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There’s a common belief that cyberspace cannot be regulated-that it is, in its very essence, immune from the government’s (or anyone else’s) control. Code, first published in 2000, argues that this belief is wrong. It is not in the nature of cyberspace to be unregulable; cyberspace has no “nature.” It only has code-the software and hardware that make cyberspace what it is. That code can create a place of freedom-as the original architecture of the Net did-or a place of oppressive control. Under the influence of commerce, cyberspace is becoming a highly regulable space, where behavior is much more tightly controlled than in real space. But that’s not inevitable either. We can-we must-choose what kind of cyberspace we want and what freedoms we will guarantee. These choices are all about architecture: about what kind of code will govern cyberspace, and who will control it. In this realm, code is the most significant form of law, and it is up to lawyers, policymakers, and especially citizens to decide what values that code embodies. Since its original publication, this seminal book has earned the status of a minor classic. This second edition, or Version 2.0, has been prepared through the author’s wiki, a web site that allows readers to edit the text, making this the first reader-edited revision of a popular book.

Code version 1.0

FOR CHARLIE NESSON, WHOSE EVERY IDEA

SEEMS CRAZY FOR ABOUT A YEAR.

Code version 2.0

TO WIKIPEDIA,

THE ONE SURPRISE THAT TEACHES MORE THAN EVERYTHING HERE.

PREFACE TO THE SECOND EDITION

This is a translation of an old book—indeed, in Internet time, it is a translation of an ancient text. The first edition of this book was published in 1999. It was written in a very different context, and, in many ways, it was written in opposition to that context. As I describe in the first chapter, the dominant idea among those who raved about cyberspace then was that cyberspace was beyond the reach of real-space regulation. Governments couldn’t touch life online. And hence, life online would be different, and separate, from the dynamic of life offline. Code v1 was an argument against that then common view.

In the years since, that common view has faded. The confidence of the Internet exceptionalists has waned. The idea—and even the desire—that the Internet would remain unregulated is gone. And thus, in accepting the invitation to update this book, I faced a difficult choice: whether to write a new book, or to update the old, to make it relevant and readable in a radically different time.

I’ve done the latter. The basic structure of the first edition remains, and the argument advanced is the same. But I’ve changed the framing of particular examples, and, I hope, the clarity of the writing. I’ve also extended the argument in some parts, and added brief links to later work in order to better integrate the argument of the original book.

One thing I have not done, however, is extend the argument of this book in the places that others have worked. Nor have I succumbed to the (insanely powerful) temptation to rewrite the book as a response to critics, both sympathetic and not. I have included direction in the notes for those wanting to follow the arguments others have made in response. But, even more than when it was first published, this book is just a small part of a much bigger debate. Thus, you shouldn’t read this to the exclusion of extraordinary later work. Two books in particular already published nicely complement the argument made here—Goldsmith and Wu’s Who Controls the Net? (2006), and Benkler’s The Wealth of Networks (2006)—and a third by Zittrain, expected in 2007, significantly extends the same argument.

I have also not tried to enumerate the mistakes, real and alleged, made in the first edition. Some I’ve simply corrected, and some I’ve kept, because, however mistaken others take them to be, I continue to believe that they are not mistakes. The most important of the second type is my view that the infrastructure of the Net will become increasingly controlled and regulable through digital identity technologies. Friends have called this “mistake” a “whopper.” It is not. I’m not sure what time horizon I had in mind in 1999, and I concede that some of the predictions made there have not come to pass—yet. But I am more confident today than I was then, and thus I have chosen to stick with this “fundamental mistake.” Perhaps this is simply to hedge my bets: If I’m right, then I have the reward of understanding. If I’m wrong, then we’ll have an Internet closer to the values of its original design.

The genesis of the revisions found here was a wiki. Basic Books allowed me to post the original edition of the book in a wiki hosted by Jotspot, and a team of “chapter captains” helped facilitate a conversation about the text. There were some edits to the text itself, and many more valuable comments and criticisms.¹ I then took that text as of the end of 2005 and added my own edits to produce this book. While I wouldn’t go as far as the musician Jeff Tweedy (“Half of it’s you, half is me”), an important part of this is not my work. In recognition of that, I’ve committed the royalties from this book to the nonprofit Creative Commons.

