Por Lawrence Lessig e colaboradores
Resumo do livro Codes and Other Laws of cyberspace, originalemnte escrito pelo professor Lawrence Lessig, revisado com a colaboração de alguns de seus alunos
original disponível em
Now the impossible has been made real. Much of the control in Vinge’s and Maddox’s stories that struck many of their listeners as Orwellian now seems quite reasonable. It is possible to imagine the system of perfect regulation that Vinge described, and many even like what they see. It is inevitable that an increasingly large part of the Internet will be fed by commerce, and most don’t see anything wrong with that either. Indeed, we live in a time (again) when it is commonplace to say: let business take care of things. Let business self-regulate the Net. Net commerce is the new hero.
And if we were only in for the future that Maddox described, many of our citizens would believe this utopia, not science fiction. A world where “the market” runs free and the evil we call government, defeated, would, for them, be a world of perfect freedom.
But neither story alone describes what the Internet will be. Not Vinge alone, not Maddox alone, but Vinge and Maddox together: a future of control in large part exercised by technologies of commerce, backed by the rule of law.
The challenge of our generation is to reconcile these two forces. How do we protect liberty when the architectures of control are managed as much by the government as by the private sector? How do we assure privacy when the ether perpetually spies? How do we guarantee free thought when the push is to propertize every idea? How do we guarantee self-determination when the architectures of control are perpetually determined elsewhere? How, in other words, do we build a world of liberty when the threats are as Vinge and Maddox together described them?
code is law
ele fala do fim do comunismo, e de como as pessoas esperavam que a livre regulamentação do mercado pudesse fazer as coisas prosperarem. mas um sistema de controle foi substituido por outro. e nesse momento histórico surge o ciberespaço - o novo alvo da utopia libertária.
In the words of a manifesto that will define our generation: “We reject: kings, presidents and voting. We believe in: rough consensus and running code.”
Real-space governments would become as pathetic as the last Communist regimes. It was the withering of the state that Marx had promised, jolted out of existence by trillions of gigabytes flashing across the ether of cyberspace. Cyberspace, the story went, could only be free. Freedom was its nature.
believe that these first thoughts about government and cyberspace are just as misguided as the first thoughts about government after communism. Liberty in cyberspace will not come from the absence of the state. Liberty there, as anywhere, will come from a state of a certain kind.
As our framers learned, and as the Russians saw, we have every reason to believe that cyberspace, left to itself, will not fulfill the promise of freedom. Left to itself, cyberspace will become a perfect tool of control.
In real space we recognize how laws regulate—through constitutions, statutes, and other legal codes. In cyberspace we must understand how code regulates—how the software and hardware that make cyberspace what it is regulate cyberspace as it is.
e então ele fala da constituição americana : Ratified in 1791, the Bill of Rights promised that the federal government would not remove certain protections—of speech, privacy, and due process.
If the code of cyberspace is owned (in a sense that I describe in this book), it can be controlled; if it is not owned, control is much more difficult.
structure builds substance. Guarantee the structure (a space in cyberspace for open code), and (much of) the substance will take care of itself.
four puzzles from cyberspace
Change is possible. I don’t doubt that revolutions remain in our future; the open code movement is just such a revolution. But I fear that it is too easy for the government to dislodge these revolutions, and that too much will be at stake for it to allow the revolutionaries to succeed. Our government has already criminalized the core ethic of this movement, transforming the meaning of hacker into something quite alien to its original sense. This, I argue, is only the start.
Avatar space is different. It is, first of all, a virtual space—like a cartoon on a television screen. But unlike a cartoon, avatar space enables you to control the characters on the screen in real time. At least, you control your character—one among many characters controlled by many others in this space. One builds the world one will inhabit here.
This is not to say that Avatar space is unreal. There is real life in Avatar space, constituted by how people interact.
In Avatar space these possibilities are not given by God. Or rather, if they are defined by God, then we are God.
“why not make the petals poisonous only when in the possession of someone who has purchased them? If they are stolen, or if they blow away, then let the petals lose their poison. But when kept by the owner of the plant, let the petals keep their poison. Isn’t that a solution to the problem that both of us face?”
