: Code 2.0

Preface To The First Edition

Preface To The First Edition

In the spring of 1996, at an annual conference organized under the title Computers, Freedom, and Privacy (CFP), two science-fiction writers were invited to tell stories about cyberspaces future. Vernor Vinge spoke about ubiquitous law enforcement made possible by fine-grained distributed systems, in which the technology that will enable our future way of life also feeds data to, and accepts commands from, the government. The architecture that would enable this was already being built it was the Internet and technologists were already describing ways in which it could be extended. As this network which could allow such control became woven into every part of social life, it would be just a matter of time, Vinge said, before the government claimed control over vital parts of this system. As the system matured, each new generation of system code would increase the power of government. Our digital selves and increasingly, our physical selves would live in a world of perfect regulation, and the architecture of this distributed computing what we today call the Internet and its successors would make that regulatory perfection possible.

Tom Maddox followed Vinge and told a similar story, though with a slightly different cast. The governments power would not come just from chips, he argued. Instead, it would be reinforced by an alliance between government and commerce. Commerce, like government, fares better in a well-regulated world. Commerce would, whether directly or indirectly, help supply resources to build a well-regulated world. Cyberspace would thus change to take on characteristics favorable to these two powerful forces of social order. Accountability would emerge from the fledgling, wild Internet.

Code and commerce.

When these two authors spoke, the future they described was not yet present. Cyberspace was increasingly everywhere, but it was very hard for those in the audience to imagine it tamed to serve the ends of government. And at that time, commerce was certainly interested in cyberspace, though credit card companies were still warning customers to stay far away from the Net. The Net was an exploding social space of something. But it was hard to see it as an exploding space of social control.

I didnt see either speech. I first listened to them through my computer, three years after they were given. Their words had been recorded; they now sit archived on a server at MIT.[1] It takes a second to tune in and launch the recording of their speeches. The very act of listening to these lectures given years before served on a reliable and indexed platform that no doubt recorded the fact that I had listened, across high-speed, commercial Internet lines that feed my house both the Internet and ABC News confirmed something of their account. One can hear in the audiences reaction a recognition that these authors were talking fiction they were science-fiction writers, after all. But the fiction they spoke terrified those who listened.

Ten years later, these tales are no longer fiction. It is no longer hard to understand how the Net could become a more perfectly regulated space or how the forces behind commerce could play a role in facilitating that regulation.

The ongoing battle over peer-to-peer filesharing is an easy example of this dynamic. As an astonishing quantity of music files (among others) was made available for free (and against the law of copyright) through P2P applications, the recording industry has fought back. Its strategy has included vigorous prosecution of those downloading music illegally, extraordinary efforts to secure new legislation to add new protections for their copyrighted content, and a host of new technical measures designed to change a feature of the original architecture of the network namely that the Net copies content blind to the rules of copyright that stand behind that content. The battle is thus joined, and the outcome will have implications for more than just music distribution. But the form of the battle is clear: commerce and government working to change the infrastructure to make better control possible.

Vinge and Maddox were first-generation theorists of cyberspace. They could tell their stories about perfect control because they lived in a world that couldnt be controlled. They could connect with their audience because it wanted to resist the future they described. Envisioning this impossible world was sport.

Now the impossible is increasingly real. Much of the control in Vinges and Maddoxs stories that struck many of their listeners as Orwellian now seems to many quite reasonable. It is possible to imagine the system of perfect regulation that Vinge described, and some even like what they see. It is inevitable that an increasingly large part of the Internet will be fed by commerce. Most dont see anything wrong with that either. The terrifying has now become normal, and only the historians (or authors of old books like this) will notice the difference.

This book continues Vinges and Maddoxs stories. I share their view of the Nets future; much of this book is about the expanding architecture of regulation that the Internet will become. But I dont share the complacency of the self-congratulatory cheers echoing in the background of that 1996 recording. It may well have been obvious in 1996 who the enemy was. But it is not obvious now.

The argument of this book is that our future is neither Vinges nor Maddoxs accounts standing alone. Our future is the two woven together. If we were only in for the dystopia described by Vinge, we would have an obvious and powerful response: Orwell gave us the tools, and Stalin gave us the resolve to resist the totalitarian state. After 9/11, we may well see a spying and invasive Net. But even that will have limits. Totalitarian control by Washington is not our future. 1984 is solidly in our past.

Likewise, if we were only in for the future that Maddox described, many of our citizens would call that utopia, not science fiction. A world where the market runs free and the evil of government is defeated would be, for them, a world of perfect freedom.

But when you tie the futures described by Vinge and Maddox together, it is a different picture altogether: A future of control in large part exercised by technologies of commerce, backed by the rule of law (or at least whats left of the rule of law).

The challenge for our generation is to reconcile these two forces. How do we protect liberty when the architectures of control are managed as much by the government as by the private sector? How do we assure privacy when the ether perpetually spies? How do we guarantee free thought when the push is to propertize every idea? How do we guarantee self-determination when the architectures of control are perpetually determined elsewhere? How, in other words, do we build a world of liberty in the face of the dangers that Vinge and Maddox together describe?

