The ILPN talks with Professor Lawrence Lessig about PICS, Online Free Speech and Internet Law

ILPN Editor Joshua Micah Marshall interviewed Professor Lessig late last August on the Harvard University Campus. Earlier this month U.S. District Judge Thomas Penfield Jackson named Professor Lawrence Lessig "special master" in the Justice Department's antitrust suit against Microsoft. The interview took place prior to Professor Lessig's becoming involved in the Microsoft case. This interview has been edited for publication.

Internet Legal Practice Newsletter

December 22, 1997

Joshua Micah Marshall: How did you become interested in Internet law?

Larry Lessig: Well, I am a constitutional scholar and there is a set of issues in constitutional law which people have been arguing about for a thousand years, and the lines are already drawn. They include a number of issues including pornography, First Amendment issues, public/private distinctions, government and private power. These are issues that I continue to be interested in but it struck me that there is no useful way to continue to argue about them in the context of real space law.

I remember the moment that I decided that I wanted to be a cyberlaw specialist. I was reading an article by Julian Dibbell ... "A Rape in Cyberspace [ http://www.levity.com/julian/bungle.html ]." It’s a great article, written in The Village Voice [ http://www.villagevoice.com/ ].

At the very same time I was reading this other book by Catherine MacKinnon called Only Words [ http://www.amazon.com/exec/obidos/isbn=0674639332/2626-5468352-658282 ]. So, of course, MacKinnon and The Village Voice are like oil and water. But there’s a certain point in Dibbell’s article where he says, ‘you know it struck me at a certain point that what was going on in this rape was only words. But for the first time I saw that these words can actually cause harm.’ So it struck me that here’s a space where people are so disoriented that their ordinary real space politics gets confused. And they can begin to think about these issues anew. So that was really what got me into it. And then I just started working on it and I taught the course at Yale, Chicago and Harvard, and now I am finishing a book about the law of cyberspace.

Marshall: Can you can tell me more about that book? Is it a teaching book or is it for a wider audience?

Lessig: It’s not just a law book. It’s for a wider audience. . . One big theme of the book that ties directly into this issue about the Internet is that we [need] to get people to stop thinking about regulation as if only government regulates. We need to start thinking about regulation in the sense that the architecture of the Internet regulates. So, in the world of possible regulators, government is one of them, social norms are another, the market is another, but in cyberspace the code is another. The architecture of cyberspace is itself a regulator.

So rather than this rather naïve Net-libertarianism, ... which says that the nature of cyberspace is to be unregulated, you have to understand that there is no ‘nature’ of cyberspace. There can be many kinds of cyberspace. Some are relatively unregulable, and some are almost infinitely regulable.

In everyone’s business there are two Nets. One is the ‘Intranet’ and the other is the ‘Internet.’ Now, everyone thinks that ‘Internet’ is by nature an ‘Internet.’ But the architecture of the Internet can become like the architecture of the ‘Intranet.’ And the essence of the architecture of the Intranet is the control of access and content ... The Internet as a whole can become like that.

PICS is a perfect example of this. You have this threat – and I don’t really see it as a threat: the government has traditionally had an interest and been allowed to regulate access to indecency in the following way: it can block out kids as long as it keeps access open for adults. So Congress passes the CDA, which is in one sense a stupid statute because of the scope of what it tries to regulate. But its method of regulation is very distinctive. What it says is ‘you must put filters up to keep kids out, you must put doors up to keep kids out, you must put doors up to check the IDs of people before they come in to verify that they are over the age of eighteen.’

Now, it was stupidly litigated. The government didn’t understand the technology ... So you had all sorts of absurd findings of fact, such as: it costs thousands of dollars per web site to do this. Now that is assuming that each web site would set up its own service. You don’t see bars each running their own ID service. Or when [you] buy cigarettes it’s not like you need an ID for the local 7-11...

