The Paul Revere Of The Web

Harvard's Lessig warns of threats to speech and innovation

Lawrence Lessig seemed destined to be a darling of the conservatives. In 1980, the kid from Williamsport, Pa., was a rising GOP star, tapped to manage a crucial state Senate campaign when he was just a sophomore at the University of Pennsylvania. In spite of the Reagan sweep, however, Lessig's candidate lost, and he steered away from what had seemed like a budding political career. "I was saved by losing that first campaign," Lessig jokes now. "If I had won, I'd have been Ralph Reed."

Instead, the 38-year-old Harvard University law professor is fast emerging as the nation's most original thinker in the new field of cyberlaw. And he's now a self-described liberal. In a new book, Code, and Other Laws of Cyberspace, Lessig argues that courts and legislatures must stop companies and governments from violating privacy, free speech, and open markets on the Internet. He worries that government will snoop on citizens. And he fears that companies like software maker Microsoft Corp. are rigging Web technology to stifle competition. His solution: Basic rules for the use of technology that keep the Web free and fair. "If the architecture is correct, there's less need for government to intervene to protect values or to perfect competition," he says.

Lessig is more than an Ivory Tower scribbler, though. As an adviser to Judge Thomas P. Jackson in the Microsoft antitrust case, his views could actually help change the course of history. In the wake of oral arguments on Feb. 22, Judge Jackson is expected to pay close attention to a brief he solicited from Lessig. In it, Lessig suggests a way for Jackson to rule against Microsoft without running afoul of a 1998 appellate decision warning judges not to prevent the bundling of software products. "I see Lessig's argument as being aimed at the Supreme Court," says George Washington University antitrust expert William E. Kovacic.

CONSTANT COMMENT. Lessig's views already have put him at center stage in cyberlaw. Supreme Court Justice Sandra Day O'Connor cited one of his law review articles when the court overturned the antipornography Communications Decency Act in 1997. He pioneered the teaching of Web law in 1994 when he was at the University of Chicago. And he has become a well-known commentator on Web issues thanks to his monthly column in the newsweekly The Industry Standard as well as his new book. "Put simply, Larry Lessig is forcing people to think," says Marc Rotenberg, director of the Electronic Privacy Information Center.

Right now, he's doing his thinking in Europe. He has a one-year fellowship at Berlin's Wissenchaftkolleg. Lessig, who last year married Bettina Neuefeind, a German-born lawyer who investigated Kosovo war crimes, has been busy on the Continent before. He helped write the constitution of Georgia after it split from the Soviet Union. Earlier, in 1985, he smuggled a heart valve into the Soviet Union for a Jewish dissident, hiding the device in the crotch of his pants.

Lessig has always been restless. As a teenager, he gravitated to the old-fashioned Republicanism of his father, Jack, who owned a steel company. He was president of the Pennsylvania Teenage Republicans and heading for a career as a GOP campaign manager. His father recalls that Lawrence was so heavily involved in local politics that people called dad, "A block off the old chip." The son later quit the party in disillusionment--partly because of the lingering taint of Watergate. And, by the time he graduated from Yale Law School in 1989, he was questioning the antigovernment mood in politics and the courts.

Even though he clerked for the Supreme Court's ultraconservative Antonin Scalia, they rarely saw eye to eye. The two debated Scalia's view that judges should stick to the original intent of the Founding Fathers--not try to update constitutional interpretation to protect liberty against new threats. Lessig felt like a leopard in a lion's den. "He loves to argue," he says of Scalia. "It was great fun--for him. I was outnumbered." But something useful came of it: Lessig's current call for judicial activism was forged in those debates.

DELICATE BALANCE. Lessig's transformation into a cyberlaw liberal is rooted in his study of the decay of communism. During a summer break from college in 1982, he hitchhiked through Eastern Europe. He saw up close the extremes to which these bureaucracies went to protect their authority. Later, in the mid-1990s, when the Net began emerging as a revolutionary force, he saw how government and corporations here clung to power in the face of a tidal wave of change. His goal now, he says, is to figure out the basic rules that society should adopt to prevent these capitalist bureaucracies from stalling progress.

Lessig has no pat answers. He sees government oversight of the Net as a delicate balance. On one hand, he opposed a 1998 law extending the term of copyright protections for software and music from 17 to 95 years. His reasoning: It discouraged innovation and competition. On the other hand, he testified before Congress in favor of a bill barring paparazzi from using high-tech cameras and boom mikes. He said the law was needed to restore the balance between free speech and privacy.

The way Lessig sees it, he's not flip-flopping. He favors regulation mostly when there's no obvious way for consumers to protect their own rights. Otherwise, he's concerned about government meddling. "The strongest value of my father--of the Republicanism of his views--was his skepticism of government," Lessig says.

Lessig's not skeptical about government's role when it comes to the Microsoft case, however. He believes the company violated the Sherman Antitrust Act by bundling its Internet Explorer browser with Windows to discourage the use of a competing program from Netscape Communications Corp. But he acknowledges that the appeals court ruling could make it impossible for Jackson to decide in the government's favor for fear the decision will be overturned.

Lessig's brief gives Jackson a road map for cornering Microsoft. His advice: Rule that only certain kinds of software integration are illegal and leave the rest alone. Lessig agrees with Microsoft that traditional antitrust law is too inflexible to cover software--an important sop to the appeals court. But he says the courts should intervene when the design of a combined program is aimed at making a new piece of software a "partial substitute" for the old. In this case, he says, the way the two programs were designed showed that Microsoft intended not to innovate in browsers, but to meld the software in a way that insulated both Internet Explorer and Windows from competition.

Lessig's coaching of Jackson hasn't won him fans among conservative legal experts. Wayne Crews, an economist at the Competitive Enterprise Institute, says Lessig's argument is dangerous. "Having lines drawn by legal hairsplitting rather than the marketplace is very bad for all commerce," he says. And Microsoft? The company claims Lessig's brief won't tip the case. "Appellate court rulings are really not optional," says Microsoft spokesman Mark Murray.

No matter how the trial turns out, Lessig plans to keep pushing the boundaries of cyberlaw. He already has started on a second book. This one will argue that tailoring the Web's rules to short-term business needs is economically inefficient because allowing too much private control can stifle innovation as much as too much government regulation can. He relishes being the Web's Paul Revere. "The point is to get people to see that this extraordinary innovation is threatened," he says. Clearly, the Web is no threat to Lessig's flourishing career.

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