LAW AS COMPUTER CODE: THE FANTASY OF ESCAPE FROM HISTORY INTO THE COMPUTER SCREEN

The means by which the eventual marriage of the computer counterculture's libertarianism with today's conservative movement were accomplished are well illustrated by Stewart Brand's (1987) celebratory book about MIT's Media Lab. Brand opens with an epigraph that dedicates the book to the "drafters and defenders of the First Amendment" and that describes the Amendment as "Elegant code by witty programmers." Here in a nutshell are the characteristic tropes of the computer culture: wry wit, iconoclasm, and a breathtakingly naive denial of history and social process. For as any legal historian and most lawyers know, the First Amendment, whatever its merits, is not at all like computer code. It has never functioned with the automatic, mechanical certainty of a computer program. Its contemporary meanings in American law are barely half a century old; in the nineteenth century, for example, it was frequently interpreted to mean that censorship was discouraged at the federal level, but completely legitimate at the local and state levels. A computer program executes itself in the same way each time, regardless of who is operating the computer; a legal principle, in contrast, is interpreted differently depending on its social and historical context. The current strong interpretation of the First Amendment in the U.S. is a political accomplishment, a result of complex social and ideological struggles, not a result of feeding the Bill of Rights into a neutral legal machine (Kairys, 1990; Streeter, 1995).

Yet the fantasy that laws do work that way is a key commonality between the current rising conservative tide and the otherwise disparate computer culture. A radical distinction between law and politics is central to the libertarian faith; law, the theory goes, underpins a system of individual liberties neutrally and mechanically, whereas government involves the arbitrary and subjective political interference with those rights. Clever and elegant legal codes by witty legal programmers allow us to be self-interested, unattached, free individuals, monads in a marketplace, whereas government coerces us into repressive collectives. That's why conservatives can imagine there's no contradiction between their frequent calls for law and order and their criticisms of government intrusion into our lives. The fantasy that law works like a computer code, in sum, undergirds the denial of history, social structure, and political struggle that is central to the libertarian faith in markets, at least in its more naive forms. The habits of thought that metamorphosed from sixties countercultural social libertarianism into technology-based economic libertarianism, and eventually lent credibility to today's dominant neoliberalism, thus rely on a metaphorical interfusion of law with computers, in which each is imagined to function like the other.

Ted Nelson's faith in the ahistorical formalist understanding of law becomes clear when he defends his insistence on copyright protection: I've heard . . . arguments, like `Copyright means getting the lawyers involved.' This has it approximately backwards. The law is ALWAYS involved; it is CLEAN ARRANGEMENTS of law that keep the lawyers away. . . . If the rights are clear and exact, they are less likely to get stepped on, and it takes less to straighten matters out if they are. Believe it or not, lawyers LIKE clean arrangements. `Hard cases make bad law,' goes the saying (Nelson, 1997b). Most of those familiar with the historical details of intellectual property law would probably be more than a little skeptical of the idea that intellectual property can be rendered into such "clean arrangements." Based as it is on such nebulous notions as "originality" and the distinction between an idea and its expression, intellectual property is a famously shifting and murky area of the law, replete with qualifying complications like fair use, copyright collectives, and compulsory licensing. Intellectual property is a classic example of a form of property where, as one famous essay on property law put it, "crystals turn to mud" (Rose, 1988). With Xanadu, of course, Nelson promises a technological fix to all this murkiness. But historical experience and a little common sense would suggest that the fit between technologies and intellectual property has only grown murkier as technologies have grown more sophisticated. The internet and the World Wide Web in particular, though they do embody much of Nelson's utopian fantasy, blur rather than clarify the boundaries of authorship and intellectual property that were central to his vision; it's easier than ever before to copy someone else's work without attribution, and uncertainty in the realm of intellectual property is one of the major legal and policy issues of the day.

Both the passionate attachment to the formalist vision of law and its naivet� became abundantly clear when Congress added the porn-prohibiting Communications Decency Act to the `96 Telecommunications Act, and the computer culture flew into a libertarian high dudgeon over the CDA. Computer pundit Brock Meeks, for example, flooded the internet with outraged diatribes, frequently repeating the query "Which part of NO LAW don't you understand?" -- as if no one could read the amendment and interpret it differently. (The fact that for 150 years the best trained jurists in the land did read the First Amendment quite differently seemed to have escaped Meeks' consciousness.) Similarly, the EFF's John Perry Barlow distributed an outraged "Declaration of Independence of Cyberspace," as if the CDA were the last straw that would precipitate a popular rebellion against governments world wide. As the First Amendment is a favorite topic of reporters, the flap over the CDA became the primary focus of press coverage of the `96 Act, the only element of the Act that had any controversy associated with it.

