Code 2.0

Lessig Code 2.0

Cyberspace & Regulation:

• Early cyberspace was viewed as unregulable by governments, believed to be inherently free and uncontrolled.

• Liberty in cyberspace is not the absence of state regulation but the presence of appropriate, self-conscious controls that preserve freedom.

• The architecture of cyberspace is shifting from anarchic freedom to regulated control, influenced by government and commerce.

Code as Law:

• The code that governs cyberspace functions as its “law” (Lex Informatica).

• We can build code to either protect or destroy fundamental values—there is no neutral position; code is always constructed by choice.

Regulability:

• Regulability refers to the government’s ability to regulate behavior online, which depends on knowing three things: identity, location, and activity.

• The original architecture of the Internet made it difficult to regulate behavior due to its design, which obscures identity, location, and activity.

Regulation Through Code:

• Behavior in cyberspace is regulated primarily through code, rather than laws or social norms.

• Different architectures of cyberspace result in varying levels of control and freedom.

Architectures of Control:

• The Internet’s architecture is shifting from a less regulated space to one that could become perfectly controlled, largely driven by commercial interests.

• Technologies like encryption can enhance both privacy and control, depending on how they are used.

Regulatory Two-Step:

• Governments sometimes influence the design of network architectures to increase their regulability, often through indirect measures such as market incentives.

Latent Ambiguities:

• New technologies and architectures reveal ambiguities in constitutional protections and force societies to choose which values to prioritize in regulation.

Role of Code Writers:

• Code writers are increasingly becoming the lawmakers of cyberspace, determining critical aspects like privacy, anonymity, and access.

• As code becomes more commercial, governments have greater influence over its development, which affects the nature of the Internet.

End-to-End Principle:

• The Internet’s design philosophy, known as the end-to-end principle, keeps the core of the network simple and pushes complexity to the edges, enabling flexibility and innovation.

Cryptography’s Dual Role:

• Cryptography enhances both confidentiality (protecting privacy) and identification (enabling regulation). As encryption technologies evolve, they will play a key role in making cyberspace more regulable.

Competing Sovereignties:

• Regulation of cyberspace involves multiple sovereigns (countries, companies, entities), each imposing their own values and control over virtual spaces.

Role of Code:

• Regulation is not just about laws or social norms; the structure or architecture of digital space itself significantly influences behavior.

• AOL, for example, shapes a particular “universe” through its code, impacting how users interact within it.

Regulatory Modalities:

To regulate behavior, platforms like AOL can utilize: Rules Norms Prices Architecture The virtual community (CC) used norms as a regulatory tool, emphasizing public behavior and real-name usage, which aided self-regulation. Control in Virtual Spaces: Neither AOL nor CC operated as democracies, as they both enforced regulations in their respective digital spaces. Internet Architecture & Innovation: TCP/IP was designed for “best-efforts” packet delivery, agnostic to the content or recipient of the data. This design allows developers to innovate without needing approval from network owners. The minimal interference from network owners encourages innovation by lowering development costs and avoiding strategic obstruction. End-to-End Principle: The end-to-end (e2e) principle limits network owners’ ability to interfere with innovation within the network. While network owners might dislike certain developments, the e2e design prevents them from blocking new applications. Policy & Architecture Link: The design of the Internet and its architecture reflect embedded values and policy choices. Encouraging a specific architecture (like e2e) equates to promoting a particular policy. Congressional Regulation: Example: The Audio Home Recording Act: Imposed a tax on blank tapes. Mandated digital recording devices to include a chip that enforces a code to monitor copies, ensuring the degradation of unauthorized copies. Example: The Digital Millennium Copyright Act (DMCA): Banned technologies designed to circumvent protections for copyrighted works. Congress used this regulation of code to indirectly regulate copyright infringement. Intermediaries as Enforcers: In these laws, the government directed intermediaries with control over code to change it in ways that would alter user behavior. The effectiveness of these regulations depends on the power of the applications involved. Mill’s Method: Focuses on identifying threats to liberty and resisting them, regardless of the source (government or private actors). Indirect Regulation: Governments can regulate through code in ways that are less transparent, raising concerns about hidden or invisible forms of regulation. Transparency Issue: Regulations in a constitutional democracy should be public and transparent, as indirect methods may bypass political accountability. Risks of Efficient Regulation: The expansion of efficient, invisible regulation threatens liberty, as it becomes harder to recognize and resist.