April 21, 2014

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Reading Code in 2005

[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!

Comments

  1. Seth Finkelstein says:

    Here’s part of a blog post I wrote at the start of the _Code_ revision project:

    Reflections on “Code and Other Laws of Cyberspace”

    I’ve been trying to come up with a way to concisely express why Code and Other Laws of Cyberspace is such an important book, in my view. Now, likely few people reading this will argue with me. Since almost all blogs are confined to a small self-selected fan audience, I know
    to the readers here I’m preaching to choir. Yet still, I feel there’s something to say. Perhaps just to those few who are contrarian, or lump the book with cyberguru excesses (or maybe if censorware company people are still reading me daily, they’ll learn something – I sometimes wonder if the government agents who made investigative files on writers and artists, ever obtained a second-hand education in high culture from their subjects).

    To some, Code was an intellectual beacon. To me, the significance of its importance cannot be overstated as a standards-bearer. It’s hard to explain this to many people nowadays. Years ago, far too much of the intellectual discussion about the Internet was dominated by a stifling net-libertarianism. There’s a reason I developed a habit of writing so harshly about anything related to Libertarianism. That came from years and years of being harangued by what I call “the street-preachers of the Information Superhighway”. …

    The book Code was a rallying-point for intellectual opposition to the net.libertarian view. It was someone with prestigious legal, public-intellectual, credentials, making the case for an important way of thinking. No-one (well, almost no-one), was going to listen to me, a no-credential no-status programmer writing on mailing lists, about these issues. But they would hear the arguments being made by a Professor at Harvard Law School and Fellow of the Berkman Center for Internet and Society.

    I can’t convey what a tangible, empirical, difference, the book made. Prior to it, when I talked about structural implications and outcomes, and how designs can have effects, I’d mostly just get bafflement. Or worse, Liberbabble. After Code came out, I found the magic phrase was “Like Lessig writes in Code“. People may not in fact have understood, may only have thought they did. But soooo much of my typing was saved. Not to mention a great easing of the struggle for intellectual credibility.

    This is one of the few times I could sincerely gush the PR phrase “I’m excited to be a part of this project“. … [snip]

    My thinking is that Code truly made a difference, and I’m hoping my participation will make a difference.

  2. Anonymous says:

    I am reading this book for the first time. I have read 2 other books of Lawrence Lessig’s and had been meaning to read this one for a while and decided now was the time when I heard about this book club.

    I was really taken back by what I read yesterday. The sentence “a future of control in large part exercised by technologies of commerce, backed by the rule of law” struck way too close to home with me. I have spent the past 8 years designing and implementing internet media delivery systems. The focus was first to see if we could technically accomplish a good user experience. Then our focus moved to trying to license the most commercially viable content on the market. Before we would ever have a chance of licensing anyone’s content, we needed to demonstrate that the media delivery system we had built was secure and would prevent unauthorized use. We ended up designing systems that only worked in conjunction with “technological measures that control access or use of the Work”. It never occurred to us that their might be content owners who might not require absolute control of their content so we never built in to our system a way to by-pass these technological measures. Fundamental design decisions like this ripple through the entire system. Over time, more and more enhancements are built on top of these core design principals.

    Now that I recognize what I have done, I don’t know if I will be able to correct this mistake. The system is built and is up and running with customers using the system 24/7. The amount of systems and processes that have been developed over time with this basic design assumption may be extensive. I will need to justify too many people within the organization that the system needs be architected differently so that our control measures are not inherent in our design but rather are an optional feature used only when requested.

    So far, the text I have read seems important to people like myself who may not be conscious of the implications of our technical designs on freedom. Our jobs tend to focus our concentration very narrowly on our goals of commerce. We can still meet those goals of commerce without designing out the freedoms that make the network great.

  3. Dan Simon says:

    I’ve never read “Code”, but I saw a number of reviews and summaries of it when it came out, all of which gave me the impression that it was a thoroughly stupid book with a ludicrous premise based on a complete misunderstanding of technology. Later, however, I saw Lessig speak on a mostly unrelated topic–intellectual property–and he was so reasonable, thoughtful and careful with his words that I assumed that his book couldn’t possibly be as bad as the summaries had made it out to be.

    Now, reading the preface and chapter 1, I fear that my original assessment was overly generous. The breathless, hysterical tone perfectly matches the manichaean vision and the complete distortion of history and reality. To be slightly more specific:

    1) Lessig alludes to an “original cyberspace”, a golden age in which “liberty” and related “values that we knew in that world” held sway, before it was invaded by the “axis between commerce and the state”, seeking perfect “control”.

    This is utter fantasy. The Internet before “commerce” was a (more or less) benign despotism, in which self-appointed policemen imposed their “values” (many of which Lessig apparently happens to embrace) with an iron fist. In those days before commercial contamination, Sysadmins, the Samurai of the Internet, took it upon themselves to maintain order, and routinely disciplined or even banned users who misbehaved in various ways. Of course, Lessig wouldn’t be the first to mistake a dictatorship of one’s friends for a democracy. But a dictatorship it was–far more so than today’s world of supposed commercial/governmental “control”.

