View
393
Download
0
Category
Tags:
Preview:
DESCRIPTION
Review of the book Code and Other laws of Cyberspace Version 2.0 Lawrence Lessig
Citation preview
Review: Code and Other laws of Cyberspace Version 2.0
Lawrence LessigBuilding Legal Institutions for Information Technology:
Defining the Intellectual Commons
Structure 1. Internet Regulability2. Importance of Code in making the internet
regulable3. Latent Ambiguities in our commitments to
fundamental values due to the changes in technology.
4. Mapping the above conflict to Jurisdiction5. Making choices that will affect fundamentally
what values are built into the network.
One Parallels between the fall of the communism
in Eastern and Central Europe and the rise of the internet.
Constitutions were replicated People’s resentment to control Code is regulator in the cyberspace
Two Four Puzzles from cyberspace• Borders : Argument between Martha Jones and her
neighbor Dank about growing of poisonous flowers. • The quarrel is distinct because it happens in
cyberspace (MMOG)• Laws can be changed through code, rules can be
coded and modified.
• Governors: State called Boral doesn’t like its citizens gambling.
• Their jurisdiction ends once the servers are hosted outside their state. Thereby making it less Regulable.
Puzzles continued …• Jake’s Communities : On the popular USENET,
Jake wrote stories about violence and sex but was hidden and anonymous in the real world.
• Jake did this because of something about him and the cyberspace. Networks made him reach wider audiences.
• What are acceptable virtual dual-lives and what are not ?
• Worms that Sniff: Imagine the Gov enforces a worm that sniffs for sensitive and classified information. Is the worm constitutional?
• How should the protection the framers gave us be applied to a world the framers never imagined ?
Themes Regulability : capacity of a Gov to regulate
behavior within its proper reach. More regulable cyberspace ?
Regulation by code : code allows increasing regulability.
Latent Ambiguity : We may see the worm’s invasion as inconsistent with the dignity that the amendment was written to protect. Cyberspace will present more such ambiguities.
Competing Sovereigns : Who is authorized to regulate ? Rules change with every place.
Regulability
Architectures of Control Falsifying the claim that the cyberspace cannot be
regulated. Cyber places – differences in the way you connect
to the internet Identity, Credentials and Authentication – real
space vs cyber space. The internet was architected to be minimalistic
with no mechanisms built in for collecting/verifying the above mentioned artifacts. But the architecture has matured over time to build mechanisms to do the same. (logs, cookies, dns etc)
Internet lacks self authenticating facts which are a key in the real space.
Push for a SSO. Who did What , Where ?
Regulating Code Code can make cyberspace more regulable
not perfectly regulable. Way of doing it are :
Regulating Architecture – London traffic problem , CALEA , Data retention, encryption
Regulating Code to increase regulability – digital ID
East Coast and West Coast codes. Z – theory – regulated internet ? Architecture is kind of a law for the internet
( privatized law)
Regulation by Code
How the architecture of the net will make it easier for traditional regulation to happen.
Cyberspaces The values of spaces – internet enabling the
otherwise “disabled” people. Cyber-Places : AOL, Counsel Connect,
LambdaMOO, .law.cyber, SecondLife – all these places have self- enforcing norms .
Places where community is not fully self-enforcing, norms are supplemented by rules imposed through code.
Regulating code to regulate better : Tapes ( Audio Home Recording Act), Televisions (V-chip)
Code can also function as an anti-regulatory mechanism : a tool to minimize costs of law that certain groups use to their advantage. ( circumvention technologies)
What things regulate
The key to a good policy in cyberspace is a proper mix of modalities.
Law can influence the norms, market and also the architecture to effectively regulate.
Law can use indirection to regulate – Reagen Adm Abortion advice through doctors.
The limits in open code More of life will be regulated through the self
conscious design of the space within which life happens.
Code based regulation risks making regulation invisible.
Carnivore program, e-ballots are examples of this.
PGP was the open solution that worked. Open code can regulate only if the code
writers can be regulated.
Latent Ambiguities
The ambiguity that forces us to choose between two very different conceptions of the value at stake.
Translation When faced with legal anomalies, the court turns to
the Constitution and translates appropriate clauses to fit and solve the confusion.
Non invasive searches are said to breach protection of privacy of the people as directed by the Fourth Amendment.
Constitution insists that the important political decisions are already made and all that is required is a kind of technical adjustment.