In fact, the CDA takes up less than a page of the nearly 100-page act, and was correctly understood by many at the outset as unenforceable and unconstitutional. The bulk of the Act, by contrast, is a rather typical piece of corporate welfare, handing out various favors to corporate interests while creating some behavioral ground rules that provide industry overall with stability and protection from cutthroat competition during a period of organizational and technological change. The key progressive component of the Act, one with important implications for fostering the open, public debate that is the goal of free speech law, was arguably the creation of a universal service fund for schools and libraries. Yet all this was accomplished by elaborate inside-the-beltway maneuvering, and even the universal service issue escaped any widespread public debate, even on the internet. In retrospect, it seems probable that the computer culture's loud objections to the CDA, rather than promoting the cause of freedom, in fact served to deflect attention from the much more important, and in the long term, more freedom-restricting pro-corporate components of the `96 Act. One of the more enduring legacies of computer libertarianism may be the way it served to distract attention from the core of the `96 Act, thus ensuring its easy passage.

CONCLUSION

There's much of value in the computer culture and its legacy. It's important that people like Ted Nelson were more right about the future of computers than the bulk of the managers who controlled decision making in the electronics industry; the computer culture was on to something. And its success has helped keep alive a respect for iconoclasm. While I think the dominant impact of Wired was conservative and co-optive, it's intriguing that, for a few years during the height of its popularity, business managers across the land were thumbing through a magazine that would routinely include observations like, "One of the dirty secrets of capitalism is that the harder you work the less you get paid."

The most important lesson of the computer counterculture is that the dramatic success of the internet, of small computers, of user-friendliness, of open systems, and of hypermedia are evidence of a widespread desire for connection and cooperation in a context free of the private and public hierarchies that so often dominate our lives. Unlike the standard conservative marketplace fables in which we're told that all will be well if we dedicate ourselves to the selfish, calculating pursuit of the profit motive, computer utopians like Ted Nelson and Stewart Brand celebrate pleasures of unrestricted communication, of connection with others, pleasures that are both aesthetically and intellectually creative and social and that cannot be reduced to the calculating self-interest of homo economicus. Nelson's vision of computers was always one in which computers are interlinked and used creatively in liberatory ways, in which they are a tool for social interaction, not merely tools for controlling people and machines in the name of enhancing the efficiency of profit-driven enterprises. Ted Nelson may have been an outlier, but he spoke to real resentments and dissatisfaction with the hierarchical worlds of managers and bureaucrats that characterize so much of modern life.

As a political formula, the romantic libertarianism that the computer culture offers as an alternative is as powerful as it is wrong-headed. True, in the hands of political hacks like George Gilder, the formula may be just an after-the-fact rhetorical trick to justify broader conservative social policies. But what the cases of Theodor Nelson or Stewart Brand suggest is that, for many, the formula can be deeply compelling. In a warped way, it articulates genuine dissatisfaction with existing power structures and genuine desires for forms of social life that are less hierarchical and more liberating than those offered by the current corporate-dominated welfare/warfare state.

Any politically progressive use of the insights, styles, and dissatisfactions that gave birth to the computer culture would have to bring out its hidden histories and social constituents. One of the liabilities of the colloquial, accessible writing style of the computer culture is that it obscures intellectual legacies and context; you have to read Gregory Bateson very carefully to notice his debts to Freud and social and anthropological theory. It needs to be made clear that the pleasant anarchy of the internet is not the just the product of an absence of control, but that it was built upon a foundation of support from nonprofit research universities and their costly and fragile culture of open intellectual exploration. The inanities of corporate managerialism that are so deftly criticized by both Ted Nelson and Dilbert need to be put in the historical context of the modern corporate form of organization and its supports in the legal system such as the fiction of the corporate individual.