I am grateful to JotSpot (<jot.com>) for donating the wiki and hosting services that were used to edit Code v1. That wiki was managed by an extraordinary Stanford undergraduate, Jake Wachman, who gave this project more time than he had. Each chapter of the book, while living on the wiki, had a “chapter captain.” I am grateful to each of them—Ann Bartow, Richard Belew, Seth Finkelstein, Joel Flynn, Mia Garlick, Matt Goodell, Paul Gowder, Peter Harter, Brian Honermann, Brad Johnson, Jay Kesan, John Logie, Tom Maddox, Ellen Rigsby, and Jon Stewart—for the work they volunteered to do, and to the many volunteers who spent their time trying to make Code v1 better. I am especially grateful to Andy Oram for his extensive contributions to the wiki.

In addition to these volunteers, Stanford helped me gather an army of law students to help complete the research that Code v2 required. This work began with four—David Ryan Brumberg, Jyh-An Lee, Bret Logue, and Adam Pugh—who spent a summer collecting all the work that built upon or criticized Code v1. I relied upon that research in part to decide how to modify Code v1. During the fall semester, 2005, a seminar of Stanford students added their own critical take, as well as classes at Cardozo Law School. And then during the year, two other students, John Eden and Avi Lev Robinson-Mosher, spent many hours helping me complete the research necessary to finish a reasonable draft of Code v2.

No student, however, contributed as much to the final version of Code v2 as Christina Gagnier. In the final months of this project, she took command of the research, completing a gaggle of unresolved questions, putting the results of this 18-month process in a form that could be published, and supervising a check of all citations to verify their completeness and accuracy. Without her work, this book would not have been completed.

I am also grateful to friends and colleagues who have helped me see how this work needed to change—especially Ed Felten, David Johnson, Jorge Lima, Alan Rothman, and Tim Wu. Jason Ralls designed the graphics for Code v2. And finally, I am indebted beyond words to Elaine Adolfo, whose talent and patience are far beyond anything I’ve ever known, and without whom I could not have done this, or much else in the past few years.

PREFACE TO THE FIRST EDITION

In the spring of 1996, at an annual conference organized under the title “Computers, Freedom, and Privacy” (CFP), two science-fiction writers were invited to tell stories about cyberspace’s future. Vernor Vinge spoke about “ubiquitous law enforcement” made possible by “fine-grained distributed systems,” in which the technology that will enable our future way of life also feeds data to, and accepts commands from, the government. The architecture that would enable this was already being built—it was the Internet—and technologists were already describing ways in which it could be extended. As this network which could allow such control became woven into every part of social life, it would be just a matter of time, Vinge said, before the government claimed control over vital parts of this system. As the system matured, each new generation of system code would increase the power of government. Our digital selves—and increasingly, our physical selves—would live in a world of perfect regulation, and the architecture of this distributed computing—what we today call the Internet and its successors—would make that regulatory perfection possible.

Tom Maddox followed Vinge and told a similar story, though with a slightly different cast. The government’s power would not come just from chips, he argued. Instead, it would be reinforced by an alliance between government and commerce. Commerce, like government, fares better in a well-regulated world. Commerce would, whether directly or indirectly, help supply resources to build a well-regulated world. Cyberspace would thus change to take on characteristics favorable to these two powerful forces of social order. Accountability would emerge from the fledgling, wild Internet.

Code and commerce.

When these two authors spoke, the future they described was not yet present. Cyberspace was increasingly everywhere, but it was very hard for those in the audience to imagine it tamed to serve the ends of government. And at that time, commerce was certainly interested in cyberspace, though credit card companies were still warning customers to stay far away from the Net. The Net was an exploding social space of something. But it was hard to see it as an exploding space of social control.

I didn’t see either speech. I first listened to them through my computer, three years after they were given. Their words had been recorded; they now sit archived on a server at MIT¹. It takes a second to tune in and launch the recording of their speeches. The very act of listening to these lectures given years before—served on a reliable and indexed platform that no doubt recorded the fact that I had listened, across high-speed, commercial Internet lines that feed my house both the Internet and ABC News—confirmed something of their account. One can hear in the audience’s reaction a recognition that these authors were talking fiction—they were science-fiction writers, after all. But the fiction they spoke terrified those who listened.

Ten years later, these tales are no longer fiction. It is no longer hard to understand how the Net could become a more perfectly regulated space or how the forces behind commerce could play a role in facilitating that regulation.

The ongoing battle over peer-to-peer filesharing is an easy example of this dynamic. As an astonishing quantity of music files (among others) was made available for free (and against the law of copyright) through P2P applications, the recording industry has fought back. Its strategy has included vigorous prosecution of those downloading music illegally, extraordinary efforts to secure new legislation to add new protections for their copyrighted content, and a host of new technical measures designed to change a feature of the original architecture of the network—namely that the Net copies content blind to the rules of copyright that stand behind that content. The battle is thus joined, and the outcome will have implications for more than just music distribution. But the form of the battle is clear: commerce and government working to change the infrastructure to make better control possible.

