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Shaping Code

JAY P. KESAN University of Illinois College of Law RAJIV C. SHAH University of Illinois at Chicago - Department of Communication

Abstract:

    This paper has been divided into two articles, Deconstructing Code and Shaping Code. Please view these articles for the latest revisions, this version is outdated.

    This article addresses how society shapes code. 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 revitalizing democratic discourse. This article analyzes how various societal institutions, that create code differentially, influence the technical and social characteristics of the code that is developed by them. The article also provides recommendations on how society can intervene and proactively shape the development of code to vindicate societal concerns and preferences.

    We begin by analyzing four societal institutions in which code is developed through a number of case studies. These institutions include universities, firms, consortia, and the open source movement. We examine how structural factors, different internal and external influences, and management decisions, all of which vary by institution, affect the development of code. Next, we analyze how the varied tendencies of societal institutions result in different emphases on the social and technical attributes of code. This analysis explains why code may favor certain attributes, such as open standards, ease of use or robustness of code, and either promote or ignore some social value, such as privacy, depending upon the institution in which the code is developed.

    To allow society to intervene and proactively shape code, we also provide a number of recommendations on how society can shape the development of code. These recommendations include regulatory and fiscal actions by the government, as well as actions that public interest organizations can take to shape code. These recommendations also include a number of specific policy prescriptions that address a number of issues, such as government's funding for the development of code, government's use of its procurement power to favor open source code, export prohibitions on encryption code, developing an insurance regime for cybersecurity, and fashioning technology transfer policy for code. These recommendations will allow policymakers to better anticipate and guide the development of code that contributes to our society and reflects its values and preferences.

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