Deconstructing Code

Jay Kesan, University of Illinois - College of Law, and Rajiv Shah, University of Illinois at Chicago - Department of Communication

11/25/2008
(Original Publish Date: 11/19/2004)

This Article deconstructs code using case studies and shows that code is not neutral and apolitical but instead embodies the values and motivations of the institutions and actors building it. The term "code," as we use it, consists of the hardware and software components of information technologies. Code is increasingly being sought as a regulatory mechanism in conjunction with or as an alternative to law for addressing societal concerns such as crime, privacy, intellectual property protection, and the revitalization of democratic discourse. Our analysis examines how societal institutions, such as universities, firms, consortia, and the open source movement, differentially influence the production of code. Relying on four case studies, we analyze how institutions differ in structure and motivation, and how they are affected by different social, political, economic, and legal influences. We then analyze how these societal institutions, which all approach code creation differently, influence the technical and social characteristics of the code that is developed by them. For example, code developed by a university is likely to contain different values and biases, regarding societal concerns such as privacy, than code developed by a firm. This analysis provides a crucial first step in understanding how society shapes these new technologies. Ultimately, this work may assist policymakers in proactively shaping the development of code to address societal concerns.