Open-source development

This article was first published on Dr. Craig Wright’s blog, and we republished with permission from the author.

Lawrence Lessig’s (2000) “Code is Law” principle argues that the structure and functions of cyberspace are designed and controlled by the software and hardware that comprise it. According to Lessig’s seminal work, Code and Other Laws of Cyberspace, such technological code mirrors law’s ability to shape and regulate human behavior. He posits that the potency of code as a governing mechanism could be harnessed by governmental entities and corporations to dictate surveillance norms and thereby modulate people’s behaviors. This, he suggests, has profound implications for freedom, privacy, and the democratic fabric of our society.

Timothy Wu (2003) presents a counterview in his critique, When Code isn’t Law. He posits that code, albeit capable of imposing certain rules, lacks an element critical to law: discretion. Unlike legal frameworks that allow room for interpretation and discretion, code application is binary and rigid. Wu further broadens the discussion on regulatory forces beyond code and law, emphasizing the significant role societal norms and market forces play in this regulation.

This debate takes an interesting turn when considering the open-source software development model. It exists at the intersection of code and law, relying heavily on community contributions to the development and scrutiny of code yet being simultaneously dictated by legal frameworks. The open-source licenses define software use, modification, and distribution parameters. To this end, some authors, like De Filippi and Hassan (2018), have argued that blockchain technology allows code to increase the flexibility of law by using formalized language which can be interpreted through machines.

This analysis becomes particularly illuminating when seen through the lens of the Ring of Gyges, a mythological artifact from Plato’s Republic that endows its owner with the power of invisibility (Plato. & Allan, 1993). This parable, often employed to discuss the concepts of morality and justice, raises pertinent questions when applied to the realm of cyberspace governance. Different open-source development forms are also released under often contradictory rule sets. MIT is far more permissive and allows more legal controls to be introduced than a system, such as GNU, that explicitly precludes such.

Under Lessig’s “Code is Law” paradigm, the power of the Ring of Gyges might manifest as a form of digital invisibility, such as anonymity or surveillance. The power and discretion to become invisible raise crucial ethical considerations, particularly regarding the potential abuse of such power in an environment of limited accountability. For instance, creating dark web markets facilitates online deviance and increases the likelihood that people will act outside of existing societal norms (Dodge, 2021).

From Wu’s standpoint, the Ring of Gyges analogy underscores the complexity of code-based regulation. Code, unlike law, does not allow for the flexible interpretation of ‘invisibility.’ The discretion inherent in legal systems may permit exceptions and leniencies, leading to instances where those with the ‘ring’ (such as governments or large tech corporations) may exercise their power in a less accountable manner. Drawing on Wu’s perspective, the Ring of Gyges analogy presents an interesting paradigm for understanding the nuances of code-based regulation. Code, unlike law, does not always allow for the flexible interpretation of ‘invisibility.’ It’s a realm where the discretionary latitude inherent in legal systems may not always apply. Yet, it can reveal instances where those who wield the ‘ring’, such as governments or large tech corporations, might exercise their power in ways that warrant scrutiny.

Dodge’s work, which posits the internet as a modern manifestation of the Ring of Gyges, dovetails with Wu’s exploration of code as law. Dodge agrees that online anonymity can have diverse implications depending on the individual and their contextual environment. While the promise of anonymity may sometimes drive deviant behavior, it is not a deterministic outcome. The open-source model seems to counterbalance the invisibility offered by the Ring of Gyges. By enabling a high degree of transparency and fostering a vigilant community constantly scrutinizing the code, open-source development ensures that alterations to the code, and by extension, power shifts, remain visible and subject to accountability.

From the perspective of a legal scholar, the “Code is Law” concept may appear overly simplistic, disregarding critical nuances of legal systems like human discretion, interpretive flexibility, societal norms, and historical contexts. Code and law operate on different planes and serve different purposes; while code governs system operations, law orchestrates human and societal interactions. A legal scholar might argue that the precision of code engineering and execution contrasts starkly with the intentional vagueness often found in the law that allows for discretionary judgment. Moreover, the dynamic nature of law, its adaptability to shifting societal contexts, and overarching focus on justice distinguish it from code.

Both scholars agree on the power of code as a new form of regulation in the digital era, but they also emphasize the role of discretion, societal norms, and accountability. The synthesis of Wu and Dodge’s perspectives reveals that while some promote code as a potent form of regulation, it doesn’t replace the need for legal and ethical oversight. The digital ‘Ring of Gyges’ doesn’t exclusively lead to deviant behavior but can make it far more likely. Likewise, the code’s rigidity doesn’t inherently undermine its potential for effective regulation. Again, it becomes necessary to implement controls designed to minimize malfeasance.

