The Net's New Enclosures _Code and Other Laws of Cyberspace_, Lawrence Lessig. New York: Basic Books, 1999. Pp. xii + 297. US$30. ISBN 0-465-03912-X Historians will identify the principle juridico-political trend of the last and next few decades as a period of new enclosure laws, this time governing *intellectual* property. On the one hand, corporatist states--and supra-state entities--have overseen a huge transfer of wealth from poor to rich, and more specifically, from individuals to corporations. On the other hand, an even more profound change is underway in defining more and more previously unincorporated domains under the legal aegis of property and capitalist exchange. Property used to cover the realm of things; but increasingly, it is *facts* that are the most socially important form of property. Few radicals and philosophers imagined even a few years ago that a human individual's name, genetic sequence, shopping preferences, psychiatric profile, and appearance would be forms of capitalist property; fewer still imagined that these "properties" would be consistently wrested from the persons they compose and vested in the coffers of corporations, as proprietary assets. Imagine being sued or arrested for unauthorized use of your own chromosomes (e.g. in seeking treatment for a disease) or of your own image or name. This is not far off. Even in a more traditional domain, fair use is shrinking rapidly, while exclusive "rights" are expanding in both breadth and length. Imagine in this case that you are able to read books only on a page-metered basis, and with the copyright owner collecting details on each page turn, as well as a comprehensive background on all the other books you have read. This is also not far in the future (at least as technological potential). Lawrence Lessig is not a radical, and he is not a philosopher; at least neither strictu sensu. By politics, I suspect he is basically a Millean libertarian; and by trade he is a law professor. But his book is extremely important for radical philosophers to read; Lessig's is one of the first books intelligently to address significant aspects of the new enclosure movement (not by that name, however). The area addressed by Lessig is the increasingly important part of our lives that is sometimes called 'cyberspace': the nexus of computational, storage, and communications technologies that are coming to regulate and determine much of our lives. While cyberspace may not include everything in the aformentioned IP enclosure movement, its technologies are clearly one driving force. Lessig's book is, in a certain sense, a manifesto. Its call is to treat cyberspace, in its underlying architecture, as a subject for informed democratic discussion--and potentially of legal regulation. Whether or not we, collectively, make the decisions on how to regulate cyberspace, it will inevitably regulate us: This regulator is code--or more generally, the "built environment" of social life, its architecture. And if in the middle of the nineteenth century it was norms that threatened liberty, and at the start of the twentieth state power that threatened liberty, and during much of the middle of the twentieth the market that threatened liberty, my argument is that ... into the twenty-first, it is a different regulator--code--that should be our concern. (p.86) The mistake made by most previous discussants about cyberspace is to treat cyberspace as a given--either a given of technological potentials, or a given of free-market inevitabilities. Lessig argues, quite correctly, that what cyberspace *is* is not what it *must* be, and what it will become is up to us collectively (but only if we collectively make decisions about what happens). Cyberspace is not a fact of nature, but a fact of technology. And these facts are ones that are going to make deep differences to the way all of us live are lives, in relation to important issues such as privacy, economic life, and our ability to participate in the decisions that affect us. However, the facts of cyberspace are now being made primarily by commercial interests with no democratic accountability. In relation to privacy and liberty, Some architectures make behavior more regulable; other architectures make behavior less regulable. These architectures are displacing architectures of liberty.... the why is commerce, and the how is through architectures that enable identification to enable commerce. (p.30) Furthermore, With a robust PKI [public-key infrastructure], the possibilities for identification become extraordinary. Individuals could carry certificates that authenticate any number of facts about themselves--who they are; personal attributes (age, citizenship, sex, marital status, sexual orientation, HIV status); professional credentials (college degrees, bar certification, and so on). (p.38) 'Could' need not imply 'must', but such is the fear that Lessig and I share: The truth, I suspect, is that the [free-market ideologists] will win--at least for now. We will treat code-based environmental disasters--like Y2K, like the loss of privacy, like the censorship of filters, like the disappearance of an intellectual commons--as if they were produced by gods, not by Man. We will watch as important aspects of privacy and free speech are erased by the emerging architecture of the panopticon, and we will speak, like modern Jeffersons, about nature making it so--forgetting that here, we are nature. We will in many domains of our social life come to see the Net as the product of something alien--something we cannot direct because we cannot direct anything. Something instead that we must simply accept, as it invades and transforms our lives. (p.233) There is a lot more to Lessig's book than the warnings and proclamations briefly presented here, moreover. Lessig provides both a good basic discussion of cyberspace technologies (for a non-technical audience), and an excellent discussion of US jurisprudence as it relates to the issues discussed. Futher, Lessig gives us an awfully good sense of why this all is going to matter so much. Tempering the realistic pessimism of current trends, Lessig provides some insightful suggestions for how judges and legislatures (and ultimately, we the represented) ought to do their jobs in manners that can preserve the values and traditions of democracy, rather than sacrifice these traditions to the altars of commerce and technology. DAVID MERTZ Gnosis Software --------------------------------------------------------------------- CONTRIBUTOR David Mertz is professionally peripatetic. The new economy pays him quite a lot more to construct architectures of cyberspace than for academic ideology-building. His writings and interventions also wander.