Notes for Lawrence Lessig Code version 2.0

Key concepts: bot man theory of regulation, code, constitution, cyberspace, latent ambiguity, regulability, regulable behavior, regulation by code, structural values, substantive values.

Related theorists: John Perry Barlow, Yochai Benkler, James Boyle, Esther Dyson, Alexander Galloway, Jack Goldsmith, Steven Johnson, Mitch Kapor, Todd Lapin, Tom Maddox, Lev Manovich, William Mitchell, Joel Reidenberg, Andrew Shapiro, David Shenk, Vernor Vinge, Tim Wu, Jonathan Zittrain.

PREFACE TO THE SECOND EDITION
(ix) The confidence of the Internet exceptionalists has waned. The idea—and even the desire—that the Internet would remain unregulated is gone.
(ix) Two books in particular already published nicely complement the argument made here—[Jack] Goldsmith and [Tim] Wu's Who Controls the Net? (2006), and [Yochai] Benkler's The Wealth of Networks (2006)--and a third by [Jonathan] Zittrain [The Failure of the Internet], expected in 2007, significantly extends the same argument.
(x) The genesis of the revisions found here was a wiki. Basic Books allowed me to post the original edition of the book in a wiki hosted by Jotspot, and a team of “chapter captains” helped facilitate a conversation about the text. . . . In recognition of that, I've committed the royalties from this book to the nonprofit Creative Commons.
(x) In addition to these volunteers, Stanford helped me gather an army of law students to help complete the research that Code v2 required.

PREFACE TO THE FIRST EDITION
(xiii) In the spring of 1996, at an annual conference organized under the title “Computers, Freedom, and Privacy,” two science-fiction writers were invited to tell stories about cyberspace's future. Vernor Vinge spoke about “ubiquitous law enforcement” made possible by “fine-grained distributed systems,” in which the technology that will enable our future way of life also feeds data to, and accepts commands from, the government.
(xiii) Tom Maddox followed Vinge and told a similar story, though with a slightly different cast. . . . Commerce would, whether directly or indirectly, help supply resources to build a well-regulated world.
(xiii) Code and commerce.
(xv) But when you tie the futures described by Vinge and Maddox together, it is a different picture altogether: A future of control in large part exercised by technologies of commerce, backed by the rule of law (or at least what's left of the rule of law).
(xv) A second generation takes the ideals of the first and works them out against a different background.
(xv-xvi) There is great work from both generations. Esther Dyson and John Perry Barlow, and Todd Lapin still inspire, and still move one (Tyson is editor at large at CNET Networks; Barlow now spends time at Harvard). And in the second generation, the work of Andrew Shapiro, David Shenk, and Steven Johnson is becoming well known and is compelling.
(xvi) My aim is this second generation.
(xvi) An army of students did most of the battle on earlier drafts of this book.

ONE
code is law

Comparison between new societies of post-communist Europe and Internet cyberspace, both transitioning from euphoric freedom to need for regulation; change from cyberspace of anarchy to control.

(2) About a decade ago, in the mid-1990s, just about the time when this post-communist euphoria was beginning to wane, there emerged in the West another “new society,” to many just as exciting as the new societies promised in post-communist Europe. This was the Internet, or as I'll define a bit later, “cyberspace.” First in universities and centers of research, and then throughout society in general, cyberspace became a new target for libertarian uptopianism. Here freedom from the state would reign.
(3) The claim for cyberspace was not just that government would not regulate cyberspace—it was that government could not regulate cyberspace.
(3) It was the withering of the state that Marx had promised, jolted out of existence by trillions of gigabytes flashing across the ether of cyberspace.
(3) But what was never made clear in the midst of this celebration was why.
(4) Liberty in cyberspace will not come from the absence of the state. Liberty there, as anywhere, will come from a state of a certain kind. We build a world where freedom can flourish not by removing from society any self-conscious control, but by setting it in a place where a particular kind of of self-conscious control survives. We build liberty as our founders did, by setting society upon a certain constitution.

Constitution as architecture and legal text fits cyberspace well (Galloway).

