Open code and law

An interesting post by Jon Garfunkel over at Civilities, provocatively titled "Oppressiveness by Software" (the piece is in response to an excellent paper by James Grimmelmann, titled "Regulation by Software", which really, I should respond to in some detail as well sometime). I've posted a comment, which in a burst of self-indulgence, I reproduce below:

It seems to me that the openness of code as demanded/requested by the free software camp is a pretty important step toward getting the sort of accountability you speak of (find desirable). An analogy with the law that is worth making is the visibility of the textual portion of a law. Ordinary citizens might not be able to decipher all of the language of a statute, but the statute being visible and its readability by someone trained to do so can be an important determinant of what makes it into the text of the statute - and the authorship of the statute can be easily determined. Similarly, transcripts of congressional hearings can be made available for the concerned and determined citizen. When code is open, when its authorship (via changelogs, emails etc) is known, there is some measure of accountability packaged into the code. As with a goverment or power structure whose workings are open and visible, which ensures some awareness or sensitivity on those in power, so with open code. When governmental function is delegated to software and that portion of the govermental functioning gets closed off behind non-open code, we've done nothing less than make governmental power opaque, something that sneaky congressional sessions (or over-ambitious central executives) try to do sometimes. Technological opacity of delegated governmental function is yet another technique in the power-seeker's armory. The demand for free software is sometimes seen as something having to do with a new software engineering model; the application and relevance to governance by code, should make it clear that its way more important than that.