Vinge and Maddox were first-generation theorists of cyberspace. They could tell their stories about perfect control because they lived in a world that couldn’t be controlled. They could connect with their audience because it wanted to resist the future they described. Envisioning this impossible world was sport.

Now the impossible is increasingly real. Much of the control in Vinge’s and Maddox’s stories that struck many of their listeners as Orwellian now seems to many quite reasonable. It is possible to imagine the system of perfect regulation that Vinge described, and some even like what they see. It is inevitable that an increasingly large part of the Internet will be fed by commerce. Most don’t see anything wrong with that either. The “terrifying” has now become normal, and only the historians (or authors of old books like this) will notice the difference.

This book continues Vinge’s and Maddox’s stories. I share their view of the Net’s future; much of this book is about the expanding architecture of regulation that the Internet will become. But I don’t share the complacency of the self-congratulatory cheers echoing in the background of that 1996 recording. It may well have been obvious in 1996 who “the enemy” was. But it is not obvious now.

The argument of this book is that our future is neither Vinge’s nor Maddox’s accounts standing alone. Our future is the two woven together. If we were only in for the dystopia described by Vinge, we would have an obvious and powerful response: Orwell gave us the tools, and Stalin gave us the resolve to resist the totalitarian state. After 9/11, we may well see a spying and invasive Net. But even that will have limits. Totalitarian control by Washington is not our future. 1984 is solidly in our past.

Likewise, if we were only in for the future that Maddox described, many of our citizens would call that utopia, not science fiction. A world where “the market” runs free and the “evil” of government is defeated would be, for them, a world of perfect freedom.

But when you tie the futures described by Vinge and Maddox together, it is a different picture altogether: A future of control in large part exercised by technologies of commerce, backed by the rule of law (or at least what’s left of the rule of law).

The challenge for our generation is to reconcile these two forces. How do we protect liberty when the architectures of control are managed as much by the government as by the private sector? How do we assure privacy when the ether perpetually spies? How do we guarantee free thought when the push is to propertize every idea? How do we guarantee self-determination when the architectures of control are perpetually determined elsewhere? How, in other words, do we build a world of liberty in the face of the dangers that Vinge and Maddox together describe?

The answer is not in the knee-jerk antigovernment rhetoric of a libertarian past: Governments are necessary to protect liberty, even if they are also able to destroy it. But neither does the answer lie in a return to Roosevelt’s New Deal. Statism has failed. Liberty is not to be found in some new D.C. alphabet soup (WPA, FCC, FDA . . . ) of bureaucracy.

A second generation takes the ideals of the first and works them out against a different background. It knows the old debates; it has mapped the dead-end arguments of the preceding thirty years. The objective of a second generation is to ask questions that avoid dead-ends and move beyond them.

There is great work from both generations. Esther Dyson and John Perry Barlow, and Todd Lapin still inspire, and still move one (Dyson is editor at large at CNET Networks; Barlow now spends time at Harvard). And in the second generation, the work of Andrew Shapiro, David Shenk, and Steven Johnson is becoming well known and is compelling.

My aim is this second generation. As fits my profession (I’m a lawyer), my contribution is more long-winded, more obscure, more technical, and more obtuse than the best of either generation. But as fits my profession, I’ll offer it anyway. In the debates that rage right now, what I have to say will not please anyone very much. And as I peck these last words before e-mailing the manuscript off to the publisher, I can already hear the reactions: “Can’t you tell the difference between the power of the sheriff and the power of Walt Disney?” “Do you really think we need a government agency regulating software code?” And from the other side: “How can you argue for an architecture of cyberspace (free software) that disables government’s ability to do good?”

But I am also a teacher. If my writing produces angry reactions, then it might also effect a more balanced reflection. These are hard times to get it right, but the easy answers to yesterday’s debate won’t get it right.

I have learned an extraordinary amount from the teachers and critics who have helped me write this book. Hal Abelson, Bruce Ackerman, James Boyle, Jack Goldsmith, and Richard Posner gave patient and excellent advice on earlier drafts. I am grateful for their patience and extremely fortunate to have had their advice. Larry Vale and Sarah Whiting guided my reading in the field of architecture, though no doubt I was not as patient a student as I should have been. Sonya Mead helped me put into pictures what it would take a lawyer ten thousand words to say.

