this is not always explictly articulated in the law itself. In the digital world the law, built into computer code, operates in a completely different manner, automatically achieving perfect control (as least hypothetically at the moment). Also, computer code that is not determined by the law (but by commercial interests, for example) more powerfully regulates behavior online than a law in the real world might (unless that law commands the creation of that computer code).