To allow society to intervene and proactively shape "code" (i.e., the software and hardware of information technologies), we analyze a number of mechanisms and schemes concerning 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, such as prohibitions on code, using standards or market-based incentives, modifying liability, requiring disclosure, governmental 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. For each measure, we identify and discuss regulatory and technological issues that affect its effectiveness. The result is a more informed approach in weighing the alterative approaches to shaping code. We do not attempt to determine the comparative efficiency of different approaches to shaping code, because, in part, that analysis is a factually laden inquiry depending on the specific characteristics and issues related to the particular type of code in question. 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.
Date of this Version
Jay P. Kesan and Rajiv C. Shah, "Shaping Code" (March 16, 2004). bepress Legal Series. bepress Legal Series.Working Paper 194.