The Ninth Circuit handed down its decision in Fair Housing Council v. Roommate.com last week. Chief Judge Alex Kozinski authored the 8-3 en banc opinion upholding the three-judge panel’s finding that Roomate.com is not shielded from liability under the Communications Decency Act because the design of the website renders Roommate.com an information content provider (aka an author) rather than a publisher. The site’s required drop-down menus where users must specify answers to questions about sex, sexual orientation and presence of children offend anti-discrimination laws, says the majority. The Website’s search facilities enable users to search based on the same criteria. The court found that Roommate is not entitled to CDA immunity for the operation of its search system either, because it “directs emails to subscribers according to discriminatory criteria. By contrast, the dissent argues that providing drop-down menus should not be deemed to constitute “creating” or “developing” information.
The holding of the case centers around the design -- drop-down menus instead of free-form questions -- not the content of the Website. According to the court, it “designed its system to use allegedly unlawful criteria so as to limit the results of each search, and to force users to participate in its discriminatory process. In other words, Councils allege that Roommate’s search is designed to make it more difficult or impossible for individuals with certain protected characteristics to find housing—something the law prohibits."
Naturally, reading the opinion, I was struck by the similarities to the Grokster and other peer-to-peer file sharing cases where the finding of indirect copyright liability turns on the design of the communications protocols, which induced others to infringe, or the P10 cases and Arribasoft cases where the technological architecture is crucial to determining if the technology itself was fair use or aided and abetted infringement. Two years ago, the Sixth Circuit in Stewart v. Blackwell held that: the use of punch card and other outdated voting technologies that fail to provide notification and confirmation of a vote to the voter in certain Ohio districts but not in others led to “statistically significant disparities between the levels of residual voting among African-American and non-African American voters." The court recognized that the choice of technology can mean the difference between the right to vote and disenfranchisement.
Yet despite this recent attention to technology design in the jurisprudence of cyber- and IP law, the discipline has, for the most part, taken little interest in design projects. Though the law is centrally concerned with the regulation of social relationships that create the conditions for freedom of expression and human flourishing, technology design has largely been regarded as the purview of computer scientists, engineers and interface designers.
In the digital age, legal rules and legal doctrine, however, are not enough to protect civil liberties. The rights and freedoms of free speech are protected by software code as much as by legal code. We have seen that the copyright act itself is powerless to protect the user's right to read in the face of strong digital rights management technology. We have seen the constitutional rights to privacy and freedom of association eroded by new surveillance technologies. Yet the solutions we invent to these problems primarily focus on legal strategies. What laws can we pass to regulate the design of technology? How should judge’s rule to safeguard fair use freedoms? We turn the question of technology design, into one of legal analysis.
Cyberlaw has become co-opted and domesticated by traditional methods of legal inquiry, focused on the solutions offered by legal institutions.
Cyberlaw should meld the design of East Coast Code and West Coast Code. Instead of asking only how legal doctrines apply to new technological environments, we could be asking ourselves how legal principles might inform how we design those technological environments. As lawyers, we need to get into the business of doing design.
Law regulates construction yet lawyers do not need to learn engineering. We regulate food without becoming chefs. So why do lawyers need to learn and practice design?
First, I’m not sure that we don’t need to practice the epicurean and engineering arts more to serve clients better. On my first day in practice as a telecommunications lawyer, the partner in charge gave me two textbooks to read and learn about spin and yaw and transmission frequencies. But with the short shorts available to us in law school, self-evidently we cannot teach all subjects. Still - we should be teaching the importance of knowing and understanding how law does and does not condition behavior in other industries, whatever they might be.
Second, when we teach through cases rather than interfaces, we avoid the complex questions (and answers) at the intersection between computer science and law, between legal code and software code, between statutory construction and engineering. We are not giving students the toolkit to solve problems -- our highest and best use according to Brest and Krieger and the ABA. If code is law, lawyers need to start designing code.
Third, law school is professional school that is intended to teach future members of the profession a set of skills that serve the normative goals of social justice and democratic values. To complement the existing toolkit of lawyers. I'm not suggesting an interdisciplinary approach, whereby law taught with or informed by some computer science (“law and....”). Rather, I am suggesting that the professional training of cyber lawyers and the scholarly pursuits of cyberlaw academics should involve a central preoccupation with the design of technology. There is a critical media literacy as well as a critical media ability that we lack.
Fourth, if we are, indeed, interested in the pursuit of social justice -- and this is why tech design is different from engineering or cooking -- then lawyers and law schools need to be in the “business” of designing and architecting tools informed by these values. It is the technological intermediaries that are the strongest forces shaping expression in the digital age. The design of the interfaces determine what we and cannot do or say online.There are well-known exceptions but, for the most part, the new frontier of cyberlaw is tamed by the old conventions of the legal academy.
Fifth, the best offense against an IP maximalist agenda is a good offense. The content owners are seeking to control our use of intellectual property, not only through lobbying and litigation, but through technological strategies. We need to focus our efforts -- as some do -- on developing counter-measures, alternative technologies that promote freedom.
Sixth, lawyers like coders think in terms of procedure. We are used to devising rules for social behavior and translating them into the text of legal code. First you file a complaint then an answer then a reply and then a motion to dismiss. This is not much different from coders who also devise a set of steps and then implement their work in software that controls and constrains some actions while enabling others. Our professional rhetoric is merely two different dialects of the same language.
Seventh, there are opportunities emerging to use technology to participate in the work of governance. By domesticating cyberlaw and limiting it to only a certain set of skills, we forego the opportunity to develop technologies for democracy. If we leave it to the techies, we risk the opportunity to inform their design with our values. If we do it by ourselves, however, we run the risk of not knowing all the options available to us.