The market was already creating a market in [Internet] IDs. But the government knew nothing about this. So they litigated this case under a stupid set of facts. And when it gets to the Supreme Court, the Supreme Court strikes it down. Okay, they had to strike it down because the scope was too broad. But the alternative--PICS--demonstrates how people are so focused on the government as the regulator and not [on how] the Net [can act] as the regulator.

PICS is a regulator. PICS is an architecture for facilitating filtering. Now, it’s not just filtering at the individual level. What people say about the virtues of PICS is that the individual gets to select the filter. That’s not the interesting part of PICS. It’s not just horizontally neutral, it’s also vertically neutral. It allows the filter to be imposed at any level of the distributional chain, and for any type of content at all. So we have this obsessive little problem with indecency, which could be addressed in a narrow, focused way by a CDA-like statute. We strike that down and we embrace an architecture which facilitates all sorts of filtering of all sorts of content, at any level on the distributional chain, turning the Internet from this great space of freedom and openness into a space of maximum regulability.

Well, people say, ‘what do we care, we have the first amendment?’ but they also say that the first amendment is a local ordinance. So, great, we have a first amendment. But we’ve given to the world an architecture that facilitates censorship on the Internet in the rest of the world. And we do this because we have some obsession with indecency. This kind of move from the cyber-rights activists comes from a kind of blindness to how the architecture itself is a regulator. And, so, that’s what most of my work is trying to get at.

Marshall: What do you see as the roots of this new cleavage between the Internet industry and the online civil liberties community? And particularly in their reaction to PICS? Because all of these groups were on the same side in their opposition to the CDA, but now that coalition is breaking down.

Lessig: Well, it’s crude to speak of the interests of bodies of people as if they’re entities. But let’s just adopt it for a second. There are interests of government, there are interests of commerce, and there are interests of cyber-libertarians. Now, it’s a piling on strategy. The government made a move about indecency and the cyber-activists and industry join together to resist this. And they resist it initially with ... PICS because it seemed like private action, and private regulation.

But they’re beginning to get it now. The activists are beginning to get it, beginning to realize ‘wait a minute, we just made a bargain with the devil.’ Because this is much worse, in a sense, than the CDA. So they’re beginning to split off. But they’re splitting off because the long term interests of commerce are the same as the long term interests of government. Both government and commerce want a Net which is an Intranet; they want a Net where you know who people are, you know where they’re coming from, you know that they’ve made certain assertions, and you know features about them so that you can zone them into one space, and bring them into another. Those are things that both commerce and government want. That is the sense in which both government and commerce would like a Net that is maximally regulable. Then you could have great safe commerce and great safe regulation. That’s why the long term interests of government are in tension with the long term interests of cyber-libertarians.

The cyber-libertarians come from the time when the Net was the one space in our universe where things like identity wouldn’t bog you down – what you wear, what you look like, where you came from – in a sense you’re free of all that. Well, that’s not where we’re going.

Marshall: The one thing that really does strike me is that as recently as a couple years ago there were articles in respectable magazines seriously speaking of the Internet as being truly, permanently unregulable. I am struck by just how quickly that has changed, how quickly commercial interests have become so dominant.

Lessig: So dominant and aligned. It’s sort of like the movie Independence Day – a really crappy movie – but there’s a great image where initially the aliens come and everyone loves them. And very quickly they realize that these really are evil aliens and they’re going to wipe out the world [laughter] ... Originally, people were like ‘wow,’ this is like libertarian Utopia. There’s nothing the government can do here... We’re safe from government here. That absurd Barlow Declaration of Independence, I mean this is crazy. It’s absurd. And then all of sudden these technicians come along ... and these FTC hearings where they were talking about setting up IDs, national Ids ... It’s taken very small changes in people’s thinking about how the architecture of the Net would work. And they’re getting it. They’re getting the fact the Internet will be not a libertarian Utopia, but a Foucauldian nightmare.

Marshall: Were the people who invented PICS naive? Didn’t they see what was coming?

