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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 Œefficiency 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 ŒA 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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