The tyranny of code

• By Bruce McConnell
• Feb 18, 2001

Those who believe they can correctly predict the architecture of cyberspace are usually wrong. As Bill Gates said, "We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next 10."

Now comes one of the brightest intellects in cyberspace with a bold, chilling argument that the Internet will inevitably become a powerful tool of control in the hands of business and government. Does he see clearly into the future?

In his book, "Code and Other Laws of Cyberspace" (code-is-law.org), Stanford law professor Lawrence Les-sig begins by arguing that code — the software and hardware that make cyberspace what it is — defines what people can do on the Net. In other words, the Net's architecture makes behavior possible — or impossible.

Lessig acknowledges that the code that has defined the Net to date has created an "architecture of liberty." How-ever, he is concerned that future code will create architectures of centralized control that will unduly limit individual choices about what we can read, do or say anonymously in cyberspace.

The principal forces driving this change are said to be the commercialization of code writing and the inevitable consolidation of the information technology marketplace into "a small number of large companies," aided and abetted by government's desire to regulate the Net. Lessig argues that business and government will require everyone on the Net to be clearly identified and have their actions tracked. Free information, free speech and relative anonymity will disappear. Code must be subjected to collective political decision-making.

I agree with Lessig that application design defines functionality. I also agree that society needs to make explicit value choices about privacy, intellectual property protection and security in cyberspace, and that the Net's design needs to support those values. But I do not see the deck stacked in favor of crass commercial interests.

My views are closer to those of Temple University law associate professor David Post. His critique, "What Larry Doesn't Get: Code, Law and Liberty in Cyberspace" (www.temple.edu/law school/dpost/Code.pdf), takes on Lessig with the argument that economic forces will not inevitably produce an oligopoly of providers. I agree. For me, Linux is a vital example of the Net's continued free energy. But Post, as a libertarian, goes further, arguing that the market is a better means of expressing collective values than politics. This is not my view.

Governance of the Net must come from partnerships among governments (today the best, if imperfect, expressions of popular will), companies (the most efficient means of communicating economic choices) and the independent sector (voluntary associations and the press). In the years ahead, we'll continue to struggle with how to create those partnerships and to find ways to use the Net to support them.

McConnell, former chief of information policy and technology at the Office of Management and Budget, is president of McConnell International LLC (www.mcconnellinternational.com).