> What you are
>suggesting is that the government is now in the business of determining what input
>functionality an operating system might have.
What you are attempting to do is to posit that the view that the government should not be "in the business of determining what input functionality an operating system might have" is what Mr. Lessig might call an "uncontestable discourse." I'm not so sure that he would accept your characterization.
First, a few words from the Main Man, so we understand what his framework of thought might be in approaching your thesis that the government should not be "in the business of determining what input functionality an operating system might have":
I said that there are two conditions on contestability--an issue is either contested or uncontested, and it either lies in the foreground or background of public attention. These two conditions map four possibilities:
The extremes are box [1] and box [3]. Box [1] is the category of the
contestable (both contested and foregrounded); again abortion is the paradigm case. Infanticide is its opposite, in box [3]: the uncontestable (neither contested nor foregrounded). These two boxes represent the boundaries on a continuum, with the two other cases lying in between.
These middle cases are the more interesting--interesting because they show us something about how contestability changes. Start with box [2]: these are discourses within which there is no longer a substantial dispute, but that continue to occupy public attention. Quid-pro-quo sexual harassment is an obvious example: views about the impropriety of sexual harassment are no longer contested. They once were, but that contest has quickly, and dramatically, died. Yet the topic still occupies public attention--an attention that is directed with an important vigor at rooting out continuing instances of this harassment.
This is the character of box [2] discourses. They have the flavor of a campaign. They are issues that we feel committed to reforming in the direction that the contest has resolved itself. Yet there is a sense that public attention is still required to effect this reform. There is, in other words, a consciousness and intensity to them; a commitment to eliminate the contrary view; a certain patriotism, or virtue, or sometimes self-righteousness, in speaking out against the contrary view; a certainty that the contest has, in principle, resolved itself; and an ideal about pressing that resolution to
completion.
Box [2] discourses contrast with cases in box [4]. Box [4] represents cases where there is actual dissent, or a contest, yet the contest, for some reason, remains in the background of social life. An example is the issue of sex equality just after the ratification of the Fourteenth Amendment: certainly there was substantial disagreement about whether equality norms should be extended to women as they had been extended to black men. [FN93] If people had been asked, they would have taken very different positions on the matter. Yet for reasons unexplained, this dispute stayed quite firmly in the background of social and political life. One might say that the issue was suppressed, though not because some conspiracy succeeded in keeping people quiet about it. Rather, the dispute was not perceived to have social salience at the time. It took time and political action to force the issue into the public eye.
Box [4] disputes are a resource for entrepreneurs of social change.
These are the disputes that fuel social change. Change entrepreneurs draw upon these disputes, and if successful, force them into box [1]. Catharine MacKinnon's work on the law of sexual harassment is the clearest example of this process. MacKinnon took the issue of sexual harassment from box [4], and through both her writings about sexual harassment and the litigation that she and others waged, succeeded in pressing the issue into box [1]. After a relatively short time, the contest in box [1] was importantly resolved--sexual harassment was determined to be sex discrimination. This determination moved the dispute into box [2], in which it currently remains, eventually (we
might expect) to fall into box [3].
As I have described it, this matrix may apply to any domain of social
discourse. It could describe political discourse, legal discourse, discourse within some field of fashion, or even discourse in physics. The matrix is simply a mapping of the modalities of dialogic appropriateness, tracking the propriety of disputes within a particular discourse, and tracing how that propriety might change. The matrix does not attempt to explain why these modalities change; it simply offers a way to speak about the differences that such modalities might present.
from: Lessig, ERIE-EFFECTS OF VOLUME 110: AN ESSAY ON CONTEXT IN INTERPRETIVE THEORY, 110 Harv. L. Rev. 1785 (1997).
Now, I do not know how Mr. Main Man Lessig would perceive the Microsoft antitrust issue. But, in applying his framework of analysis, I perceive it to be a "box 1" issue which is evolving into a "box 2" issue. In other words, since at least 1993 the issue has been at least a box 4 issue -- having moved from being in the background and uncontested to being in the background and contested. And the "change entrepretuers," as he calls them, have succeeded since 1995 in putting Microsoft's behavior on the front burner of public discourse. So, I would argue that now we have at minimum a "box 1" issue where it is socially acceptable for reasonable people to disagree over the appropriateness of Microsoft's behavior and the concentration of too much power in Microsoft's hands.
I would submit that the ongoing antitrust dispute will be the vehicle which the "change entreprenuers" use to push Microsoft's behavior from "box 1" to "box 2," converting what is now a contestable issue into an uncontestable consensus that "something needs to be done" about Microsoft. It may not happen this year, but, by the middle of the next decade, the process should be complete.
Following on a parallel track is the issue you raise in your post about the idea of government "getting into the business" of writing software.
I would posit that, applying Mr. Lessig's framework, this issue is emerging from Box 3, uncontestable and in the background, to box 4, contested and in the background. In other words, whereas, say, 5 years ago, it was inconceivable that government would want to regulate how private companies write software, now, in part because of the rise of Microsoft, some (including Mr. Lessig, I would argue) are starting to say that government should be involved in telling private companies how they may and may not write their software.
Now, what the future holds is anyone's guess. And I can't speak for Mr. Lessig on these issues. But I would venture to say that, if the internet continues, as expected, to increase in importance and to control a larger and larger part of the "real world," and if, as Mr. Lessig predicts, it becomes a "perfectly zoned" world where access to its various parts is tightly regulated and controlled through code, you can bet your booty that this process of ever growing power and ever tightening control will operate to push the issue of who controls how code is written from box 4 to box 1, from the background to the forefront of public debate. What is more, that process will probably coincide nicely with, and be accelerated by, the transition of the debate over Microsoft's power from a box 1 contested issue to a box 2 campaign to reign Microsoft in.
From my vantage point, the first decade of the 21st century looks to be very interesting indeed. |
