The Net's New Enclosures

_Code and Other Laws of Cyberspace_, Lawrence Lessig.
New York:  Basic Books, 1999.  Pp. xii + 297.  US$30.
ISBN 0-465-03912-X

Historians will identify the principle juridico-political trend
of the last and next few decades as a period of new enclosure
laws, this time governing *intellectual* property.  On the one
hand, corporatist states--and supra-state entities--have overseen
a huge transfer of wealth from poor to rich, and more
specifically, from individuals to corporations.  On the other
hand, an even more profound change is underway in defining more
and more previously unincorporated domains under the legal aegis
of property and capitalist exchange.  Property used to cover the
realm of things; but increasingly, it is *facts* that are the
most socially important form of property.  Few radicals and
philosophers imagined even a few years ago that a human
individual's name, genetic sequence, shopping preferences,
psychiatric profile, and appearance would be forms of capitalist
property; fewer still imagined that these "properties" would be
consistently wrested from the persons they compose and vested in
the coffers of corporations, as proprietary assets.  Imagine
being sued or arrested for unauthorized use of your own
chromosomes (e.g. in seeking treatment for a disease) or of your
own image or name.  This is not far off.  Even in a more
traditional domain, fair use is shrinking rapidly, while
exclusive "rights" are expanding in both breadth and length.
Imagine in this case that you are able to read books only on a
page-metered basis, and with the copyright owner collecting
details on each page turn, as well as a comprehensive background
on all the other books you have read.  This is also not far in
the future (at least as technological potential).

Lawrence Lessig is not a radical, and he is not a philosopher; at
least neither strictu sensu.  By politics, I suspect he is
basically a Millean libertarian; and by trade he is a law
professor.  But his book is extremely important for radical
philosophers to read; Lessig's is one of the first books
intelligently to address significant aspects of the new enclosure
movement (not by that name, however).  The area addressed by
Lessig is the increasingly important part of our lives that is
sometimes called 'cyberspace':  the nexus of computational,
storage, and communications technologies that are coming to
regulate and determine much of our lives.  While cyberspace may
not include everything in the aformentioned IP enclosure
movement, its technologies are clearly one driving force.

Lessig's book is, in a certain sense, a manifesto.  Its call is
to treat cyberspace, in its underlying architecture, as a subject
for informed democratic discussion--and potentially of legal
regulation.  Whether or not we, collectively, make the decisions
on how to regulate cyberspace, it will inevitably regulate us:

    This regulator is code--or more generally, the "built
    environment" of social life, its architecture.  And if in the
    middle of the nineteenth century it was norms that threatened
    liberty, and at the start of the twentieth state power that
    threatened liberty, and during much of the middle of the
    twentieth the market that threatened liberty, my argument is
    that ... into the twenty-first, it is a different
    regulator--code--that should be our concern.  (p.86)

The mistake made by most previous discussants about cyberspace is
to treat cyberspace as a given--either a given of technological
potentials, or a given of free-market inevitabilities.  Lessig
argues, quite correctly, that what cyberspace *is* is not what it
*must* be, and what it will become is up to us collectively (but
only if we collectively make decisions about what happens).
Cyberspace is not a fact of nature, but a fact of technology.
And these facts are ones that are going to make deep differences
to the way all of us live are lives, in relation to important
issues such as privacy, economic life, and our ability to
participate in the decisions that affect us.  However, the facts
of cyberspace are now being made primarily by commercial
interests with no democratic accountability.  In relation to
privacy and liberty,

    Some architectures make behavior more regulable; other
    architectures make behavior less regulable.  These
    architectures are displacing architectures of liberty....
    the why is commerce, and the how is through architectures
    that enable identification to enable commerce. (p.30)


    With a robust PKI [public-key infrastructure], the
    possibilities for identification become extraordinary.
    Individuals could carry certificates that authenticate any
    number of facts about themselves--who they are; personal
    attributes (age, citizenship, sex, marital status, sexual
    orientation, HIV status); professional credentials (college
    degrees, bar certification, and so on). (p.38)

'Could' need not imply 'must', but such is the fear that Lessig
and I share:

    The truth, I suspect, is that the [free-market ideologists]
    will win--at least for now.  We will treat code-based
    environmental disasters--like Y2K, like the loss of privacy,
    like the censorship of filters, like the disappearance of an
    intellectual commons--as if they were produced by gods, not
    by Man. We will watch as important aspects of privacy and
    free speech are erased by the emerging architecture of the
    panopticon, and we will speak, like modern Jeffersons, about
    nature making it so--forgetting that here, we are nature.  We
    will in many domains of our social life come to see the Net
    as the product of something alien--something we cannot direct
    because we cannot direct anything.  Something instead that we
    must simply accept, as it invades and transforms our lives.

There is a lot more to Lessig's book than the warnings and
proclamations briefly presented here, moreover.  Lessig provides
both a good basic discussion of cyberspace technologies (for a
non-technical audience), and an excellent discussion of US
jurisprudence as it relates to the issues discussed.  Futher,
Lessig gives us an awfully good sense of why this all is going to
matter so much.  Tempering the realistic pessimism of current
trends, Lessig provides some insightful suggestions for how
judges and legislatures (and ultimately, we the represented)
ought to do their jobs in manners that can preserve the values
and traditions of democracy, rather than sacrifice these
traditions to the altars of commerce and technology.

                                                    DAVID MERTZ
                                                Gnosis Software


David Mertz is professionally peripatetic.  The new economy pays
him quite a lot more to construct architectures of cyberspace
than for academic ideology-building.  His writings and
interventions also wander.