All it required was a change of code.
depois ele dá um caso de um país fictício aonde o jogo é proibido. Um caso classico. os caras fecham os servidores locais e alugam servidores estrangeiros num paraíso fiscal.
For here’s the important point: given the architecture of the Internet (at least as it was), it doesn’t matter where in real space the server is set up. Access doesn’t depend on geography. Nor, depending on how clever the gambling sorts are, does access require that the user know anything about who owns or runs the real server. The user’s access can be passed through anonymizing sites that make it practically impossible in the end to know what went where.
Jake wrote stories about violence—about sex as well, but mainly about violence.
In real space Jake had quite successfully hidden this propensity. He was one of a million boys: unremarkable, indistinguishable, harmless. Yet however inoffensive in real space, his harmfulness in cyberspace was increasingly well known.
There are thousands of newsgroups, each carrying hundreds of messages. Anyone with access to a USENET server can get access to the messages (or at least to the ones his administrator wants him to read), and anyone with access can post a message or respond to one already posted. Imagine a public bulletin board on which people post questions or comments.
Lots of trash is sputtered out on USENET, but if a writer is known to write valuable stuff, his or her trash will be sifted out.
Jake’s stuff was valuable in this sense. His stories, about kidnapping, torturing, raping and killing women, were as graphic and repulsive as any such story could be—which is why Jake was so famous among like-minded sorts. He was a supplier to these people, a constant and consistent fix. They needed these accounts of innocent women being violated. Jake supplied them for free.
The university contacted the police; the police contacted Jake—with handcuffs and a jail cell.
Federal charges were brought against Jake, for the transmission of a threat. Jake said that his stories were only words, protected by the First Amendment to the U.S. Constitution.
I don’t care so much just now about whether Jake Baker’s words should have been protected by the Constitution.2 My concern is Jake Baker himself, a person normed into apparent harmlessness by real-space society but set free in cyberspace to become the author of this violence. People said Jake was brave, but he wasn’t “brave” in real space. He didn’t express his hatred in classes, among friends, or in the school newspaper. He slithered away to cyberspace, and only there did his deviancy flourish.
But no real-world publication would have given Jake a comparable audience.
This reach was made possible by the power in the network: anyone anywhere could publish to everyone, everywhere. The network allowed publication without filtering, editing, or responsibility. One could write what one wanted, sign it or not, post it to machines across the world, and within hours the words would be everywhere.
A “worm” is a bit of computer code that is spit out on the Net and works its way into the systems of vulnerable computers. ... The code could be harmless, simply sitting on someone’s machine. Or it could be harmful, corrupting files or doing other damage that its author commands.
Is the worm unconstitutional? The Fourth Amendment was written against the background of just this sort of abuse.
Some architectures of cyberspace are more regulable than others; some architectures enable better control than others. (o second-life por exemplo é uma estrutura com um alto grau de controle ?)
the code is a regulator, and the government has a greater interest in the code that regulates better than others.
But regulation by whom?
The Internet was born at universities in the United States. Its first subscribers were researchers, but as a form of life, its birth was its link to the university and university life. It swept students online, pulling them away from a very different life in real space.
But not all universities adopted the Net in the same way. The access they granted was not the same; the rules they imposed were different.
At the University of Chicago, if you wanted access to the Internet, you simply connected your machine to jacks located throughout the university. ....
At Harvard the rules are different. ....Only members of the university community can register their machines.
The networks thus differ in the extent to which they make behavior within each network regulable. This difference is simply a matter of code—a difference in the software. Regulability is not determined by the essential nature of these networks. It is determined instead by their architecture.
Just as we have no system for obtaining verifiable information about the attributes of users, we have no system for obtaining verifiable information about the data on the Net. Data are out there—search engines report them to us—but there is no consistent or uniform way to know what they are.
These imperfections make regulating the Net difficult. But from the perspective of the anarchist, the libertarian, or the lover of the Net as it was, they are not imperfections at all. They are features. They do not disable something important from the Net as it was; they enable something important about the Net as it was—liberty.
