Business code

Code, with its regulatory aspect, may be used by the State, but this is by no means the only agent to adopt such techniques: companies are great adepts of code as well.

Examples come by the dozen, from Internet filtering (on which I am writing my dissertation – I’ll post a link once I’ve handed it in), a cyberspace-related form of code, to the barriers in the London Underground and the Parisian Metro (the Brussels public transport seems to be headed in that direction too).

Regarding Internet filtering, for instance, many of the entities filtering Internet content are private companies, be they Internet service providers (ISPs) aiming to fight child pornography or businesses attempting to reduce productivity losses. As for public transport, it is generally run by public-private partnerships, associating the idea of universal service and minimum State oversight with economic viability.

How does this adoption of code affect us?

In the absence of code, such systems operate on the basis of trust and of the threat of sanction, should infringement be established.

This is easily observed in the case of Internet filtering by businesses wishing to tackle changes in productivity.

A recent US survey showed that 54% of 1400 companies with 100 or more employees wholly prohibited the use of social networking websites such as Facebook and Twitter [1]. While this survey does not enable us to assess whether this amounts to filtering or ‘acceptable use policies’ (similar to codes of conduct), a prior study seems to indicate that there may be a fair proportion of both [2].

If a business has deployed a filter over its network, employees will find it impossible [3] to access the relevant website; without such a filter, employees are faced with the following threat: ‘if you are caught X amount of times logging onto website A, you will be fired’. Employees are therefore given some degree of choice, because it is always possible to break the rule without being caught (perfect enforcement is currently nonexistent). This creates a reliance on trust, or an encouragement thereof, depending on your point of view.

One of the tips presented by Robert Half Technology at the end of their survey illustrates the question of trust, the effect that acceptable use policies have on employees:

‘Monitor yourself. Even if your employer has a liberal policy about social networking, limit the time you spend checking your Facebook page or reading other people’s tweets to avoid a productivity drain.’ [4]

Self-discipline, i.e. ‘the ability to pursue what one thinks is right despite temptations to abandon it’, is at the core of such policies, and understandably so: employers would rather employ people who are capable of self-discipline than those who give in to their most minute desires. The latter might decide on a whim to look for another job, to be less courteous with their co-workers, …

By encouraging self-discipline, employers can guarantee that they are creating a viable work atmosphere. Enforcement of acceptable use policies and codes of conduct is necessary to some degree to help maintain a certain quality of the work atmosphere, but they need not be applied rigidly.

This begs the following question: in the presence of code, does self-discipline retain the same importance? It is my opinion that code used by businesses may lead to diminish the amount of self-discipline that employers require of their employees, precisely because there are less ways in which employers encourage self-discipline. To be perfectly honest, I don’t see how that could be a good thing.

Your thoughts?

Footnotes

1. Robert Half Technology, ‘Whistle – but don’t tweet – while you work’ (6 October 2009), http://rht.mediaroom.com/index.php?s=131&item=790, accessed 7 July 2010;
S Gaudin, ‘Business use of Twitter, Facebook exploding’, on Computerworld (9 November 2009), http://www.computerworld.com/s/article/9140579/Business_use_of_Twitter_Facebook_exploding, accessed 7 July 2010.

2. D Forte, ‘Web Filtering: Where, How and Why – Control of Internet use: some considerations about the implications of this type of control in the light of the Italian experience’ [2001](8) Network Security 9.

3. Relatively speaking: there are code-based means of circumventing filters.
See C Callanan & others, ‘Internet Blocking: Balancing Cybercrime Responses in Democratic Societies’ (October 2009), http://www.aconite.com/sites/default/files/Internet_blocking_and_Democracy.pdf, accessed 22 July 2010.

4. Robert Half Technology (n 1).

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Welcome to Law Code

“Code is law”, Lawrence Lessig stated in his seminal work, Code [1], in reference to the regulatory function of software and hardware on cyberspace. Code, or ‘architecture’ in general, offers regulators (such as States, public authorities or private parties) an alternative to the three other modes of regulation according to Lessig, viz. social norms, law and the market [2].

Code is law because it enables a regulator such as the State to obtain from citizens the adoption of a specific behaviour: for instance, sleeping policemen (speed bumps, speed breakers) force vehicle drivers to slow down, attaining the same result (perhaps more effectively) than a law saying “You shall not drive faster than X km/h”.

In many instances, though, code is more than law.

Regulators could, for instance, propose law that would require car manufacturers to implement a certain form of code in cars that makes all cars fully automatic. Automatic cars, powered by code, would be much safer. As a result, “[r]oad traffic accidents, road traffic offences, drink-driving, and, let us suppose, car crime too are things of the past” [3]. Code would thus allow us to get rid of many causes of violence, death and misery in one swift go.

If such a proposal was submitted to debate, it is likely that most citizens (regulatees) would deem the proposal more than acceptable.

Roger Brownsword, member of the Nuffield Council on Bioethics and advisor to the British Parliament, suggests that there may nevertheless be cause for concern: by making the choice to give in to code, we may be endangering the values of our moral community and the rule of law.

Indeed, all the aforementioned crimes/torts/offences carry negative connotations. The moral community, today, suggests that they are contrary to our values. Cars are therefore “driven as […] morality requires (or permits)” [4], and we make the moral choice to adhere to the laws/norms.

With code, however, this choice disappears. The mere possibility of doing these actions no longer exists (or is rendered nigh impossible).

“What, then, can we say? How far does moral judgment remain available and meaningful?” [5]

That is the corollary of “code is law”: choice between what is (morally or legally) right and wrong becomes but a memory.

And this leads to the purpose of this website: to explore the consequences of the adoption of code in a variety of fields; to examine what code does to us.

It is a place for discussion, for the cross-pollination of ideas. We hope you shall make the choice to document code and discuss these issues with us.

Welcome to Law Code.

Footnotes

1. L Lessig, Code: version 2.0 (Basic Books, New York 2006), 5, http://pdf.codev2.cc/Lessig-Codev2.pdf, accessed 24 July 2010.

2. Ibid., 123.

3. R Brownsword, Rights, Regulation and the Technological Revolution (Oxford University Press, Oxford 2008), 250.

4. Ibid., 253.

5. Ibidem.

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