Indeed, their combined insights underline the need for a more nuanced understanding of how code, as a form of evidence associated with law, rather than code as a system to replace the law, interacts with the ambiguities of human behavior, societal norms, and legal traditions. The digital world calls for an integrated approach that marries the power and precision of code with the flexibility and ethical grounding of legal systems, ensuring accountability and fairness in this new terrain (Diver, 2021).

Considering the open-source model, scholars argue that while it promotes community participation and transparency, it is still governed by legal constructs like licensing and is susceptible to power dynamics, where individuals with superior expertise or resources exert greater control. In the context of the “Ring of Gyges,” caution is expressed regarding the unchecked power and potential moral pitfalls associated with the ‘invisibility’ provided by code, emphasizing the need for legal oversight and accountability mechanisms. In conclusion, the principle of “Code is Law” offers valuable insights into the influence of code in today’s digital society. Still, it may be regarded as misplaced or excessively reductionist from a legal standpoint since it fails to capture the complexity, fluidity, and human-centered ethos of the law.

Saraiva (2023) highlights the potential of machine-consumable legislation and intelligent nudging as innovative approaches to address the language gap between the production and consumption of legal rules. The author emphasizes the need to transform legal text, concepts, and rules into code that specific software can read, understand, and interact with. This transformation would enhance legislative effectiveness, efficiency, and transparency, ultimately improving compliance at a lower cost.

Drawing on the insights of other scholars, Saraiva (2023) acknowledges the challenges and considerations associated with this digital transformation of legal drafting activities. The open-source model, championing community participation and transparency, is recognized as influential, yet it remains subject to legal constructs like licensing. Saraiva argues that power dynamics persist within the open-source community, with individuals possessing superior expertise or resources exercising greater control over developing and implementing code-based legal systems.

Furthermore, Saraiva (2023) delves into the potential moral pitfalls and risks associated with code-based governance. In line with the “Ring of Gyges” context, the author cautions against the unchecked power afforded by code, highlighting the need for legal oversight and accountability mechanisms to mitigate abuses and ensure adherence to societal values, norms, and fundamental rights.

While recognizing the transformative potential of code in the digital era, Saraiva acknowledges that the principle of “Code is Law” may be considered misplaced or excessively reductionist from a legal standpoint. This perspective aligns with the views of other scholars who emphasize the complexity, fluidity, and human-centered ethos of the law, which cannot be fully encapsulated by code alone. Striking a balance between the capabilities of code and the legal principles that govern society is crucial to harness the benefits of technological advancements while safeguarding against potential risks.

In conclusion, Saraiva’s work sheds light on the emerging paradigms of machine-consumable legislation and intelligent nudging to bridge the language gap and enhance compliance in the digital era. By engaging with the insights of other scholars, the author highlights the influence of legal constructs within the open-source model, the potential moral pitfalls associated with code-based governance, and the necessity of legal oversight and accountability mechanisms. This nuanced perspective challenges the notion that “Code is Law” while recognizing the transformative potential of code in shaping a just and equitable digital society.

Annotated Bibliography

De Filippi, P., & Hassan, S. (2018). Blockchain Technology as a Regulatory Technology: From Code is Law to Law is Code (arXiv:1801.02507). ArXiv. https://doi.org/10.48550/arXiv.1801.02507

De Filippi and Hassan (2018) grapple with the notion of “code is law,” a concept that has gained traction in digital discourse as coding has increasingly dictated user conduct online. They argue that the efficiency of computer code as a rule-enforcing mechanism surpasses that of conventional legal code. Yet, this claim raises eyebrows as they largely overlook that legal and computer codes operate within entirely different contexts and serve distinct purposes.

In their exposition of the limitations of code acting as a legal surrogate, they correctly acknowledge the difficulties in translating the ambiguity and flexibility inherent in legal norms into a rigid, machine-readable language. This acknowledgment, though, seems somewhat cursory and doesn’t sufficiently probe the nuanced layers of legal interpretation that may be lost in the mechanistic interpretation of code.

Finally, they turn their attention to the advent of blockchain technology and smart contracts. They propose that these developments are set to further amplify the regulatory influence of code in online interactions as contractual transactions get converted into smart contract code. While the transformative potential of blockchain technology is undeniable, the authors seem to approach the “law is code” paradigm somewhat uncritically. They posit a shift towards law being defined as code but fail to adequately explore the inherent complexities and potential pitfalls of this reductionist view. Examining how society might navigate this uncharted territory leaves much to be desired, warranting a more critical perspective on the broad societal implications of such a transition.

