Computer Juridisms  --  Cornelia Vismann & Markus Krajewski

Full Citation
Vismann, Cornelia, and Markus Krajewski. `Computer Juridisms'. Grey Room 29 (2008): 90 - 109. Print.


Notes
1. Symbolic Machines
- Law as a transfer system for transferring rights; law is a media system (pp. 91)
- The way law disregards its media as "mere tools" that can be regulated (pp. 91)
- The upshot being that law attempts to regulate its own mediatic "grounds for existence", forming a paradox (pp. 91)
- Outlines how law and media have been competing transfer regimes which stabilized in relation to each other (pp. 91)
- But this upset by the emergence of computing which is also a universal media by acting "in a lawlike manner" (pp. 91)
- Adopting "access and restriction" as its underlying operation 
- Both law and media "exert discourse regimes" in the same way structurally: binary decision-making, control mechanisms of inclusion/exclusion (pp. 91) 
- Redundancies btwn law and computation render law ineffective (pp. 91)
- Law is blind to its dependence on computer media and its "structural homologies" (pp. 92) 
- Outline of that analysis:
- Examination of law-computer isomorphism; how their competition is over which system gets to "define reality"; legal fiction vs. digital virtuality (pp. 92) 
- Def of "virtual" = "a mode of reality that avoids the space-time categories of the law", emerges alongside GUIs (pp. 92)
- Virtuality of this kind threatens the law since it has no direct reference, pure representation; undercuts the continuity between sign and thing that underlies law (pp. 92) 
- Core concepts of law (from this): "corporeality, finitude, and authentication" (pp. 92) 
- Law attempts to preserve itself through:
- Fiction -- "fakes the reality of the physical world", the legal fiction (pp. 92) 
- Simulation -- Specifically applied to property definition; the production of scarcity and singularity; the production of artificial scarcity in digital condition of near infinitude; production of artificial singularity in a digital condition of interchangeability (pp. 92-93) 
- Media-Technology -- electronic authentication procedures as a means of connecting machine addresses to human identities, eg. cryptography
- The assertion that computation has won out over law for the definition of reality and therefore sovereignty; however, this required computation to go through a process of "juridification", an "adaptation of the computer to the legal framework." (pp. 93)
- "...incorporating basic elements of the legal system into its own administrative structure..." (pp. 93)

2. The Silence of Legislators
- Legislation ignored computing for its first 3 decades until 1989 (in US) when computational infrastructure was shown to be vulnerable; later legislation when the computer & internet became central to economic operation; US reluctance to popularize internet until 1996, then regulation/legitimization of e-commerce in 2001 (pp. 93-94)
- Europe situation very similar with EU standards in 1994 w/o mention of computer, but subsuming it to broadcasting (Germany); regulation for commercial interests in both cases; explicit reg. of internet in 2001 (pp. 94)
- Notable that computing became legal matter as soon as it became a means of effecting commerce (pp. 94) 
- Differing views of legal hole in "cyberspace"; panic from legislators as "unrule-able" & welcome from others to cyberspace as self-regulatory (pp. 94)
- "The absence of any manifest law does not amount to absolutely no legality whatsoever; it can mean, rather, that a legal structure has already somehow been internalized." (pp. 94)
- Arguing that the computer did this early on through the regulation of multiple users, the hierarchy instituted to grant or deny access through a collection of rights; to regulate access to time; "the power of governance... the power to dispose resources." (pp. 95)
A. Personifying the Computer
- "Juridicial structure" of computer comes with the hiding of computer's "operational levels", making the lower levels of computation as inaccessible as the law (pp. 95)
- Comes in 1971 with the transformation of computers into personal desktop from "engineer's appliance"; this done by Xerox (pp. 95)
- Makes the computer an entity that "imputes things to persons." The main activity now being object manipulation at the interface (pp. 95) 
- New division between "users" (people) and "programmers" (lawgivers) (pp. 95) 
- Users need not know what else the computer is capable of; the user need not worry about the machine status of operations; machine appears to "..."speak" the user's language" rather than the user needing to write instructions; instantaneity of exercise of will (pp. 95) 
- Advent of user ends era of the engineer; people use the computer rather than compute and program; the user has none of the engineer's insight or knowledge (pp. 96)
- Interaction is welcome but strictly controlled to the interface (pp. 96)
- Computer is turned into a system with a technical base (switching core) and "ideologized superstructure" that is the visible surface interface (pp. 96)
- The technical media sets the conditions of communication for the users beyond the threshold of their perception/ knowledge (pp. 96)
B. The Chip, The Sovereign
- Personal computers bear rights granted by the CPU (comparison to legal persons who also bear rights but these are granted by a state enforced law); example of the 80286 with its 4 levels of access (pp. 96)
- Commands activated on the outside level are executed inside (pp. 97) 
- "The chip is sovereign: it establishes prohibitions, protects privileges, and implements laws of inalterability." (pp. 97)
- Kittler's insight from "Protected Mode" that binary itself encodes the difference between commands and data, what the system allows to happen and what is prohibited for the user; this difference only appears with the advent of the user; the user cannot intervene on the level of specific addresses (pp. 97)
- Most programmers don't even have access to RAM, leaving its responsibility to the computer itself; programmers are treated as users by other programmers; delegation of work is restriction of power towards "error prevention" (pp. 97-98)
- The reduction of power towards error prevention reduces the machine's potential extensively (pp. 98)
C. The Hierarchy of Operating Systems 
- Legal design of computer to deal with the scarcity of time
- UNIX and how it deals with multiple users through two principles: 1) that users could be serviced in the idle time of other users & 2) that a computer could be made to run multiple processes at once (pp. 98)
- This required strict rules to regulate time allocation (pp. 98)
- "superuser" (root) as the ultimate authority over the access rights, residing at the top of the hierarchy (pp. 98-99)
- System manager, hands over responsibilities to some users while limiting the privileges of others; root as the sovereign of the system and must therefore resist all attempts of "open access" which would put the system's stability and continuity in jeopardy (pp. 99)
D. The Law of Media Under the Terms of the Computer
- Long absence of legislation of the computer due to the already-legal form of computation: hierarchization of access (pp. 99) 
- File systems and chips are already designed as a legal system (pp. 99)
- This renders outside legal regulation superfluous unless some commercial/state interest demands it (pp. 100)
- The law intervenes in computing only when computing becomes a tool in "socioeconomic systems", then law renders itself a "conflict arbiter" (pp. 100) 
- In this case, only the interface is legally regulated; the person doing the communicating not the technology itself is the "object of legislation" (pp. 100) 
- This gives rise to the centralization of control over computing in the hands of a few companies; this monopoly "falls under the perceptual threshold" of the law (anti-trust legislation) (pp. 100)
- Programmer's power begins where the user's power ends: at the edge of the interface; but programmers themselves are subject to a hierarchy of control/power (pp. 100)
- "normal" programmers are really users of another programmer's material which constrains what they can/cannot gain access to/do (pp. 100) 
- Programmers are law makers; the code is a law (there's more than a homology here) (pp. 100)
- It is through the popularization of the computer that the "juridism of the chip's architecture" was produced (pp. 100-101) 
- With the limitation of access comes the reflex demand for access (relates this to the 21st cen. watchword of "access to____") (pp. 101)
- Contemporary laments concerning legal non-access to "cyberspace" betrays a larger non-reflection of law upon its own media-technological supports (its "mediality") (pp. 101)
- Media technologies are the "conditions under which all systems, including the legal system, think and speak." 
- The computer as impetus to review relation between media and law (pp. 101)
- Assertion of media as the conditions of possibility for communication (pp. 102) 
- "Needed is a media theory that liberates media from its teleological confines. It is no longer sufficient to focus on the end of the communication process where the so-called user is supposedly found." (pp. 102)
- Necessity to examine the processes of transfer itself! (pp. 102)
- "...for neither the bearer nor the guarantor of rights, neither the subject nor the state, can any longer be regarded as preestablished, stable entities." They're already in transition during the transfer process (pp. 102) 