    2) Conversely, the main impact of “commerce” on the Internet has not been less freedom, but rather a massive broadening of the opportunities for millions of ordinary people to explore the freeing possibilities of the Internet. I blog on a (commercial) free blog site, using a (commercial) free browser, over a remarkably inexpensive (commercial) broadband ISP, and receive comments via a (commercial) free email account. Somebody please save me from all this repressive control!

    3) “Code” had never dictated, as of the book’s writing, nor has it dictated to this day, nor will it with any likelihood dictate in the future, the way the Internet is used. Engineers, as a group, are remarkably ingenious at identifying and erasing code-based barriers to freedom of action. Standards that constrain their users in unnecessary ways get dropped; protocols that do likewise get superseded; code gets replaced. The information superhighway is littered with discarded technologies–many of them gloatingly cited here on FtT–that failed miserably because they attempted to impose somebody’s will via code.

    Laws and commercial interests, of course, are another matter. But code, as infrastructure, is more like a network of paved pedestrian paths–and we all know what happens when landscapers place their paved paths in places that are less than optimally convenient for their users….

    4) Lessig appears to be linking copyright protection, open-source software and Internet architecture as different aspects of the same battlefield. In fact, they are almost entirely unrelated issues, and the only thing they have in common is that Lessig and his friends have strong opinions–many of them hopelessly misguided–about all three.

    I could go on and on, but I’ll save further shredding for later chapters of the book.

  4. jim lebeau says:

    Dan said much of what I wanted to say, but a lot more eloquently. When I surf the internet, I am in charge of what I see. Thus Lessig is fundamentally flawed. Unfortunately, I am not in charge of what I do not see. I generally refuse to register with sites just to see one article.

    But Lessig seems interesting, I will finish reading his book, if only to know what the other side was thinking, and to compare the past, and the projected future with the present, and the present projected future.

  5. Seth Finkelstein says:

    “When I surf the internet, I am in charge of what I see. Thus Lessig is fundamentally flawed.”

    *whimper* … It’s not worth it … :-( :-( :-(

  6. Edward W. Felten says:

    Jim,

    Who do mean when you refer to the “other side”? I don’t see infotech policy as having two sides. I see it as a set of issues on which there are diverse opinions.

  7. Anonymous says:

    I think that news stories like this one are good examples of “future of control in large part exercised by technologies of commerce, backed by the rule of law”

    http://news.yahoo.com/news?tmpl=story&u=/afp/20050613/tc_afp/chinainternetcompanymicrosoft

    Here are 3 of the largest commercial internet search engines modifying their code in response to communist laws.

  8. Dan Simon says:

    The example you give doesn’t look to me anything like “control in large part exercised by technologies of commerce, backed by the rule of law”. Rather, it looks to me exactly like control completely exercised by a dictatorial regime, forcing technology that they consider threatening to be, in effect, partially disabled.

    The Chinese government also forbids the discussion of certain topics in speeches, and those Chinese in a position to speak publicly to groups generally comply with those prohibitions. Does that sound to you like “control in large part exercised by vocal cords, backed by the rule of law”? Or are people’s vocal cords simply instruments being constrained by repressive state coercion? And how is “code” any different in this respect?

  9. Luke Brean says:

    Dan,

    Perhaps more precise examples of “control in large part exercised by technologies of commerce, backed by the rule of law” are the 54 distinct governmental projects engaged in data mining private sector credit reports and credit card transactions, that the GAO identified. The government is clearly leveraging the digital data generated by commerce in enforcement activity.

    Under what circumstances, following what procedures, and how broadly the government can cast their digital surveillance net is precisely what needs to be carefully scrutinized if “code” (and the data trail that it often generates and leaves) isn’t to become a repressive tool of control. One only has to imagine how a modern-day COINTELPRO could utilize digital tools to discourage active political dissent by those who are interested in challenging the status-quo.

  10. jim lebeau says:

    There are those who contend that the internet should be locked down or sniffed up. I call these people the “other side”.
    From what I have read so far, Lessig will show us who these people are, what motivates them, and how they intend to go about locking down or sniffing up the internet. This is a great service.
    Lessig, it appears, also would have us worry that these people may succeed. I cannot be made to worry about this.
    While watching the future become the present, I read Ed Felton regularly, and have for years, and although I heard of Seth Finkelstein long ago too, I almost never read what he writes.

  11. Dan Simon says:

    Luke, your example sounds to me even less apropos than the previous one (Chinese censorship of search engines). Government and corporations have been collecting and analyzing financial transaction data since before computers–let alone the Internet–and I don’t see either the details of the Internet’s architecture or any other technical aspect of our communications infrastructure as having nearly as much effect on this kind of information gathering as do, say, the existence and functioning of the IRS, or of large credit card consortia and “credit reporting” agencies.

