Lessig's Thesis


Lawrence Lessig
CC-Attribution Sharealike v2 by Jeff Kubina

In his book Code and Other Laws of Cyberspace Stanford Law School professor Lawrence Lessig outlined a groundbreaking way to view government power over interactions in cyberspace. These interactions are troublesome when approached with traditional methods as they often transcend the traditional boundaries of governments and bring to the fore "latent ambiguities" in traditional law. In particular, Lessig find four challenges that governments face in their duty to remain relevant in their roles as societal protectors.

  • There are questions of regulability – whether governments are even able ot regulate the online space.
  • There is the challenge of how to describe the rules and regulations governments wish to enforce in light of the fact that, unlike in traditional, compute software mediates between theory and practice online.
  • There is the issue of competing sovereignities – if someone in Russia buys a book from a California-based company with a server in Texas and a regional office in Ukraine, which jurisdiction governs the transaction?
  • There is the challenge that many actions and objects in the online space do not have a good analog in the physical world, making the application of even fundamental consitutional principles difficult. Eighteenth century wording often is fraught with ambiguity in the face of twenty-first century problems.

However, Lessig does not believe that these obstacles are insurmountable. He posits that the government will be able to regulate the Internet by using tools available to it. He makes this argument primarily through analysis of a number of case studies. For instance, in the domain of regulability, he looks at CALEA, a law passed to ensure that law enforcement is able to retain their ability to tap phone lines in the face of telephone companies moving to Voice over IP technologies(VoIP). VoIP is harder for law enforcement to monitor than traditional analog technology for a number of reasons. In particular, many implementations make it infeasible to physically tap a phone line. The government was able to tap the phone lines though, by using its ability to regulate the market for VoIP software (and seize physical assets of non-compliant companies) to force those creating systems for telecoms to build in the ability to be tapped.

From these case studies, Lessig inductively builds a model of four major forces that interact to create the regulatory environment. They are:

  • Social norms: Regulation is ineffective if nobody is willing to enforce it. Regulation is more effective if disobeying results in social ostracization as well as legal penalties.
  • The market: By and large, regulation is a numbers game. Even in higher stakes arenas such as criminal law, 100% compliance is unobtainable, and so the goal is to shift general behaviors. Since money is a prime motivator for human endeavors, one large determinant of behavior is the market.
  • Architecture: Lessig's system wraps the basic constraints of the world in the category "architecture". In the physical world, we often overlook architecture since it is largely fixed. There is no need for regulation that prohibits one walking through a locked door. However, in the virtual world it becomes more fluid. Some networks (such as Stanford's Coursework discussion system) tie one's comments to an identity automatically whereas others allow anonymity.
  • Law: The starting point of Lessig's argument is a legislation-centered view of regulation. Over the course of the argument, he works to fit the legislative agents of regulation into the larger system, as they are influenced by the other three forces.

A diagram of the interaction of the different elements.
The central dot represents the agent that's influenced by the interaction.

The aim of this model is manifold. One of the original points is that the interaction of the elements, particularly on architecture, can cause previously hard to regulate areas to become less so. Closer examination of the model yields that each of the forces can influence the other, so the overall view that emerges is neither dominated by the anarchic "West Coast" computer code that forms the architecture of the internet nor by the edicts of the "East Coast" legal code of Washington, D.C. Additionally, the model is used as a stepping stone to discussion of the problems encountered when competing sovereignities attempt to control the same virtual space.

In this project our aim is to examine some more recent case studies, and use them to examine the extent to which Lessig's theory is applicable to the evolving Internet.