Law professor David Post explains how cockroaches hold the key to the borderless economy.
__ David Post is one wild man. As a grad student in physical anthropology during the 1970s, Post spent two years in Kenya observing the feeding behavior of yellow baboons. But not long after receiving a PhD from Yale, he turned his back on evolution and enrolled in law school, eventually clerking for Supreme Court Justice Ruth Bader Ginsburg. The law of the jungle, however, has proven too much to resist. In his recent incarnation as Temple University law professor and cofounder of the Cyberspace Law Institute (www.cli.org/), Post is applying his knowledge of complex systems to the untamed wilderness at the heart of information policy.
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Wired: Your career has taken you from physical anthropology to electronic privacy. What's the missing link between Jane Goodall and Mike Godwin?
Post:
Thinking of communities as rule systems, like genetic systems or ecosystems, forces you to consider the ripple effects created by changes in the law. Biologists can't accurately say, "Raise the temperature a few degrees, cockroaches will get bigger, and there will be more mockingbirds" - other things mockingbirds feed on may disappear. Now take copyright law. Outlawing anti-circumvention technologies will change incentives for artists, who will react in unpredictable ways, which will affect other people, and so on. That's the nature of an interconnected system, in biology, law, and society at large. Related fields of study - evolutionary biology, microeconomics, game theory, tragedies of the commons - are beginning to fold together into a general study of how complex systems behave.
Sounds a bit like Edward O. Wilson. (See "From Ants to Einstein," Wired 6.04, page 178.) Are you preaching sociobiology?
No. Biology teaches us a lot - at the higher level of systems. But social behavior is not a function of the biology of individuals. You can't understand the behavior of the ant hill by understanding the biology of the individual ant.
But can we look to the natural world to solve policy problems?
Look at the broad applications of complexity theorist Stuart Kauffman's concept of "patching" - breaking up a system into self-optimizing units. A legal scholar quickly sees parallels to our concept of federalism: Everybody is always playing a complicated multiplayer game, with every different jurisdiction - cities within states, states in a union - searching for its own best configuration. The system works best when there is some, but not too much, spillover of harms from one group to the next. Pissing on your neighbor can actually help the system as a whole.
Pissing on your neighbor?
If information is not moving from one group to another, the patches don't get the systemwide benefits of experimentation. Everybody trying to solve spillover problems from other jurisdictions shifts the whole system, maybe to a higher peak on the fitness landscape.
What do you mean by fitness landscape?
Individual elements in any system can take different configurations, and the "fitness" of each can be measured against any criterion - say, aggregate happiness. Each change drives the system to some other place on the fitness curve: Some create rises, some create declines. Cut the legs off all the workers, and the system will probably end up in a decline. The hard part is finding the configurations that produce rises - social welfare, in the case of public policy, or better cockroaches in the case of evolution. Evolution is a search algorithm to find higher and higher positions on the fitness landscape.
How do we reach higher ground?
The one thing you don't want in an evolutionary system is to freeze solutions in place - say, the WIPO drive to create a uniform set of copyright rules. You want to preserve the pull and tug of diversity, to have niches in the law for different cockroaches, so the system can continue to flourish as conditions change. A few years ago, people were talking about the copyright issues of caching; that has become moot, because caching has become a part of the landscape - like heat or sunlight - and people are adapting to it. What succeeds in an evolutionary sense is adaptability and flexibility.
The law, however, moves at such a crawl.
For 400 years, geography has been at the center of how we think of law as a tool of social control. Now that we've lost our moorings in the floating world of cyberspace, we need to apply complexity theory to these new legal problems and to reinvent primitive forms of a-geographical lawmaking. The domain name grab, of course, looks a lot like homesteading. In the Middle Ages we had the "law merchant," a body of commercial practices that developed from the ground up over time and spread from one commercial center to another. Going back even further, religions are very early examples of a-geographical rulemaking systems. Corporations have become similar institutions - they have their own internal rules, policies, and cultures that are not necessarily linked to any geographical region. The existence of these kinds of structures is not novel - what's novel is that they have become primary actors in this policy discussion.
What happens when you have someone very big at the top of the food chain?
Take Microsoft - is it denying the emergence of some creativity that would let the system evolve over time? That's exactly why the DOJ is moving. But with things like spam, where the harms are relatively minor, we should allow people to come up with their own, diverse solutions. Watching some roaches get eaten can give other roaches valuable information about how not to get eaten, and that makes for better and stronger cockroaches.
The law of the modern primitive?
Cyberspace is more like the state of nature than anything we've encountered in a long time. As an anthropology professor of mine once pointed out, if we lived in a world that contained only the color red, not only would we not understand "blue," but we wouldn't really understand "red." Cyberspace allows us to understand a new color, much as the settlement of the New World allowed theorists the opportunity to see what society would be like without a sovereign.
So it's a roach-eat-roach future?
Sometimes, to get from one high point to the next, you have to go down first. Our tendency is to simply get rid of the bad guys, just kill off all the mosquitoes. But then all the beautiful birds die. Complex systems find a way to adapt. We have to let cyberspace become more of a jungle - let it grow wild before we start pruning at the margins. You won't get order from law alone.