Commerce will change the Net, and my aim in this chapter is to help us understand how. [UPDATE NEEDED: at this point, to simply argue that commerce will change the Net isn't effective. In fact, it has changed the Net, i.e. it's no longer a proposition but a realization]
architectures of control
daí ele entra eum uma questão da indentificação, que é bastante problemática na internet (a questão do endereço IP. (a formatação da base da internet é relacionada com a questão da 5a. emenda)
daí ele passa a procurar quais seriam as arquiteturas de identificação. o primeiro deles é a senha, o segundo é o cookie e em terceiro a certificação digital. Depois ele fala da criptografia, de um sistema capaz de assegurar que o autor de uma mensagem foi um determinado detentor de um código.
An infrastructure that supports a public key system is called “PKI” (public key infrastructure).... With a robust PKI, the possibilities for identification become extraordinary. Individuals could carry certificates that authenticate any number of facts about themselves—who they are; personal attributes (age, citizenship, sex, marital status, sexual orientation, HIV status); professional credentials (college degrees, bar certification, and so on). These certificates could reside on their personal computers,....
The Internet was built for research, not commerce.
But commerce is not so laid-back. At first, vendors were quite anxious about online transactions;
There are many plans for deploying this architecture.1 Some imagine the government as the certifying authority; others imagine trusted third parties (like banks) in that role. (hoje agente vê o google)
Commerce does not act alone, and it is not morally opposed to partnerships with government.
ele fala de problemas relacionados com outros meios de comunicação (telefonia digital, fitas, o V-chip da TV)
The examples so far have involved regulations directed against code writers. O sistema de encriptação corrente deixa uma abertura para o governo. e passa a discutir a questão da propriedade intelectual
Conta alguns casos relacionados à indetificação
what things regulate
Ele fala de John Stuart Mill, o filósofo liberal
“Libertarian,” however, has a specific meaning for us. It associates with arguments against government.1 Government, in the modern libertarian’s view, is the threat to liberty;
Thus, rather than think of an enemy in the abstract, we should understand the particular threat to liberty that exists in a particular time and place. And this is especially true when we think about liberty in cyberspace
Sempre com uma suposta imparcialidade, sem julgar se as normas são adequadas ou não. Daí ele fala da questão do aborto, como modod de embasar suas teorias sobre regulamentação.
What this author sees is what we all must see to understand how cyberspace is regulated, and to see how law might regulate cyberspace. I’ve argued in this chapter that government has a range of tools that it uses to regulate. Cyberspace expands that range. The code of cyberspace is becoming just another tool of state regulation. Indirectly, by regulating code writing, the government can achieve regulatory ends, often without suffering the political consequences that the same ends, pursued directly, would yield.
We should worry about this. We should worry about a regime that makes invisible regulation easier; we should worry about a regime that makes it easier to regulate. We should worry about the first because invisibility makes it hard to resist bad regulation; we should worry the second because we don’t yet—as I argue in part 3—have a sense of the values put at risk by the increasing scope of efficient regulation.
the limits in open code
I want to introduce a complication on this road to regulability. This complication promises (or threatens) to bring about an important change in the character of the Net and the feasibility of regulating it.
The complication is free software, or open source software or, more simply, open code.
Open code, in other words, can be a check on state power.
essa é um aparte mais técnica que ele começa descrevendo os processos que definem a internet (começando pelo protocolo TCP/IP)
My focus is on the code that plugs into the Internet. I will call that code the “application space” of the Internet. This includes all the code that implements TCP/IP protocols at the application layer—browsers, operating systems, encryption modules, Java, e-mail systems, P2P, whatever elements you want. This application space code would be the target of regulation in the story of regulability that I have told so far. The question in this chapter is: What is the character of that code that makes it susceptible to regulation?
The file transfer protocol (FTP) was born early in the Net’s history;1 the electronic message protocol (SMTP) was born soon after. It was not long before a protocol to display directories in a graphical way (Gopher) was developed. And in 1991 the most famous of protocols—the hyper text transfer protocol (HTTP) and hyper text markup language (HTML)—gave birth to the World Wide Web.
Each protocol spawned many applications. Since no one had a monopoly on the protocol, no one had a monopoly on its implementation. There were many FTP applications and many e-mail servers.
Much of the software implementing these protocols was “open,” at least initially—that is, the source code for the software was available along with the object code.* This openness was responsible for much of the early Net’s growth. Others could explore how a program was implemented and learn from that example how better to implement the protocol in the future.