  12. Anonymous says:

    Dan,

    Let me try to better explain why the MSN, Google and Yahoo censoring themselves is an example of control by technologies of commerce, backed by the rule of law.

    Let’s say China has a law saying songs promoting freedom and democracy may not be distributed or promoted in any way. These popular search engines decide to change their code to filter the search results for any Chinese citizen. This could be considered a form of control imposed by a commercial entity on the user’s ability to get search results. So in China for example, one could do a search on “This land is your land” and no links to this song would return because they have been filtered. The search engine companies decide to implement this control not because they fear jail or death but for commercial gain.

    Let’s now remove the dictator or the communist country from the argument.

    This month we expect to hear the ruling on the Grokster case. If the ruling is not in favor of Grokster, it will become illegal to make money off of pirating of copyrighted material. Returning results to a user who does a search on “This land is Your Land” may be considered a hug liability. So companies here in the US may begin to filter the results they return to users in the US.

    The song “This Land is Your Land” is questionable whether it is in the public domain or not. Jib Jab got sued a publisher that says they own it. Jib Jab lawyers presented some facts that indicated that it was in the public domain. The suit was settled out of court but no details were released on whether this song is in the public domain or not. Search engines will mostly keep the filter for this song and others in their code to control what users can see and limit their liability.

  13. Dan Simon says:

    Let’s say China has a law saying songs promoting freedom and democracy may not be distributed or promoted in any way. These popular search engines decide to change their code to filter the search results for any Chinese citizen. This could be considered a form of control imposed by a commercial entity on the user’s ability to get search results. So in China for example, one could do a search on “This land is your land” and no links to this song would return because they have been filtered. The search engine companies decide to implement this control not because they fear jail or death but for commercial gain.

    But in your example, the search engine companies are not implementing these restrictions for commercial gain, but rather precisely because they fear jail or death. (The laws in the China you describe, and in your vision of post-Grokster America, are quite clear, after all.)

    And that’s the point: infrastructure that is sub-optimal for users, and known to be easy to fix, almost always gets fixed, absent an explicit government intervention to stop it (and often even then). If the infrastructure’s dominant owners/operators won’t fix it, then somebody else will, and will reap the rewards from grateful users. “Freedom to Tinker” in fact spends a great deal of its bandwidth emphasizing this very point.

  14. Anonymous says:

    Dan,

    I don’t believe anyone over at Google, MSN or Yahoo fear jail or death. I believe that these companies are eager to enter the Chinese market in a big way. In order to do so, they must modify their code to control and restrict the information available to Chinese society through the use of their search engines. If they don’t change their code, the Chinese government will not allow them access to the market place by blocking access to their sites.

    In summary:
    China has laws against the dissemination of certain information.
    Google, MSN and Yahoo have technologies of commerce
    Google, MSN and Yahoo modify their code to control user access to certain information in order to enter the marketplace
    User is controlled when using these technologies of commerce.

    Similarly in free society like the US:
    US has copyright laws.
    US copyright law contains statutory fines for certain types of infringement
    US copyright law can become unclear in the face of new technologies of commerce
    Google, MSN and Yahoo have technologies of commerce
    Google, MSN and Yahoo modify their code to control user access to certain types of copyrighted materials in order to limit their potential liability imposed by US copyright laws.
    User is controlled when using these technologies of commerce.

    In these two scenarios the government is not itself modifying the code. The government, through law, is creating economic incentives for certain behaviors. These companies choose modify their behavior to maximize their economic incentives.

    Finally, I agree with your point about how there is always a way around sub-optimal user experience. I would just like to point out that the control I speak of does not have to be perfect control. It is still control non the less.

  15. Dan Simon says:

    I understand your analogy, and it’s not entirely inapt. What I object to is the emphasis on code–in both cases–when what is really at issue is the law. The government of China doesn’t care whether the dissemination of information about democracy occurs via Internet search engines, telephones or word of mouth. Likewise, the US government, if it decides to ban technologies like Grokster, would be doing so as part of an anti-piracy policy that encompasses media cloning and servers serving copyrighted content, as well as P2P file-sharing.

    In other words, in both cases the government is setting out legal limits on behavior, and code providers–like most everybody else–are simply conforming to those limits in order to avoid the legal consequences of exceeding them. If these legal limits are unjust or unfair or unfortunate, then they presumably should be changed. But in the meantime, I see no reason to attribute some kind of mystical significance to the particular form of compliance with these limits that happens to be practiced by software developers. Is the forced absence of the word “democracy” from the typical Chinese citizen’s search engine more important that its forced absence from his or her newspaper, or daily conversation? Is the forced absence of MP3′s of copyrighted songs from my P2P file-sharing network more important than its forced absence from the Internet servers to which I have access, or the demo CDs being given out for free down the street? I, for one, don’t see why.