Code is Law or the Legal System of the Internet

Throughout this whole academic year, we have been talking about technology, its uses, its abuses, the power differentials it promotes or conceals, the possibilities it affords and the dangers it belies. We have been lifted up high by utopian accounts just to be brought back down by more cynical ones. What all them, however, have in common is the notion that technology, particularly the Internet, is a somewhat special place, alternative reality if you will, where new rules, new identities, new collaborations, new societies, and new possibilities can arise, often times in contradiction to the established order offline.

Zittrain’s book is no exception. I did leave me with the feeling that Internet is that other world, in which things do and can happen. At the same time, his account posed some very interesting questions regarding the legal system of that world.

Referring to Lessig and Reidenberg, Zittrain stated that “code could be law.” In fact, it might as well be. A careful observer can very quickly conclude that all of our online interactions are subject to the algorithms written by the creators of whatever software we use. In a sense, we are not free to act as we please. Unless… we know how to code… At the same time, there are people and structures invested in impeding our ability to code freely… they assert their own power and control. Consequently, it begins to look like, programers are the lawmakers of the Internet.

With this in mind, we can speculate that code is law in at least two different ways: 1) code is the law of online social conduct. It dictates the order of our operations to an particular extent. 2) Code is law in a legal way. It tracks our moves and delivers data to appropriate parties, enforcing the legal system of the offline world within its online counterpart. This status of code as law is further reinforced by the massive adaptation of software control over human lives. And IBM’s Smart Cities is a great example of that movement.

As I read this week’s material, I began to think about the following: to what extent traditional legal concepts, such as freedom of speech, reasonable privacy expectations, etc. apply to online interactions and how do we begin to think about them in a way that is both safe and productive? Do the reasonable expectation of privacy in my home and expectation of privacy online mean the same things? Does being in my home connected to a computer and engaged in a public forum change the way my privacy is defined at the moment? Can trespassing happen online or does it require physical presence? Is stalking online equally illegal and dangerous than stalking offline?

So I guess my big question to you is Does the future of the internet holds in it the re-imagining of our rights, laws, and the way our legal system is structured and if yes, who are the lawmakers?

One thought on “Code is Law or the Legal System of the Internet

  1. Pamela Thielman (she/her)

    I think that you really get to the heart of the matter when you ask, “who are the lawmakers?” because at this point it seems clear that it is not actually the people to whom we have traditionally ceded that responsibility in this country. The internet has, I would argue, irrevocably changed our notions of space (online trespassing or harassment are no less real for being disembodied), privacy (what happens on Facebook does not stay on Facebook), and property (if you have to “jailbreak” a device you don’t really own it). The law has been slow to adapt to these changes so our behaviors have been shaped by all kinds of other forces, as Zittrain in particular points out. I think that should be a real concern. Not that coders (or companies, or industries, etc.) are necessarily pursuing some nefarious agenda, but they do not have an explicit responsibility to the public in the way that government legislators do.

    Comment Tags: code, law

Comments are closed.