Review: Code and Other laws of Cyberspace Version 2.0

Lawrence LessigBuilding Legal Institutions for Information Technology:

Defining the Intellectual Commons

Structure 1. Internet Regulability2. Importance of Code in making the internet

regulable3. Latent Ambiguities in our commitments to

fundamental values due to the changes in technology.

4. Mapping the above conflict to Jurisdiction5. Making choices that will affect fundamentally

what values are built into the network.

One Parallels between the fall of the communism

in Eastern and Central Europe and the rise of the internet.

Constitutions were replicated People’s resentment to control Code is regulator in the cyberspace

Two Four Puzzles from cyberspace• Borders : Argument between Martha Jones and her

neighbor Dank about growing of poisonous flowers. • The quarrel is distinct because it happens in

cyberspace (MMOG)• Laws can be changed through code, rules can be

coded and modified.

• Governors: State called Boral doesn’t like its citizens gambling.

• Their jurisdiction ends once the servers are hosted outside their state. Thereby making it less Regulable.

Puzzles continued …• Jake’s Communities : On the popular USENET,

Jake wrote stories about violence and sex but was hidden and anonymous in the real world.

• Jake did this because of something about him and the cyberspace. Networks made him reach wider audiences.

• What are acceptable virtual dual-lives and what are not ?

• Worms that Sniff: Imagine the Gov enforces a worm that sniffs for sensitive and classified information. Is the worm constitutional?

• How should the protection the framers gave us be applied to a world the framers never imagined ?

Themes Regulability : capacity of a Gov to regulate

behavior within its proper reach. More regulable cyberspace ?

Regulation by code : code allows increasing regulability.

Latent Ambiguity : We may see the worm’s invasion as inconsistent with the dignity that the amendment was written to protect. Cyberspace will present more such ambiguities.

Competing Sovereigns : Who is authorized to regulate ? Rules change with every place.

Regulability

Architectures of Control Falsifying the claim that the cyberspace cannot be

regulated. Cyber places – differences in the way you connect

to the internet Identity, Credentials and Authentication – real

space vs cyber space. The internet was architected to be minimalistic

with no mechanisms built in for collecting/verifying the above mentioned artifacts. But the architecture has matured over time to build mechanisms to do the same. (logs, cookies, dns etc)

Internet lacks self authenticating facts which are a key in the real space.

Push for a SSO. Who did What , Where ?

Regulating Code Code can make cyberspace more regulable

not perfectly regulable. Way of doing it are :

Regulating Architecture – London traffic problem , CALEA , Data retention, encryption

Regulating Code to increase regulability – digital ID

East Coast and West Coast codes. Z – theory – regulated internet ? Architecture is kind of a law for the internet

( privatized law)

Regulation by Code

How the architecture of the net will make it easier for traditional regulation to happen.

Cyberspaces The values of spaces – internet enabling the

otherwise “disabled” people. Cyber-Places : AOL, Counsel Connect,

LambdaMOO, .law.cyber, SecondLife – all these places have self- enforcing norms .

Places where community is not fully self-enforcing, norms are supplemented by rules imposed through code.

Regulating code to regulate better : Tapes ( Audio Home Recording Act), Televisions (V-chip)

Code can also function as an anti-regulatory mechanism : a tool to minimize costs of law that certain groups use to their advantage. ( circumvention technologies)

What things regulate

The key to a good policy in cyberspace is a proper mix of modalities.

Law can influence the norms, market and also the architecture to effectively regulate.

Law can use indirection to regulate – Reagen Adm Abortion advice through doctors.

The limits in open code More of life will be regulated through the self

conscious design of the space within which life happens.

Code based regulation risks making regulation invisible.

Carnivore program, e-ballots are examples of this.

PGP was the open solution that worked. Open code can regulate only if the code

writers can be regulated.

Latent Ambiguities

The ambiguity that forces us to choose between two very different conceptions of the value at stake.

Translation When faced with legal anomalies, the court turns to

the Constitution and translates appropriate clauses to fit and solve the confusion.

Non invasive searches are said to breach protection of privacy of the people as directed by the Fourth Amendment.

Constitution insists that the important political decisions are already made and all that is required is a kind of technical adjustment.

Translation leaves two open questions about how to proceed. Response is passive: Court lets the legislature

decide on matters that, to the framers, were “undebatable”.

