ASPEN, Colorado--The policy debate over online regulation is no longer about whether certain rules and values will govern the Internet, according to Larry Lessig. The real question is who will set the tone for that governance--the online community, technology makers, or the government.
As a controversial court-appointed "special master" in the Microsoft antitrust case, Lessig had unique credentials to address the topic here last night during opening remarks at the Progress & Freedom Foundation's fifth conference, which brings together industry, lawmakers, and Net forecasters to grapple over the future of business--and liberty--on the Net.
And the Harvard University law professor made his own opinion on the subject abundantly clear: Online governance will be determined by whoever has the greatest influence over the technological architecture of the Internet, which inherently imposes "regulations" on its users.
Lessig's comments are particularly interesting in light of his former role in the Justice Department's case against Microsoft. Lessig's apppointment as the court's special master was suspended after critics raised questions about his objectivity.
Lessig said in his speech today that the technology, or code, that makes up the Net is more effective than laws controlling activity, filtering Net content, protecting intellectual property, and shielding online privacy.
Since the Supreme Court fight over the now-defunct Communications Decency Act, civil liberties groups, many Net users and some lawmakers want government to keep its hands off the new medium. Still, Lessig says there may be a role for policy makers in ensuring that liberty is protected within the Internet architecture.
For example, Congress has moved quickly this year to pass broad protections for software, music, film, and literature on the Net. However, Lessig argued that emerging technologies will give intellectual property owners more control over their material than the law affords them now.
"Many forces, beyond law, regulate, constrain, and enable," he said.
Lessig also pointed to the federal government's plan to turn control of the Net's domain name system over to a nonprofit board of "stakeholders" in the Net as proof that although the online community is weary of direct government regulation--it is accepting of some sort of governance.
For the global online community, ignoring this trend and the commercial and nonprofit builders of the Net, is not the answer he said. "This architecture regulates us now--our choice is whether we will have a choice over this regulation," Lessig said.
Harvard fellow and fonder of the Electronic Frontier Foundation , John Perry Barlow, said nongovernmental organizations such as the Internet Engineering Task Force already function on this principle, in which the best idea, not political or commercial power plays, wins out. "We need to talk about how to strengthen this model," he said.
As the conference continues through tomorrow, attendees will no doubt soak in both Lessig's talk and another speech tonight that may contrast some of his ideas. White House senior adviser Ira Magaziner is scheduled to speak on the U.S. role in the formation of global technology policy.