Understanding Lessig: implications for European Union cyberspace policy

Abstract

In his famous book Code and Other Laws of Cyberspace Lawrence Lessig examined the impact of the code of cyberspace on our lives. He criticized the concepts that hold that cyberspace is by its nature free and therefore should be free from any government interference. On the contrary, he stated that ‘[l]liberty in cyberspace will not come from the absence of the state’ and argued that ‘the invisible hand of cyberspace [is] constructing an architecture that perfects control’. To underpin this statement he evolved the concept according to which the software code that constitutes cyberspace is law. On the basis of this precondition he called for the regulation of code and code makers in order to avoid the disappearance of the freedoms that we enjoy in our ‘bricks and mortar world’. He said ‘[w]e may be antigovernment, but for the most part we believe that there are collective values that ought to regulate private action. We are also committed to the idea that collective values should regulate the emerging technical world. Our problem is that we do not know how it should be regulated, or by whom.’ The present article examines how this question was reflected and answered by the European Union institutions in the last decade and analyses the adequacy of the European cyberspace policy in relation to this challenge.