Dodge, C. E. (2021). The Ring of Gyges 2.0: How Anonymity Providing Behaviors Affect Willingness to Participate in Online Deviance [University of South Florida]. https://search.proquest.com/openview/64d37b9d07960686810a7e9c282e8ab8/1?pq-origsite=gscholar&cbl=18750&diss=y

Dodge (2021) uses the classical parable of the Ring of Gyges (Plato. & Allan, 1993) in a form reimagined within the context of the digital era. The work critically investigates the potential ramifications of online anonymity, viewing it as a modern incarnation of the mythical ring that offers invisibility and, consequently, a sense of impunity. Dodge’s study represents a comprehensive and thoughtful exploration of how the dynamics of anonymity might influence the propensity for deviant behavior online.

Dodge effectively leverages the allegory of the Ring of Gyges, using it as a lens to view the multifaceted implications of anonymity in digital environments. Unlike simplistic interpretations that might equate online anonymity with a binary moral switch, Dodge’s study appreciates the complex interaction of factors contributing to online deviance. Acknowledging that online invisibility, akin to Gyges’ ring, doesn’t automatically catalyze deviant behavior, the study nuances the narrative around anonymity and deviance.

In the concluding segments, Dodge ventures into the implications of this digital ‘invisibility cloak’ on online norms and behaviors. Here, the study adds depth to the discourse around internet anonymity, cautioning against its potential misuse while acknowledging the spectrum of behaviors it might foster. The research doesn’t fall into the trap of simplistically attributing deviant behavior to anonymity; instead, it acknowledges that while anonymity might catalyze some, there are many other influencing factors, such as personal ethical compass, societal norms, and existing legal frameworks. Overall, Dodge’s thesis effectively navigates the complexity of online anonymity, offering a nuanced perspective on how the promise of invisibility could impact online behaviors. Dodge (2021) provides a powerful metaphor for online anonymity provides a powerful tool for unpacking the ethical implications of digital interactions.

Diver, L. E. (2021). Digisprudence: Code as Law Rebooted (E. Harbinja & B. Schafer, Eds.). Edinburgh University Press. https://library.oapen.org/handle/20.500.12657/62314

Diver (2021) undertakes an ambitious examination of the growing intersection between software design and legal theory. The work is premised on the notion that just as laws in a democracy must adhere to certain formal characteristics to ensure legitimacy, so should the rules embedded within the code that increasingly governs our lives. Diver’s thesis enriches the dialogue on digital regulation, dovetailing with the perspectives of scholars like Wu and Dodge, by proposing a new theoretical framework – digisprudence – to understand and evaluate the legitimacy of software design.

Diver critically analyzes the rules of code, presenting an intriguing parallel with legal jurisprudence. He postulates that in a democratic society, these ‘rules’, whether in the form of laws or codes, should meet specific standards of legitimacy. Diver provides practical insights into real-world technologies and demonstrates the potential role of programming languages, integrated development environments (IDEs), and agile development practices in realizing these principles of legitimacy.

Finally, Diver addresses the profound influence that designers have over user behavior through their code. Their creations – smartphones, websites, or IoT devices – largely determine users’ actions, with little room for interpretation or contestation of the ‘rules.’ Drawing a comparison to the expectation of legitimacy we hold for our legislators, Diver posits a compelling question: shouldn’t we hold software designers to similar standards, given that their code often holds more immediate control over us?

Diver’s study offers an expansive and thoughtful exploration of how principles of legal philosophy can be translated into the realm of code design. By integrating theoretical and practical perspectives, his work presents a robust case for the need for ‘digisprudence,’ a more democratic, accountable approach to software design that recognizes the profound implications of the ‘Code is Law’ paradigm.

Saraiva, R. (2023). Rules and Nudging as Code: Is This the Future for Legal Drafting Activities? In K. Mathis & A. Tor (Eds.), Law and Economics of the Digital Transformation (pp. 307–385). Springer Nature Switzerland. https://doi.org/10.1007/978-3-031-25059-0_12

Saraiva (2023) explores the concept of machine-consumable legislation, in which legal text and rules are transformed into code that can be read and interpreted by software. This approach could increase the efficiency, effectiveness, and transparency of legal processes, thereby improving compliance. It could also potentially reduce costs by simplifying the legislation, reducing errors, and improving accessibility and accountability.

Saraiva also discusses the concept of “nudging,” a technique used to guide decisions and behaviors in a particular direction. This method is already used in the digital world, and Saraiva suggests that it could also benefit legal processes. Yet, Saraiva acknowledges potential challenges, including legal conservatism resistance, legal certainty issues, and the potential loss of humanism. The chapter aims to explore the current state of rulemaking and nudging as code, understand how it could work, its advantages and pitfalls, and the areas where it could be most beneficially applied. It also highlights the need for caution and limits in its implementation.

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