An army of students did most of the battle on earlier drafts of this book. Carolyn Bane, Rachel Barber, Enoch Chang, Ben Edelman, Timothy Ehrlich, Dawn Farber, Melanie Glickson, Bethany Glover, Nerlyn Gonzalez, Shannon Johnson, Karen King, Alex Macgillivray, Marcus Maher, David Melaugh, Teresa Ou, Laura Pirri, and Wendy Seltzer provided extensive, if respectful, criticism. And my assistants, Lee Hopkins and Catherine Cho, were crucial in keeping this army in line (and at bay).

Three students in particular have influenced my argument, though none are fairly called “students.” Harold Reeves takes the lead in Chapter 10. Tim Wu forced me to rethink much of Part I. And Andrew Shapiro showed me the hopefulness in a future that I have described in very dark terms.

I am especially indebted to Catherine Marguerite Manley, whose extraordinary talent, both as a writer and a researcher, made it possible to finish this work long before it otherwise could have been finished. Thanks also to Tawen Chang and James Stahir for their careful review of the notes and work to keep them honest.

This is a not a field where one learns by living in libraries. I have learned everything I know from the conversations I have had, or watched, with an extraordinary community of academics and activists, who have been struggling over the last five years both to understand what cyberspace is and to make it better. This community includes the scholars and writers I discuss in the text, especially the lawyers Yochai Benkler, James Boyle, Mark Lemley, David Post, and Pam Samuelson. I’ve also benefited greatly from conversations with nonlawyers, especially Hal Abelson, John Perry Barlow, Todd Lapin, Joseph Reagle, Paul Resnick, and Danny Weitzner. But perhaps more importantly, I’ve benefited from discussions with the activists, in particular the Center for Democracy and Technology, the Electronic Frontier Foundation, and the American Civil Liberties Union. They have made the issues real, and they have done much to defend at least some of the values that I think important.

This book would not have been written, however, but for a story by Julian Dibbell, a conference organized by Henry J. Perritt, and many arguments with David Johnson. I am grateful to all three for what they have taught.

I began this project as a fellow at Harvard’s Program on Ethics and the Professions. I am grateful to Dennis Thompson for his skeptical encouragement that year. The Berkman Center for Internet and Society at Harvard Law School has made much of my research possible. I am grateful in particular to Lillian and Myles Berkman for that support, and especially to the center’s co-director and my sometime coteacher, Jonathan Zittrain, for his support and, more important, friendship. I’ve dedicated this book to the other co-director of the Berkman Center, Charlie Nesson, who has given me the space and support to do this work and a certain inspiration to push it differently.

But more significant than any of that support has been the patience, and love, of the person to whom I’ve dedicated my life, Bettina Neuefeind. Her love will seem crazy, and wonderful, for much more than a year.

ONE

code is law

ALMOST TWO DECADES AGO, IN THE SPRING OF 1989, COMMUNISM IN EUROPE died—collapsed, like a tent, its main post removed. The end was not brought by war or revolution. The end was exhaustion. A new political regime was born in its place across Central and Eastern Europe, the beginnings of a new political society.

For constitutionalists (like me), this was a heady time. I had graduated from law school in 1989, and in 1991 I began teaching at the University of Chicago. At that time, Chicago had a center devoted to the study of the emerging democracies in Central and Eastern Europe. I was a part of that center. Over the next five years I spent more hours on airplanes, and more mornings drinking bad coffee, than I care to remember.

Eastern and Central Europe were filled with Americans telling former Communists how they should govern. The advice was endless. And silly. Some of these visitors literally sold translated constitutions to the emerging constitutional republics; the rest had innumerable half-baked ideas about how the new nations should be governed. These Americans came from a nation where constitutionalism seemed to work, yet they had no clue why.

The Center’s mission, however, was not to advise. We knew too little to guide. Our aim was to watch and gather data about the transitions and how they progressed. We wanted to understand the change, not direct it.

What we saw was striking, if understandable. Those first moments after communism’s collapse were filled with antigovernmental passion—a surge of anger directed against the state and against state regulation. Leave us alone, the people seemed to say. Let the market and nongovernmental organizations—a new society—take government’s place. After generations of communism, this reaction was completely understandable. Government was the oppressor. What compromise could there be with the instrument of your repression?

A certain kind of libertarianism seemed to many to support much in this reaction. If the market were to reign, and the government were kept out of the way, freedom and prosperity would inevitably grow. Things would take care of themselves. There was no need, and could be no place, for extensive regulation by the state.

