Code, Pessimism, and the Illusion of “Perfect Control”

The problem with peddling tales of a pending techno-apocalypse is that, at some point, you may have to account for your prophecies — or false prophecies as the case may be. Hence, the problem for Lawrence Lessig ten years after the publication of his seminal book, Code and Other Laws of Cyberspace.

In Code, Lessig painted an extraordinarily gloomy picture of the unfolding digital age. Early cyber-theorists such as Ithiel de Sola Pool, John Perry Barlow, George Gilder, and Nicholas Negroponte had foretold of a world in which the invisible hand of code would generally be an agent of empowerment and liberation. Lessig, by contrast, viewed code as an agent of control; the prime regulator of our modern digital ecosystem. “Left to itself,” he warned, “cyberspace will become a perfect tool of control.”

Luckily for us, Lessig’s lugubrious predictions proved largely unwarranted. Code has not become the great regulator of markets or enslaver of man; it has been a liberator of both. Indeed, the story of the past digital decade has been the exact opposite of the one Lessig envisioned in Code. Cyberspace has proven far more difficult to “control” or regulate than any of us ever imagined. More importantly, the volume and pace of technological innovation we have witnessed over the past decade has been nothing short of stunning.

Had there been anything to the Lessig’s “code-is-law” theory, AOL’s walled-garden model would still be the dominant web paradigm instead of search, social networking, blogs, and wikis. Instead, AOL — a company Lessig spent a great deal of time fretting over in Code — was forced to tear down those walls years ago in an effort to retain customers, and now Time Warner is spinning it off entirely. Not only are walled gardens dead, but just about every proprietary digital system is quickly cracked open and modified or challenged by open source and free-to-the-world Web 2.0 alternatives. How can this be the case if, as Lessig predicted, unregulated code creates a world of “perfect control”?

Similarly, Lessig forecast a world in which “trusted systems” (like Digital Rights Management) would give copyright holders “far more [protection] than the law did.” Ten years later, peer-to-peer piracy is rampant, DRM and micropayment schemes have failed miserably, and content creators are forced to put all their content online at increasingly lower prices, if they can charge anything at all. Again, so much for code spawning “perfect control.”

Most ominously, Lessig warned of companies pushing “architectures of identity” (such as digital certificates) upon us as a condition of commerce, thus requiring the surrender of anonymity and privacy. Meanwhile, back in the real world, “technologies of evasion” continue to proliferate and anonymity remains the online norm, leaving both the private and public sectors struggling to cope with a variety of thorny online problems: spam, viruses, online harassment, copyright piracy, and so on. Some might even claim that “perfect control” has instead become something more akin to “perfect anarchy,” although I wouldn’t go quite that far.

So why have Lessig’s predictions proven so off the mark? Lessig failed to appreciate that markets are evolutionary and dynamic, and when those markets are built upon code, the pace and nature of change becomes unrelenting and utterly unpredictable. With the exception of some of the problems identified above, a largely unfettered cyberspace has left digital denizens better off in terms of the information they can access as well as the goods and services from which they can choose. Oh, and did I mention it’s all pretty much free-of-charge? Say what you want about our cyber-existence, but you can’t argue with the price!

In the preface to the second edition of Code, Lessig admits things haven’t turned out to quite as miserably as he predicted they would, yet he quickly reassumes his skunk-at-the-cyber-libertarian-garden-party posture by noting, “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,” he proclaims. More confident? Can he muster any evidence to support that assertion? I suppose we’ll have to wait another decade or so to see if Lessig’s continuing cyber-pessimism is warranted, but I remain an unrepentant techno-optimist — and, at least so far, I generally have history on my side.

Of course, if things do turn out badly, one wonders if Prof. Lessig won’t be partially to blame for inviting regulators in to play a much greater role in policing cyberspace. The central paradox of Code is that Lessig goes to great pains to prove how “regulable” cyberspace is, but it is he who would make it so through new government regulation. Lessig spends so much time trying to prove that “code is law” that he seems utterly oblivious to the fact that “law is law,” too, and has a much greater impact in shaping markets and human behavior. Yes, private code can also help shape things, but to nowhere near the extent that government force can. And when code does shape market trends, or even market power, those developments typically prove fleeting as fickle cyber-citizens “vote with their feet” — or keyboards, as the case may be. With code, escape is possible. Law, by contrast, tends to lock in and limit; spontaneous evolution is supplanted by the stagnation of top-down, one-size-fits-all regulatory schemes.

In his lead essay in this debate, Declan McCullagh cites several examples of regulatory schemes gone awry and correctly notes that the true danger of Code lies in Lessig’s apparent preference for rule by “technocratic philosopher kings.” That vividly comes through in Lessig’s chapter on speech regulation (greatly expanded in Code Version 2.0), in which he outlines how the government might mandate changes in both code and web browser functionality to label and then censor online content deemed “harmful to minors.” Lessig doesn’t bother explaining how that will be defined, apparently preferring to leave those devilish details to his technocratic philosopher kings. Regardless, again, this isn’t “code-as-law;” this is code being mandated by law (or “law-as-code”).

