Law Isn’t Really “Law” Either

by on April 24, 2008 · 10 comments

Don Marti offers a good example of the point of my last post:

The Smoot-Hawley Tariff was law. Many of the “code is law” design choices are similar: they can cause big effects without necessarily implementing the lawmaker’s intent.

I couldn’t have put it better myself. And this brings to mind another important point about “law” that I think is missed in Lessig’s “code is law” formulation: the real “law” Lessig is analogizing computer code to often isn’t exactly omnipotent. The War on Drugs is law but there’s still lots of drug use going on. Strict gun control is law in some big cities but there’s still plenty of gun violence. The McCain-Feingold soft money ban is law but there’s still plenty of corruption in Washington. The copyright system is law but there’s still plenty of illicit file sharing going on. And in all of these cases, the law has had significant effects that were very different from their authors’ intent.

And indeed, if we’re going to analogize ISPs to legislators, it’s important to remember that legislators have several key advantages over ISPs. In the first place, actual legislators can have you thrown in jail, whereas the worst an ISP can do to you is disconnect your service. Second, governments have effectively unlimited sums of money to waste on futile efforts like the drug war. In contrast, ISPs are profit-seeking institutions so there’s some limits on the amount of idiocy they can undertake before they’re forced to stop due to financial considerations. Finally, the law has at least some moral suasion behind it; the fact that something is illegal at least causes people to mostly hide the fact that they’re doing it. In contrast, people evading the “law” of an ISP would be able to claim the moral high ground.

Yet despite all these advantages, our government hasn’t come close to stopping people from using drugs, sharing files, hiring prostitutes, owning guns, corrupting public officials, and so forth. Not because the laws for those purposes were badly designed, or because the people implementing them haven’t tried hard enough, but because there are fundamental limits to government’s ability to control the behavior of citizens in a free society.

I think something similar is true of a large-scale network like the Internet. Incompetent network owners, as the “governments” of their corners of the Internet, can certainly cause a lot of havoc, just like real governments. But their ability to control what their customers do is constrained for many of the same reasons that governments’ ability to stop drug use or file sharing is constrained. And that means that network owners that try to restrict their customers’ use of their network are as likely to shoot themselves in the foot as they are to enhance their bottom lines.

  • Timon

    There is an interesting case in Colorado where real code as real law shows how strained the metaphor can become in the obverse case, covered in a great Berkman Center talk on “Technological Due Process” here. The synopsis is that CO paid something like $200,000,000 to have the business logic of their welfare and benefits system implemented in software, and was then horrified when the machine stopped sending checks to people who didn’t qualify. (Unless their driver’s license was issued in American Samoa!) But there are cases, like copyright, where Lessig is on to something. It is possible to make laws that are as concise and unambiguous as software (SELECT punishment FROM Leviticus WHERE infraction = ‘adultery’) but they tend to the draconian. I think it is the draconian tendency that concerns Lessig (and TLF favorite Jaron Lanier), that is, it is not that software is inherently controlling, but that the need to implement laws in software will make the law itself more draconian. The recent history of copyright bears a lot of this out, going from a big rich system that balanced dozens of competing interests to something like “Thou shalt not copy.” That is an extreme case and not necessarily applicable to massive network design, which may not amenable to control by any particular law or piece of software.

  • Timon

    There is an interesting case in Colorado where real code as real law shows how strained the metaphor can become in the obverse case, covered in a great Berkman Center talk on “Technological Due Process” here. The synopsis is that CO paid something like $200,000,000 to have the business logic of their welfare and benefits system implemented in software, and was then horrified when the machine stopped sending checks to people who didn’t qualify. (Unless their driver’s license was issued in American Samoa!) But there are cases, like copyright, where Lessig is on to something. It is possible to make laws that are as concise and unambiguous as software (SELECT punishment FROM Leviticus WHERE infraction = ‘adultery’) but they tend to the draconian. I think it is the draconian tendency that concerns Lessig (and TLF favorite Jaron Lanier), that is, it is not that software is inherently controlling, but that the need to implement laws in software will make the law itself more draconian. The recent history of copyright bears a lot of this out, going from a big rich system that balanced dozens of competing interests to something like “Thou shalt not copy.” That is an extreme case and not necessarily applicable to massive network design, which may not amenable to control by any particular law or piece of software.

  • Tim Lee

    Timon, quite right. Even the copyright example proves my point: what the expansion of copyright has done is created a lot of collateral damage for high-tech innovation, without really accomplish the core objective of better compensating copyright holders. I think something quite similar will prove true of network neutrality violations: they’re certainly cause problems for third parties, but they won’t be very effective at enhancing the bottom lines of the firms doing the discriminating. Which will, I suspect, lead them to back off relatively quickly.

  • http://www.tc.umn.edu/~leex1008 Tim Lee

    Timon, quite right. Even the copyright example proves my point: what the expansion of copyright has done is created a lot of collateral damage for high-tech innovation, without really accomplish the core objective of better compensating copyright holders. I think something quite similar will prove true of network neutrality violations: they’re certainly cause problems for third parties, but they won’t be very effective at enhancing the bottom lines of the firms doing the discriminating. Which will, I suspect, lead them to back off relatively quickly.

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