Книга: Code 2.0

Where This Leads

Where This Leads

After I published an essay in the (then existing) Industry Standard arguing that “code is law,[64]” the following letter was sent to the editor:

Typical for a Harvard Law Professor. . . . Lessig misses the entire forest while dancing among the trees. . . . While his riff on West Coast Code (from Silicon Valley Programmers) vs. East Coast Code (from government lawyers) is very cleverly crafted, it completely avoids the real difference between the two.

The good professor seems to apply the word “regulation” equally to the efforts of private enterprises to control the behavior of their customers through market mechanisms and the efforts of government agencies to control the behavior of all citizens through force of law.

So long as the creators and purveyors of West Coast Code (no matter how selfish, monopolistic, demonic or incompetent they may be) do not carry guns and badges, I will choose them over the enforcers of East Coast Code any time[65].

Whether or not I’ve missed the “real difference” between code and law, the genius in this letter is that its author clearly sees the real similarity. The author (the president of an Internet-related business) understands that “private enterprises” try to “control the behavior of their customers”, and he writes that they use “market mechanisms” to achieve that control. (Technically, I was speaking about architectures to achieve that effect, but never mind. Whether markets or architectures, the point is the same.) He therefore sees that there is “regulation” beyond law. He just has his favorite between the two (corporate executive that he is).

What this author sees is what we all must see to understand how cyberspace is regulated and to see how law might regulate cyberspace. I’ve argued in this chapter that government has a range of tools that it uses to regulate, and cyberspace expands that range. Indirectly, by regulating code writing, the government can achieve regulatory ends, often without suffering the political consequences that the same ends, pursued directly, would yield.

We should worry about this. We should worry about a regime that makes invisible regulation easier; we should worry about a regime that makes it easier to regulate. We should worry about the first because invisibility makes it hard to resist bad regulation; we should worry about the second because we don’t yet — as I argue in Part III — have a sense of the values put at risk by the increasing scope of efficient regulation.

That’s a lot of worries, no doubt. But before we go further with these worries, we could consider in more detail the contexts within which these worries become real.

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