Berners-Lee and Cailliau made both HTML and its companion HTTP freely available for anyone to take.
Why? One important reason was that HTML was always “open.” Even today, on most browsers in distribution, you can always reveal the “source” of a web page and see what makes it tick. The source remains open: you can download it, copy it, and improve it as you wish. Copyright law may protect the source code of a web page, but in reality it protects it very imperfectly. HTML became as popular as it did primarily because it was so easy to copy. Anyone, at any time, could look under the hood of an HTML document and learn how the author produced it.
Historically the commercial model for producing software has been different.
Daí ele fala um pouco da história do softtware livre, do código aberto, do surgimento do linux, de como a abertura do código propiciou seu desenvolvimento explêndido. E ele diz como isso afeta a capacidade do governo tomar medidas regulamentativas
An unmovable, and unmoving, target of regulation, then, is a good start toward regulability. And this statement has an interesting corollary: regulable code is closed code. Think again about telephone networks. When the government induces the telephone networks to modify their network software, users have no choice about whether to adopt this modification or not. You pick up the phone, you get the dial tone the phone company gives you.
Open code is different.
THE TEXT HERE DEPLOYS "USER" TO DESCRIBE BOTH END-USERS, WHO CHOOSE NOT TO READ INSERTED CHAPTERS ON PAPA STALIN, AND DEVELOPER-USERS, WHO MODIFY OPEN SOURCE CODE TO CREATE COMPETITIVE VERSIONS OF AN APPLICATION. THE FUZZINESS OF THE USAGE IS CONFUSING. OF COURSE, MOST END-USERS WOULD NOT BE ABLE TO CIRCUMVENT GOVERNMENT REGULATION OF OPEN CODE BY EXAMINING THE CODE TO DETERMINE "WHICH PARTS WERE REQUIRED AND WHICH PARTS WERE NOT." THUS, THE POWER OF OPEN CODE TO LIMIT GOVERNMENT REGULATION DEPENDS ON A COMMUNITY OF DEVELOPER-USERS WHO CAN AND WILL SCRUTINIZE CODE, MAKE COMPETITIVE VERSIONS, AND DISTRIBUTE THESE VERSIONS TO THE PUBLIC AT LARGE. AN ANALYSIS OF THE INCENTIVES OF THIS COMMUNITY AND THE DEGREE TO WHICH THEY CAN AVOID BEING "REGULATED" BY THE GOVERNMENT WOULD BE VERY HELPFUL. -- Scott Reents]
As I argue more extensively later in the book, even if open code does not disable government’s power to regulate completely, it certainly changes that power. On the margin, open code reduces the reward from burying regulation in the hidden spaces of code. It functions as a kind of Freedom of Information Act for network regulation.
Nature doesn’t determine cyberspace. Code does. Code is not constant. It changes. It is changing now in a way that will make cyberspace more regulable. It could change in a way that makes cyberspace less regulable. How it changes depends on the code writers. How code writers change that code could depend on us.
Ele fala do caso do uso dos grampos telefônicos no combate ao contrabando de álcool nos EUA
Where circumstances have changed to nullify the protections of some original right, the Court should adopt a reading of the Constitution that restores that right.
Harold Reeves idea: The topic was trespass law in cyberspace—whether and how the law should protect owners of space in cyberspace from the kinds of intrusions that trespass law protects against in real space. His initial idea was simple: there should be no trespass law in cyberspace.2 The law should grant “owners” of space in cyberspace no legal protection against invasion. They should be forced to fend for themselves.
Reeves’s idea was a bit nutty, and in the end, I think, wrong.
Roughly put, copyright gives a copyright holder the right to control the copying of that to which the right extends.1 I have a copyright in this book. That means, subject to some important exceptions, you cannot copy this book without my permission. The right is protected to the extent that laws (and norms) support it, and it is threatened to the extent that technology makes it easy to copy. Strengthen the law, holding technology constant, and the right is stronger. Strengthen the technology, holding the law constant, and the right is weaker.
Talk like this gave birth to the panic of copyright holders, who wanted to see legislative changes made to better protect the copyright. For of course, the predictions of cyberspace mavens notwithstanding, not everyone was willing to concede that copyright law was dead. Intellectual property lawyers and interest groups pushed early on to have law shore up the protections of intellectual property that cyberspace would erase.
