Constitutionalist in Cyberspace (continued)

   For Lessig, the dislocations provoked by the new medium promised to be a profound challenge to the Constitutional tradition, and, he hoped, a spur to new creativity. His professional preoccupation ever since has been to chart out new directions. In this endeavor, he's been guided above all by the spirit of another legal thinker who grappled in the early 20th century with a world also in the throes of technological and social transformation -- the legendary Supreme Court Justice Louis Brandeis. "If there is a Justice who deserves the Cyberworld's praise it is this Justice," Lessig wrote two years ago in his influential article "Reading the Constitution in Cyberspace," praising Brandeis's famous opinion in Olmstead vs. The United States (1928) that the meaning of the Fourth Amendment, originally intended to limit trespass on one's physical property, should in the era of the telephone be extended to protect individuals against unauthorized wiretapping.
   Lessig believes Brandeis's method of translating the original values of the Constitution into new contexts created by technological change is one which should inspire new legal thinking about cyberspace. "Unlike Originalists, who believe that fidelity requires doing just what the framers would have done," he has written, "the translator understands that to preserve meaning across contexts, one must change readings across contexts."
   Between his teaching schedule and stints on the road, Lessig is trying to find the time to synthesize his ideas in a book, tentatively entitled Code and the Law of Cyberspace. "One big theme of the book is that we need to get people to stop thinking about regulation as if it's only something the government does. We need to start thinking about regulation in the sense that the architecture of the Internet regulates," he says. "The Constitution has yet to catch up with this shift, to develop a way to express Constitutional values in the context of indirect regulation. Code becomes a sovereign power all its own in cyberspace. But the question is: Who authorizes this sovereignty and with what legitimacy?"
   As an example of successful indirect regulation of code, Lessig cites Congress's recent decision to regulate the code of compact-disc sound reproduction via digital audiotape. By requiring producers to install a chip that monitors the number of copies made of any particular tape, Lessig believes, Congress balances protection of CD-makers' copyrights, by effectively prohibiting wholesale digital reproduction, with the consumer's fair-use rights to make personal copies.
   In the book Lessig hopes to explore what light such a regulation-by-code approach might shed on Internet topics ranging from encryption and privacy issues to free speech, intellectual property rights, and the conflict between commercial and public use of the medium. One thing such regulation should not mean, he insists, is the government putting itself in the "absurd" position of trying to write code. What it likely would involve is the "government pressing to insure that codewriters build structures that foster basic Constitutional values and resisting those that don't."
   Once the book is published, Lessig hopes to retreat for a while from public controversy and return to a more private existence. He acknowledges that that might be easier said than done, however. As the issues to which he's devoted his professional life become the subject of crucial political and judicial decision-making over the next several years, it's hard to imagine Lessig not playing a major public role.
 

  Phil Leggiere, C'79, has written for Wired, the on-line magazine Salon, and many other publications. He lives in Hoboken, N.J.

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