Code and other laws of cyberspace

Larry Lessig, Harvard Law School (now at Stanford Law School)

1. The Internet is not "inherently" unregulatable: it is unregulatable only because of the choice of code that runs there.  Code can be deployed that enables regulation by enabling tracking and identification.
2. Commerce thrives best in an infratsructure where some regulation and tracking is in place, but it cannot necessarily bring this level of regulation to the Internet all by itself.  However, it and the government can be (uneasy) allies in making some kinds of regulation the norm; e.g. DCMA; cooperation between industry and government to regulate encryption.
3. The government need not regulate individual behavior to achieve this: it can regulate commerce, and commerce has a business interest in complying with regulations.   The effect of regulations could be to incentivize individuals to identify themselves and be trackable, by making it very inconvenient to do otherwise.   Example: cookies.
4. Because commerce is incentivized to comply, the effect of regulation, though not complete, can be significant.  Example: cryptography legislation had a huge effect on Netscape products even though "bits know no borders".  This is the "bovinity principle": a small number of rules, consistently applied, suffice to control a herd of large animals.  This kind of regulation works because we are sheep.   Example: DAT copy protection; Netscape encryption; DVD regional coding and encryption.  Imperfect regulation can still be effective regulation.
5. In addition, pacts between political entities can be used to "zone" the Internet.  Example: "I'll block Nevada residents from accessing New York porno sites, if you (Nevada) agree to block New York users from Nevada gambling sites."   If history is any guide, political goals make such agreements likely; a certificate infrsatructure would make them enforceable for any kind of digital transaction.
6. Digital regulation is inexpensive and (usually) unobtrusive to the user.  In meatspace, regulation is costly and intrusive, requiring a constant tradeoff between high cost of regulation for the government (==personal liberty for the individual) and high desirability of regulation (==potentially obtrusive to an individual).  So once the architecture is in place that enables regulation, we can expect the degree of regulation to increase dramatically.
7. Open source somewhat mitigates this problem: because the code being used is not opaque and its design not centralized, it becomes difficult for government to impose regulatory pressure using this level of indirection.

• What about ecash?  It's unregulatable (if properly implemented) and unobtrusive, and satisfies at least some of the concerns of commerce, without government involvement in regulation.
• What about products like Freedom and PGP?  Is it just a matter of making them painfully easy to use (below the "bovinity threshold")?

Trusted systems and how digital regulation affects intellectual property

If trusted systems (e.g. copy protection in DAT drives, CSS in DVD players) are widely adopted, they make possible several damaging things, including perfect regulation (e.g. loss of fair use) and loss of anonymity (potentially chilling controversy and criticism).   Each case arises because of a latent ambiguity in the constitutional framing surrounding the particular issue.  In many cases it is reasonable to argue that the framers themselves might have been divided on the issue, since technology has provided tools that were unimaginable to them at the time.

In the case of fair use, we must decide whether the original motivation was primarily for the public good, or primarily to strike a balance on what user behaviors couldn't be effectively regulated because it was prohibitively expensive.  Since technology makes the second constraint go away, under the second interpretation the "loss" of fair use is not a loss at all, but the achievement of a desirable end that the (imperfect) fair use laws couldn't achieve on their own.  Under the first interpretation, public good is harmed by the loss of what was intended a priori to be a public benefit, in which case we should find a way to protect it despite the ability to build a perfect system that excludes it.  Similarly anonymity.

In the case of privacy, there are (at least) three conceptions of privacy that one could argue are protected by the Fourth Amendment: privacy as a way of minimizing intrusive burdens on individuals (search & seizure); privacy as a way of protecting individual dignity (even if the search is not intrusive); and privacy as a substantive check on government power (by effectively making some kinds of legislation, such as what you do in your bedroom, impossible to enforce in practice).  When the Fourth was framed, the technology of the time was such that all three views suggested striking the same balance.  Digital technology has allowed these to be unbundled (e.g. a worm can search unintrusively but still offend dignity; cheap surveillance increases the enforceability of certain kinds of laws over individual behavior), so again we must choose which conception(s) of privacy are worth explicitly preserving.

• One of Lessig's former students once suggested that the burden of property protection in cyberspace (and of cyber self-defense) be moved to individuals, since the cost balance so favored individual enforcement.  Historically, technologists have found schemes to defeat most of the "protective" measures enforced by opaque code (A5, DeCSS, etc.)  How about taking this approach for fair use, striking down DMCA and arguing that we should simply be allowed to pursue ways of preserving our own fair use rights ("frontier justice") and allowing the balance to find itself?

As we've seen, legislation can, and has, been made to affect the Internet.  In general, to the extent that some of our liberties derive partly from the high cost of regulating a behavior, when those costs fall we must choose how (legislatively) to architect the new system.

Sovereignty

The Internet imposes its own sovereignty (being transnational, with bits knowing no boundaries, etc., and with fairly well-defined and sometimes self-regulating communities).   Although there is precedent for individuals to be simultaneously subject to the rules of multiple sovereigns simultaneously (eg international companies, state and federal laws), in most cases where there is a potential for bona fide conflicts, they are expected to occur between "sophisticated" actors (e.g. companies) and not individuals.  The mechanisms deployed for these don't work well when applied to individuals.

As the world becomes more socially and economically integrated because of the effects of the Internet, we will come to see ourselves as "global citizens", just as Americans saw thmselves increasingly as national citizens (and less as state citizens) during the social and economic integration following the early expansion of the Colonies.   Things that were once considered "local issues" are now everyone's concern.  We must choose what kind of a space we want to create to be citizens of.   Choices will be made; the only question is by whom.  We may be weary and skeptical of the products of our own democratic government, but if we still believe in the ideal of the democratic process, we had better be sure that ideal is embodied in the Internet architecture we choose to create. 

Responses

1. One of the benefits of open source is that the ideals (and restrictions) imposed by it are transparent, for all to see.  Unfortunately, the current legal system favors opaque over open code in temrs of the IP protection afforded.
2. Ideally, in a democracy, deliberation and reason are the forces behind collective decision making.  THis happens in microcosm in many jury trials.  But it no longer happens in government, in part because in an effort to appease voters, officials rely on (usually bad) poll data and make short-horizon decisions.  Technology can be used to make this worse (constant polling and no hysteresis) or better (deliberative polling that allows the polled parties to inform themselves and form an opinion over the course of a couple of days).  We can and should inject some of this back into our own system.
3. Do-nothingism (extreme libertarianism about code writing) leads to things like Y2K.   As it showed, cyberspace is not "elsewhere", it is right here.
4. In short: we are confronted by a revolutionary technology, but at a time when we are not ready for revolution because of our own skepticism about our governmental system.
5. Law and social norms work only because the governed are aware of them.   They work both ex post (prosecution after a crime), although subjectively one might claim that the fear of punishment makes them work to some extent ex ante.   But code can work whether or not the user is aware of what it is doing, and it can work entirely ex ante (preventing you from doing something rather than punishing afterward).  Law and social norms can be made more codelike the more they are internalized.

[email protected]