This is fundamentally wrong. We are not entering a time when copyright is more threatened than it is in real space. We are instead entering a time when copyright is more effectively protected than at any time since Gutenberg. The power to regulate access to and use of copyrighted material is about to be perfected. Whatever the mavens of the mid-1990s may have thought, cyberspace is about to give holders of copyrighted property the biggest gift of protection they have ever known.
In such an age—in a time when the protections are being perfected—the real question for law is not, how can law aid in that protection? but rather, is the protection too great? The mavens were right when they predicted that cyberspace will teach us that everything we thought about copyright was wrong.5 But the lesson in the future will be that copyright is protected far too well. The problem will center not on copy-right but on copy-duty—the duty of owners of protected property to make that property accessible.
Ele fala que a questão da reproduçõa nõa é nova, que já surgiu em outros momnetos, com a fita de gravação
As the Net is now, basic functions like copying and access are crudely regulated in an all-or-nothing fashion. You generally have the right to copy or not, to gain access or not.
When property law gives me the exclusive right to use my house, there’s a very good reason for it. If you used my house while I did, I would have less to use. When the law gives me an exclusive right to my apple, that too makes sense. If you eat my apple, then I cannot. Your use of my property ordinarily interferes with my use of my property. Your consumption reduces mine.
Things are different with intellectual property. If you “take” my idea, I still have it.
With ordinary property, the law must both create an incentive to produce and protect the right of possession; with intellectual property, the law need only create the incentive to produce.
A copyright gives the owner certain rights; fair use is a limitation on those rights. Under the right of fair use, you can criticize this book, cut sections from it, and reproduce them in an article attacking me. In these ways and in others, you have the right to use this book independent of how I say it should be used.
The law of intellectual property is the first example of this general point. The architectures of property will change; they will allow for a greater protection for intellectual property than real-space architectures allowed; and this greater protection will force a choice on us that we do not need to make in real space. Should the architecture allow perfect control over intellectual property, or should we build into the architecture an incompleteness that guarantees a certain aspect of public use? Or a certain space for individual freedom?
Privacy, as Ethan Katsh defines it, is the power to control what others can come to know about you.
What are the constraints in real space on others’ ability to monitor and search, and how do those constraints change as we move to cyberspace?
The content of many e-mail messages is like the content of an ordinary telephone call—unplanned, unthinking, the ordinary chatter of friends. But unlike a telephone call, this content is saved, and once saved, it is monitorable, archivable, and searchable. Companies can build routines that watch the interactions between employees, that watch what is said to others, and that collect and organize what is said, to be used as the company sees fit.
The arrival of Google, the search engine giant, in the webmail space has fundamentally changed the relatioship between search and e-mail. With its service Gmail, Google choose to apply recipes that made the company successful in the search space to e-mails. Except for the content-based advertising that generated a lot of discussion, Google also offers the ability to archive emails outside of the inbox for searching purposes.
The monitoring of modern life is indeed different in substance from the monitoring at the time of the founding. There is no doubt that life then was monitored, that it was hard to hide yourself from others, but that monitoring was different. It was done by people whose memories were imperfect and who were likely to notice only behavior out of the ordinary. These memories, moreover, could not be searched, or collected, or produced as records.
Today’s monitoring is different because the technologies of monitoring—their efficiency and their power—are different.
We could react by hobbling the code, thus preserving this world. We could create constitutional or statutory restrictions that prevent a move to this world. Or we could find ways to reconcile this emerging world with the values we think are fundamental.
A privacidade é realcionada muito proximamanete com a propriedade privada.
hat is what is distinct about privacy: individuals should be able to control information about themselves. We should be eager to help them protect that information by giving them the structures and the rights to do so.
You cannot be jailed for criticizing the president, though you can be jailed for threatening him; you cannot be fined for promoting segregation, though you will be shunned if you do; you cannot be stopped from speaking in a public place, though you can be stopped from speaking with an FM transmitter. Speech in the United States is protected—in a complex, and at times convoluted, way—but its constitutional protection is a protection against the government.
