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Constitutionalist in Cyberspace, by Phil Leggiere

It was nearly a century ago
that historian Frederick Jackson Turner regretfully announced the closing of the America's geographical frontier. Yet the idea of the frontier, as he'd probably be happy to know, has remained very much alive -- inspired in our era primarily by new technological revolutions.
   Indeed, the newest and vastest of our technological frontiers, the Internet, given the name cyberspace by novelist William Gibson, is a realm that brings to mind for many the wilderness Turner celebrated. Like Turner's frontier, "the meeting point between savagery and civilization," cyberspace is filled with a strange mix of pioneers, visionaries, utopians, inventors, explorers, prospectors, speculators, crackpots, flesh-peddlers, and outlaws.
   Ironically enough, even though the Net is a creation of the government (the Defense Department, to be exact) the settlers of cyberspace, like many pioneers before them, are animated by a rampant hostility toward governmental intervention in their newfound (virtual) land. In the words of one of the most influential of the digerati, author John Perry Barlow, "Governments derive their just powers from the consent of the governed. You (The Federal Government) have neither solicited nor received ours. We did not invite you, nor do you know our world. Cyberspace does not lie within your borders. It is an act of nature and it grows itself."
   That "Don't Tread on Me" spirit is more than mere rhetoric. When in 1995 Congress passed the ill-fated Communications Decency Act (later struck down by the Supreme Court), which, in the name of protecting children against indecency, would have made it a crime for an adult to send a text file of the works of Chaucer to a high-school senior, the move quickly spawned an opposition that has been called the largest free-speech movement in a generation.
   Lawrence Lessig, W'83, Constitutional scholar and Harvard University law professor, long-time Internet enthusiast, and nationally regarded expert in law and information technology, was a vigorous supporter of the anti-CDA movement, speaking out publicly against the law. In addition, the 37-year-old Lessig, who has been called "one of the most brilliant legal minds of his generation" by The Washington Post, says he "abhors" most of the attempts by the government so far to regulate the Net. When it comes to thinking about policies for the future of the new medium, however, Lessig believes the "naive libertarianism" of his compatriots is all wet.
   "The real danger to freedom on the Net," he insists, "is not so much government regulation, as it is ignorance about how power, private power, as well as public" actually is exercised in this new medium. "People, in their single-minded obsession with government, are ignoring the ways in which the Net is already being regulated" by the laws of the market and by what Lessig calls the "architecture or code" of software, which truly shapes social existence on the Net, often without accountability to Constitutional values.
   As an example of how seemingly innocuous privately designed "code" has the potential to be far more tyrannical than public law, Lessig offers Platform for Internet Content Selection (PICS), a tool for filtering objectionable content on the Web that is being touted by many activists and civil-liberties groups as a "private, market-oriented" alternative to government regulation of Net speech.
   "PICS is presented as a harmless tool allowing parents to filter Net material to protect their children from things they don't want them to see," says Lessig. "In reality, though, it's much more, and much more diabolical, than that. PICS is not a mere filtering technology, it's a labeling standard which allows filtering to be imposed on any level of the distribution chain, whether it's a home, a library, a company, an Internet service provider (ISP) or a state, for any kind of content." From a free-speech point of view, Lessig believes, an architecture like PICS, hidden from public accountability, can be far more dangerous than direct government regulation. Yet through their knee-jerk belief in the superiority of "private" solutions to government intervention, Lessig complains, many Net activists continue to miss the big picture.
   To clear up these blindspots, Lessig has been tireless over the past two years in addressing both arcane and practical issues of Net governance wherever he can, engaging in dialogue and debate with all different factions, from "Hands Off the Net" libertarians to Internet industry heavyweights to legislators. According to David Post, professor of law at Temple University and co-chair of the Cyberspace Law Institute, "Larry holds a unique position in cyberspace law. He's one of the few people around who's respected both in scholarly legal circles and among the wider public outside the field. I think he's been invaluable in focusing public attention on legal issues at stake on the Net."

Continued...
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