"Regulating Code: Good Governance and Better Regulation in the Information Age." Ian Brown and Chris Marsden. MIT Press. March 2013. --- In issues from online surveillance to social media ethics and piracy, questions of internet governance surround us. In Regulating Code, authors Ian Brown and Chris Marsden make a case for multi-stakeholder co-regulation based around the function of code rather than national geographic boundaries. Alison Powell reviews the argument made through the authors’ five case studies of where regulation meets code

Powell, Alison

English

LSE Research Online

blo gs.lse.ac.ukhttp://blogs.lse.ac.uk/lsereviewofbooks/2013/08/12/book-review-regulating-code-good-governance-and-better-regulation-in-the-information-age/Blog AdminBook Review: Regulating Code: Good Governance and BetterRegulation in the Information AgeIn issues from online surveillance to social media ethics and piracy, questions of internetgovernance surround us. In Regulating Code, authors Ian Brown and Chris Marsden makea case for multi-stakeholder co-regulation based around the function of code rather thannational geographic boundaries. Alison Powell reviews the argument made through theauthors’ five case studies of where regulation meets code.Regulating Code: Good Governance and Better Regulation in the Information Age.Ian Brown and Chris Marsden. MIT Press. March 2013.Find this book: This summer’s revelations about the extent of  the US PRISM surveillanceprogram and the similar programs in place in the UK put an end to anynotion that the internet is an unregulated space. Instead the questionbecomes one of  how it will be regulated, and by whom. In the PRISM case,this means that US-based private companies share the personal detailsof  their customers (in an aggregated, anonymous f orm, they attest) withgovernment entit ies, who then share those details (again, in theaggregate, one hopes) with other governments. The f undamental humanrights of  the individuals whose data are collected and shared are notconsidered in this equation. The polit ical economy of  security, combinedwith the ease with which data can now be collected and transf erred, seemto trump these issues of  principle.Similarly, other questions of  polit ics online easily get sidetracked intocalls f or technical f ixes. When campaigner Caroline Criado-Perez experienced threats of  sexualviolence on Twitter, the outraged public looked f irst not to the police, but to the company, andinstead of  asking f or more robust policing, thousands signed a petit ion asking Twitter f or a“report abuse” button, a very blunt technical solution.These two examples illustrate how regulation online is deeply complex, involving an interrelationshipbetween law and code. They also show how solutions anchored in either law or code can underestimate oroverlook issues of  moral principle. In part this is because trying to f ix norms, laws or policy in code canbackf ire, but there’s also the f act that managing the “regulation-by-code” is delegated to automatedsystems, corporate entit ies, governments and a range of  other institutions. Clearly, we need to understandthese polit ical economic relationships in order to come up with a better way to govern the internet.A new book, Regulating Code: Good Governance and better regulation in the Information Age, by Ian Brownand Chris Marsden, attempts to provide recommendations f or establishing what they call “holistic”governance and regulation of  the internet and other code-based environments based on a series of  “hardcases” that illuminate the relationships between code and regulation. The book is t imely and important. It ’salso not always easy to approach.  Co-authored by a computer scientist (Brown) and an academic lawyer(Marsden), the book argues that regulating the internet is inevitable, and instead of  self  regulation bycompanies, or government regulation, the best option f rom both an economic and human rights perspectiveis multi-stakeholder co-regulation, anchored in the f unction of  code rather than in the geography ofnational government.This is an excellent and provocative suggestion, because it acknowledges both that contemporaryinf ormation f lows are hard to arbitrarily constrain, and that much regulation these days happens throughchanges to the code that the internet is built on, at various layers in the technical protocol stack. In itself ,this is an excit ing proposition f or a book, but the authors go f urther, using f ive “hard cases” to test thedevelopment of  what they call a “unif ied f ramework f or research into Internet regulation” (p. 20), includingprinciples f or regulatory intervention that balance “due process, ef f ectiveness and ef f iciency, and respectf or human rights”  (p. 20). These principles are ref erred to as prosumer law.Addressing these multiple aims in just under 200 pages results in a book that compresses a lot ofcomplexity into its sometimes muddled prose. In an ef f ort to explain the relationships between law, code,type of  regulation, polit ical economics and legal f rames, the authors leap between multiple examples ofsimilar phenomena: f or example varieties of  network architecture or privacy policy. The ef f ort is obviouslyto highlight the many relationships between coded architecture, governance and regulation, but the strongnormative claims that the authors make about human rights are not pulled throughout the book, whichresults in some sections missing an analytic f orce behind their descriptions.This is a pity, because if  any writ ing team can make the argument f or the simultaneous consideration oflaw, code, and regulation, it is computer scientist Brown, a Senior Research Fellow at the Oxf ord InternetInstitute and security and privacy expert and lawyer Marsden, a Prof essor at the University of  Sussex andproponent of  internet co-regulation. Their combined expertise shows in the multiple modes of  analysis theybring to bear to each of  the f ive case studies that make up the core of  the book.The f ive “hard cases” are privacy, copyright, censors, social networking sites, and smart pipes. The casesare selected to represent the current relationships in play between code and regulation, but it ’s interestingto note that among the f ive, one is a social construct, one a legal construct, two are f ully socio-technical(censors and social networking sites) and one encompasses what we might call “the concept f ormerlyknown as net neutrality” – normally f ramed technologically. As an interdisciplinary team, Brown and Marsdenshy away f rom using any theoretical f rame or explanatory context.The cases make tough reading f or non-experts. Dense and detailed, they outline the institutional polit icaleconomy that applies to each of  their cases and the outcomes of  current policy f rames.  They would beusef ul to researchers working in the areas covered by each of  the case studies as they present a f ewnovel ways of  organizing the current state of  the art, and do illustrate numerous instances of  therelationships between code and law. The f inal two chapters are the most interesting of  the book, since theycome closest to suggesting a guiding theoretical or analytic f rame. In the f inal chapter, the authors step upand argue f or the protection of  consumer, human, and speech rights, draw f rom a normative tradit ion thatarticulates code as law, in the tradit ion of  Lessig. At the same time, they posit ion the same normativevalues in relation to standards, including open source standards. Especially in the f inal chapters, the bookslips back and f orth between these posit ions, introducing a tension between the f unctional liberalism ofLessig, and the cultural crit ique provided by the open source movement. These normative posit ions havetheir own intellectual histories, but the authors’ holistic view makes it dif f icult to examine such f inedistinctions.In some ways, it is a great pity that this book is not longer. I would like to think that with more time andspace, the authors might be able to do some really usef ul work explaining to non-experts how code andregulation have come to be entwined, and where and to what extent multi-stakeholder processes intervenein those entanglements.What the authors have done is to devise a systemic way of  analyzing design and governance of  large andcomplex systems that have technical, economic and polit ical implications. They try very hard to come upwith a f ramework that takes account of  individual and collective rights without placing them totally inopposition to economic demands. This provides a very usef ul f ramework f or moving beyond relying only onthe market, or on code.This review was originally published on the LSE Media Policy Project blog.——————————————————-Alison Powell is a Lecturer at the Department of  Media & Communications at the London School ofEconomics. Bef ore arriving at the LSE in 2010, Alison was an SSHRC postdoctoral research f ellow atthe Oxf ord Internet Institute, where she studied grassroots technology development and digital advocacyand their impact on new media technologies and policies. She has a PhD f rom Concordia University inMontreal, Canada. Read more reviews by Alison.

Book review: Regulating code: good governance and better regulation in the information age

Abstract

Similar works

Full text

Available Versions

LSE Research Online