In the years since the book’s release, Lessig has attempted to distance himself from some of his old positions and even tried to cast himself as a cyber-libertarian at times — suggesting at one point that we should “blow up the FCC.” Alas, Lessig is no libertarian convert. He has continued to show an affinity for government intervention in certain contexts and even when he toys with FCC abolition he quickly follows up with a replacement plan modeled on the Environmental Protection Agency!

This brings me to what I believe is the most important impact of Code: the philosophical movement it has spawned. As Declan noted in his opening essay, Code “offered a burgeoning protest movement [a] unifying theme and philosophy” in that it was both a polemic against cyber-libertarianism and a sort of call-to-arms for cyber-collectivism. It gave this movement its central operating principle: Code and cyberspace can be bent to the will of the collective, and it often must be if we are to avoid any number of impending disasters brought on by those nefarious (or just plain incompetent) folks in corporate America. Led by a gifted, prolific set of disciples such as Jonathan Zittrain and Tim Wu, as well as increasingly influential activist groups such as Public Knowledge and Free Press, Lessig’s cyber-collectivists continue to preach skepticism regarding markets and property rights, and a general openness to — and frequent embrace of — government solutions to digital-era dilemmas.

Zittrain’s The Future of the Internet and How to Stop It is the most recent exposition of Lessigite techno-pessimism and illustrates just how pervasive Code remains among leading cyberlaw scholars and Internet activists. We are witnessing, Zittrain says, the victory of “sterile and tethered” digital technologies and networks over the more “open and generative” devices and systems of the past. The iPhone and TiVo are cast as villains in Zittrain’s drama since they apparently represent the latest manifestations of Lessig’s “perfect control” paranoia. Similarly, a Public Knowledge analyst recently likened Apple’s management of applications in its iPhone App Store to the tyranny of Orwell’s 1984. In both cases, Lessig’s influence is clear: Privately managed code is the real Big Brother that we should fear.

I’ve challenged these views repeatedly and noted, most simply, that no one puts a gun to your head and forces you to buy any of these devices or applications. Zittrain warns that “we can get locked into these platforms,” but was Steve Jobs subliminally programming him to go to the Apple Store and shell out good money for the iPhone that Zittrain now openly declares his love for? And comparing Apple to Big Brother ignores the critical distinction between private persuasion and public power. The one billion downloads of over 35,000 Apple iPhone applications in just nine months should be welcomed as a sign of healthy innovation and consumer choice, not an Orwellian nightmare.

Indeed, despite all this hand-wringing by the Lessigites, there exists a diverse spectrum of innovative digital alternatives from which to choose. Do you want wide-open, tinker-friendly devices, sites, or software? You got it. Do you want a more closed, simple, and safe online experience? You can have that, too. And there are plenty of choices in between. It sounds more like “perfect competition” than “perfect control” to me. Of course, one need not believe that the markets in code are “perfectly competitive” to accept that they are “competitive enough” — or at least, better than regulatory alternatives. That is the critical distinction between cyber-libertarians and Lessig’s cyber-collectivists.

Regardless, whether some of us care to admit it, Prof. Lessig and his movement are winning the battle of ideas on the cyber-front today. We have Code to thank — or blame — for that.

Also from This Issue

Lead Essay

  • What Larry Didn’t Get by Declan McCullagh

    Journalist Declan McCullagh offers a mixed assessment of Lawrence Lessig’s Code and Other Laws of Cyberspace: Although Lessig was right that preserving individual liberty on the Internet is important, and although he was right to note the crucial importance of infrastructure and basic rulemaking in preserving individual choice, Lessig was mistaken in at least two ways. Lawmakers haven’t lived up to Lessig’s high expectations, and the “threat” of commercialization has largely failed to materialize.

Response Essays

  • How to Get What We All Want by Jonathan Zittrain

    Jonathan Zittrain argues that the differences between Lawrence Lessig and Declan McCullagh aren’t really ideological. They’re about process and approach. He personally finds much common ground with cyberlibertarians, but also believes that a great deal of effort must be put forth to create institutions that will preserve an open Internet. Neither the government nor traditional, market-based firms are necessarily well-suited to the task.

  • Continuing the Work of Code by Lawrence Lessig

    Lawrence Lessig is happy that many of the bleaker predictions of Code have not come to pass. This is not to be taken, however, as a sign that freedom is easily gained or kept. It took an enormous amount of work on the part of many theorists, activists, coders, and lawyers to preserve liberty on the Internet. If Code looks wrong in hindsight, we have them to thank. Yet new threats loom large today, and Lessig in particular praises Jonathan Zittrain’s The Future of the Internet and How to Stop It as a warning to a new generation seeking to preserve liberty on the Internet. Future activists will have to continue the work of preserving freedom, because, he concludes, democratic government often isn’t up to the task.

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