Imagine a kind of rating service that, as with bonds or with medical malpractice insurance, rates the reputation of each reporter and source through some formula of its own determination. We could imagine any number of such agencies, each providing reporters with ratings that serve as their credential. The reporter’s rating would become part of every story published on the Net. And the same with any source, anonymous or not, since any source could also receive a rating.
In this example, an architecture of trust would replace institutions of trust.
mais adiante ele trata da questão da pornografia, de como controlar o acesso das crianças. e fala de tácnicas possíveis para filtrar ou criar zonas de conteúdo What I described at the start of the book as modalities of constraint I have redescribed in this chapter as modalities of protection. While modalities of constraint can be used as swords against the individual (powers), modalities of protection can be used as shields (rights).
In principle we might think about how the four modalities protect speech, but I have focused here on architectures. Which architectures protect what speech? How does changing an architecture change the kind of speech being protected?
In one sense, each has asked: How much control should we allow over information, and by whom should this control be exercised? There is a battle between code that protects intellectual property and fair use; there is a battle between code that might make a market for privacy and the right to report facts about individuals regardless of that market; there is a battle between code that enables perfect filtering and architectures that ensure some messiness about who gets what. Each case calls for a balance between control and no control.
Aí ele discute a questão da soberania das nações e suas implicações com o ciberespaço.
The state’s power may be “absolute,” but if the architecture does not support regulation, the state’s effective power is quite slight. On the other hand, the state’s power may be limited, but if the architectures of control are very efficient, this limited power can be extraordinarily extensive.
But now I want to make a stronger claim: not only can the government take these steps to reassert its power to regulate, but that it should. 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.
As this international community develops in cyberspace, its citizens will find it increasingly difficult to stand neutral in this international space.
Now we are changing that architecture. We are enabling commerce in a way we did not before; we are contemplating the regulation of encryption; we are facilitating identity and content control. We are remaking the values of the Net, and the question is: Can we commit ourselves to neutrality in this reconstruction of the architecture of the Net?
I don’t think that we can. Or should
We have governments for a purpose—in democratic states, we might even say, for good purpose. For much of human history governments could do very little. The cost of doing anything was, on the margin, extremely high. Much of the world operated under an effective laissez-faire; little of the world was really regulated.
We are just leaving a time when the code writers are a relatively independent body of experts and code is the product of a consensus formed in forums like the Internet Engineering Task Force (IETF). These were regulatory bodies whose standards set policy, but they were in one sense disinterested in the outcomes: they wanted to produce nothing more than code that would work.
We are entering a very different world where code is written within companies; where standards are the product of competition; where standards tied to a dominant standard have advantages. We are entering a world where code is corporate in a commercial sense, and leaving a world where code was corporate in a very different sense.
the problems we face
I’ve argued that there is a choice about how cyberspace should be, but that we’re disabled from making that choice. We are disabled for three very different reasons. One is tied to the limits we place on courts, the second to the limits we have realized in legislatures, and the third to the limits in our thinking about code.
The courts spoke as if they were telling us about the nature of cyberspace, but as we’ve seen, cyberspace has no intrinsic nature. It is as it is designed. By striking down Congress’s efforts to zone cyberspace, the courts were not telling us what cyberspace is but what it should be. They were making, not finding, the nature of cyberspace; their decisions are in part responsible for what cyberspace will become.
Architectures constitute cyberspace; these architectures are varied; they variously embed political values; some of these values have constitutional import. Yet for the most part—and fortunately—[???????] these architectures are private. They are constructed by universities or corporations and implemented on wires no longer funded by the Defense Department. They are private and therefore traditionally outside the scope of constitutional review. The constitutional values of privacy, access, rights of anonymity, and equality need not trouble this new world, since this world is “private” and the Constitution is concerned only with “state action.”
The ambiguity is this: the Constitution was drawn at a time when basic architectures were set. The framers found the laws of nature, the laws of economics, the “natural law” of man; they were not made by government or man.
These architectures constrained, of course, and their constraint was a “regulation.” But the degree to which they could be used as tools of self-conscious control was limited.
Cyberspace, however, has different architectures, whose regulatory power is not so limited. An extraordinary amount of control can be built into the environment that people know there. What data can be collected, what anonymity is possible, what access is granted, what speech will be heard—all these are choices, not “facts.” All these are designed, not found.
