Can Code be Law?
Two decades ago, an obscure Stanford Law school professor shook both the legal community and the early pioneers of cyberspace by asking a simple question “Can code be Law”? Code and Other Laws of Cyber Space, catapulted Lawrence Lessig to instant rockstardom, making him one of the most cited Law faculty worldwide. What does a constitutional law expert have to say about cyberspace and why does this matter to us more than ever, in 2020?
The End of Freedom & Anonymity
Lessig wrote his manifesto at a time when the internet and the cyberspace it enabled, was built on the promise of emancipatory potential and freedom. The Internet’s decentralised architecture was designed to go beyond the boundaries of nations and states. A new loka had just come into being with its own laws of space and time. Geographical distances were blurred in cyberspace as were personal identities. A product could have infinite copies distributed to infinite people, challenging the very notion of property and ownership. The belief was that “cyberspace was essentially, and unavoidably, free and that government could not regulate it”
In short, it was a heady time until Lessig poured some (much-needed) cold water on it. He presciently predicted that that wild and free though cyberspace may have been, its nature was fundamentally changing from a place of anonymity and freedom to a more controlled, restricted experience. This change was occurring not due to governments but because of the very architecture of the internet was shifting.
What Governs the Internet
Just like laws regulate our public life, norms shape our collective lives and markets shape and limit our decisions, code regulates the internet. Code creates the architecture of cyberspace and determines what is possible and what is not. Similar to how the design of a building allows and prevents certain actions, the architecture of cyberspace regulates our behavior. It determines how easy it is to protect privacy, what preferences are chosen as defaults and guidelines within which we can behave. Remember all the details about your personal life, your email and your contact information you are forced to fill, day after day across the internet just to get your work done? That's what Lessig is talking about.
“Our freedoms in cyberspace are being determined by an invisible structure that is every bit as restricting as any laws that can come out of a legislature, legitimate or not. Even more important, this invisible code has been written by people we did not elect and who have no formal obligations to us.”
Lawmakers of Private Worlds
Think of Facebook, Whatsapp or Instagram. Its a universe in itself, shaped by code. You can try to get around it, but you have no power to change it or organize fellow users to demand collective change. The nature of cyberspace and the takeover of the internet by Big Tech platforms means that corporations can create private rules and we have no choice but to accept or refuse using the product. But you cant just get off WhatsApp now can you? Its become a necessity. On a space occupied by over a billion users, there is no space for deliberation, consensus, and democracy. Who codes, rules.
Becoming Citizens of Cyberspace
Lessig asks us to stop being subjects of virtual sovereigns and become citizens of virtual democracies. He asks us to deeply reflect on a “constitution for cyberspace”. This is not a constitution in the narrow sense of a legal text. Lessig means an overall architecture that “structures and constrains social and legal power” to protect fundamental values of the internet. Cyberspace could be designed or coded to protect values that we care about or it can be designed to make our values impossible to practice. Just like we hold the government accountable as citizens, we need to do the same for technology.
“Unless we interrogate the architecture of cyberspace as we interrogate the code of Congress, challenging the constitutionality of code — be it East Coast or West Coast — the relevance of our constitutional tradition will fade and the importance of our commitment to our fundamental values, through a self-consciously enacted constitution, will also fade.”
At the height of Techlash against BigTech, when citizens and governments worldwide are waking up to the need to regulate technology platforms and reinscribe our shared values in cyberspace, what is needed from us is constant watchfulness and the transition from being mere users to active citizens of cyberspace.
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