Tuesday, May 12, 2009

Lessig on continuing the work of Code

I haven't done a Lessig post in a while but would recommend his latest essay.

I wrote Code to explain an academic insight. Writing Code launched me on an activist project.

The insight was a reminder (for as I said in the book, of course the point had been made throughout history): More than law regulates. And that if we find ourselves in a particularly happy moment — when the liberty and prosperity of the time make us wish that things as they are might always be — we need to remember that it’s not just law that can muck things up. John Stuart Mill was not just worried about Parliament in On Liberty. He was more worried about British norms that stifled dissent. Stanford Professor — and Reagan’s Assistant Attorney General for Antitrust — William Baxter was not just worried about backward regulation at the FCC. When he launched his effort to break up AT&T, he was also worried about market power that was stifling competition in telecommunications. French revolutionaries in the mid-19th century were not just worried about stupid edicts from a failing emperor — indeed, they thrived on such silliness. What worried them more was that Napoleon III had rebuilt Paris with wide boulevards and multiple passages, making it very difficult for them to bring the city to a standstill. What each of these actors recognized was the first point of Code: Again, that more than law regulates.

That point led to a second: That if we’re to preserve a state of liberty, we need to worry about much more than bad law. No doubt, laws might be changed to take away a liberty (think: the USA-PATRIOT Act). But so too, norms might change to make dissent costly (think: the Dixie Chicks). Markets could become concentrated, reducing the opportunity for innovation (think about the extraordinary re-concentration in telecom access to the Internet). And architecture, or “code” could change, to take away a freedom that too many had taken for granted (think: do you really know who knows what about where you go on the Internet?).

Point two then led to a final point three: That for the Internet, we (circa 1999) were paying plenty of attention to changes in law. We were not paying enough attention to changes in code. And indeed, for obvious reasons, those who controlled much of the code (what I unhelpfully called “commerce”) circa 1999 had plenty of reasons to change that code in ways that better enabled their own control, and as a byproduct (whether intended or not), control by the government. As I wrote, “Commerce, like government, fares better in a well-regulated world. Commerce would, whether directly or indirectly, help supply resources to build a well-regulated world.” (p. xiii)"

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