Lessig: I don’t think they’re naïve at all. You talk to these guys and they get it. You just have to understand the structure of the Internet that is involved here. PICS gets developed by the World Wide Web Consortium. They are a Consortium of these industry interests, right? The issue gets framed, should PICS be vertically neutral? They take a position: we’re neutral on where the filter gets imposed. We’re going to be neutral about this. Now to technologists, neutrality still has this kind of pre-Modern virtue to it. ‘Oh, great we’re neutral.’ Well to anyone in a critical field like law – neutrality? What’s neutrality? You’re neutral on the question of whether we ought to have censorship at a central level? Well, maybe you’re neutral on the question of holocausts. What do you mean you’re neutral on this question? You know, we’re not neutral on the question of who we give atomic weapons to. Why are we neutral about this? So lawyers look at it and say, this is bizarre to say you’re neutral about a question like this. But they say, ‘we’re neutral.’ And they have to be. Because the World Wide Web Consortium people want to be able to filter at the level of corporations and at the level of other entities. They want filtering. So they design a technology that facilitates filtering. That’s a change in the world, and it’s a change towards something. It’s not neutral in any sense. It’s towards greater control. So they’re not neutral in a real sense. They’re just neutral in this abstract sense that people can use it however they want...

Marshall: There’s a quotation from Peter Harter, the General Counsel of Netscape about that kind of neutrality. And he even goes further down the line and implicitly recognizes what you’re saying.

Lessig: We were on a panel together and I don’t know if he thought about it before but I put it to him like this. I said, "you guys are the code writers, and the code writers are the lawmakers. That makes you the Attorney General of cyberspace." And he kind of liked that image I think, though he was afraid to say it in public...

Marshall: It seems to me that within the World Wide Web Consortium, and other similar groups, that there are people who aren’t as sanguine about all this as the General Counsel of Netscape. Do you see a lot of people with second thoughts?

Lessig: These people – people like Paul Resnick – understand the contingency of their claim that PICS will not increase the power of censorship. Paul has a pretty sophisticated argument for why, on balance – even granting the kind of arguments we’ve made ... it’s an open question whether it will tilt it towards more regulation or not. So in his most reflective academic mode I think he does sort of get that it's a relatively complex question.

They were faced with what at times seemed like a really dangerous thing, which is, ‘wow, the CDA is really awful.’ And so let’s give them something that is an alternative. And they did. It’s just that you get into these things and it’s not clear what the consequences will be. And you’re working for institutions that are not free to make what might be the right decision.

Marshall: There used to be a sense that conventional politics didn’t apply to the Internet. It used to seem like Internet industry leaders and organizations like the ACLU could always be on the same side – not something that we generally expect outside cyberspace. Why has this confidence waned so quickly?

Lessig: There was a lot of hype about it. But I don’t know a lot of people who were taken in by it. There were some. There’s still the infinite hope of David Johnson, Esther Dyson, and Barlow ... But you know it takes time for people to get their orientation. And then there’s the question of what are people’s real interests. The ACLU might find it in its interest to line up with the Internet industry in the short term. But, you know, I am a card-carrying member of the ACLU, and I am not going to be if their long term interests are the same as the major industry companies. So it’s going to take time and they’re going to see where their long term interests are, and they’re not aligned.

But one of the things is, though, that people are so negative about politics in real space. The anti-government stuff is just I think a function of anti-politics. But I am not sure what the solution to that is ...

Marshall: In doing my research I noticed that you clerked for Richard Posner and Justice Antonin Scalia. And yet you say you’re a member of the ACLU. Two conservative judges and a prototypically liberal organization. To some people that might not all compute. Can you explain?

Lessig: Well, I am a ... quite a liberal. And Scalia and Posner both knew this when they hired me. I was the token liberal in Scalia’s chamber. And Posner just liked someone to argue with.

One reason why people are confused about what I say is because when I was in the CDA debate there were many contexts where I was saying ‘hey, wait a minute, let’s think about what the CDA really is, and let’s think about the alternatives.’ You know the closer you get to Washington the thinner any thoughts have to be ... so you know, if you’re in Chicago, or you’re in Cambridge, you can be a little bit sophisticated. But you get to Washington and there’s this great leveling. And so people down there sort of saw me as pro-CDA.

