The Interactions of Law and Code

2009-01-22T10:35:59-08:00

For my new Cyberlaw course, we were assigned a reading by Lawrence Lessig called The Law of the Horse. In it, he writes about how code can control law, and vise versa. He makes some good points that are intuitive yet bear saying nonetheless. Cyberspace as it currently exists is a largely unregulated domain. People can use it pretty much anonymously, so accountability is pretty limited. Lessig argues that this is because of the architecture of the Internet as it has been created by programmers.

As the Net grows, as its regulatory power increases, as its power as a source of values becomes established, the values of real-space sovereigns will at first lose out. In many cases, no doubt, that is a very good thing. But there is no reason to believe that it will be a good thing generally or indefinitely. There is nothing to guarantee that the regime of values constituted by code will be a liberal regime; and little reason to expect that an invisible hand of code writers will push it in that direction. Indeed, to the extent that code writers respond to the wishes of commerce, a power to control may well be the tilt that this code begins to take. Understanding this tilt will be a
continuing project of the law of cyberspace.

So in other words, cyberspace is a good place these days, ruled by fairly liberal ideals, but there is no guarantee that it will stay that way, and we may eventually need more regulation.

Michael Jay Lissner

The Interactions of Law and Code