The week-long Cato Unbound online debate about the 10th anniversary of Lawrence Lessig’s Code and Other Laws of Cyberspace continues today with Prof. Lessig’s response to Declan McCullagh’s opening essay, “What Larry Didn’t Get,” Jonathan Zittrain’s follow-up essay, and my essay on, “Code, Pessimism, and the Illusion of ‘Perfect Control.’” Needless to say, Prof. Lessig isn’t too happy with my response. You should jump over to the Cato site to read the entire thing, but here are a couple of excerpts and my response.
To my suggestion that there is a qualitative difference between law and code, Prof. Lessig says:
I’ve argued that things aren’t quite a simple as some libertarians would suggest. That there’s not just bad law. There’s bad code. That we don’t need to worry just about Mussolini. We also need to worry about DRM or the code AT&T deploys to help the government spy upon users. That public threats to liberty can be complemented by private threats to liberty. And that the libertarian must be focused on both. […]
Of course, law is law. Who could be oblivious to that? And who would need a book to explain it? But the fact that “law is law” does not imply that it has a “much greater impact in shaping markets and human behavior.” Sometimes it does — especially when that “law” is delivered by a B1 bomber. But ask the RIAA whether it is law or code that is having a “greater impact in shaping markets” for music. Or ask the makers of Second Life whether the citizens of that space find themselves more constrained by the commercial code of their geo-jurisdiction or by the fact that the software code of Second Life doesn’t permit you simply to walk away (so to speak) with another person’s scepter. Whether and when law is more effective than code is an empirical matter — something to be studied, and considered, not dismissed by banalities spruced up with italics.
Well, I beg the professor’s pardon for excessive use of italics. [I won’t ask for an apology for misspelling my last name in his piece!] Regardless, it’s obvious that we’ll just never see eye-to-eye on the crucial distinction between law and code. Again, as I stated in my essay: “With code, escape is possible. Law, by contrast, tends to lock in and limit; spontaneous evolution is supplanted by the stagnation of top-down, one-size-fits-all regulatory schemes.”
Lessig largely dismisses much of this with that last line above, suggesting that we just need to keep studying the matter to determine the right mix of what works best. To be clear, while I’m all for studying the impact of law vs. code as “an empirical matter,” that in turn begs the question of how we define effectiveness or success. I suspect that the professor and I would have a “values clash” over some rather important first principles in that regard. This is, of course, a conflict of visions that we see throughout the history of philosophy; a conflict between those who put the individual and the individual’s rights at the core of any ethical political system versus those who would place the rights of “the community,” “the public” or some other amorphous grouping(s) at the center of everything. It’s a classic libertarian vs. communitarian / collectivist debate.
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The Cato Unbound online debate about the 10th anniversary of Lawrence Lessig’s Code and Other Laws of Cyberspace continues today with my response to Declan McCullagh’s opening essay, “What Larry Didn’t Get,” as well as Jonathan Zittrain’s follow-up.
In my response, “Code, Pessimism, and the Illusion of ‘Perfect Control,'” I begin by arguing that:
The problem with peddling tales of a pending techno-apocalypse is that, at some point, you may have to account for your prophecies — or false prophecies as the case may be. Hence, the problem for Lawrence Lessig ten years after the publication of his seminal book, Code and Other Laws of Cyberspace.
I go on to argue that:
Lessig’s lugubrious predictions proved largely unwarranted. Code has not become the great regulator of markets or enslaver of man; it has been a liberator of both. Indeed, the story of the past digital decade has been the exact opposite of the one Lessig envisioned in Code.
After providing several examples of just how wrong Lessig’s predictions were, I then ask:
[W]hy have Lessig’s predictions proven so off the mark? Lessig failed to appreciate that markets are evolutionary and dynamic, and when those markets are built upon code, the pace and nature of change becomes unrelenting and utterly unpredictable. With the exception of some of the problems identified above, a largely unfettered cyberspace has left digital denizens better off in terms of the information they can access as well as the goods and services from which they can choose. Oh, and did I mention it’s all pretty much free-of-charge? Say what you want about our cyber-existence, but you can’t argue with the price!
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I’ve been catching up on Radio Berkman, the podcast produced by our friends at the Berkman Center for Internet & Society and a great companion to the TLF’s own Tech Policy Weekly Podcast. There’s been a lot of talk about government transparency on the TLF lately, including TPW 40: Obama, e-Government & Transparency. But that conversation has been mainly focused on how to make “public” records accessible.
The most recent Radio Berkman episode, “Can you Keep a Secret?” explores the thorny questions about what should be deemed public in the first place, and what should be classified:
The government keeps secrets. We take that for granted. But should we? Some speculate that intelligence agencies and elected officials are a little bit trigger happy with the “Top Secret” stamp, and that society would benefit from greater openness. With the government classifying millions of pages of documents per year – in a recent year the U.S. classified about five times the number of pages added to the Library of Congress – a great deal of useful human knowledge gets put under lock and key. But some argue that secrecy is still crucial to our national security.
Radio Berkman pokes its head into a recent talkback with the directors of the film
Secrecy, Harvard University professors Peter Galison and Robb Moss. They are joined by Harvard Law School professors Jonathan Zittrain, Martha Minow, and Jack Goldsmith.
I look forward to seeing the film (when it comes out on Netflix).
What I found most interesting was the discussion of the essential trade-off in the relationship between the media and the state has always been between the media’s “independence” and its “responsibility” (~33:30 in). Even the staunchest critics of the national security state would probably accept that there are
some stories in the media shouldn’t publish because they’d jeopardize the safety of Americans. But we all want the media to blow the whistle on the bad stuff that goes on behind a veil of secrecy. Drawing that line is a terribly difficult task. But it becomes even more complicated with the decline of traditional professional investigative journalism and the rise of blog/amateur journalism. Continue reading →
In case you’ve been in a pre-holiday daze this week, the blogosphere has been atwitter (not to mention a-twittering) with the news that the Hon. Louis L. Stanton, the Federal district judge presiding over Viacom’s massive copyright infringement suit against YouTube has ordered Google, which owns YouTube, to turn over its viewership records (12 terabytes). Most notably, TechCrunch’s Michael Arrington has called Judge Stanton a “moron” for failing to appreciate that “handing over user names and a list of videos they’ve watched to a highly litigious copyright holder is extremely likely to result in lawsuits against those users that have watched copyrighted content on YouTube.” Whatever one thinks of the Viacom v. YouTube/Google case, Arrington’s concern is misplaced (if not hysterical) and his logic betrays his ignorance of how litigation actually works. Continue reading →
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