Book Review: Code v2.0 by Lawrence Lessing

Code v2.0 by Lawrence Lessig: Short, short version of review = WOW. *head explodes*

See full post for a detailed discussion of regulation in the Internet age, the political consequences of bad-code and how closed-source code has the potential to co-opt the political process.

WOW. This book is a dense and fascinating look at how the regulation of the Internet can and will reflect our larger society’s values and what that means for us as citizens. The author clearly demonstrated that modern US government has some seriously poor institutions in place for dealing with the kind of socio-legal changes in the works due to Internet regulation.

While it made for excellent reading, the holes and ambiguities latent in our current Constitutional thinking are a little terrifying. One thing that particularly striking: I have always favored a slightly stricter constructionist interpretation of the Constitution. Part of the reason for this was that loose constructionism always struck me as too “any way the wind blows”. Lessig’s discussion of translation to preserve meaning and functionality as opposed to literal preservation of exact eighteenth century thinking is the best and clearest explanation of interpretive Constitutional thought I had ever encountered. In the later parts of the book, his application of this “interpretive” Constitutional law to various aspects of free speech, privacy and political law was quite thought-provoking even in cases where I didn’t agree with his interpretation.

Not to mention Lessing has my eternal devotion for arguing for a connection I and every other engineer on the planet encounter daily. Design is rarely about absolutes; there’s usually an array of options and you choose the most feasible for your constraints (time, resources, etc). What he points out is that law is the design (“code”) of a society. There are countless assumptions and value-judgments buried into laws and regulations! The trouble comes when you make a value judgment for others (directly – smoking is illegal everywhere because its BAD; indirectly – you can’t smoke in hospitals, restaurants and bars). Most of the time the government has too much trouble regulating directly (political fallout, constitutional issues) so they choose instead to regulate indirectly. Using the example of Communist Vietnam, Lessig also points out regulatory restriction can be less onerous in situations where the government cannot enforce its regulations, resulting in the people having more freedom than you would expect because the government hasn’t the ability to make them obey.

The entire point of the book is that the Internet’s technical design (code & architecture) could give governments and private groups the ability to enforce their regulations on the people silently without their knowledge or consent. It is now possible for governments and private groups to embed their value judgments in our day-to-day lives without clearly marking these items as “law” or “regulation” and possibly without allowing for the transparency necessary to make the democratic process work. The author gives the example of a propagandist requiring all books have a chapter on Stalin (which everyone can clearly identify as indoctrination and skip) versus tweaking the text in a thousand tiny ways to propagate pro-Stalin beliefs (which would be harder for people to separate from the source and would be more difficult to identify as “regulation”).

Which leads to the standard (and wholly valid) argument in favor of open-source code. We would not accept a law written in secret, whose terms we don’t know, whose enforcement procedure details are forbidden for us to know. BUT proprietary code that embeds either governmental values (to avoid direct regulation) or commercial values (to manipulate markets/consumers) creates regulations for our lives that we aren’t allowed to know the ins&outs of. Also, it closes off debate regarding these values and the best way to propagate them. Only a select few, operating in secret, are a part of the design process.

For example, if there’s only say three companies producing code for an application and the government wants to regulate it, they can meet with the companies and build a law tailored to them. The consumer is not brought into the process until after the law is passed and the code changed. They are just served the modified application perhaps even without any notice that the new version includes a regulatory update of any kind.

BUT with open code, the builders and creators are distributed. Maybe one or two programmers design the application that regulates per government intent. However, if the consumers (&/or other programmers) don’t like it; they have the option to (1) study the regulation to improve it and (2) generate competing regulation that either propagates the values better than government intent or propagates competing values. Open code forces larger amounts of people to be a part of the distribution, design and review of code (ie – unofficial regulation of cyberspace). This functions on some levels as an increase in political participation and awareness.

If you think this is merely a thought experiment, you should review the current situation in Oregon where the state government wants to claim copyright control over the republication of state laws in order to prevent their free distribution online.

Lessig doesn’t take the easy way out either saying “ALL OPEN/CLOSED”. He provides several examples highlighting the complexity of these decisions and the fact that any “one-size-fits-all” solution is probably very, very wrong. There are certain quite legitimate reasons for secrecy. However, current thinking usually assumes secrecy is a de facto good without seriously examining if it is in fact a good in this case.

Another quite interesting point is that the very international nature of the Internet creates huge ambiguities in terms of jurisdictional boundaries. A perfect example from the book is how a streaming TV company was legal in Canada but the website was shutdown because it violated US copyright. Lessig points out that each person on-line is in essence in two locations at once: their country and the international internet community. When I use Blogspot, since I am a US citizen does US law apply to my weblog? Or international law? Or does it depend on the reader, if for example they are in China and subject to that government’s restrictions on publication and speech? For hundreds of years, geographical jurisdictions have determined the applicability of a citizen to certain laws. But with the Internet, I could run afoul of British anti-libel law, Australian hate speech laws or Chinese censorship laws. How do we determine the jurisdictional boundaries in an internet age?

In the later parts of the book, Lessig goes to great lengths to point out that solutions o this problem will need to be multi-modal and complex in order to have any functionality. There is a well-written Appendix which outlines the legal, normative, social and ????? modes by defining them and describing how they interact with one another. Although this book was published several years ago (CONFIRM), you can see the beginnings of Lessig’s recent anti-corruption advocacy here as well. He mentions several times that the current process for fund-raising is deeply flawed and demonstrates rather effectively how it nullifies the intended good of even the most dedicated elected official.

Needless to say, this is a book that gets the mental juices flowing. It’s not a difficult read; Lessing explains things like the underlying architecture of the Internet in clear non-technical terms. What makes it so provoking aren’t the questions he answers but the ones he raises. After reading this book, I’m almost tempted to conduct some kind of research into Constitutional Law because as out-dated as I thought the copyright systems was, well, it’s just a symptom of a much larger problem that isn’t going to go away soon.

So if you want something that changes the way you look at the Internet, Constitutional Law and your government, this is a highly recommended book.