More abstractly, I think a compelling alternative form of individualism needs to be developed. Nelson's dream of freedom in computer screens in practice devolves into a desire for disconnection, freedom from relations with others through illusions like legal neutrality or the "technical fix" of the computer itself. This articulates with the conventional conservative notion of freedom as purely negative, as freedom from , not freedom to. And like that conventional conservative idea of freedom, it too easily works to support the corporate hierarchies it imagines it will overthrow. For a certain kind of person (mostly white, mostly male, mostly educated and middle- and upper-middle class), playing with a computer in fact feels like an escape into another world, into a kind of freedom. Computer obsession bespeaks, I think, a fear of the political, of interconnectedness, a distorted wish to escape the unpredictability and unknowability of relations with others that comes from being social creatures. That obsession is understandable, perhaps, given the limitations of contemporary life; but it's a shallow and ultimately illusory form of freedom. Over the long term, any successful left politics will have to address the genuine dissatisfactions and desires that make the computer seem like a form of freedom, like an escape, but it must do so in a way that leads beyond them in the direction of something more situated: a mature version of freedom.

REFERENCES

Anderson, J. (1984, November), "Dave Tells Ahl -- The History of Creative Computing," Creative Computing, Vol. 10, No. 11, pp. 67-74.

Barbrook, R. and Cameron, A., (1996) `The Californian Ideology,' http://www.wmin.ac.uk/media/HRC/ci/calif5.html.

Bateson, G. (1972) Steps to an Ecology of Mind, New York: Ballantine Books.

Brand, S. (1987), The Media Lab: Inventing the Future at MIT, New York: Viking Penguin.

Dery, M. (1997, September 28) "The Cult of the Mind," New York Times Magazine, pp. 94-96.

Frank, T. (1997) The Conquest of Cool: Business Culture, Counterculture, and the Rise of Hip Consumerism, Chicago: Univ. of Chicago Press.

Cringely, R. X. (1996) Accidental Empires: How the Boys of Silicon Valley Make their Millions, Battle Foreign Competition, and Still Can't Get a Date 2nd edition, New York: HarperBusiness.

Horwitz, R. (1989)The Irony of Regulatory Reform: The Deregulation of American Telecommunications, New York: Oxford University Press.

Kairys, D. (1990) "Freedom of Speech," in Kairys, D. (ed.), The Politics of Law: A Progressive Critique (Revised Edition), New York: Pantheon, 1990, pp. 237-272.

Kleiner, A. (1986), "A History of Coevolution Quarterly," in Art Kleiner and Stewart Brand (eds.). News that Stayed News: Ten Years of Coevolution Quarterly 1974-1984, San Francisco: North Point Press.

Nelson, T. (1974a), Computer Lib. (Flip side of Dream Machines), self-published

Nelson, T. (1974b), Dream Machines. (Flip side of Computer Lib), self-published.

Nelson, T. (1983) Literary Machines, fifth edition (first edition 1981), self-published.

Nelson, T. (1987) Computer Lib/Dream Machines (revised edition), Redmond Washington: Tempus Books of Microsoft Press.

Nelson, T. (1997a), "The Xanadu Australia web page" http://www.xanadu.net/the.project/.

Nelson, T. (1997b), www.hyperstand.com/Sound/Ted_Report2.html.

Rose, C. (1988, February) "Crystals and Mud in Property Law," Stanford Law Review, Vol. 40, pp. 577-610.

Streeter, T. (1995),"Some Thoughts on Free Speech, Language, and the Rule of Law,"in Robert Jensen and David S. Allen (eds.), Freeing the First Amendment: Critical Perspectives on Freedom of Expression, New York University Press, pp. 31-53.

Streeter, T. (1996) Selling the Air: A Critique of the Policy of Commercial Broadcasting in the United States, Chicago: Univ. of Chicago Press.

Williams, R. (1961), The Long Revolution, Westport, Connecticut: Greenwood Press.

Wolf, G. (June, 1995) "The Curse of Xanadu," Wired 3.06. [1]The political full-circle of Brand and his cohort can be seen in the fact that, while in 1969 arch Viet Nam war-supporter Ithiel de Sola Poole and Brand were on opposite sides of the barricades, by 1987 Brand was explictly basing his political analysis on de Sola Poole's Technologies of Freedom (Brand, 1987, p. 214).

