Code is Power: Coding, User Dependency and Human Rights
It has been said by Lawrence Lessing that “code is law”. This is true already in a society which is dependent on information technology. Even though machines are not full members of this society yet, we already entrust a number of very personal and important functions to them. In many cases, this trust goes beyond the trust parents would give a small child, who also is a member of society but does not have the right to vote yet. If you step on an airplane you trust your life to the machine and if you take your child with you, you give more trust to a machine you have never seen, and most likely might not even understand, than you would give to most other humans (i.e., strangers), let alone almost all animals. In this sense, our society is mainly a human-machine hybrid society, with both terms being used fairly widely. In a world which depends on machines behaving in specific ways, the power to code means the power to control a large part of the human-machine hybrid society. Coders often have a degree of direct power governments or lawmakers can only dream of.
Like political power, the power of coders must be limited in order to protect human rights and democracy. Laws made by states are one way to limit the power of coders, but because it transcends borders, by its very nature the regulation of code will have to be global. Like other forms of power, the power of coders can be used to improve human lives. What is different are the directness of the way the power is applied and its scope. One cannot shut down China or India in an instant but there is the technically possibility to shut down major social networks like Facebook. Coders enjoy an unprecedented kind of power, yet they are only subjected to national laws, which in many cases will mean that any limitations placed on their work are merely perceived as nuisances.
Of course the argument can be brought forward that coding is benevolent, but that would miss the point. Power can be abused and sooner or later it will be abused. Coding is hardly always benevolent. Targeted advertisements might be annoying but the end of privacy goes far beyond this.
Do you want everybody to know how much you earn? In Finland, your salary and the taxes you pay are public knowledge. Do you want to be told what to eat or how often you exercise? A recent poll in Germany, where privacy is highly valued, revealed that most people are ok with unhealthy behaviors leading to higher health care fees. Note that in Germany health care insurance is practically obligatory and employers and employees have to contribute equally to insurance payments, which are calculated based on your income. In order to implement the idea of higher payments in case of risky behaviors, your health care insurance company will know what you eat, drink, smoke — and your employer will have a direct financial interest in the healthiness of your behavior. This information is already available anyway, at least if you pay your groceries with card (and in some countries, such as Sweden, you hardly have a chance to pay in cash anymore anyway ). Denmark might abolish cash altogether and even in towns in Finland you might find that the next automated teller machine (ATM) is a few miles away, which provides you with a practical need to pay by card and not in cash. In the latter country, nearly all supermarkets belong to a range of chains which at the end of the day all belong to one of two companies. These companies also provide other services, such as banks. This goes so far that at the small supermarket across the street from my office the loyalty card is a bank card. A lot of online services, including government services, will require you to sign in with a trusted electronic system. The bank-supermarket-etc.-chain also provides this for you. If you do not have a bank account from a few recognized financial institutions, you will not be able to use a lot of public services, including renting an apartment from one of the leading housing companies in the country, which also happens to be owned by the government. Since the government also runs a lot of the public health services, you might be wondering how far the information flows and if your acquisition of unhealthy food will come to haunt you at some time in the future. That this is happening in a relatively free and democratic (albeit too often xenophobic) country which is a member state of the European Union makes one wonder about the situation in countries in which individual rights might not be valued as much.
The effective protection of human rights requires limitations of power. At the same time, economic freedoms mean that interferences with the work of coders have to have some kind of legal justification.
The law does not (yet) recognize coding as a form of exercising power but as a form of exercising the right to work and to make a living, maybe also as a form of legally protected expression. From the perspective of classical human rights theory, this would be a wrong approach as those who exercise power are on the other side of the law from those who claim human rights. By failing to accept code as real exercise of power, i.e., law, and hence coders as law makers (albeit indirect ones from the perspective of individual right holders, as the code does not govern the behavior of right holders directly), states force us to use this approach in which the law does not do its original job of protecting the weak against the strong but in which it requires a balance of rights between the weak (i.e. users, customers) and the strong (coders), within a framework which has been provided by (increasingly powerless) nation states through the use of international law.
 Rechtsanwalt, Frankfurt am Main, Germany; Adjunct Professor for Fundamental and Human Rights, University of Lapland, Rovaniemi, Finland; Senior Researcher, Vytautas Magnus University, Kaunas, Lithuania; Director, Center for Research in Crime, Security and Communication, Espoo, Finland.
 Lawrence Lessing, Code, Version 2.0, Basic Books, New York (2006), <http://codev2.cc/download+remix/Lessig-Codev2.pdf>, p. 1.
 Tax Justice Network, Finland publishes all personal tax receipts in public, 2 November 2011, <http://taxjustice.blogspot.de/2011/11/finland-publishes-all-personal-tax.html>.
 bern./dpa, Wer schlecht isst, soll mehr bezahlen, in: Frankfurter Allgemeine Zeitung, 19 December 2015, <http://www.faz.net/aktuell/finanzen/meine-finanzen/versichern-und-schuetzen/krankenkassen-umfrage-wer-schlecht-isst-soll-mehr-bezahlen-13975070.html> .
 See also Till Bärnighausen / Rainer Sauerborn, One hundred and eighteen years of the German health insurance system: are there any lessons for middle- and low-income countries?, in: 54 Social Science & Medicine (2002), pp. 1159-1587.
 Cf. Helen Russell, Welcome to Sweden - the most cash-free society on the planet, in: The Guardian, 11 November 2014, <http://www.theguardian.com/world/2014/nov/11/welcome-sweden-electronic-money-not-so-funny>.
 Martin Armstrong, Denmark Preparing to be the First to Eliminate Cash, 19 May 2015, <http://www.armstrongeconomics.com/archives/30671>.