We must isolate the cause and separate it from the effect. If we hate government, it is not because the idea of collective values is anathema. If we hate government, it is because we have grown tired of our own government. We have grown weary of its betrayals, of its games, of the interests that control it. We must find a way to get over it.
We stand on the edge of an era that demands we make fundamental choices about what life in this space, and therefore life in real space, will be like. These choices will be made; there is no nature here to discover. And when they are made, the values we hold sacred will either influence our choices or be ignored. The values of free speech, privacy, due process, and equality define who we are. If there is no government to insist on these values, who will do it?
If there are choices to be made, they will be made. The question is only by whom. If there is a decision to be made about how cyberspace will grow, then that decision will be made. The only question is by whom. We can stand by and do nothing as these choices are made—by others, by those who will not simply stand by. Or we can try to imagine a world where choice can again be made collectively, and responsibly.
The formalism in American law, which puts beyond review these structures of control, is a third pathology that inhibits choice. Courts are disabled, legislatures pathetic, and code untouchable. That is our present condition. It is a combination that is deadly for action—a mix that guarantees that little good gets done.
Are these responses , with benefit of hindsight, still fundamentally correct? What tweaking might be necessary? Any new responses warranted?
There is a trade-off between transparency and effectiveness. Code regulation in the context of open code is more transparent but also less binding. Government’s power to achieve regulatory ends would be constrained by open code.
But there is a benefit as well. Closed code would make it easier for the government to hide its regulation and thus achieve an illicit regulatory end.
What a code regulation does should be at least as apparent as what a legal regulation does.
Without resolving the question of whether closed or open code is best, we could at least push closed code in a direction that would facilitate greater transparency.
It has never been our ideal—constitutionally at least—that democracy be a perfect reflection of the present temperature of the people. Our framers were keen to design structures that would mediate the views of the people.
what declan doesn’t get
Declan McCullagh is a writer who works for CNET News.He also runs a mailing-list that feeds to subscribers the bulletins that he has decided to forward and facilitates a discussion among these members.
Declan’s politics are clear. He’s a smart, if young, libertarian whose first reaction to any suggestion that involves government is scorn.
We live life in real space, subject to the effects of code. We live ordinary lives, subject to the effects of code. We live social and political lives, subject to the effects of code. Code regulates all these aspects of our lives, more pervasively over time than any other regulator in our life. Should we remain passive about this regulator? Should we let it affect us without doing anything in return?
Some say this is an exciting time. But it is the excitement of a teenager playing chicken, his car barreling down the highway, hands held far from the steering wheel. There are choices we could make, but we pretend that there is nothing we can do. We choose to pretend; we shut our eyes. We build this nature, then are constrained by this nature we have built.
It is the age of the ostrich. We are excited by what we cannot know. We are proud to leave things to the invisible hand. We make the hand invisible by looking the other way.
But it is not a great time, culturally, to come across revolutionary technologies. For we are no more ready for this revolution than the Soviets were ready for theirs. We, like they, have been caught by a revolution. But we, unlike they, have something to lose.
Some architectural constraints, however, are absolute.
But whether absolute or not, or whether man-made or not, we can consider these constraints as a single class—as the constraints of architecture, or real-space code. What unites this class is the agency of the constraint: no individual or group imposes the constraint, or at least not directly. Individuals are no doubt ultimately responsible for much of the constraint, but in its actual execution the constraint takes care of itself. Laws need police, prosecutors, and courts to have an effect; a lock does not. Norms require that individuals take note of nonconforming behavior and respond accordingly; gravity does not. The constraints of architecture are self-executing in a way that the constraints of law, norms, and the market are not.
Though I have used language invoking architects, my language is not the language of architects. It is instead stolen, and bent. I am not a scholar of architecture, but I have taken from architecture its insight about the relationship between the built environment and the practices that environment creates.3 Neither architects nor I take this relationship to be determinative. Structure X does not determine behavior Y. Instead, these forms are always simply influences that can change, and when they are changed, they change the affected behavior.
We are entering a time when our power to muck about with the structures that regulate is at an all-time high. It is imperative, then, that we understand just what to do with this power. And, more important, what not to do.