Where This Leads

After I published an essay in The Industry Standard, arguing that “code is law,”¹ the following letter was sent to the editor:

Typical for a Harvard Law Professor. . . . Lessig misses the entire forest while dancing among the trees. . . . While his riff on West Coast Code (from Silicon Valley Programmers) vs. East Coast Code (from government lawyers) is very cleverly crafted, it completely avoids the real difference between the two.

The good professor seems to apply the word “regulation” equally to the efforts of private enterprises to control the behavior of their customers through market mechanisms and the efforts of government agencies to control the behavior of all citizens through force of law.

So long as the creators and purveyors of West Coast Code (no matter how selfish, monopolistic, demonic or incompetent they may be) do not carry guns and badges, I will choose them over the enforcers of East Coast Code any time.²

Whether or not I’ve missed the “real difference” between code and law, the genius in this letter is that its author clearly sees the real similarity. The author (the president of an Internet-related business) understands that “private enterprise” tries to “control the behavior of their customers.” He writes of “market mechanisms” to achieve that control. (Technically, I was speaking about architectures to achieve that effect, but never mind. Whether markets or architectures, the point is the same.) He therefore sees that there is “regulation” beyond law. He just has his own favorites (corporate executive that he is).

What this author sees is what we all must see to understand how cyberspace is regulated, and to see how law might regulate cyberspace. I’ve argued in this chapter that government has a range of tools that it uses to regulate. Cyberspace expands that range. The code of cyberspace is becoming just another tool of state regulation. Indirectly, by regulating code writing, the government can achieve regulatory ends, often without suffering the political consequences that the same ends, pursued directly, would yield.

We should worry about this. We should worry about a regime that makes invisible regulation easier; we should worry about a regime that makes it easier to regulate. We should worry about the first because invisibility makes it hard to resist bad regulation; we should worry the second because we don’t yet—as I argue in part 3—have a sense of the values put at risk by the increasing scope of efficient regulation.

But the power that government has over cyberspace hangs on an important feature of cyberspace that I have not yet described. We can no longer take that feature for granted—either in this argument or in the world. One feature of the code determines much about the power of government. It is the topic of the chapter that follows.

Footnotes

¹ See http://www.lessig.org/content/standard/0,1902,4165,00.html. Edit Delete

² See “Legal Eagle” (letter to the editor), The Industry Standard, April 26, 1999 (emphasis added), available at http: //www.thestandard.com/articles/article_print/0,1454,4306,00.html (visited May 30, 1999). Edit Delete