Code: Institutional Values and Design

I overlooked a massive paper by Jay P. Kesan and Rajiv C. Shah, that was published in the Yale Journal of Law & Technology, and posted last week on SSRN: Deconstructing Code.

First the abstract, then some comments:

This Article deconstructs code using case studies and shows that code is not neutral and apolitical but instead embodies the values and motivations of the institutions and actors building it. 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 the revitalization of democratic discourse. Our analysis examines how societal institutions, such as universities, firms, consortia, and the open source movement, differentially influence the production of code. Relying on four case studies, we analyze how institutions differ in structure and motivation, and how they are affected by different social, political, economic, and legal influences. We then analyze how these societal institutions, which all approach code creation differently, influence the technical and social characteristics of the code that is developed by them. For example, code developed by a university is likely to contain different values and biases, regarding societal concerns such as privacy, than code developed by a firm. This analysis provides a crucial first step in understanding how society shapes these new technologies. Ultimately, this work may assist policymakers in proactively shaping the development of code to address societal concerns.

I still have to read the paper and just skimmed over the introduction and some parts. I like the focal point of its analysis, which is a question that is partly left unatained by the Code-project I'm working on at the Institute for Information Law: how the (institutional values of the) actual writers of code, the code producers, shape its design and thus its working. My institute's Code-project researches an analogy set forward by the paper: "This Article studies code by analogizing code to law."

I don't think the paper expressively dives into this analogy, but looks more on how instutional values are reflected in the soft- and hardware they bring forth. If this technical code equates to legislative code -Code as Code- is a different question, and tends to be answered negatively by our research project. But its papers are published in a near future. Until then this one, for a different, noteworthy deconstruction of code.