January 2, 2004


BOB GARFIELD: Concerns this year about freedom and license have touched all media. The internet has proved a Pandora's box, allowing all manner of spam and worse into the home, and raising fears of wide-ranging invasions of privacy. But according to Lawrence Lessig, a Stanford University law professor and author of Code and Other Laws of Cyberspace, the proposed cures may be worse than the disease, resulting in even less freedom and less privacy. Professor Lessig, welcome back to the show.

LAWRENCE LESSIG: Thanks for having me back.

BOB GARFIELD: In a recent article for Newsweek International, writer Steven Levy described one possible future for the internet -- a very dark future. He wrote the following: "Picture, if you will, an information infrastructure that encourages censorship, surveillance and suppression of the creative impulse; where anonymity is outlawed and every penny spent is accounted for; where powers that be can smother subversive or economically competitive ideas in the cradle, and no one can publish even a laundry list without the imprimatur of Big Brother." And you, Professor Lessig, he described as "the Dean of Darkness," predicting for years that an open internet is doomed. Tell me, Cassandra, when does the catastrophe strike? Will it be in 2004?

LAWRENCE LESSIG: Well, sadly I think 2004 will continue the march. We're seeing an increasing number of technologies and government-sponsored plans for finding ways to monitor and track what people do in the context of the internet, and those technologies will radically change the nature of what it's like to be on the internet.

BOB GARFIELD:Well, let's discuss the principal mechanism that will enable your every transaction or utterance, or for that matter, crime to be tracked digitally. It's called "certification." Would you tell me how it works?

LAWRENCE LESSIG: The basic objective of these technologies of certification is to make it easier for people transacting with you on the internet to have confidence that you are who you say you are; that you actually have the money you say that you have; that you have the authority to make the order that you say you want to make. So this in some sense raises confidence about transactions on the internet. But each of these technologies is Janus-phased in that it's both privacy-protective and privacy-invasive, and the invasive half is that it makes it easier to collect and monitor data about what people are doing or where they've been or what kind of content they've been browsing or what kind of e-mail exchanges they've been having.

BOB GARFIELD:Well that would, on the face of it, sound quite ominous. But, if I can just play devil's advocate here for a moment, the government already has the ability, for example, to wiretap your telephone, and it would seem -- I guess we can never really know -- but it would seem that the government is fairly cautious about whom it wiretaps, and it has to go to a court and present probable cause for doing so. Should the government's ability to track our movements on the internet be in and of itself something that we should be alarmed about?

LAWRENCE LESSIG: Well, I think that the practices that we've had before are a good clue to the kind of protections we should be insisting on in the future. But the problem with the internet is that, first, the level of monitoring or surveillance that's possible is much higher. Your mouse droppings are all over the internet. And the legal protections for privacy in the context of the internet have not yet been as strongly protected as they are in the context of telephones, which means that the government doesn't have as much of a burden if it wants to be monitoring what's going on, on the internet, and technically, in may contexts, the government claims that it doesn't have to make any showing at all, because in a sense, you're displaying the information publicly. And they say what follows from that is that the user deserves no privacy. But that's the kind of hard policy question we need to address in the context of the internet --whether we have to update our conceptions of what type of data should be protected, regardless of the accidental technical fact that all of it's being spewed out there on the internet.

BOB GARFIELD: So as you look a short distance over the horizon at what 2004 will bring--

LAWRENCE LESSIG:I think what's going to happen in 2004 is, first, that Congress's efforts to protect consumers against spam, for example, will prove to have failed, which means that internet will continue to be a source of burden for many people, and a back door into the spreading of viruses and worms that further enable both monitoring and the insecurity of the network. And I think that what that will do is re-invigorate calls for a more centralized, controlled network, ostensibly to protect people against insecurity and against malicious behavior. But the consequence of that more-centralized, quote, "secure network" will be to weaken the opportunities for innovation and creativity, as Steve Levy was describing in the beginning.

BOB GARFIELD:So what you're suggesting is that we are slouching toward digital Singapore -- a place in cyberspace where we have order and security but in exchange we surrender a substantial amount of our freedom.

LAWRENCE LESSIG: Slouching is more optimistic than I would put it. I think we're racing towards digital Singapore -- and largely because people think of this as a black and white technology --either we have security, which means turn over your privacy, turn over your anonymity, turn over your rights to control data about you to some central authority, whether it's the government or a bunch of companies -- or they think you live in anarchy where you're constantly vulnerable to being abused in all sorts of ways. The reality is that the technology provides many choices in the middle. We could provide technical infrastructures that enable people to protect their privacy more effectively while simultaneously enabling people who need to trace transactions, to trace them so long as they have a good reason to trace the transaction back to the person who originally started it. So, because we have not yet focused on the code or architecture of the network, we will continue down this idiot policy-making path which is going to lead us increasingly into an internet which will not protect the values that most of us thought were fundamental to our tradition and this technology ten years ago.

BOB GARFIELD: Thanks so much for joining us.

LAWRENCE LESSIG: Thanks for having me.

BOB GARFIELD:Lawrence Lessig is a professor of law at Stanford University and author of Code and Other Laws of Cyberspace and the Future of Ideas. [MUSIC]

BROOKE GLADSTONE: Coming up, why court cases consume the media, and personalities who impressed the press.

BOB GARFIELD: This is On the Media, from NPR.

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