Code, and Other Laws of Cyberspace

by David G. Propson

Between the covers of Code is the best book yet written about the Internet and society, a succinct, 125-page survey of law, technology, and how they interact, which should read by experts and laypersons alike.

Unfortunately, the book is twice that long. Lessig is a good writer, but sometimes obscures his best points. For instance, he too often falls back on the old lawyer’s trick of telling what he’s going to tell and retelling what he’s told. (Sometimes he even tells you what he’s telling you.)

That’s not to say you shouldn’t read this book ­ just that it takes some effort. Lessig, a professor at Harvard Law who has contributed advice to the judges in the Microsoft trial, recognizes better than most lawyers how technology changes the ways laws can be applied. He also understands the technology itself and how laws can be used to control it.

Lessig disagrees with idealists who believe the Internet is unregulatable and inherently democratic. What you can do on the Internet depends on what the programs you use allow you to do, he argues. That leaves users vulnerable to control ­ by either the companies that write the software, or by the government itself, which can regulate what those companies write.

Take online privacy. Our laws (including the Fourth Amendment, which protects against unreasonable search and seizure) were written to restrict physical invasions of privacy. For most of history, it wasn’t possible to collect confidential information about a person without breaking into his house and torturing him. Even if a team of gumshoes tailed you all day, they’d be hard pressed to agree on every single thing you did.

However, what’s done on line can be tracked ­ completely and permanently, at least in theory. Off line, you can tell when someone is watching. On line, you don’t know what they might know. And while the self-regulating privacy policy movement is motivated by good intentions, we all know where those lead.

Lessig proposes that Internet sites have privacy provisions built right into the way they work ­ so sites can’t help but respect user’s privacy. Users could declare what they’re willing to give up, and sites could designate what they need to work. An automatic negotiation would then take place.

He goes on to discuss how such “architectural” solutions ­ probably with governmental encouragement ­ could resolve confusing intellectual property and free speech issues, as well. He doesn’t demand you agree, but does demand that you care. His lesson is that our laws were written to govern a world much different than ours. If they don’t address our problems, we must take responsibility and create new and better ones.