3. Codes, Commentaries, and Codifications 
- Legal organization of code also regulates computational networks, ie. the internet (pp. 102)
- Through "protocols"
- Distinction between code and law: "code" designates "self-emergent forms of law" as opposed to state established "law" (pp. 102) 
- Code is collectively produced by "practices and habits among colleagues" and are therefore inherently and easily changeable at any time; they need no "institution of enforcement" and are decided by "voice and exit" (pp. 102)
- Each subject to the code either disengages (exit) or expresses their opinion (voice) (pp. 102)
- Codes are "rules of inclusion" since they only "...address everyone who wants to be..." (pp. 102) 
- Codes requires a "higher degree of compliance" that state law; one must actively engage rather than have law imposed (pp. 102-103)
- Computer codes, in light of the above, are: "...intrinsic, autonomous, alterable, and thus permanently optimizable norms." (pp. 103)
- Computer codes emerge from a commenting process which is collaborative rather dan dictatorial (pp. 103)
- Source code is mediated, translated from human to machine readable binary; it's a hybrid text: instructions and comments, documentation (human readable) and sequence (machine readable) (pp. 103)
- The example of Donald E. Knuth's LaTEX and WEB as a fusion of code and comments (pp.104)
- Preprocessors (eg. compilers) codify the code to machine-executable form, acting as a filter by "the insertion of a juridicial structure at the level of the protocol"; filtering out all comments (pp. 104)
- "...tell the desired story..." from the code; "somewhat like telling right from wrong." (pp. 104) 
- Commenting culture produces "codes and codifications at the network level." (pp. 104)
- The RFC process in producing network standards; the word "comment" intending to express that one could say anything and none of it was official (pp. 104) 
- The ARPANET as the "transformation of a permanently self-commenting commentary into a code..." (pp. 105)
- The collaborative process of commenting remains inherently juridical; this "undermines the story of self-regulation in cyberspace" (pp. 105) 
- Undermines the idea that this was an ideal "organic way to make code" that is fully autonomous in some way by noting that some agent, whether human or "human-built" must filter all the comments and decide which ones should become code (pp. 105) 
- Not all commentary can become code, the need to meet a level of standardization; Juridism appears as a central agency that defines norms (pp. 105)
- In the case of ARPANET, Jon Postel was the central filtering authority (pp. 105)
- History of law demonstrates that cultures of commenting are no impediment to codification and often are the source of legal codes [my eg. English Common Law] (pp.106)
- The example of Justinian's Digest and the process of filtering, then codifying Roman common law (pp, 106)
- The codification of law ends a process of "law in the making" that is often remembered with nostalgia as a "time when comments still had the power to create and overthrow codes." (pp. 106)
- Views on the juridism of computation and the codification process
- Alexander R. Galloway noting that centralization on the side of the code is a precondition of more freedom for the user; "autonomy requires an "autonomy-granting institution" (pp. 106); that codification is necessary to clean up the "disorder and confusion" of commentary (pp. 107)
- The view that codification is unavoidable; a "creeping codification"; this view ignores the fact that some authority does the codification (pp. 107)
- V & K propose that juridism is unavoidable in the computational context since codes straddle the legal and engineer's realms; what's necessary is a "perspective on computer developments that is equally well informed in media as in law to sort out the latent juridisms that contradict the predominant tales of self-regulation and autonomy..." in legal and computational contexts (pp. 107)