Sure, it may be true that code is law in cyberspace, but off-line politics still matter. You say you agree? Shush! Don’t interrupt me when I’m ranting. Let’s set up a straw man argument and knock it down like a school yard bully. What’s all this violence in aid of? The hurly-burly will scare the dust off of some great ideas about the Internet. It’ll also go further than my first post to show how real world politics matters to a Free and Open web (because lawmaking matters, because the law matters).
Let me introduce The Straw Man, who just happens to be an Internet exceptionalist (what’re the odds?). He read A Declaration of Independence of Cyberspace in 1996 and he shares a dream with John Perry Barlow. Written in those heady times on behalf of ‘the future’, The Declaration addressed the governments of the world. It said to them “no one can arrest our thoughts.” It declared, “[you do not] possess any methods of enforcement we have true reason to fear.” While state, national, or international law may rule meatspace, The Straw Man believes that in the “civilization of the Mind in Cyberspace,” code is the law.
Lawrence Lessig coined the phrase “code is law” in 1999. You may hear The Straw Man quote it in the same way he tosses around the slogan “information wants to be free.” He uses Lessig’s aphorism to say that real world laws don’t apply to the Internet, only computer code matters. That’s not what the good professor meant, however.
Dr Lessig himself credits the idea to Professor Joel R. Reidenberg. In a 1998 article, Reidenberg talks about something he calls Lex Informatica and he sets up a comparison. Code works in cyberspace in the same way that a system of medieval common law known as Lex Mercatoria worked between traders. The early commercial law “create[d] trust and confidence for robust international trade.” Likewise, Lex Informatica fosters trust by setting “ground rules for the access, distribution, and use of information.” Both systems “evolved [out of custom and practice] into a distinct body of law… independent of local sovereign rules.”
So far so good for cyber-libertarians, but in Code and Other Laws of Cyberspace (and in the 2006 revision, which is the one I read), Professor Lessig takes Reidenberg’s argument and uses it as a stick to beat up on our Straw Man. He describes the architecture of cyberspace, then he predicts that after hackers and the giants of commerce have each put their hand in to develop the code-law Internet we have today, “the third [generation of this architecture] could well be the product of government.”
Reidenberg targets policymakers with his essay; and Lessig addresses citizens of the net in his book. Reidenberg hopes to improve the quality of government oversight, perhaps cut down on ignorant and ineffective laws about cyberspace by making Lex Informatica part of the government toolkit; Lessig yearns for an Internet of, by, and for the people, where the rule of law will preserve freedom instead of crushing it.
So yes, ok, code is law, but according to the people who came up with the idea, it’s not the only law, not even online. It shares the Internet with other “systems of regulation” like for example real legal code, social custom, and market forces. It’s also a “law” that anyone can write, from academics to spammers. And unfortunately, real life intrudes on the libertarian utopia. The Straw Man really only has to look around at the Great Firewall of China and the BBC iPlayer to see government coming online in a big way, declaration of independence or no declaration of independence.
“Code is law” does not justify political inaction. In fact, quite the reverse. Anyone who fires the phrase off in an excess of libertarian zeal is holding the gun at the wrong end.
By the way if you identify with today’s straw man, please let me know in the comments or by email. Lawrence Lessig and Tim Wu (Professor Wu in an article published in 2010) claim this point of view died out with an earlier age of the Internet. I’m not convinced. I think it lives on in Anonymous and on 4chan. If you dear reader, are a true believer in the power of the Internet to escape regulation, I’d love to hear from you.
WRT the title, apologies to Randall Munroe.
- Barlow, John Perry. “A Declaration of the Independence of Cyberspace.” Web, retrieved 2011, first published Feb 2006.
- Raymond, Eric Steven. “The Jargon File.” Web, retrieved 2011.
- Lessig, Lawrence. Code: version 2.0. New York: Basic Books, 2006.
- Reidenberg, Joel R. “Lex Informatica: The Formulation of Information Policy Rules Through Technology.” Texas Law Review 76(3): 553—584.
- Wu, Tim. “Is Internet Exceptionalism Dead?” The Next Digital Decade: Essays on the Future of the Internet. Eds. Berin Szoka and Adam Marcus. Washington, DC: TechFreedom, 2010: 179—188.