Three Universal Human Codes
In his 2000 book Code, the great technology theorist and legal scholar Larry Lessig drew an analogy between legal code and digital code as architectures for social spaces: the former governs our offline lives, the latter governs the parts of our lives that exist in cyberspace. Quoting from the second edition:
In real space, we regonize how laws regulate – through consitutions, statues, and other legal codes. In cyberspace we must understand how a different “code” regulates… the software and hardware (ie, the “code” of cyberspace)….
This analogy is elegant, but by identifying only to types of universal human code, law and software/hardware, Lessig pre-supposed human agency over code, which is only sometimes the case. I’d like to introduce a third type of code into the analogy to complicate it a bit: our genetic code, DNA. Together these three codes span the range of human agency over the universal regulators of our lives: our biology, our offline actions, and our online actions.
The History of Code
Although we have have only understood the role of DNA since the middle of the twentieth century, it is in fact the oldest human code, and has governed our biology since before we were even human. Law was our next code. Around 1700BC, King Hammurabi of Babylon developed one the first law systems, the Code of Hammurabi, which governed his subjects but over which they had no recourse or agency.
Though Aristotle advocated the idea of a “rule of law” as early as the 4th century BC, the idea that no one, including political leaders, should be above the law, only gained wide currency in the Enlightenment, when it was advocated by influential philosophers like Locke and Montesquieu. The idea of cyberspace – a realm of human action different from the real world – was not even coined until 1982, and the application of digital and other codes to this technology is similarly new.
Code is a limited set of instructions that, through symbolic representation, governs a broad range of phenomena. Just as the limited building blocks of adenine , cytosine, guanine, and thymine combine to create all biological diversity on earth, 1’s and 0’s combine to create all of content in the digital world and, in the US, our 4,543-word Constitution is the final determinant of legality for all economic, social, and political intercourse.
Human Agency Over Human Codes
Why consider these three codes together? Because we have different levels of agency over each and comparing them may lead us to demand more agency over certain types of code. Let’s consider:
- Genetic Code: Man-made only in the most literal sense (produced through procreation), but which exists beyond our agency or even our lifespan. Human agency over genetic material is still in its infancy.
- Pre-Democratic Legal Code: Man-made or sent from God, beyond the agency of all but the ruler and a small coterie of political or religious elites.
- Democratic Legal Code: Man-made and within the agency of all citizens through elected agents (political representatives), though in a practical sense the vast majority of individuals have no agency over the law.
- Code of Cyberspace: Man-made, though our individual agency over it is limited.
Why do we have more agency over legal code than over the code of cyberspace? When Facebook decided to deleted Michael Anti’s Facebook profile, he had no recourse. When Wael Abbas’ videos of police torture in Egypt were removed by YouTube, he likewise had no binding mediation process with which to address his grievance. His account was restored, but only because he was lucky enough to be a visible international activist with influential friends who were able to draw attention to the situation. When Google created Google Buzz, which automatically made public the people Gmail users most often communicated with, Gmail account holders had no direct recourse to Google but instead had to go through government agencies and the US courts. This semi-functional example was only possible because the plaintiffs were in the same offline legal jurisdiction as Google. (As part of the OpenNet Initative, Jillian York has written an excellent report on these issues, “Policing Content in the Quasi-Public Sphere”.)
In the age of social media we believe we have tremendous agency over the code of cyberspace, but we are confusing agency over content creation with agency over the code that regulates that content. This is no less wrong-headed than confusing the ability to procreate with agency over our DNA.
An Enlightenment for Cyberspace
I think we are due for another experiment in human agency over code, an “enlightenment for cyberspace“. Following the best political model so far, there should be some institutionalized recourse of user over code creator.
- We should not be limited to awareness-raising campaigns that shame companies into fixing individual instances of the misapplication of code.
- We should not be limited to opt-in initiatives like the Global Network Initiative, excellent though it is as a starting point.
- We should not be limited to using offline laws, which have geographic limits of jurisdiction, to demand accountability over cyberspace, which is a global system.
It is time for a global effort to expand human agency over the code of cyberspace.