Response is active : court finds a way to articulate constitutional values that were not present at the founding.

Intellectual Property Claim regarding trespass law on the net: the law

should grant “owners” of space in cyberspace no legal protection. They should fend for themselves.

Optimal protection for spaces in cyberspace is a mix between public law and private fences.

Demise of copyrights – improvements in duplication tech

Digital Millennium copyright act of 1998 – assumed the nature of cyberspace is anarchy.

Code can, and increasingly will, displace law as the primary defense of intellectual property.

Intellectual Property Limits on the protection of property – property

and contract cannot exist independent of the state.

Production of intellectual property can be at risk if there aren’t many laws protecting it.

Private substitutes for public law - let code protect.

Loss of fair use is a consequence of the perfection of trusted systems.

Cohen Theorem – There is a right to resist, or hack, trusted systems to the extent that they infringe on traditional fair use.

Problems that perfection makes – choices, anonymity and the commons

Privacy Internet will become a space where intellectual

property can be easily protected. Diff b/w privacy and copyright is the political

economy that seeks a solution to each problem. Privacy in private(personal space, home) vs

privacy in public(internet, searches, email, v-mail, voice, video etc).

Privacy in public : data – manipulation and equality are concerns.

Solutions : surveillance(conditions), data (PET and P3P )

Privacy is diminishable as compared to IP

Free Speech The architecture of the internet, as it is right now

is perhaps the most important model of free speech since the founding.

Regulators of speech Publication: Govt can regulate publishing of sensitive

material. But once the a story is out in the public, the regulation wont make sense.

Flipside to the freedom of speech on the net is data without credibility and no net neutrality.

Regulations of speech : cyberspace vs real space Spam :unsolicited commercial emails that are sent in

bulk Porn : Sexually explicit speech that is “harmful to

minors”.CDA and COPA. H2M tags is also another option

Free Speech Regulations of Free Speech :

Free Culture: There is no way to use digital information to any productive use without making a copy of it.

Any creative act reduced to a tangible form could be subject to the monopoly right of copyright.

The framers were never confronted with the option that copyright could control every single use of a creative work.

Distribution: regulating of broadcast mediums like radio, mobile telephony and television.

Wifi is an excellent example of an unregulated broadcast medium that leverages technology to an advantage.

Competing Sovereigns

As more move online, the claims of one sovereign to control speech or behavior will increasingly conflict with others

Sovereignty Sovereigns will try and regulate or control

behavior online Sovereign of the space :Rules

On spaces like MMOG’s code is the law. There are normative rules as well.

Sovereign of the space : Choosing Rules None of the worlds, has ever evolved institutions

of good govt. Anarchy reigns in all worlds. Citizenship in a sense did not always mean a right

to contribute to the self Govt of whatever community you were a citizen of.

In case of online communities, switching costs are higher which is an incentive for people to follow norms.

Competition among Sovereigns Conflicts include:

Protecting the French – prevent selling of Nazi paraphernalia

Protecting Hollywood: iCraveTV started streaming free tv Both the incidents above reflect reciprocal blindness

Cyberspace my increase the incidence of these conflicts

Possible resolutions : No law rule One law rule: one Govt dominates the world by enforcing

law Many Laws rule: Countries can collaborate to protect

local laws.

Responses

There are choices about how the network should evolve.We are not capable of making those choices

Problems we face Problems with courts

Codifying constitutions and transformative constitutions. Subject to political constraints that matter and fears

retaliation In LA- there are no founding commitments to preserve. Architecture on cyberspace embed political values(private) Framers had a very few architecture and couldn’t envision

the architectures that are the basis of the cyberspace today.

Problems with Legislators Although we believe there is a role for collective judgment,

we are repulsed by the idea of placing the design of something so important as the net into the hand of the Govt.

Lobbyists influence Govts regarding cyber laws If code is law, then who are the lawmakers ?

Responses From Judiciary – where translation is not so

simple, judges should kvetch. Ack that its not plainly resolved by the constitution.

From Code : movement from closed to open code is a move from regulable to less regulable. If rules are open then it attracts resistance from patrons.

From Democracy: Think from a global point of view. Reduce corruption. Thanks to tech, ill informed people simple repeat information as judgement.

Being libertarians could stop regulation of a certain form. It wont stop the bad regulation, probably the good.