Translation leaves two open questions about how to proceed. Response is passive: Court lets the legislature
decide on matters that, to the framers, were “undebatable”.
Response is active : court finds a way to articulate constitutional values that were not present at the founding.
Intellectual Property Claim regarding trespass law on the net: the law
should grant “owners” of space in cyberspace no legal protection. They should fend for themselves.
Optimal protection for spaces in cyberspace is a mix between public law and private fences.
Demise of copyrights – improvements in duplication tech
Digital Millennium copyright act of 1998 – assumed the nature of cyberspace is anarchy.
Code can, and increasingly will, displace law as the primary defense of intellectual property.
Intellectual Property Limits on the protection of property – property
and contract cannot exist independent of the state.
Production of intellectual property can be at risk if there aren’t many laws protecting it.
Private substitutes for public law - let code protect.
Loss of fair use is a consequence of the perfection of trusted systems.
Cohen Theorem – There is a right to resist, or hack, trusted systems to the extent that they infringe on traditional fair use.
Problems that perfection makes – choices, anonymity and the commons
Privacy Internet will become a space where intellectual
property can be easily protected. Diff b/w privacy and copyright is the political
economy that seeks a solution to each problem. Privacy in private(personal space, home) vs
privacy in public(internet, searches, email, v-mail, voice, video etc).
Privacy in public : data – manipulation and equality are concerns.
Solutions : surveillance(conditions), data (PET and P3P )
Privacy is diminishable as compared to IP
Free Speech The architecture of the internet, as it is right now
is perhaps the most important model of free speech since the founding.
Regulators of speech Publication: Govt can regulate publishing of sensitive
material. But once the a story is out in the public, the regulation wont make sense.
Flipside to the freedom of speech on the net is data without credibility and no net neutrality.
Regulations of speech : cyberspace vs real space Spam :unsolicited commercial emails that are sent in
bulk Porn : Sexually explicit speech that is “harmful to
minors”.CDA and COPA. H2M tags is also another option
Free Speech Regulations of Free Speech :
Free Culture: There is no way to use digital information to any productive use without making a copy of it.
Any creative act reduced to a tangible form could be subject to the monopoly right of copyright.
The framers were never confronted with the option that copyright could control every single use of a creative work.
Distribution: regulating of broadcast mediums like radio, mobile telephony and television.
Wifi is an excellent example of an unregulated broadcast medium that leverages technology to an advantage.
Competing Sovereigns
As more move online, the claims of one sovereign to control speech or behavior will increasingly conflict with others
Sovereignty Sovereigns will try and regulate or control
behavior online Sovereign of the space :Rules
On spaces like MMOG’s code is the law. There are normative rules as well.
Sovereign of the space : Choosing Rules None of the worlds, has ever evolved institutions
of good govt. Anarchy reigns in all worlds. Citizenship in a sense did not always mean a right
to contribute to the self Govt of whatever community you were a citizen of.
In case of online communities, switching costs are higher which is an incentive for people to follow norms.
Competition among Sovereigns Conflicts include:
Protecting the French – prevent selling of Nazi paraphernalia
Protecting Hollywood: iCraveTV started streaming free tv Both the incidents above reflect reciprocal blindness
Cyberspace my increase the incidence of these conflicts
Possible resolutions : No law rule One law rule: one Govt dominates the world by enforcing
law Many Laws rule: Countries can collaborate to protect
local laws.
Responses
There are choices about how the network should evolve.We are not capable of making those choices
Problems we face Problems with courts
Codifying constitutions and transformative constitutions. Subject to political constraints that matter and fears
retaliation In LA- there are no founding commitments to preserve. Architecture on cyberspace embed political values(private) Framers had a very few architecture and couldn’t envision
the architectures that are the basis of the cyberspace today.
Problems with Legislators Although we believe there is a role for collective judgment,
we are repulsed by the idea of placing the design of something so important as the net into the hand of the Govt.
Lobbyists influence Govts regarding cyber laws If code is law, then who are the lawmakers ?
Responses From Judiciary – where translation is not so
simple, judges should kvetch. Ack that its not plainly resolved by the constitution.
From Code : movement from closed to open code is a move from regulable to less regulable. If rules are open then it attracts resistance from patrons.
From Democracy: Think from a global point of view. Reduce corruption. Thanks to tech, ill informed people simple repeat information as judgement.
Being libertarians could stop regulation of a certain form. It wont stop the bad regulation, probably the good.
Recommended