Constitutionalist in Cyberspace (continued)
More
than once, this process has involved telling audiences -- opinionated
and powerful ones -- things theyıd prefer not to hear.
For instance, at the New York New Media Association
conference last June, attended by Clinton administration Internet policy
guru Ira Magaziner and cyber-pundit Esther Dyson, Lessig publicly hammered
the Clinton administrationıs strategy of using private non-governmental
agencies to set Internet copyright and domain name policy, charging that
such privatized approaches to regulation would leave ³the biggest new
jurisdictional territory since the Louisiana Purchase² operating outside
any public accountability. Last August, Lessig made the unpopular case
for government regulation of the architecture of cyberspace before the
conservative free-market-oriented Progress and Freedom Foundationıs annual
forum in Aspen, Colorado, where heıd been invited as keynote speaker.
Such heresies have made Lessig a lightning rod of controversy
among some movers and shakers of the cyber-world. John Perry Barlow, after
describing Lessig at the Progress and Freedom Foundation forum as ³the
ultimate quick red fox. The most clever thinker in Internet law, with
a profound grasp of technical issues,² complained that, as a stalking
horse for big government, ³Larry wants to make cyberspace safe for law,
while I want to keep law out of cyberspace.²
Not everyone opposed to government regulation agrees
with this interpretation of Lessigıs motives, however. Jeff Eisenach,
the Foundationıs president, says, ³I regard Larry as one of the most creative
thinkers involved in Internet issues. What I hear him calling for is not
so much more or bigger government, but a more nuanced, thoughtful approach
to what role government should play in cyberspace.²
The studious, soft-spoken Lessig is an unlikely activist.
³Iım really happiest in the Ivory Tower,² he admits, surrounded by tomes
of Constitutional theory, his greatest love, and philosophy. Despite his
hectic schedule, Lessig maintains a full academic teaching load at Harvard,
leading courses in subjects such as Contracts, High Tech Entrepreneurship,
and The Civil War Amendments. ³Polemic and politics will never have the
appeal for me of studying and teaching,² he says. Fate and circumstance,
though, have conspired more and more to keep him away from his study.
These days, like it or not, Lessig finds himself uneasily dividing his
time between the Ivory Tower and the front lines of debate.
Lessigıs rendezvous with intellectual celebrity began
in December 1997, when U.S. District Judge Thomas Penfield Jackson appointed
him a ³special master² in the Justice Departmentıs anti-trust case against
Microsoft, a move that quickly propelled him into a hornetıs nest of controversy
for several months in early 1998. Originally chosen by Jackson to use
his extensive computer knowledge to help interpret the technical details
of the case into a legal context, his appointment was fought tooth and
nail by Microsoft, which, based on its interpretation of some of his published
writings and private e-mails, viewed him as biased against Microsoft in
particular and Big Business in general. Though Microsoftıs bias charges
were rejected, the U.S. Court of Appeals for the District of Columbia
removed Lessig from the case by eliminating the role of special master,
arguing that it would have made Lessig in effect a surrogate judge.
While Lessig wonıt speak publicly about the details
of the case, which are still being debated in the courts, he does make
it clear that his views on anti-trust are far from rigid, admitting that
he finds anti-trust law in the Information Age a very ambiguous matter
at this stage. ³In the early 20th century,² he explains, ³the motivation
of people like Louis Brandeis, Felix Frankfurter, and others was that
bigness is bad. Somewhere along the line, by the time of the Chicago School,
the model changed to efficiency is good.ı The relationship between size
and efficiency in the context of the Internet is, at this early stage,
very unclear. No oneıs got a real gauge on how to reconcile those two
issues.² He finds the arch-free-marketer Robert Borkıs emergence as a
defender of the Department of Justiceıs suit (a move that puts Bork in
the same camp with Ralph Nader) the most delicious irony of the case --
as well as a testimony to current confusion.
Though Lessigıs rise to the public limelight was swift,
the intellectual odyssey behind his involvement in Internet issues was
many years in the making. It involved the convergence of two obsessions,
computers and the constitution, which had shaped his development since
college. ³Iıve been hacking around with computers for a long time,² he
recalls. ³In college, I got one of the early IBM PCs and helped set up
accounts for Sigma Chi fraternity.²
After graduating from Penn, Lessig studied philosophy
at Trinity College, and later, in 1989, graduated from Yale Law School.
A self-described liberal, he clerked for two of Americaıs foremost conservative
judges, the Supreme Courtıs Antonin Scalia, who was fascinated by Lessigıs
computer savvy, and Richard Posner of the 7th U.S. Circuit Court of Appeals,
who, Lessig says, ³liked having someone to argue with.² He then moved
to the University of Chicago, where as a young professor of Constitutional
Law, he distinguished himself as one of the founding lights of a burgeoning
legal approach now called the New Chicago School, a theoretical movement
which has informed his thinking on cyberspace law.
³The New Chicago School,² Lessig explains, ³has several
aspects, some very technical. Most broadly, itıs about finding a way to
systematically talk about the different things that regulate conduct and
social behavior. Law is one of them, but there are other hidden ways in
which people are regulated. Markets regulate, social norms regulate, and,
especially in the world of technology but in the world of nature as well,
codes regulate.² As a mundane example, Lessig cites driving speeds. A
law prohibiting speeding is one way to regulate. Speeding, however, can
also be regulated by changing social norms, by educating communities about
its dangers. Another way to regulate is through the architectural code
of the road, using speed bumps.
Lessigıs decision to focus on Internet law was the result
of an accidental ³epiphany² he had back in December 1993. ³I was reading
an article in The Village Voice called A Rape in Cyberspace,ı²
he remembers, ³right after Iıd been reading Only Words by Catherine
McKinnon, a very dramatic book about the harm caused by pornography. Itıs
hard to think of an odder ideological mix than McKinnon and the Voice.
Itıs oil and water. McKinnon, an anti-porn activist, the Voice
the epitome of First Amendment ultra-liberal absolutism. Yet, at one point
the Voice author, Julian Dibbell, admitted that the purely verbal
assault he was reporting on cyberspace was, indeed, rape. He admitted
that, despite his earlier beliefs, words could cause real harm.
³It was an amazing revelation,² Lessig concludes. ³I
realized that if cyberspace could get McKinnon and the Voice to
agree on anything, it had an amazing power to knock people off their usual
political bearings. To force them to look at old issues anew. That excited
me immediately.²
Continued...
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