Peter Timusk

Not bibliography not included.

e-mail: ptimusk@sympatico.ca

For LAWS 3501; Law in the Information Society

Due February 10^th, 2003.

The key point Lessig makes in chapter one of Code is that codes regulate behaviour. He begins to draw out the distinction between software code or cyberspace architecture and legal code. Until recently, governments used legal code alone to regulate the behaviour of citizens. Lessig goes on to argue throughout his book that governments should regulate through the use of computer code as well.

Boyle looks at the statement that the information society is nothing new but he doesn't accept this as anything but a fair opinion. Following his lead let us look at the basic system of counting and modern computing. John Von Neumann was one of the inventors of the modern computer. In John Von Neumann's incomplete but published Silliman lecture he first starts by describing how an analogue computer called a Differential Analyzer does the four basic arithmetic operations. He then describes a digital computer doing this basic arithmetic, but does not go into the extreme complexity needed in this explanation. But he lets us know it is indeed complex. So, in Boyles' sense of nothing new but a great leap in degree of information use, the basic architecture of a computer, the Von Neumann architecture with stored memory, is nothing new in terms of things humans make. But, as Lessig argues in chapter 14 of Code about the extent of acting in spaces outside of the local, the Von Neumann Architecture is different in degree from basic arithmetic. This is also why Boyle does not totally agree there is nothing new here. It is this complexity that creates an information society and obscures the legal view of the computer.

What were the first human writings with numbers? They were accounts of merchants trading in the Middle East. These were information systems. Computer networking too is not so recent and has been around or known of since the 1950's, almost as soon as, computers were on the scene. Governments are learning to regulate networks as Lessig point out in chapter 5 of Code. With the Communications Assistance for Law Enforcement Act of 1994 the US government regulated the phone network. In history governments learned to regulate trade. They learned to regulate accounting and to do it themselves. They learned to tax trade. Also governments learned to allow free markets. Many of the codes government uses in trade allow for accountability, in fact insist on it, and many of these regulations and taxes such as tax codes use basic arithmetic.

Both Lessig and Boyle argue that government is using a round about way to get enforcement or public policy done within cyberspace. In using the clipper chip the government is using private enterprise to enforce the law. Computer security tools, as well as, software tools for censorship are a developed product of the private computer industry. Computer security firms serving e-commerce are taking a load off of government enforcement. At the same time Lessig argues the use of the Internet for commerce will allow tracing of users and accountability of users that government can then use for surveillance and control. The Internet is no longer un-regulatible is one of Lessig's key arguments. Boyle also looks at this in his paper Foucault in Cyberspace. We need to take a hard look to see if this is the Internet we want or if we want to preserve the old "free" Internet as Lessig argues.

Lessig greatly simplifies the story of the hacker and who they were before the government vilification of hackers. He does not show the hacker for the complexity and individuality the hacker is, as such, he misses making a more powerful point in his thesis.

I was a programmer in the late 1970's. I was also a hacker. I had no hacker community. I was self-regulating through my fear of law enforcement. As Lessig describes subjective constraints in his appendix, the existence of the subjective constraint against hacking keeps me from hacking/cracking these days. Back then I stole access to a University student computer club account. Security of computers was not my concern at all. Lessig in my case gets it all wrong. Back then there was no law against this but I was concerned as a typical Canadian obeying most laws not to get caught for stealing computer time. As such my use of stolen accounts bothered me. I was terrified of being caught. So I was constructive with my use of these accounts. I uploaded software that is Basic language programs that would help first year students solve problems in their lab reports. But I did not advertise these programs. I did not sell them. I merely labeled them in the file system using the course code and lab number. I also used them to solve my own first year lab problems and then let my classmates know not specifically about the programs and how to find them, but I let them know that the future science would use computers to do the work. I used basic arithmetic in these programs.

So, while Lessig covers "the security flaw finding" justification of hacking, he does not cover "the just learning and exploring" justification of the hacker. I use this same "just learning and exploring" ethic now to publish almost all schoolwork I do to the web site I maintain at www.crystalcomputing.net and at www.ncf.ca/~at571, Web Page X. This exploring and learning in cyberspace is now legal and this is what cyberspace lets me do. Self-publishing of essays, computer software, photographs, not withstanding pornography, is actually a large part of the cyberspace, that I think, Lessig wishes to protect.

Lessig also, I believe, wants to protect the cyber commons. The cyber commons I define as that cyberspace like chat and Usenet where debates go on. This commons allows debate of ideas and what lawyer is not going to support debating? Throughout his book Lessig encourages that we consider the values that the architecture of cyberspace is creating. He believes that the values of free speech and anonymity are being exported from the USA with the exporting of the Internet. He fears that the Internet will develop without the discussions and choices of the people who use it. I think he fears the development of something like mass media's one to many broadcasting occurring on the Internet, where I think he and certainly I believe the true beauty of the Internet lies in it's many to many broadcasting abilities.

I think Lessig is a powerful writer. He has taken a computer ethics finding: that software code is not value free, and then had a good look at what this means for software, commerce and governance. He has been very perceptive of what current trends might mean.

End Notes