Think about the kinds of questions my Georgian friend might ask about this move. A “nonprofit corporation devoted to the collective interest”? Isn’t that just what government is supposed to be? A board composed of representative stakeholders? Isn’t that what a Congress is? Indeed, my Georgian friend might observe that this corporate structure differs from government in only one salient way — there is no ongoing requirement of elections.
This is policy making vested in what is in effect an independent agency, but one wholly outside the democratic process. And what does this say about us? What does it mean when our natural instinct is to put policy-making power in bodies outside the democratic process?
First, it reflects the pathetic resignation that most of us feel about the products of ordinary government. We have lost faith in the idea that the product of representative government might be something more than mere interest — that, to steal the opening line from Justice Marshall’s last Supreme Court opinion, power, not reason, is now the currency of deliberative democracy.[26] We have lost the idea that ordinary government might work, and so deep is this despair that not even government thinks the government should have a role in governing cyberspace.
I understand this resignation, but it is something we must overcome. We must isolate the cause and separate it from the effect. If we hate government, it is not because the idea of collective values is anathema. If we hate government, it is because we have grown tired of our own government. We have grown weary of its betrayals, of its games, of the interests that control it. But we must find a way to get over that weariness.
One central cause of the dysfunction of government is the corruption suggested by the way government is elected. I don’t mean “corruption” in the traditional sense that saps the energy from so many developing nations. I don’t believe congressmen are on the take (California’s Randy Cunningham is an exception, of course[27]); I don’t believe their motives are impure. They are trying to do the best they can in the world they inhabit. But it is that world that is the problem.
For with that world, money controls attention. To become a member of the House of Representatives, you have to run. In 2004, if you ran in an open district, then you spent on average $1,086,437. If you won, you spent $1,442,216. If you ran against an incumbent in 2004, then there’s a 97.5 percent chance you didn’t win. (Only eight challengers won.) In the Senate, only one challenger defeated a sitting senator in 2004. Incumbency means life tenure in the United States. The average term for a member of Congress rivals the average term for a Supreme Court Justice.[28]
To raise this money, members of Congress must spend their time making those with money happy. They do this by listening to their problems, and sometimes, pushing legislation that will solve those problems. That sounds harmless enough, until you begin to realize just how much time they spend doing this fundraising. Former Senator Hollings estimated that one-third of a senator’s time is spent fundraising.[29] That’s probably a significant underestimate.[30]
Now just think about how absurd these priorities are. Congressmen work for us. If an employee of a restaurant spent 33 percent of her time arranging to get to work, she’d be fired. But that’s essentially what happens in Washington. The most significant chunk of time for members of Congress is time spent to raise money to remain members of Congress. Is this really what we pay them for?
The problem here is not so much that members of Congress aren’t doing their work. The problem is the way their work gets queered by this need to raise money. The easiest targets for fundraising are the clients of the lobbyists, and the lobbyists have lots of ideas about how to bend the law to benefit their clients.
And so Congress bends, and the law gets changed to benefit the most powerful in the economy. This is not capitalism as much as lobby-ism. Our economy is defined by a combination of laws benefiting some and power benefiting some.
To crack through lobbyism, you need a way to get the attention of members of Congress. But until the system is changed, the only way to get their attention is money. This is the cycle. Its results for democracy are vicious. Our Congress sees only what a small set want them to see. And what they see often has no obvious connection to the truth.
If there is a decision to be made about how cyberspace will grow, then that decision will be made. The only question is by whom. We can stand by and do nothing as these choices are made — by others, by those who will not simply stand by. Or we can try to imagine a world where choice can again be made collectively and responsibly.
Problems with Code
At a Harvard workshop around the time the first edition of this book was published, Jean Camp, a Harvard computer scientist who taught in the Kennedy School of Government, said that I had missed the point. The problem, she said, is not that “code is law” or that “code regulates.” The problem is that “we haven’t had a conversation about how code regulates.” And then to the rest of the audience, she said, “Did all of you like the debate we had about whether Microsoft Word documents would carry in them a unique identifying number? Was that a satisfying debate? ”
Her irony carried with it an important insight, and an interesting mistake. Of course, for the computer scientist code is law. And if code is law, then obviously the question we should ask is: Who are the lawmakers? Who writes this law that regulates us? What role do we have in defining this regulation? What right do we have to know of the regulation? And how might we intervene to check it?
All that is perfectly obvious for someone who thinks and breathes the regulations of code. But to a lawyer, both Camp and I, throughout this book, have made a very basic mistake. Code is not law, any more than the design of an airplane is law. Code does not regulate, any more than buildings regulate. Code is not public, any more than a television is public. Being able to debate and decide is an opportunity we require of public regulation, not of private action.
Camp’s mistake is a good one. It is a mistake more of us should make more of the time. Because while of course code is private, and of course different from the U.S. Code, its differences don’t mean there are not similarities as well. “East Coast Code” — law — regulates by enabling and limiting the options that individuals have, to the end of persuading them to behave in a certain way. “West Coast Code” does the same. East Coast Code does this by increasing the cost to those who would deviate from the rules required by the code. West Coast Code does the same. And while we might argue that East Coast Code is more prevalent — that it regulates and controls a far larger part of our lives — that is a difference in degree, not kind. It’s a reason to be balanced in our concern, not to be unconcerned.
Of course, there are differences between law and code. I don’t think that everything is necessarily public, or that the Constitution should regulate every aspect of private life. I don’t think it is a constitutional issue when I turn off Rush Limbaugh. But to say that there should be a difference is not to say that the difference should