(4) Rather, as the British understand when they speak of their “constitution,” I mean an architecture—not just a legal text but a way of life—that structures and constrains social and legal power, to the end of protecting fundamental values.
(4) This invisible hand, pushed by government and by commerce, is constructing an architecture that will perfect control and make highly efficient regulation possible.
(5) This book is about the change from a cyberspace of anarchy to a cyberspace of control. When we see the path that cyberspace is now on—an evolution I describe below in Part I—we see that much of the “liberty” present at cyberspace's founding will be removed in its future.
(5) That understanding is the aim of Part II. Cyberspace demands a new understanding of how regulation works. It compels us to look beyond the traditional lawyer's scope—beyond laws, or even norms. It requires a broader account of “regulation,” and most importantly, the recognition of a newly salient regulator.
(5) That regulator is the obscurity in this book's title—Code. . . . As William Mitchell puts it, this code is cyberspace's “law.” “Lex Informatica,” as Joel Reidenberg first put it, or better, “code is law.”
(5-6) Justice Holmes famously focused the regulator on the “bad man.” He offered a theory of regulation that assumed that “bad man” at its core. His point was not that everyone was a “bad man”; the point instead was about how we could best construct systems of regulation.

Code as new regulator, bot man as Holmes bad man theory of regulation.

(6) I suggest we learn something if we think about the “bot man” theory of regulation—one focused on the regulation of code. We will learn something important, in other words, if we imagine the target of regulation as a maximizing entity, and consider the range of tools the regulator has to control that machine.
(6) In speaking of a constitution in cyberspace we are simply asking: What values should be protected there? What values should be built into the space to encourage what forms of life?
(6) The “values” at stake here are of two sorts—substantive and structural. In the American constitutional tradition, we worried about the second first [separation of powers].
(7) We face the same questions in constituting cyberspace, but we have approached them from the opposite direction.
(7) But structure matters as well, though we have not even begun to understand how to limit, or regulate, arbitrary regulatory power.

Substantive and structural values in constitutional tradition are Bill of Rights and separation of powers, whereas cyberspace structural values only nascent.

Can culture catch up to address structural values for regulating third generation cyberspace, such as democratization of IPv6, helped by critical programming studies?

(7) Theorists of cyberspace have been talking about these questions since its birth. But as a culture, we are just beginning to get it. . . . The first generation of these architectures was built by a noncommercial sector—researchers and hackers, focused upon building a network. The second generation has been built by commerce. And the third, not yet off the drawing board, could well be the product of government.
(7) In Part III, I bring these questions back down to the ground. I consider three areas of controversy—intellectual property, privacy, and free speech—and identify the values within each that cyberspace will change.
(7) Part IV internationalizes these questions.
(8) The final part, Part V, is the darkest. . . . Are we able to respond rationally—meaning both (1) are we able to respond without undue or irrational passion, and (2) do we have institutions capable of understanding and responding to these choices?
(8) There is much to be proud of in our history and traditions. But the government we now have is a failure. Nothing important should be trusted to its control, even though everything important is.

Government has criminalized core hacker ethic, and forms of cultural creativity so important to Manovich.

(8) Our government has already criminalized the core ethic of this movement, transforming the meaning of hacker into something quite alien to its original sense. Through extremism in copyright regulation, it is criminalizing the core creativity that this network could produce.

TWO
four puzzles from cyberspace

Appeal to four stories as indirect arguments for those over 40 who are ignorant of cyberspace and the Internet.

(9) For most of us over the age of 40, there is no “cyberspace,” even if there is an Internet. . . . But for our kids, cyberspace is increasingly their second life.

BORDERS
(15) My claim is that both “on the Internet” and “in cyberspace,” we will confront precisely the questions that Martha and Dank faced, as well as the questions that their solution [to modify the code governing their virtual world] raised. Both “on the Internet” and “in cyberspace,” technology constitutes the environment of the space, and it will give us a much wider range of control over how interactions work in that space than in real space. Problems can be programmed or “coded” into the story, and they can be “coded” away. . . . What does it mean to live in a world where problems can be coded away? And when, in that world, should we code problems away, rather than learn to work them out, or punish those who cause them?
(15) But I have learned enough from this business to know that I can't convince you of this with an argument. . . . So my method for readers of the second sort must be more indirect. Proof, for them, will come in a string of stories, which aim to introduce and disorient.

GOVERNORS

(16) By “regulable” I mean simply that a certain behavior is capable of regulation. The term is comparative, not absolute—in some place, at some time, a certain behavior will be more regulable than at another place and in another time. My claim about Boral is simply that the Net makes gambling less regulable there than it was before the Net.

