Once tablet makers can control what apps users load, they become the law, and governments can take advantage.
NEW YORK (TheStreet) -- Back in the late 1990s, Lawrence Lessig, then at Harvard, coined the terms "East Coast law" and "West Coast law," which he described in a column republished at www.lessig.org.
He later summed up his thoughts on the issue in an article titled "Code Is Law" in Harvard Magazine.
East Coast law was the law as written by legislatures, interpreted by courts, and enforced by police. West Coast law was the law as created by, interpreted by, and enforced by software.
When Lessig wrote his essays there was an implicit assumption that the Internet could get around legal restrictions. Lessig knew better. Identification of users and certification of software are inevitable, he wrote. The question was not whether law would happen, but who would control the law: "When the interests of government are gone, other interests take their place. Do we know what those interests are? And are we so certain they are anything better?"
Enter the device revolution, the app store, and the age of private government.
Apple (:AAPL), which first defined this new technology space, has kept strict control over what apps can be written and sold for its devices. It has done this for profit and for its image. But in doing so, it has become a de facto government, the "West Coast law" for people who buy its tablets and phones.
As its rivals are moved to emulate it, which I described as "the vertical integration dance" the other day, they also become, in effect, governments. Their customers become their subjects.
Microsoft (:MSFT) has demonstrated the results, a host of restrictions on Metro apps that will be allowed on its Windows store.
As Ars Technica notes in a recent editorial, the result is like Hollywood in its "golden age," when industry production codes restricted what could be seen or discussed in movies, as described here.
Whether this is right or wrong is for others to say. The point is that the Windows app store -- like the Apple store, like the Amazon.com (:AMZN) Appstore -- is taking on the functions of a government, with all the attendant risks that entails.
Risks? Let's count them: The companies become a means by which governments may demand adherence to whatever local laws they care to enforce. The companies become the target of those users who don't like the law, because they're the folks defining and enforcing it. Over time, the companies become the focus of political pressure, contention and protest.
For a time, Google (NYSE:GOOG) looked to be an exception to the new rule of apps, but this August it sent out a new set of rules to its own developers, described by TechCrunch. These mainly covered areas such as prohibiting spam, controlling the use of personal data, and a move against copycat apps, but it's a slippery slope. By taking control of its apps, Google, too, has assumed a government responsibility.
European regulators are taking advantage of the opening by demanding changes in Google's policies, as BusinessWeek reports. In this, they're taking the side of the angels, demanding protection for citizens against the Google government.
But if you can enforce proconsumer policies through a private company, you can enforce other policies in the same way. That was Lessig's point back in 1998, not that government is powerless but that software is the power mechanism. By controlling their app stores, Apple and the other device companies have opened up the Internet to detailed control by government.
The Internet has entered a new legal era.
At the time of publication, the author had a position in MSFT, AAPL, and GOOG Follow @DanaBlankenhorn
This article is commentary by an independent contributor, separate from TheStreet's regular news coverage.