Code and Other Laws of Cyberspace

Code and Other Laws of Cyberspace Lawrence Lessig. New York: Basic Books, i999. 297 pp. $30.00.Legal scholars have argued long and hard concerning the role of law in society. The law is also developing in the new cyber society, and scholars, policy-makers and other stakeholders have been wrestling with the problem of law in cyberspace. Is cyberspace "regulable" (a lawyer's term if there ever was one, p. 27) and if so what is or should be the nature of that regulation? The operation of law-the regulation of behavior-in cyberspace, as in society, in general is a result of a mix of forces: market, law, norms, and architecture (p. 89). Lessig discusses these four "modalities" throughout his book and in a brief appendix (an odd choice for its placement.) This articulation is a welcome reminder that the law is not the only factor in any policy analysis. This construct anchors a thoughtful, readable yet documented conversation of the problems and potentials of law (code) and code (architecture) in cyberspace. Most intriguing is the focus upon cyber architecture as code and its potential influence in the four-part matrix. And although this articulation is not unique, it is presented in a fresh ("code") perspective. The book is a good introduction to this dilemma in a variety of legal contexts (privacy, copyright, speech, etc.), but those who are familiar (other legal scholars) with the debate of whose interests will govern cyber policy-owners versus users-might find his exposition somewhat thin in places. For example, the chapter entitled "Intellectual Property" is really about copyright, and then only scratches the surface of the plethora of issues raised by the government's now infamous White Paper. Such topics are routinely debated in the legal literature. But Lessig's book again is best described as a conversation, one meant for readers at many levels of expertise, and therein lies the book's value. (The National Law Journal in an article on the country's top i00 lawyers called it "seminal.")The message is simple: left to itself commercial and private interests will come to dominate cyberspace, and this domination will be achieved not by law but by code, the architecture of cyberspace. The battle for control of cyberspace is the battle over code. The first two parts of the book ("Regulability" and "Code and other regulators") explore these themes in detail. The fact that Lessig constructs his legal exposition with a word ("code") that can mean precisely what it threatens to destroy underscores the "ambiguities"(p. 22) that cyberspace presents to us. A legal code can provide structure; it can regulate. Digital code also provides a mechanism for structure, thus for control. It might be said that this ambiguity arises from these two competing forces of control, though Lessig might not quite express it that way. This ambiguity arises, according to Lessig, from the di∂ering networks that make up the web of virtual space, and this goes back to his theme: "The networks thus di∂er in the extent to which they make behavior within each network regulable. This di∂erence is simply a matter of code-a di∂erence in the software. Regulability is not determined by the essential nature of these networks. It is determined instead by their architecture" (p. 27).But code appears indiscriminant. This is due to certain imperfections of information. Since "there is no simple way either to know who someone is [the first imperfection of "credential"] or to classify data [the second imperfection of "labels"], there is no simple way to make access to data depend on who the user is and on the data he or she wants access to" (p. 28). "Real-space life thus carries with it this mix of authenticating and authenticated credentials. Social life is a constant negotiation between these di∂erent credentials" (p. 3i). Cyberspace is di∂erent. In cyberspace these natural social devices are not present (though proponents of the technology might argue with this assumption). …