Regulation by Software

Abstract

Six years ago, Lawrence Lessig had two insights. First, code regulates. Computer software (“code”) can constrain behavior as effectively as law can. Second, code is like physical architecture. When software regulates behavior online, it does so in a manner similar to the way that physical architecture regulates behavior in the real world.3 His catchphrase—“code is law”—is shorthand for the subtler idea that code does the work of law, but does it in an architectural way. With this one phrase and two ideas, he opened up an entire line of study: how regulating through software rather than through law changes the character of regulation. Unfortunately, that line of study has been stunted, and in a sense, it is Lessig’s fault—for having three insights, instead of stopping with two. In the book that made “code is law” famous, Code and Other Laws of Cyberspace, Lessig also argued that software itself can be effectively regulated by major social institutions, such as businesses or governments. He then completed the syllogism. If other institutions can regulate software, and software can regulate individual behavior, then software provides these institutions an effective way to shape the conduct of individuals.

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