D. The Birth of Cyberlaw

Thomas Streeter

13 December 2010

D. The Birth of Cyberlaw

¶ 1 Leave a comment on paragraph 1 0 Lawrence Lessig was at the time a promising assistant professor of law at the University of Chicago. He had published a series of articles on problems of Constitutional interpretation that demonstrated a solid awareness of the gnawing dilemmas of legal interpretation foregrounded by Critical Legal Studies, but an unwillingness to accept the fatalism the position suggested. His first law journal publication, for example, was a comparison and contrast between the theories of legal moderate Bruce Ackerman and those of the thundering neo-Hegelian star of the Critical Legal Studies movement, Roberto Unger.[30] Lessig argued that the two approaches were less distant from one another than was commonly assumed, which put him in the position of both young turk―each scholar and their followers were wrong about something―and moderate―the divisions were not as pronounced as most thought, and in the polarized legal academy of the day being a moderate could actually appear as iconoclastic.[31] And, as the 1990s progressed, Lessig published a series of scholarly articles that showed a keen interest in and grasp of the role of first principles and underlying assumptions in legal debate, while also maintaining a conviction that the law could be made to make sense, to live up to its promises; the law could work.

¶ 2 Leave a comment on paragraph 2 0 In the manner of Critical Legal Studies, Lessig regularly pointed to the weaknesses of the assumptions underlying various philosophies of jurisprudence, though he did so in a gentle tone. He wrote, for example, that the underlying principles of the entire law and economics movement tend to rely on an economic theory whose “sparseness and simplicity” sometimes might “make one miss something important.”[32] Or that all the various efforts to define a system of Constitutional interpretation that accounts for the dramatic history of change in interpretations of the meaning of the Constitution rely on “plenty of intuitions, but no satisfactory account.”[33] Unlike Critical Legal Studies, however, Lessig distances himself from those who would say that these weaknesses might make one wonder if legal reason itself is rotten to the core. An account of the meaning of human actions, he suggests, can complement efforts to apply economic reasoning to the law; a theory of translation can revive the idea of fidelity to the Constitution in the face of all the historical evidence that suggests a lack of faithfulness.[34]

¶ 3 Leave a comment on paragraph 3 0 But, rather uniquely for someone with his training, Lessig was also a habitual fiddler with computers, having dabbled in programming after college.[35] This put him in that category of individuals who would be experiencing the rise of the internet before their superiors caught on. While clerking for Supreme Court Justice Antonin Scalia in the 1990–1991 term, he managed to convince several justices to start using microcomputer-based publishing software to replace their antiquated system by demonstrating alternative software on his laptop. By Lessig’s account, his Barlow-email-moment was a cover story in the Village Voice by Julian Dibbell called “A Rape in Cyberspace,” which appeared in Dec. 1993―a few months after the internet first hit the media radar. It was a discussion of a virtual rape in an online game world.[36] According to Steven Levy, “as he read Dibbell’s piece, Lessig was struck by how closely the concerns of the participants in the virtual world . . . resonated with those of [legal scholar Catherine] MacKinnon, whose radical views (porn isn’t protected speech) were generally considered anathema at the Voice. This suggested to Lessig that cyberspace was virgin intellectual territory, where ideas had yet to be boxed in by orthodoxy. ‘It was a place where nobody knows their politics,’ says Lessig.”[37]

¶ 4 Leave a comment on paragraph 4 0 The move from the dry world of theories of constitutional interpretation to writing about the internet, then, while certainly occasioned in part by Lessig’s personal hobby of working with computers and the surprising explosion of the internet on the scene in 1993 and 1994, was also motivated by the desire to do something that mattered in a world where conservative thinking seemed to hold all the power. Looking back on his move towards becoming a “cyberlawyer,” Lessig has said,

¶ 5 Leave a comment on paragraph 5 0 There are issues I think are deeply unjust about our legal system, outrageously so. You know, the legal system for the poor is outrageous, and I’m wildly opposed to the death penalty. There are a million things like that―you can’t do anything about them. I could go be a politician, but I just could never do something like that. But [cyberspace] was an area where, the more I understood it, the more I felt there was a right answer. The law does give a right answer.[38]

¶ 6 Leave a comment on paragraph 6 0 Lessig was not alone. In the early 1990s, among intellectuals spending their spare time discovering the pleasures of online communicating, the unexpected spread of the internet seemed to create an opportunity for bringing up big philosophical issues in fresh ways, in ways that might be heard outside the confines of a narrow circle of colleagues, in ways that actually might have an influence. The way that the internet took established institutions by surprise in the early 1990s offered an opening, a place where intellectual iconoclasm actually might gain some purchase outside the academy.

¶ 7 Leave a comment on paragraph 7 0 As we saw in the last chapter, libertarians like Esther Dyson began to discover this possibility in the late 1980s and seized on it in the pages of Wired and other venues; in a sense, their hope was that, somehow, computer technology could turn mud back into crystals. As the 1990s progressed, however, it was the iconoclasts of the legal Left who began to move towards the internet. Boyle, whose first book on intellectual property covered a full range of topics from indigenous cultural knowledge to genetics to insider trading, began focusing more on the specifically digital world in the mid-1990s. A legal historian on the faculty at Columbia Law School named Eben Moglen signed on to be general counsel to the then-little known Free Software Foundation in 1993; Moglen had worked as a programmer in the early 1980s, but his early legal career was made up of law journal articles on the historiography of early twentieth-century law (and an article that weighed in on some fine points of Critical Legal Studies’s principle of legal indeterminacy).[39]

¶ 8 Leave a comment on paragraph 8 0 It is common enough for a mid-career professor, once granted tenure and thus no longer so needful of having to prove oneself to senior colleagues, to look for something a little more worldly, something that might take one closer to the rough-and-tumble of current events. But this move usually takes the form of backing off from the more abstract, perhaps philosophical concerns that seem of highest interest inside the academy; one starts accommodating the concerns of, say, politicians, or practicing lawyers, or interest groups. What is striking about the development of cyberlaw was the degree to which it was driven by a sense, not that one would have to abandon the philosophical to deal with the “real” world, but almost the reverse. The way the internet entered American social and political life created a context that seemed to actually welcome an inquiry into first principles while also maintaining a sense of positive possibilities. Intellectual radicalism―in the sense of a critique of the roots, of the underlying conditions of a situation―seemed to be the way to go. Maybe everything we thought about copyright (or property, or government regulation) was wrong; but, uniquely in the context of the internet, that conclusion was perhaps not dispiriting. It carried with it a sense that something could be done.