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Code and the Internet

Ubiquity, Volume 2000 Issue March, March 1 - March 31, 2000 | BY Michael M. Roberts 


Full citation in the ACM Digital Library

As someone who has spent the last year and a half in the company of lots of lawyers engaged in the startup activities of ICANN, I have learned that Internet old timers really do have to move over and make room for new talents and perspectives from the legal profession about cyberspace. One of the gloomiest of such perspectives is contained in Harvard Law School Professor Larry Lessig's recent book, "Code and Other Laws of Cyberspace."

Dr. Lessig is unhappy about the current state of Internet technical architecture and morose about its future prospects. In the final chapter of the book, he says, "We will in many domains of our social life come to see the Net as the product of something alien -- something we cannot direct because we cannot direct anything. Something instead that we must simply accept, as it invades and transforms our lives."

Before we write this dismal vision off as just more liberal angst, let's examine the merits of Professor Lessig's case against the Internet. The problem, as he sees it, is that software, ie. "code," fundamentally defines the manner in which members of society will interact with the network and its many applications. The programs that inhabit the workstations and servers we use cannot do more or less than the computer instructions they execute so rapidly. So, as networked applications increasingly pervade our daily existence, the proportion of our interactions with live humans vs interactions with computer programs is declining. And the impersonality of software is accentuated because users seldom know much about the programs in any technical sense, much less who wrote them and what the motivations for specific design decisions were. In contrast to the warmth of contacts with the clerk at the hardware store or with the young woman at Ben and Jerry's, the Internet is unyielding in the face of our arguments, flattery or cajoling. More ominously, the information we provide to the network is frequently stored and used for purposes we did not intend and for which we never gave permission.

Of even greater concern to the author is what he views as the misperception that the Internet is safe for individuals because it is large, it is open, and it is unregulated. To the contrary, he believes, what we are able to do is defined and limited by the hardware and software architectures of the virtual spaces we are visiting. Professor Lessig not only sees this new relationship between man and his networked machines as a Faustian bargain, he laments the certain loss of civil rights and American constitutional liberties involved. In Chapter 4, he argues, "The values that these [network] architectures embed are different, and one type of difference is regulability -- a difference in the ability to control behavior within a particular cyberspace. . . . These architectures are displacing architectures of liberty."

This is serious, heavy stuff. But perhaps the analogy goes too far. The book, after all, is a lawyer's effort to penetrate and analyze a very complex technical environment which is becoming more so by the day.

In reality, the evolution of the Internet's technical architecture, its hardware and software base, is being driven by a large and globally diverse population of engineers and developers who are erecting new functionality almost daily. The Internet Engineering Task Force, a principal source of Internet standards, has more than 50 active working groups on topics ranging from wireless options to wearable appliances to greater security for network transmissions. New ideas attract quick financial support with Internet entrepreneurship now the focus of a tidal wave of venture capital interest.

Far from there being some singular and coercive theme to the manifold architectures of the Internet, it is still a frontier in which technological superiority and effective marketing produce winners and losers every day.

Perhaps Professor Lessig mistakes convenience for coercion in the reduction of technical innovation to common practice. After every wave of innovation subsides, we reach agreement on a pattern of common use. Only the eccentric dispute the layout of our keyboards, the arrangements of our screen desktops, the links to the Web. As we prepare for the next wave -- voice recognition, streaming video, and mobile devices to name a few possibilities -- the number of variables in our current environment which do not represent useful differences needs to decline in order to sustain manageability for ordinary mortals.

So it is not malevolent for MS Explorer and Eudora and Yahoo to have standard layouts that millions use, it's convenience. It is the emergence of stability in today's cyberworld in order to set the stage for tomorrow's new features and new choices.

But there is a deeper problem in this book, which is the notion of bringing "code" under a form of government-imposed regulation on the grounds that it is necessary to do so to preserve constitutionally protected individual rights. In an interesting twist, having presented his case that the "invisible hand" of Internet engineers cannot be trusted to protect our rights, he concludes, unhappily, that protection is not feasible in any event because Americans have lost faith in their government. "We have lost the idea that ordinary government might work, and so deep is this despair that not even the government thinks the government should have a role in governing cyberspace."

There are more important reasons for keeping the government from regulating the architecture and the code of cyberspace than despair. First, the connection between the technical architecture of the Internet and any tangible threat to civil liberties is tenuous. In the running battle between the free speech protections of the First Amendment and the privacy protections of the Fourth Amendment, the technologies of the Internet have played and will continue to play a supporting role for advocacy of rights under both Amendments.

Second, even granting the existence of the connection, regulation by government fiat is among the worst of possible solutions. We have only to look at the 60-year history of the 1934 Telecommunications Act to see example after example of innovation thwarted and consumer choice denied.

Finally, the contributions of Internet technology to social, economic and political welfare and empowerment around the world are already so demonstrably beneficial as to outweigh a largely conjectural threat to individual liberties. Larry Lessig is right to worry about individual freedoms in cyberspace and we need his insight and erudition to guide us. But the Internet is like every new technology that has gone before it in compiling a record of both benefit and damage to society. The ledger as it stands today, in the view of this writer, is far more weighted toward benefit to humanity than "Code and Other Laws of Cyberspace" would have us believe.

Michael M. Roberts is President and CEO, Internet Corporation for Assigned Names and Numbers


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