But things didn’t take care of themselves. Markets didn’t flourish. Governments were crippled, and crippled governments are no elixir of freedom. Power didn’t disappear—it shifted from the state to mafiosi, themselves often created by the state. The need for traditional state functions—police, courts, schools, health care—didn’t go away, and private interests didn’t emerge to fill that need. Instead, the needs were simply unmet. Security evaporated. A modern if plodding anarchy replaced the bland communism of the previous three generations: neon lights flashed advertisements for Nike; pensioners were swindled out of their life savings by fraudulent stock deals; bankers were murdered in broad daylight on Moscow streets. One system of control had been replaced by another. Neither was what Western libertarians would call “freedom.”

About a decade ago, in the mid-1990s, just about the time when this post-communist euphoria was beginning to wane, there emerged in the West another “new society,” to many just as exciting as the new societies promised in post-communist Europe. This was the Internet, or as I’ll define a bit later, “cyberspace.” First in universities and centers of research, and then throughout society in general, cyberspace became a new target for libertarian utopianism. Here freedom from the state would reign. If not in Moscow or Tblisi, then in cyberspace would we find the ideal libertarian society.

The catalyst for this change was likewise unplanned. Born in a research project in the Defense Department,¹ cyberspace too arose from the unplanned displacement of a certain architecture of control. The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose network of packet-switched data. And thus the old one-to-many architectures of publishing (television, radio, newspapers, books) were complemented by a world in which anyone could become a publisher. People could communicate and associate in ways that they had never done before. The space seemed to promise a kind of society that real space would never allow—freedom without anarchy, control without government, consensus without power. In the words of a manifesto that defined this ideal: “We reject: kings, presidents and voting. We believe in: rough consensus and running code.”²

As in post-Communist Europe, these first thoughts about freedom in cyberspace tied freedom to the disappearance of the state. As John Parry Barlow, former lyricist for the Grateful Dead and co-founder of the Electronic Frontier Foundation, declared in his “Declaration of Independence for Cyberspace,”

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

But here the bond between freedom and the absence of the state was said to be even stronger than in post-Communist Europe. The claim for cyberspace was not just that government would not regulate cyberspace—it was that government could not regulate cyberspace. Cyberspace was, by nature, unavoidably free. Governments could threaten, but behavior could not be controlled; laws could be passed, but they would have no real effect. There was no choice about what kind of government to install—none could reign. Cyberspace would be a society of a very different sort. There would be definition and direction, but built from the bottom-up. The society of this space would be a fully self-ordering entity, cleansed of governors and free from political hacks.

I taught in Central Europe during the summers of the early 1990s; I witnessed through my students the transformation in attitudes about communism that I described above. And so I felt a bit of déjà vu when, in the spring of 1995, while teaching the law of cyberspace, I saw in my students these very same post-communist thoughts about freedom and government. Even at Yale—not known for libertarian passions—the students seemed drunk with what James Boyle would later call the “libertarian gotcha”:³ no government could survive without the Internet’s riches, yet no government could control the life that went on there. Real-space governments would become as pathetic as the last Communist regimes: It was the withering of the state that Marx had promised, jolted out of existence by trillions of gigabytes flashing across the ether of cyberspace.

But what was never made clear in the midst of this celebration was why. Why was cyberspace incapable of regulation? What made it so? The word itself suggests not freedom but control. Its etymology reaches beyond a novel by William Gibson (Neuromancer, published in 1984) to the world of “cybernetics,” the study of control at a distance through devices.⁴

Genre:

On Sale: Jul 31, 2008
Page Count: 432 pages
Publisher: Basic Books
ISBN-13: 9780786721962

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Lawrence Lessig

About the Author

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School, and director of the Edmond J. Safra Center for Ethics at Harvard University. Prior to rejoining the Harvard faculty, Lessig was a professor at Stanford Law School, where he founded the school’s Center for Internet and Society, and at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.

Lessig serves on the Board of Creative Commons, MapLight, Brave New Film Foundation, The American Academy, Berlin, AXA Research Fund and iCommons.org, and on the advisory board of the Sunlight Foundation. He is a Member of the American Academy of Arts and Sciences, and the American Philosophical Association, and has received numerous awards, including the Free Software Foundation’s Freedom Award, Fastcase 50 Award and being named one of Scientific American‘s Top 50 Visionaries.

Lessig holds a BA in economics and a BS in management from the University of Pennsylvania, an MA in philosophy from Cambridge, and a JD from Yale.

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