The answer is not in the knee-jerk antigovernment rhetoric of a libertarian past: Governments are necessary to protect liberty, even if they are also able to destroy it. But neither does the answer lie in a return to Roosevelts New Deal. Statism has failed. Liberty is not to be found in some new D.C. alphabet soup (WPA, FCC, FDA . . . ) of bureaucracy.

A second generation takes the ideals of the first and works them out against a different background. It knows the old debates; it has mapped the dead-end arguments of the preceding thirty years. The objective of a second generation is to ask questions that avoid dead-ends and move beyond them.

There is great work from both generations. Esther Dyson and John Perry Barlow, and Todd Lapin still inspire, and still move one (Dyson is editor at large at CNET Networks; Barlow now spends time at Harvard). And in the second generation, the work of Andrew Shapiro, David Shenk, and Steven Johnson is becoming well known and is compelling.

My aim is this second generation. As fits my profession (Im a lawyer), my contribution is more long-winded, more obscure, more technical, and more obtuse than the best of either generation. But as fits my profession, Ill offer it anyway. In the debates that rage right now, what I have to say will not please anyone very much. And as I peck these last words before e-mailing the manuscript off to the publisher, I can already hear the reactions: Cant you tell the difference between the power of the sheriff and the power of Walt Disney? Do you really think we need a government agency regulating software code? And from the other side: How can you argue for an architecture of cyberspace (free software) that disables governments ability to do good?

But I am also a teacher. If my writing produces angry reactions, then it might also effect a more balanced reflection. These are hard times to get it right, but the easy answers to yesterdays debate wont get it right.

I have learned an extraordinary amount from the teachers and critics who have helped me write this book. Hal Abelson, Bruce Ackerman, James Boyle, Jack Goldsmith, and Richard Posner gave patient and excellent advice on earlier drafts. I am grateful for their patience and extremely fortunate to have had their advice. Larry Vale and Sarah Whiting guided my reading in the field of architecture, though no doubt I was not as patient a student as I should have been. Sonya Mead helped me put into pictures what it would take a lawyer ten thousand words to say.

An army of students did most of the battle on earlier drafts of this book. Carolyn Bane, Rachel Barber, Enoch Chang, Ben Edelman, Timothy Ehrlich, Dawn Farber, Melanie Glickson, Bethany Glover, Nerlyn Gonzalez, Shannon Johnson, Karen King, Alex Macgillivray, Marcus Maher, David Melaugh, Teresa Ou, Laura Pirri, and Wendy Seltzer provided extensive, if respectful, criticism. And my assistants, Lee Hopkins and Catherine Cho, were crucial in keeping this army in line (and at bay).

Three students in particular have influenced my argument, though none are fairly called students. Harold Reeves takes the lead in Chapter 10. Tim Wu forced me to rethink much of Part I. And Andrew Shapiro showed me the hopefulness in a future that I have described in very dark terms.

I am especially indebted to Catherine Marguerite Manley, whose extraordinary talent, both as a writer and a researcher, made it possible to finish this work long before it otherwise could have been finished. Thanks also to Tawen Chang and James Stahir for their careful review of the notes and work to keep them honest.

This is a not a field where one learns by living in libraries. I have learned everything I know from the conversations I have had, or watched, with an extraordinary community of academics and activists, who have been struggling over the last five years both to understand what cyberspace is and to make it better. This community includes the scholars and writers I discuss in the text, especially the lawyers Yochai Benkler, James Boyle, Mark Lemley, David Post, and Pam Samuelson. Ive also benefited greatly from conversations with nonlawyers, especially Hal Abelson, John Perry Barlow, Todd Lapin, Joseph Reagle, Paul Resnick, and Danny Weitzner. But perhaps more importantly, Ive benefited from discussions with the activists, in particular the Center for Democracy and Technology, the Electronic Frontier Foundation, and the American Civil Liberties Union. They have made the issues real, and they have done much to defend at least some of the values that I think important.

This book would not have been written, however, but for a story by Julian Dibbell, a conference organized by Henry J. Perritt, and many arguments with David Johnson. I am grateful to all three for what they have taught.

I began this project as a fellow at Harvards Program on Ethics and the Professions. I am grateful to Dennis Thompson for his skeptical encouragement that year. The Berkman Center for Internet and Society at Harvard Law School has made much of my research possible. I am grateful in particular to Lillian and Myles Berkman for that support, and especially to the centers co-director and my sometime coteacher, Jonathan Zittrain, for his support and, more important, friendship. Ive dedicated this book to the other co-director of the Berkman Center, Charlie Nesson, who has given me the space and support to do this work and a certain inspiration to push it differently.

But more significant than any of that support has been the patience, and love, of the person to whom Ive dedicated my life, Bettina Neuefeind. Her love will seem crazy, and wonderful, for much more than a year.


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