Well, you know, what can I say. I am anti-PICS. And there are features of the CDA that I like better than PICS. But I certainly think it’s unconstitutional. So, you know, I don’t really care to be in the policy game. But this is why there was this kind of confusion about where anyone stands.

Marshall: What we seem to have in PICS is an effort to reconstitute all the incidental -- but very important -- ways that we segregate information in the real world: the fact that the Playboy Magazine is behind the counter at the local convenience store, and not on the shelf, the fact that certain things are only done in the seedier sections of our downtowns.

Lessig: Well, you know another reason why I am associated with being Pro-CDA is that O’Connor in her dissent in this case basically took my article about how to think about the CDA ... and that article makes exactly this point--that real space is zoned in all sorts of important ways. There are adult zones. There are residential zones. There are industrial zones. This is what real space is like. And what the CDA was, in a sense, trying to do was to rezone part of cyberspace: ‘this part is not for kids.’ Kids have to be blocked out of it. In real space we’ve got natural tools. A kid can wear a mustache and stilts; but when he walks into an adult bookstore it’s pretty hard to hide that he’s a kid. The default is identity in real space. And in cyberspace the default is anonymity. So you’ve got to create techniques that get over that default.

Now I completely agree with you that the way the world is you’re going to want some zoning. But let’s just make sure that the burden of zoning is minimal so that it’s not too onerous ... We have an interest to recreate some zoning. But what we’ve got to do is worry about the difference between some and total. We have an interest in making sure that there is space where people are zoned. But this is not a reason to turn to the perfect zoning technology.

Now there is a reason that I am a little hesitant about criticisms of PICS. I have called PICS the devil. But there are for example the privacy features of PICS. The privacy aspects of PICS are I think actually quite good. The good thing about PICS is that it allows you to make assertions about things on the Net, to authenticate certain claims. So you want to be able to authenticate that this site is an adult site – that was what the first generation of PICS was focused on – but it is also allows us to authenticate that this is a privacy respecting site, that this is a site with scientific medical material, with medical information that is certified. So it’s a way of credentialing information in cyberspace.

You can’t be against that generally. You can’t be against all of it. But we do need to be critical about features of it. In terms of content filtering, what I am critical of is being neutral about where the filtering gets imposed. You could require at least that it be visible – what filtering is being done at another level. You could have a proxy server that is blocking all content type ‘X’ and you don’t know it. You just do a search and it’s not there.

Marshall: One question that interests me is the larger political climate that this debate is taking place in. One anecdote that comes up a lot is the idea that the Simon Wiesenthal Center [ http://www.wiesenthal.com/ ] could devise its own PICS rating system to block out anti-Semitic or Holocaust denying web sites. But the irony is that the mission of the Wiesenthal Center is to shine a light on these things, not blind us to them. I wonder sometimes if this doesn’t all amount almost to an ethic of censorship? Are we moving towards an idea that we should all censor?

Lessig: At one level obviously – well, let’s change the word from ‘censorship’ to ‘filtering’ – at one level obviously we all have to filter. What we’re worried about are certain techniques of filtering. One technique that we’re traditionally worried about is government censorship. But there are all sorts of other techniques of filtering that we ought to be worried about.

The feature of real space that is so important to citizenship is that you walk down the street and there’s stuff you can’t block out. I might not want to know about homeless people. But if you live in Cambridge you can’t ignore the fact that there are homeless people on the street. And so, in a sense, my ability to function as a democratic citizen depends on my living in a relatively unfiltered world. Now Eugene Volokh has this image of – he doesn’t actually say this in his piece but I asked him about it at his talk -- sitting at a couch and you have your VR screen on and you basically construct the world you want to see. ... Now this is a perfectly filtered world. Now from the individual standpoint a perfectly filtered world is great. But from a collective standpoint, a world where you have people who are all perfectly filtered is really terrible, because they will block out information systematically that they ought to have access to for the purposes of being a citizen. So the kind of filtering that I am really worried about is not so much about who’s doing the filtering so long as it’s constitutional, so much as these automatic systems for blocking and filtering that work invisibly. . . . . That is something to worry about.

