I’ve blogged on these pages before about the claim, popularized by Larry Lessig, that “code is law.” During the Concurring Opinions symposium on Jonathan Zittrain’s 2010 book The Future of The Internet (And How To Stop It), I cataloged the senses in which architecture or “code” is said to constitute a form of regulation. “Primary” architecture refers to altering a physical or digital environment to stop conduct before it happens. Speed bumps are a classic example. “Secondary” architecture instead alters an environment in order to make conduct harder to get away with—for instance, by installing a traffic light camera or forcing a communications network to build an entry point for law enforcement.
Zittrain made an interesting, further distinction. He noted that some interventions erase unlawful conduct that has already occurred. Thus, when EchoStar lost a legal battle over the right to include digital recording as part of its satellite service, a court forced the company to reach into thousands of households and zap the capability out of existence. The years since Zittrain’s book have given us the (literally) Orwellian example of Amazon erasing copies of George Orwell’s Nineteen Eighty-Four and Animal Farm from everyone's Kindle following a copyright license dispute. We can think of these examples as suggesting a distinction between pre-primary and post-primary architecture. Impossibility after the fact.
It occurs to me in writing a new essay that compares popular regulatory alternatives that there may be a fourth way code is law, corresponding to the empty box below. Forensic science or “forensics” refers to the use of science and technology to investigate and establish facts in connection with crimes or civil wrongs. It includes everything from the magnifying glass of yesteryear to today's handheld sensor that can detect whether a body is buried under the ground. Its basic mechanism is to turn the scene of a crime into a crime scene, i.e., to convert the ordinary stuff of life into clues and evidence. Like traffic light cameras, forensics makes crimes harder to get away with. But unlike standard secondary architecture, forensics does so after the fact. Sometimes long after the fact, as when brand new techniques permit investigators to reopen cold cases.
Accordingly, I submit that all of forensics is a kind of post-secondary architecture, thus filing out the fourth quadrant of code as law. Thoughts welcome, as always.
Cross-posted from Concurring Opinions.