Governance Characteristics of “Code”: The Role of Transparency, Defaults, and Standards

Rajiv C. Shah, and Jay P. Kesan

1/01/2005
(Original Publish Date: 9/28/2002)

Regulation through "code," i.e., the hardware and software of communication technologies, is growing in importance. Policymakers are addressing societal concerns such as privacy, freedom of speech, and intellectual property protection with code-based solutions.While scholars have noted the role of code, there is little analysis of the various features or characteristics of code that have significance in regulating behavior. This paper examines the social, technical, and legal ramifications of three universal governance characteristics of code that are significant in regulating behavior. The characteristics are crucial in understanding how code operates as well as the various possible regulatory settings for code. These characteristics studied are transparency, defaults, and standards. These characteristics were identified through a number of case studies, which explored how code regulates by studying code in a variety of historical periods, developed within different types of institutions, and based upon diverse expectancies of user competencies. The case studies include the Finger protocol, Netscape's cookies technology, and the Platform for Internet Content Selection developed by the World Wide Web Consortium. The first characteristic analyzed is transparency. Transparency in code allows people to understand how code operates. This allows people to make an informed decision when using code. For regulators, transparency allows them to ensure code properly addresses issues of societal concern. For example, a key complaint of content filtering software is its lack of transparency. Users and policymakers do not know what material is and is not being blocked. We discuss several important regulatory issues with transparency, including its contextual nature and dependence upon implementation. The second characteristic is the role of defaults. Defaults set the condition for how code operates in the absence of intervention. Defaults are a method regulators can use to ensure people have multiple options when using code. We discuss the importance of defaults, their power, and also why people may not follow default settings. An example of the use of defaults concerns privacy. Should the defaults of code be designed so people have to intervene to protect their privacy or only intervene when giving up personal information? The third characteristic is standards. We use this term broadly to encompass open standards that allow for interoperability as well as modularity that saves developers from recreating code. This characteristic has important economic, social, and legal ramifications. The economic ramifications include the encouragement of competition by allowing for a number of different producers. The social ramifications are allowing people and regulators to set or select the regulatory settings for code. For example, the open source web browser Mozilla, is being reconfigured and enhanced by a number of parties, including university researchers, experimenting with enhanced privacy protection; firms such as Netscape that are developing consumer oriented web browsers; and the open source community who are designing alternative web browsers. As a result, people can choose the code that meets their preferences.