In his response to my critique of Code, Prof. Lessig attacks my reasoning on two primary grounds:
(1) First, he implies that I somehow fail to comprehend Code’s central thesis that (a) “more than law regulates” and that (b) “those who controlled much of the code… had plenty of reasons to change that code in ways that better enabled their own control, and as a byproduct (whether intended or not), control by the government.”
(2) Second, he takes issue with the “cyber-collectivism” label I have used to describe the philosophical paradigm that Code and his thinking have spawned.
I will address each in turn.
Code Failures vs. Market Failures
Prof. Lessig imagines that I just haven’t quite absorbed his digital didacticism. To the contrary, I understand the central teachings Code perfectly well; it’s just that I don’t entirely accept them.
But let’s be clear about something: Cyber-libertarians are not oblivious to the problems Lessig raises regarding “bad code,” or what might even be thought of as “code failures.” In fact, when I wake up each day and scan TechMeme and my RSS reader to peruse the digital news of the day, I am always struck by the countless mini-market failures I am witnessing. I think to myself, for example: “Wow, look at the bone-headed move Facebook just made on privacy! Ugh, look at the silliness Sony is up to with rootkits! Geez, does Google really want to do that?” And so on. There seems to be one such story in the news every day.
But here’s the amazing thing: I usually wake up the next day, fire up my RSS reader again, and find a world almost literally transformed overnight. I see the power of public pressure, press scrutiny, social norms, and innovation by competitors combining to correct the “bad code” or “code failures” of the previous day. OK, so sometimes it takes longer that a day, a week, or a month. And occasionally legal sanctions must enter the picture if the companies or coders did something particularly egregious. But, more often than not, markets evolve and bad code eventually gives way to better code; short-term “market failures” give rise to a world of innovative alternatives.
Thus, at risk of repeating myself, I must underscore the key principles that separate the cyber-libertarian and cyber-collectivist schools of thinking. It comes down to this: The cyber-libertarian believes that “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).
Of course, this assumes we can agree on a definition of “bad code” and “code failures.” What concerns me about the way Prof. Lessig approaches these issues in Code and in his subsequent work is that he is far too quick to declare the debate over by labeling short-term code hiccups as sky-is-falling market failures. The end result of such myopic techno-pessimism is the inevitable call for governments to intervene and “do something” to correct supposed code failures.
The cyber-libertarian instead counsels patience. Let’s give those other forces — alternative platforms, new innovators, social norms, public pressure, etc. — a chance to work some magic. Evolution happens, if you let it.
Moreover, if you are always running around crying “market failure!” and calling in the code cops, it creates perverse marketplace incentives by discouraging efforts to innovate or “route around” bad code or code failure. We don’t want the whole world sitting around waiting for government to regulate the mousetrap to improve it or even give everyone better access to it; we should want the world to be innovating to create better mousetraps!
To reiterate a key point I already stressed in my original essay: 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.
“Regulability” and What to Do about It
But what should we make of Prof. Lessig’s concern about the “regulability” of code and cyberspace? Again, this is the notion that private players could be co-opted as henchmen of the state, or that the tools they create could be co-opted for any variety of nefarious political purposes.
Here the cyber-libertarian will occasionally find common ground with Prof. Lessig. This is a particular problem when it comes to data collection and aggregation. Generally speaking, however, a cyber-libertarian is skeptical of privacy claims based on theories of a property right in personal information. After all, as Eugene Volokh has taught us, “the right to information privacy — my right to control your communication of personally identifiable information about me — is a right to have the government stop you from speaking about me.” Moreover, the cyber-libertarian just isn’t going to get all that worked up about a private company collecting data in an attempt to sell people more goods and services. In our view, marketing isn’t mind manipulation; it’s a key part of a well-functioning capitalist system.
That being said, we are in league with Lessig when it comes to the forcible surrender of personal information or technological capabilities to government officials. When the Department of Justice comes knocking on Google’s door asking for records of our search histories to see who’s looking for online porn (or anything else), that’s a problem. The “deputization of the middleman” has long been a legitimate fear because, with the threat of liability hanging over their necks, online intermediaries could be coerced into giving the state information that leads to fines, imprisonment, censorship, or some other type of government harassment.