JAKE'S COMMUNITIES
(19) The network removed the most important constraint on speech in real space—the separation of publisher from author.
(19) Thus cyberspace is different because of the reach it allows. But it is also different because of the relative anonymity it permits.
(19) One of the most popular MMOGs is a game called “Grand Theft Auto.” In this game, one practices committing crimes. And one of the most troubling uses of video chat is the practice of virtual-prostitution by children.
(20) The Net enables lives that were previously impossible, or inconvenient, or uncommon. At least some of those virtual lives will have effects on non-virtual lives—both the lives of the people living in the virtual space and the lives of those around them.

WORMS THAT SNIFF
(21) This difference complicates the constitutional question. The worm's behavior is like a generalized search in that it is a search without suspicion. But it is unlike the historical generalized search in that it creates no disruption of ordinary life and “discovers” only contraband. In this way, the worm is like a dog sniff—which at least at airports is constitutionally permissible without probably cause—but better. Unlike the dog sniff, the worm doesn't even let the computer user know when there is a search (and hence the user suffers no particularized anxiety).
(21-22) Is the worm, then, constitutional? . . . The paradigm case that motivated the framers does not distinguish between the two very different types of protections, because the technology of the time wouldn't distinguish either. You couldn't—technically--have a perfectly burdenless generalized search in 1971.
(22) When the ability to search without burden increases, does the government's power to search increase as well? Or, more darkly, as James Boyle puts it: “Is freedom inversely related to the efficiency of the available means of surveillance?” For it is, as Boyle puts it, then “we have much to fear.”
(23) How should the protection the framers gave us be applied to a world the framers couldn't even imagine?

THEMES
(23) My aim in the balance of this book is to work through the issues raised by these four themes.

Regulability
(23) “Regulability” is the capacity of a government to regulate behavior within its proper reach. In the context of the Internet, that means the ability of the government to regulate the behavior of (at least) its citizens while on the Net.
(23) But because of the way the Internet was originally designed, there was no simple way to know (1) who someone is, (2) where they are, and (3) what they're doing.
(23) The balance of Part I is about regulability. Can we imagine a more regulable cyberspace? Is this the cyberspace we are coming to know?

Regulation by Code
(24) This is the second theme of this book: There is regulation of behavior on the Internet and in cyberspace, but that regulation is imposed primarily through code.
(24) If we combine the first two themes, then, we come to a central argument of the book: The regulability described in the first them depends on the code described in the second. . . . To follow Mitch Kapor, its architecture is its politics.

Latent Ambiguity
(25) It may be that we see the worm's invasion as inconsistent with the dignity that the amendment was written to protect, or it may be that we see the invasion of the worm as so unobtrusive as to be reasonable. The answer could be either, which means that the change reveals what I will call “a latent ambiguity” in the original constitutional rule.

Competing Sovereigns
(27) But the question isn't about name-calling, it's about the consequences of living in a world where we can occupy both sorts of space at the same time. When 50 people from 25 jurisdictions around the world spend 2,000 hours building a virtual community in Second Life that is housed on servers in San Francisco, what claim should real world jurisdictions have over that activity?

Four themes regulability, regulation by code, latent ambiguity, competing sovereigns.

(27) These four themes frame everything that follows. They also map the understanding that I want this book to provide. Regulation in cyberspace can help us see something important about how all regulation works. That's the lesson of the first them, “regulability.” It will also introduce a regulator (“code”) whose significance we don't yet fully understand. That's the second theme, “Regulation by Code.” That regulation will render ambiguous certain values that are fundamental to our tradition. Thus, the third theme, “latent ambiguity.” That ambiguity will require us, the United States, to make a choice. But this choice is just one among many that many sovereigns will have to make. In the end the hardest problem will be to reckon these “competing sovereigns,” as they each act to mark this space with their own distinctive values.
(27) I explore these four themes against a background that, as I said at the start, has changed significantly since the first edition of this book. . . . There is still the commonplace that government can't regulate, but in a world drowning in spam, computer viruses, identity theft, copyright “piracy,” and the sexual exploitation of children, the resolve against regulation has weakened.
(27-28) But I also still believe that we are far from a time when our government in particular can properly regulate in this context. This is both because of a general skepticism about government—grounded in a disgust about the particular form of corruption that defines how our government functions—and a particular skepticism about government—that it has not yet fully recognized just how regulation in the digital age works.

PART ONE
“regulability”
THREE
is-ism: is the way it is the way it must be?
()

Lessig, Lawrence. Code version 2.0. New York: Basic Books, 2006. Print.