Marshall: Some time ago I read an interview -- I believe an interview with Peter Harter of Netscape. He spoke in very sanguine terms of a world in which everything on the Net is filtered. Every national community and every cultural community could have its own separate space. Everything is open and yet each little segment of people remains in their little virtual space. What he seemed to be speaking about though were the commercial possibilities of this kind of highly filtered version of the Net.

Lessig: It’s open in this sense. With PICS you can identify discrete characteristics that facilitate what is the great breakthrough in commerce, which is price discrimination.

Now for an economist price discrimination is the best possible thing in the world. And this is what that kind of filtered Internet makes possible. If you can create these balkanized communities, where people really are separated depending on who they are, then on that basis you can begin to target advertising, and pricing, and so on. Then by an order of magnitude, you've created a much more efficient economy.

Now in one sense that’s good.

On the other hand there's a problem. There’s a long tradition in free speech thought – and the best proponent of this is Cass Sunstein [ http://epn.org/prospect/22/22suns.html ] – which is called the 'Madisonian tradition.' This isn't the marketplace of ideas model. The need is rather to create a mix of speech that allows people to be good democrats, good citizens. So this is not the consumer sovereignty picture of free speech, but a model that assures a mixed public debate. [That may be endangered.]

Marshall: Many people who discuss the economic possibilities of the Internet seem to discount the economic dislocations Internet commerce will almost certainly cause. They also seem to discount the political consequences this might bring in its wake -- particularly with the further globalization of trade.

Lessig: There are certain commodities and economic structures that will be wiped out. Think about travel agents. For a long time I’ve had a travel agent in California – just because the time shift makes it easier. But when you get to a world where these online travel services are really good, and it’s quick, and they can get you a ticket overnight. Then what’s the point in going to a travel agent? What does 'local' mean anymore? Local means how long does it take you to get it and at what cost. And cost doesn’t mean money; cost is convenience. Now it’s always easier for me to purchase my tickets from someone who can send it to me overnight then to get it from somewhere where I’ve got to walk three blocks. Because three blocks is a long time: I’ve got to get there, wait, find a parking space, and maybe they don’t have the tickets, come back later... So all these local and national solutions will start to shift.

Now people talk about Amazon.com as though it will mean the end of the bookstore. There are certain classes of books that I will just buy at Amazon, because I know what I want. But I certainly hope that the world doesn’t become a place where there are no more bookstores. You know, I want to be able to walk into Harvard Bookstore, and browse, because that will show me things that I don't already know about...

Marshall: Do you think there may be a role for something similar to antitrust legislation in an Internet context? One concern might be the third party labelling bureaus that PICS makes necessary. If you really had a labeling bureau that truly dominated the market that would create any number of problems. What role might government have in preventing that kind of monopolized power over information exchange?

Lessig: Well it's not really clear how many labelling bureaus you need to have to have competition. But, you know, the antitrust question does bring up an important ambiguity. The antitrust at the turn of the century was motivated by ‘bigness is bad.’ Bigness in government is bad; bigness in the meat industry is bad. And it became – under Bork and the Chicago School doctrine – efficiency is good. Now for consumer welfare, if you want to keep prices low, then efficiency is the model ... Now it’s not clear how antitrust translates into the Internet context. I know that my intuition is that the government and everybody ought to be resisting dominant power structures. But I am not sure I have a good economic argument for it...

Marshall: Well I am guess I am thinking about something like antitrust that is trying to defend not against economic or commercial dominance, but a dominant stranglehold over the free flow of information. Might government may have an interest in preventing too great an aggregation of that kind of power?

Lessig: Well, I guess that the problem is that all the antitrust models are production models. They're not information models. This is what James Boyle's book is about [see the ILPN interview with Law Professor James Boyle [ http://www.collegehill.com/ilp-news/boyle.html ]]. And information is a real puzzle. For instance, no publishers own printing presses any more. The printing presses are just places that get farmed-out work. There's no profit in it. So even though you've got only a few major publishers you still have good competition in printing presses.

