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Building Legal Institutions for Information Technology


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Review of the book Code and Other laws of Cyberspace Version 2.0 Lawrence Lessig

Review of the book Code and Other laws of Cyberspace Version 2.0 Lawrence Lessig

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    • 1. Review: Code and Other laws of Cyberspace Version 2.0 Lawrence Lessig Building Legal Institutions for Information Technology: Defining the Intellectual Commons
    • 2. Structure
      • Internet Regulability
      • Importance of Code in making the internet regulable
      • Latent Ambiguities in our commitments to fundamental values due to the changes in technology.
      • Mapping the above conflict to Jurisdiction
      • Making choices that will affect fundamentally what values are built into the network.
    • 3. 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
    • 4. 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 .
    • 5.
      • 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 ?
    • 6. 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.
    • 7. Regulability
    • 8. 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 ?
    • 9. 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)
    • 10. Regulation by Code How the architecture of the net will make it easier for traditional regulation to happen.
    • 11. 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)
    • 12. What things regulate The key to a good policy in cyberspace is a proper mix of modalities.
    • 13.
      • 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.
    • 14. 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.
    • 15. Latent Ambiguities The ambiguity that forces us to choose between two very different conceptions of the value at stake.
    • 16. 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.
    • 17. 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.
    • 18. 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
    • 19. 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
    • 20. 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
    • 21. 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.
    • 22. Competing Sovereigns As more move online, the claims of one sovereign to control speech or behavior will increasingly conflict with others
    • 23. 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.
    • 24. 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.
    • 25. Responses There are choices about how the network should evolve. We are not capable of making those choices
    • 26. 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 ?
    • 27. 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.