However, this is a problem we should handle by putting more constraints on our government(s), not by imposing more regulations on code or coders. While, as a general principle, I think it wise for companies to minimize the amount of data they collect about consumers or websurfers, we need not force that by law. And we should certainly hold companies to high standards when it comes to data security and breach. But, again, the way to deal with the “regulability” threat that Lessig and Zittrain raise is to tightly limit the powers of government to access private information through intermediaries in the first place. Most obviously, we could start by tightening up the Electronic Communications Privacy Act and other laws that limit government data access. More subtly, we must continue to defend Section 230 of the Communications Decency Act, which shields intermediaries from liability for information posted or published by users of their systems, because (among many things) such liability would make online intermediaries more susceptible to the kind of back-room coercion that concerns Lessig. If we’re going to be legislating about the Internet, we need more laws like that, not those of the “middleman deputization” model.
Labeling Philosophical Paradigms
Finally, Prof Lessig makes it clear that he doesn’t take kindly to being called a “cyber-collectivist,” even accusing me of “red-baiting” by using the term. But the collectivism of which I speak is a more generic type, not the hard-edged Marxist brand of collectivism of modern times.
Such labels and classifications play a useful role. After all, something quite profound separates our two camps and leads to endless squabbles about nearly every aspect of technology policy. Prof. Lessig is obviously far more enamored with the potential for the state and politics to play a beneficial role in shaping the digital future. Thus, even though Lessig rejects the association, Declan McCullagh was right to point to the distant influence of Plato on Code and much of Lessig’s other work. (And there’s a bit of Rousseauian influence there, too, with Lessig’s focus on bending markets and individual desires to some amorphous general will.)
In any event, if Prof. Lessig takes offense at this label and wants to call his approach something other than cyber-collectivism, by all means be my guest! Invent a new term and I’ll use it. But to me, as a student of political philosophy, I see his approach as just another variant of collectivism and I’m just not sure what else to call it. (“Cyber-Social Democrat”?) This isn’t “red-baiting;” it’s simply an exercise in philosophical classification.
But Lessig is utterly dismissive of any attempt to label his thinking, even going so far as to say that “I do stand with the core argument of Code, as any non-ideologue should.” [Emphasis added.] Here he seems to imply that he stands above it all and that it is only I who brings cursed ideology to the table. But as Cato’s Jim Harper rightly noted in response to Lessig’s assertion that he is a “non-ideologue”:
It is impossible to discuss public policy without using ideology. When I hear someone self-identify as non-ideological, I take that as a confession that they are unaware of the role that ideology plays in their thinking. If Lessig fancies himself a neutral analyst — dismissing “ideologues” as such, that’s pretty fanciful indeed.
Similarly, in responding to the assertion in my earlier essay that there is a qualitative difference between law and code, Lessig argues that “Whether and when law is more effective than code is an empirical matter — something to be studied, and considered, not dismissed by banalities spruced up with italics.”
Typography aside, I’m all for studying the impact of law vs. code as “an empirical matter,” a study that, in turn, raises the question of how we define effectiveness or success. I suspect that the professor and I would have quite a “values clash” over some rather important first principles in that regard. In other words, we’d need to talk about… ideology! And yet, Lessig persists in the belief that his arguments are “obvious” and non-ideological when they are nothing of the sort. (Cato adjunct scholar David Post made a similar point a decade ago in his brilliant review of Code.)
At issue here is nothing less than a conflict of visions similar to others throughout the history of political philosophy. It is a conflict between those who put the individual and individual rights at the heart of a system of justice and governance versus those who would place “the community,” “the public” or some other amorphous grouping(s) at the center of everything. It’s a classic libertarian vs. communitarian / collectivist debate.
Whether or not Prof. Lessig cares to acknowledge the role that Code and his thinking have played in defining one side of this debate is irrelevant. It has been enormous. And I’m not sure why he is running away from it because he is winning this battle of ideas handily. Cyber-libertarianism is under attack from all quarters: from liberals and conservatives; from the smallest institutions of government to the largest; and from practically every academic and politician on the planet who wants to reengineer the Net in one way or another.
A half century ago, Richard Weaver taught us that ideas have consequences. A half century from now, I suspect we will look back and realize just how profound the consequences of Lawrence Lessig’s ideas have been for cyberspace and our cyber-freedoms. Of course, I very much hope that I am proven wrong.