[This post is part of the Book Club reading Lawrence Lessig's Code and Other Laws of Cyberspace. Please use the comments area below to discuss the Preface and Chapter 1. For next Friday, we'll read Chapter 2.]
“Code is law.” Lawrence Lessig’s dictum pervades our thinking about Internet policy. Sometimes it’s hard, reading Code in 2005, to remember the impact the book had when it was published back in 1999. Six years is a long time on the net: four iterations of Moore’s Law. Dealing with that gap in time – the dotcom bubble, 9/11, the Induce Act, the Broadcast Flag, and everything else that has happened – is one of the challenges for us reading Code today.
To understand Code, we need to turn back the clock to 1999. Naive cyberlibertarianism ruled the day. The ink on Barlow’s Declaration of Independence of Cyberspace had barely dried. As Lessig puts it,
The claim now was that government could not regulate cyberspace, that cyberspace was essentially, and unavoidably, free. Governments could threaten, but behavior could not be controlled; laws could be passed, but they would be meaningless. There was no choice about which government to install—none could reign. Cyberspace would be a society of a very different sort. There would be definition and direction, but built from the bottom up, and never through the direction of a state. The society of this space would be a fully self-ordering entity, cleansed of governors and free from political hacks.
Most everyone seemed to believe this. Then Lessig’s Code appeared. Suddenly, people could see alternative versions of cyberspace that weren’t inherently free and uncontrolled. To many, including Lessig, the future of cyberspace held more control, more constraint.
Today, Internet policy looks like a war of attrition between freedom and constraint. So Code won’t give us the “Aha!” reaction that it might have given our younger selves six years ago. “Code is law” is the new conventional wisdom.
In turning back to Code, I wondered how well it would hold up. Would it seem fresh, or dated? Would it still have things to teach us?
Based on the Preface and Chapter 1 – a truncated portion, to be sure – the book holds up pretty well. The questions Lessig asks in the Preface still matter to us today.
The challenge of 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?
Lessig’s crafty comparison, in Chapter 1, of cyberspace to the newly freed countries of Eastern Europe may be even more intruiging today than it was in 1999, given what has happened in Eastern Europe in the intervening years. I’ll leave it to all of you to unpack this analogy.
Lessig once said, “Pessimism is my brand.” His pessimism is on display at the end of Chapter 1.
I end by asking whether we—meaning Americans—are up to the challenge that these choices present. Given our present tradition in constitutional law and our present faith in representative government, are we able to respond collectively to the changes I describe?
My strong sense is that we are not.
We face serious challenges, but I suspect that Lessig is a bit more hopeful today.
Welcome to the Book Club. Let the discussion begin!