Problems with the Lessig-Zittrain-Wu Thesis

Harvard Berkman Center professors Lawrence Lessig and Jonathan Zittrain are probably the two most influential cyberlaw thinkers alive today. Lessig’s Code and Other Laws of Cyberspace (1999) was a seminal work in the field of Internet policy and has served as somewhat of a Bible in cyberlaw circles and classrooms since its publication. Zittrain is Lessig’s most prominent and prolific disciple and his 2008 book, The Future of the Internet and How to Stop It, is the logical extension of the thesis Lessig originally set forth in Code. In his 2010 book, The Master Switch: The Rise and Fall of Information Empires, Columbia Law School professor Tim Wu, a Harvard grad, updates and extends this narrative.

Simply stated, the Lessig-Zittrain-Wu thesis is that left unregulated, a private cyberspace will yield “perfect control.” They argue that code and cyberspace can be bent to the will of some amorphous collective or public will, and it often must be if we are to avoid any number of impending disasters brought on by nefarious-minded (or just plain incompetent) folks in corporate America scheming to achieve “perfect control”over users. Unless someone or something—usually the state—intervenes, they warn, the Net and all things digital are doomed. “Not only can the government take these steps to reassert its power to regulate, but…it should,” argues Lessig. “Government should push the architecture of the Net to facilitate its regulation, or else it will suffer what can only be described as a loss of sovereignty.”

Although it is unclear what this school of thinking should be labeled (“cyber-collectivism”? “cyber-progressivism”?) one thing is clear: Their philosophy is the antithesis of cyber-libertarianism and real Internet freedom.

Importantly, the “cyber-progressivism” of Lessig, Zittrain, and Wu is deeply pessimistic and lamentably myopic in character. Countless Ivory Tower cyber-academics today adopt a static view of markets and market problems. This “static snapshot” crowd gets so worked up about short term spells of “market power” – which usually don’t represent serious market power at all – that they call for the reordering of markets to suit their tastes.  Sadly, they sometimes do this under the banner of “Internet freedom,” claiming that techno-cratic elites can “free” consumers from the supposed tyranny of the marketplace.

In reality, that vision wraps markets in chains and ultimately leaves consumers worse off by stifling innovation and inviting in ham-handed regulatory edicts and bureaucracies to plan this fast-paced sector of our economy. Importantly, that vision ignores the deadweight losses associated with expanding government red tape and bureaucracy as well as the very real danger of “regulatory capture” that exists anytime Washington decides to get cozy with a major sector of the economy.

Ultimately, what separates the cyber-libertarian and cyber-progressive is that the the cyber-libertarian believes that high-tech market power concerns or “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions often favored by cyber-progressives. Moreover, the decisive advantage of the market-driven approach to correcting market failure comes down to the rapidity and nimbleness of those responses, especially in markets built upon bits instead of atoms.

Addressing the cyber-progressive threat to digital liberty has been, and will continue to be, a primary focus of the work of the Technology Liberation Front.  Here are some TLF posts addressing the Lessig-Zittrain-Wu thesis and “cyber-progressivism” more generally: