From: technews <technews@ou.edu>
To: "'it-fyi@listserv.ou.edu'" <it-fyi@lists.ou.edu>
Subject: it-fyi: Software Code Has Power of Law on Internet (NY Times on t
Date: Fri, 3 Dec 1999 15:51:05 -0600
By CARL S. KAPLAN
Software Code Has Power of Law on the Internet, Author Says
In 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 (http://cyber.law.harvard.edu/lessig.html), 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)
(http://www.code-is-law.org/), 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 naïve 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."