Larry Lessig wrote the epic Code and Other Laws of Cyberspace ten years ago. Cato is marking the anniversary with a debate at Cato Unbound. Declan McCullagh’s lead essay is here. My response is here, and below.  

OK, enough with who doesn’t get what. The arguments over cyberlibertarianism sparked by the release of Code aren’t due to gaping ignorance or even dueling ideologies. They’re more about emphasis. It didn’t have to be that way: there’s a separate, straightforward anti-libertarian case that lots of people would want to make for increased government policing of the Internet because of the bad things that can and do take place on it. This week’s example is the “Craigslist killer,” who assaulted people he met through that site. In his wake, several U.S. state attorneys general are pressuring Craigslist to shut down its “erotic services” section. There are hundreds of others of examples, not least of which have been the various efforts by the music industry to shut down peer-to-peer technologies and sue users who share copyrighted songs without permission.

The debate between Larry and the libertarians is more subtle. Larry says: I’m with you on the aim – I want to maintain a free Internet, defined roughly as one in which bits can move between people without much scrutiny by the authorities or gatekeeping by private entities. Code’s argument was and is that this state of freedom isn’t self-perpetuating. Sooner or later government will wake up to the possibilities of regulation through code, and where it makes sense to regulate that way, we might give way – especially if it forestalls broader interventions. So, for example, Larry has favored government incentives to private bounty hunters to track down spammers. Declan’s been skeptical, but more because he thinks it won’t work very well. His preferred alternatives are technical measures and … suing spammers. Which, if it’s allowed, seems like another way of saying: a bounty awarded by the state to those who step forward with evidence against the bad guys.

So where do they differ the most? As Declan points out, Lessig sees value in having democratic political systems shape and ratify our technological choices, while the cyberlibertarian might just as soon let chance (which is to say, the market) take its course. On technologies that might allow people to bypass government regulation of content, Larry says (p. 309):

Of course, my view is that citizens of any democracy should have the freedom to choose what speech they consume. But I would prefer they earn that freedom by demanding it through democratic means than that a technological trick give it to them for free. … If a restriction on liberty is resented by a people, let the people mobilize to remove it.

My guess is that the cyberlibertarian figures the freedom to choose content is worth securing by any means available, and that such freedoms shouldn’t have to be “earned” on a regular basis – that’s what a Bill of Rights is for. But by de-emphasizing the role of government – either because it’s thought to be comparatively powerless on a global Internet (as John Perry Barlow’s stirring Declaration of the Independence of Cyberspace had it in 1996, and to which Code was in part a response) or because it’s thought to be poor at achieving one’s desired outcomes (as Declan’s opener here suggests) – we take on certain risks.

The first risk is that government won’t stay powerless. For example, Code raised the possibility of a “zoned” Internet, one where your location would greatly define what you can and can’t do. If you’re in China or one of dozens of other states, there are Web sites you can’t access – and increasingly the sites themselves are cooperating with such restrictions. Thailand blocks all of YouTube over videos that mock its king, and then to earn an unblocking, YouTube cooperates with the government to help prevent those videos from reaching Thai citizens – while still available to everyone else. That some people with enough technical skill and determination can evade these blocks doesn’t do much for the vast majority who shrug and move on to other, safer content.

The second risk is that abandonment of the political arena in favor of technical means to achieve liberty cedes too much. Larry is under few illusions about how easy it is for the voices of regular citizens to be heard even by democratic governments – this is the guy who announced he would shift his intellectual efforts away from cyberlaw and towards confronting the perfectly legal corruption that has broken our political system, where the flow of even modest amounts of money results in poor and even reckless policies. Here, too, though, the differences are smaller than they might appear, since, as Declan points out, cyberlibertarians are among the first to critique bad policy proposals. (That they may be inclined to think that all policy proposals are likely bad doesn’t have to matter.) But if skepticism slides to a confident disengagement, decisions emanating from the political arena have fewer checks on them, the public at large isn’t exposed to libertarian arguments, and the means of intervening in people’s activities can be through the very companies in whom Declan places his trust.

That’s where I worry about today’s emerging technology environment. It may feel free and diverse and responsive to consumers – I too love the iPhone and Kindle and cloud app platforms like that of Facebook. But these platforms are constructed to privilege their vendors in deciding what code will run on them. I think we can get locked into these platforms as we (rightly, unfortunately) fear the wildness of the open Internet and general purpose PC, and as we shift and accumulate more and more of our data and relationships there. After the markets coalesce to these tamer gated communities, governments can later come along and insist that these platforms be tuned towards surveillance and control, far more successfully than the wilder Internet that preceded them. Thus, as Declan once broke the story, cell phone mics
can be used as eavesdropping tools. Our car GPS systems can be made to quietly relay everything said in the car to the authorities. And the appliances we buy for our homes can be disabled at a distance if they’re later found to be contraband. This is the future of the Internet that I want to stop, and it’s small solace that geeks can avoid it for themselves if they can’t easily bring everyone else with them.

Market-driven firms that respond to consumer demand and democratic governments that respond to voters (and campaign contributions) are not the only way to reflect our aspirations. What has made the Internet special is that it is a civic technology. By “civic” I mean its success has depended on an astounding amount of goodwill and cooperation, phenomena not completely accounted for by markets and regulations. Routers help get data to its destination by sharing what they know about what’s nearby with other routers. If just one participant in this dance chooses to lie – as one Pakistani ISP did about YouTube’s address in an attempt to filter YouTube in that country – the entire system can unravel. In that case, YouTube ended up blocked around the world. What brought it back was not anything Google or YouTube did, but quick reaction by mid-level employees at ISPs who themselves informally share information about the Internet’s health on obscure lists like NANOG.

So, too, has Wikipedia succeeded as a civic technology: it has more editors cooperating to deal with vandalism and other problems than there are people (and bots) creating them. Moreover, Wikipedia licenses all its content so that anyone can walk away with a copy of the whole encyclopedia and start a competing one at any time. Those who see Wikipedia governance as corrupt can take everyone’s ball and start anew. These enterprises are not only made possible by civic arrangements among strangers, but they give hope that people can come together for civic purposes in realspace, at a time when our social fabric is fraying. I look to projects like the unlikely CouchSurfing, or the revival of hitchhiking through, yes, Craigslist (wisely called “ride sharing” instead), as ways in which technology can cultivate new social connections. As they become more popular, they will need to continually evolve civic defense tech and social practices to deal with the bad actors who inevitably show up. These practices aren’t exactly “market” since they don’t involve the exchange of cash – rather it’s the mutual reinforcement and implementation of goodwill.

In that sense, I get the limitations both of traditional regulation and of the classical firm-based market in producing some of the platforms we’ve come to hold dear, and in dealing with some of the problems that come up within them. That’s why I’m part of efforts to forge technologies that can help a critical mass of people contribute to some of the Net’s most pressing problems. Civic technologies seek to integrate a respect for individual freedom and action with the power of cooperation. Too often libertarians focus solely on personal freedoms rather than the serious responsibilities we can undertake together to help retain them, while others turn too soon to government regulation to preserve our values. I don’t think .gov and .com never work. I just think we too easily underestimate the possibilities of .org – the roles we can play as netizens rather than merely as voters or consumers.

–Jonathan Zittrain