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Code is law, you say? Sudo drop my parking fine!

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.


About Ambjörn Elder

I'm a social scientist in embryo, a permanently resting actor, a half-hearted cosmopolitan, and now a blogger. More concretely, I'm a candidate for a masters in international affairs at the American University of Paris currently looking for work that involves advocacy or negotiation, or somehow concerns technology or intellectual property issues, especially on the internet.


3 thoughts on “Code is law, you say? Sudo drop my parking fine!

  1. Thank you for the blog, great job. There aren’t enough people writing about the social science behind the Internet and FOSS on the Internet.

    My own reading of the Internet and FOSS is as emerging systems. In that sense, I wonder if you could me missing an important point in distinguishing between governments and corporations when looking at who are the current, often transnational, networks of governance at play. Much as libertarians and other cyberutopians like to paint a rosy picture, it seems clear that there is no such thing as freedom online, but submission to increasingly walled gardens.

    Posted by CarlosEMF | 4 October 2011, 18:15
  2. Thank you for your comment CarlosEMF.

    Emergence has only recent come up in my reading, and only in passing. Are we talking about the same thing if I describe emergence as the process by which a system derives its qualities from the complex interaction of its component parts instead of from their individual qualities? Is there more to it?

    If that’s the idea in an oversimplified nut-shell, then good point! I mean to post more thoughts in the future about the dynamics of the web and of the real world. For example, next post should be about theories of the policy process.

    The political science approach I’ve been taught separates modern societies into three kinds of actors: government, business, and civil society, with civil society being the runty, red-headed step child. You’re right that I haven’t been making a strong distinction between the first two. The truth is that for the next two months (brief pause while I run screaming in panic around my flat ― ok done now) I’m focusing on the interaction between government and civil society, in processes where I think the corporate involvement sort of cancels itself out since there are big businesses on both sides.

    You’ve pushed me to reflect, Carlos, that I haven’t done a lot of good reading about how corporations weigh in on technology policy or participate in social changes through technology. I can speak intelligently about the role of mercantiles in the evolution of the state, but not in any transnational processes.

    Do you have a reading list for me on emerging systems in the social sciences? Friedrich von Hayek? Any advice on good reading about the role of corporations in web governance?

    Posted by Ambjörn Elder | 5 October 2011, 14:00
  3. All right, breathe in… no, I don’t have a reading list. Or rather, I think it’s not appropriate to go that way. Here’s why: you say somewhere in the blog that you are writing a Masters’ thesis. Don’t get me wrong, please don’t interpret what I am going to say as patronising, but the objective of an MSc thesis isn’t to push the boundaries. I know; I did one back in the days. Before I started the PhD.

    Your definition of emergence is spot-on, so no worries there. My point was co-construction of that emergence; I can’t bring myself to separate government, business and civvies; nope, what I conceptualise are networks of agents, the relative powers of which (essentially, the one factor you didn’t mention) help define the outcome of the emergence process. I personally work on a perspective called “Instituted Economic Process”, part a the Neo-Polanyian approach in economic sociology to look at innovation and emergence. With some Actor-Network Theory and Systems of Innovation thrown into the mix. Don’t ask.

    (Incidentally, when you say Hayek, or von Mises, or any other neoclassical economist’s name, my eyes glaze over and I start whistling the Love Theme from Blade Runner. Been there, done that, got the t-shirt and the MSc, scarred for life.)

    I know a lot of the critical geography and politics people have written many interesting things published in the field of transnational governance, for example of the environment. Again, I wouldn’t advice going into that two months into a deadline. You work in a given department, with a given supervisor, and have to integrate yourself in a given academic tradition. That’s the nature of the game, so play it like it is. Sorry if this all seems discouraging; it’s just that I’ve seen people having epiphanies, following them and in the end failing degrees because they wanted to share with an audience that wasn’t listening.

    Either way, great job with the blog, I’d love to keep this discussion going, and feel free to get in touch at any time.

    Posted by CarlosEMF | 5 October 2011, 19:32

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