It doesn't follow though that that same structure will apply to information itself. There might be a different economics for this kind of data where bigger really is unambiguously better. If that is true then there is a new problem. But I don't think we know about that yet...

Marshall: There's another issue I'd like to discuss and this moves back in the direction of the cultural dimensions of the content filtering debate. There is very little public support today for what we might call permissiveness as a social ideal. People genuflect to the First Amendment, of course. But there's little belief, I think, in free expression as a social value in its own right. One sees this the most I think in the popularity of politicians like Bill Bennet or Joseph Lieberman who've made something of a career of public moralizing...

Lessig: I had a great experience of this last summer when I spent five weeks in Vietnam. Vietnam is a communist country; and America is a free country. But both in ideology and in practical regulation you couldn’t have anything more reversed. First of all, because of the technology of the regulation, basically anything you want to do in Vietnam, you can. There’s no way the government can regulate. So people are free of regulation.

But in the United States it’s completely the opposite. Government can regulate absolutely everything you do, and it does. So at the level of regulation Vietnam is the free country. But at the level of ideology it’s even clearer exactly what you’re talking about. In the United States it’s completely normal for our major politicians to moralize about how we ought to be behaving. And we take it as, ‘this is the way politics is.’

Now in Vietnam when the very same words are uttered by Communist leaders, everybody talks about ‘oh this is just ridiculous. They’re gonna tell us how we ought to behave...’

So just call it call communism and you can have freedom, and just call it freedom and you can have communism! It’s completely absurd! [Laughter]

Marshall: This might be something particularly dangerous or harmful about PICS. In a culture where moral shaming is so prevalent and held in such regard -- one might almost call it a 'shame culture' -- web sites about, say, drug legalization might just disappear from the web. PICS could make it possible, and today's culture might make it acceptable.

Lessig: Well here’s a direct way in which free speech interests are harmed; and yet it is done in a way that traditional free speech analysis doesn’t see. Basically it’s a two-step to censorship. The two-step is: government can’t do it, so we strike down the CDA. And therefore PICS does it. And then tie that into this 'shame culture', as you've described it, and you filter out all the stuff in the world which is controversial -- and in any number of dimensions. Not just indecency. But political speech too.

And then what have you done? You've created Mayberry. You've narrowed political speech, and you've silenced opposition in a way that is far more effective than government ever could. It's a far more dangerous form of censorship.

But traditional First Amendment people say, 'But that's not the government. The government's not doing it. So that's not what the First Amendment's about.' But that's nonsense. The First Amendment isn't about anything. All of First Amendment doctrine is no more than sixty years old. The First Amendment is constantly remaking itself...

Marshall: The public understanding of the First Amendment does seem to have become quite narrow and highly juridical. Our attitudes toward non-governmental censorship are often quite blase. How much of that do you think is caused by the general anti-government tenor of today's political climate? Is that informing this debate about PICS and content filtering?

Lessig: It is informing the debate in the sense that the standard of the political ideology of the time is the market. 'Let the market regulate.' and so on.

Actually the book that I am just now trying to finish starts with the story of Eastern Europe after 1989. Communism collapses and the first reaction of all these people is anti-government, 'let’s just get rid of government and set up this minimized power of government.' But what they realize very quickly is that these ideas of rights, contracts, and property don’t come from no government. They come from a world where there is a certain kind of government, one that supports them. So there’s a second generation of thought, that liberty is only preserved in a context where there is some structure of government. This is parallel to what I think is going to happen in cyberspace. In the first breadth of cyberspace – two years after communism falls – there's this ideal of libertarianism. But there is this confusion that what libertarianism means is ‘non-government.’ But what libertarianism means, in the best sense of the word, is spaces of freedom that are defended by structures of government against other structures of power, which in this case are extremely powerful online regulators.

Marshall: Thank you very much for your time.

Copyright 1997