Provocative Views on the Internet: Software Code Has Power of Law on the Internet, Author Says
n the 1996 movie "Independence Day," many idealists are eager to
welcome aliens from outer space when they first appear on earth. But
then the mood changes. Soon after the planet's leaders realize that the
aliens have hostile intentions, the earth is captured.
"Only Jeff Goldblum had gotten it before,
but he always gets it first," quipped
Lawrence Lessig, the Berkman professor
of law at Harvard Law School and the
author of a new, provocative and
pessimistic book on the future of the
Internet.
In "Code and Other Laws of Cyberspace"
(Basic Books), Lessig, one of the nation's
leading experts on law and cyberspace,
plays the skeptic, much as Jeff Goldblum
did in the movie. He sees a potential
menace in the new technology of the
Internet, and he issues a wake-up call.
"We have been as welcoming and joyous about the Net as the earthlings
were of the aliens in 'Independence Day'; we have accepted its growth in
our lives without questioning its final effect," Lessig writes. "But at some
point we too will come to see a potential threat. At some point we will
see that cyberspace does not guarantee its own freedom, but instead
carries an extraordinary potential for control. And then we will ask: How
should we respond?"
For the past few years, Lessig, 38, has been a major figure in cyberlaw
circles, writing many articles on law and the Internet. A teacher of
cyberlaw at Harvard Law School and a fellow at Harvard's Berkman
Center for Internet & Society, Lessig has also testified before Congress
on Internet regulation issues.
Last year, he served three months as a special master -- basically a
court-appointed outside expert -- in the Microsoft antitrust case. He was
recently invited by the presiding judge in the Microsoft antitrust case to
write a friend-of-the-court brief.
In a telephone interview from Berlin, where he is a research fellow this
year at the Institute for Advanced Study, Lessig said that he wrote
"Code" as a sort of counterargument to what he believes is some
dangerous conventional wisdom: that the Internet is a freedom-enhancing
and creative "place" that is beyond government regulation and is best left
alone.
In his book, Lessig argues that while cyberspace is now relatively
hospitable to free and anonymous speech, that is not its intrinsic nature.
In fact, cyberspace is a creature of its code -- the software and hardware
that make the Internet what it is. Indeed, he says, it is computer code and
not legal code, also known as laws, that is the most important regulator
of our activity on the Internet.
At present, cyberspace code incorporates strong protections for free
speech, prevents governments from aggressively regulating most Internet
activity and strikes a good balance between the rights of authors to
protect their works and the rights of readers to make copies and read
anonymously, Lessig writes in his book.
But sadly, he says, the cyberspace code is already changing and may
change more drastically, owing to the demands of commercial interests.
Soon, a combination of passwords, filters, cookies, pay-as-you-view
downloadable books and digital IDs tying users' identities to their
machines could transform the Internet into a darker place, where
important elements of privacy and freedom are erased by an emerging
architecture of the all-seeing eye.
For Lessig, the question is this: If software code and not legal code is the
governor of our life on the Internet, how do we make sure the changing
software code reflects our political values of freedom, privacy,
anonymous speech and all the rest?
Because Lessig's book is more a diagnosis than a cure, the answer is not
obvious. But in general, it seems that Lessig believes the private design of
cyberspace code should be closely scrutinized by the government and its
citizens. At a minimum, he wants his readers to wake up and think.
"I think the main point of my book is
that we should appreciate that
cyberspace has a kind of constitution
to it, not a legal text but a series of
values embedded in its current
architecture," Lessig said in the
interview. "But that's not a given, and
the 'constitution' is already changing.
We have to make choices about what
the space should be like and what values we want to protect. If someone
can just take that away from the book -- the importance of defending the
values that cyberspace currently has -- that would be a lot."
One great danger Lessig sees is that the fashionable laissez-faire
philosophy of digital libertarians will inevitably result in an "invisible hand"
of commercial forces that will change the landscape of cyberspace for the
worse. "It's really na‹ve to believe that things will take care of
themselves," he said. "With laissez-faire, things will get really awful. On
the other hand, there's nothing that government can do that I have much
faith in. But we need to do something."
For such a vigorous teacher and writer, it is perhaps a bit strange that a
melancholy strain runs throughout "Code," which is Lessig's first book
and is written for a popular audience. But Lessig concedes that he is
pessimistic.
After all, the Internet revolution has created a need for Americans to
actively choose which of their political values should be embedded in the
code of cyberspace, he writes. But that demand comes in the midst of
"the age of the ostrich," when citizens have become deeply passive and
skeptical of government.
"We are no more ready for this Internet revolution than the Soviets were
ready for theirs a decade ago," Lessig writes.
"They needed to make some quick decisions, but they couldn't, because
they had no practice," he said. "We've had practice but we're sick of it.
It's an attitude that leads to, 'Let everything take care of itself.' That
answer will be disastrous."
CYBER LAW JOURNAL is published weekly, on Fridays. Click
here for a list of links to other columns in the series.
Related Sites
These sites are not part of The New York Times on the Web, and The Times has
no control over their content or availability.
Promotional site for "Code and Other Laws of Cyberspace," by
Lawrence Lessig
Lawrence Lessig's Web site at Harvard Law School, with links to
his academic and popular writings, congressional testimony and
courses
The Berkman Center for Internet & Society at Harvard Law
School
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