[2]Stewart Brand set out to create a Whole Earth Software Catalog and a Software Review in the summer of 1983. Editors for these projects were offered salaries competitive with other computer-writing jobs, and the policy of equal-pay-for-all-staffers that had been in place at CQ since 1976 came to an end. The same year, CQ raised its subscription prices without, as had been done in the past, discussing it or mentioning it in the magazine. In the fall of 1984, the Whole Earth Software Review and Coevolution Quarterly were combined and the joint publication was named Whole Earth Review. See Art Kleiner, "A History of Coevolution Quarterly," pp. 336-337.

[3]Computer Lib resists conventional citation. It has two "halves," printed back-to-back in the same volume with each half inverted to the other, so that it essentially has two front covers, one titled Computer Lib and the flip side titled Dream Machines: New Freedoms Through Computer Screens. As each half has separate page numbers, citations below will refer to page numbers in Computer Lib or Dream Machines, as appropriate. The copy used here is described as the First Edition, "NINTH PRINTING, Sept. 1983," and thus, though the copyright listed on both first pages is 1974, a description of events of 1975 like the appearance of the MITS Altair are described, and in Nelson's own biography on page 3 of Computer Lib he describes activities through 1977. A heavily revised and re-typeset edition was published in 1987 by Tempus Books of Microsoft Press; as some of the more interesting historical material was removed in this revision, citations below are to the First Edition unless otherwise noted.

[4]Dream Machines, p. "X" (the second page of a lettered, unnumbered "Special Supplement to the Third Printing, August 1975" that starts Dream Machines.) The passage predicts that Xerox PARC's innovations -- those that would lead to the creation of the Macintosh less than a decade later -- will lead Xerox to dominate the computer field. But are concluded with the following prescient paranthetical statement: "The above predictions are based, of course, on the assumption of Xerox management knowing what it's doing. Assumptions of this type in the computer field all too often turn out to be without basis. But we can hope."

[5]In one of many prescient passages, Nelson critiques a June 30, 1975 Business Week article on "The Office of the Future," which predicts computerized offices staffed by centrally located, specially trained word processing technicians, and that the only companies that will succeed in this field will be IBM and Xerox. Nelson goes on: "Well, this is hogwash. . . . The office of the future, in the opinion of the author, will have nothing to do with the silly complexities of automatic typing. It will have screens, and keyboards, and possibly a printer for outgoing letters . . . All your business information will be callable to the screen instantly. An all-embracing data structure will hold every form of information -- numerical and textual -- in a cats'-cradle of linkages; and you, the user, whatever your job title, may quickly rove your screen through the entire information-space you are entitled to see. You will have to do no programming." (Dream Machines, p. "X.")

[6]Robert Hobbes Zakon's "Hobbes Internet Timeline v3.1" (http://info.isoc.org/guest/zakon/Internet/History/HIT.html) attributes the first use of the term "web surfing" to Jean Armour Polly in 1992.

⁷Lest there be any doubt that Nelson was familiar with the Catalog, on Dream Machines, p. 3, he writes "of course I'm blatantly imitating, in a way, the wonderful Whole Earth Catalog of Stewart Brand." He also cites the Domebook, a popular instruction manual on geodesic domes, as inspiration. And on p. 69, Computer Lib visually quotes The Whole Earth Catalog's cover (and most famous image) with a full page computer-generated image of earth from space, captioned "The Hole Earth Catalog."

⁸These ideas are more explicitly elaborated in Nelson's self-published Literary Machines, fifth edition published 1983 (first edition 1981) Chapter 2, pp. 35-38. (Each chapter has separate page numbers.)

⁹The Xanadu Australia web page (http://www.xanadu.net/the.project/) describes the project thusly: "We need a way for people to store information not as individual "files" but as a connected literature. It must be possible to create, access and manipulate this literature of richly formatted and connected information cheaply, reliably and securely from anywhere in the world. Documents must remain accessible indefinitely, safe from any kind of loss, damage, modification, censorship or removal except by the owner. It must be impossible to falsify ownership or track individual readers of any document. This system of literature (the "Xanadu Docuverse") must allow people to create virtual copies ("transclusions") of any existing collection of information in the system regardless of ownership. In order to make this possible, the system must guarantee that the owner of any information will be paid their chosen royalties on any portions of their documents, no matter how small, whenever and wherever they are used."