The Withering of the Net

Originally published June 16, 2006 for the Center for American Progress

Discriminatory changes proposed in the way the underlying network of the Internet is managed could substantially limit the valuable innovation that has defined the Web’s existence. Lawrence Lessig, law professor at Stanford University and chair of the Creative Commons project, delivered this message at the Center for American Progress on Friday afternoon.

The recent debate over “net neutrality,” according to Lessig, is grounded in three legal principles developed over 22 years ago. These three core ideas at the foundation of the Internet are now threatened.

The first core idea came out of the break up of AT&T in the 1980s. During the process, the government made the physical infrastructure that enabled phone service “neutral.” Service providers could compete and innovate without suffering the competitive disadvantage of building a massive network. “Such infrastructure,” Lessig said, “should be regulated to be neutral and competitive.” The Internet operates under a similar model. Because access to the infrastructure of the Internet is open and non-discriminatory, an individual can publish a Web site as easily as a large corporation. However, major media companies are threatening open innovation by using copyrights to stunt the Betamax principle of minimal technological regulation, thereby raising the cost of innovation.

The second legal principle is government-designated open spectrum, which was developed in 1984. Rather than auctioning off all available spectrums for telecommunications, the government set aside a free access commons that anybody with the technological know-how could access. “This commons,” Lessig said, “built a neutral competitive platform on top of which innovation could occur.” That innovation lead to the wireless technology that is so important today. Unfortunately, the current administration has reversed the flow of open spectrum, shrinking the spectrum available for innovation by auctioning it off.

The third important principle in developing the function of the Internet came from the introduction of Sony’s Betamax technology. At issue was whether the developers of a technology, in this case a video recording machine, could be held responsible for illegal activities committed with the technology. The government settled on minimal regulation, deciding that as long as technology was capable of non-illegal uses, producers could not be held responsible. This encouraged technological innovation by removing the threat of liability. Yet currently there is a push from companies that own the Internet’s infrastructure to allow discrimination in access—charging different users different amounts for the same services. This will end net neutrality and introduce significant hurdles to innovation.

The harms of the movement to end net neutrality, according to Lessig, are significant. We might lose the competitive innovation that has been the overwhelming force behind the Internet. Describing the effects of a network where the owner cannot regulate content, Lessig says, “The right to innovate is held as common in this architecture.” These special conditions create a paradox where “less control over the right to innovate over this platform actually creates more innovation.” But the important political, social, and economic benefits provided by the Internet are threatened by restricted access.

One of the defining characteristic of the Internet as we know it is the “democratization of capacity,” said Lessig. Users of the Internet are not just passive consumers of content; they are active producers as well. He calls that effect “Read/Write” culture, as compared to a “Read Only” culture, where the production of content is concentrated in a few large companies. The threat to the Internet is the imposition of a “Read Only” environment, diminishing the core characteristic that has made the Internet so valuable in the first place. If preserved, Lessig said, “Read/Write will be massively bigger and more valuable to economic growth.”

Creating the conditions for competitive innovation is a difficult process, but in the development of the Internet it has been exceptionally successful. Now large companies are seeking to centralize control of the Internet, potentially fundamentally changing what has become an integral social institution. Progressive government involvement with appropriate minimal regulation, according to Lessig, will help to “minimize the power of the dead hand of the past to control the innovation of today.”

Experts: The Internet Will Be Tamed

Originally published December 18, 2008 for SpliceToday

If there were a list of the 10 most important books written about the Internet’s social and political impact over the last decade, Larry Lessig and Cass Sunstein would be responsible for half. The two law professors and friends have been visionary in extending the logical implications of radically diffuse communications technologies into traditional social structures, although from two slightly different perspectives. Lessig’s work is closely aligned with Silicon Valley, focusing on deep technical specifics of the Internet and the processes of cultural production. Sunstein (also an editor at The New Republic) is oriented towards the Washington policy world with work that speaks more to accountability, communication, and knowledge-making in a democracy.

When these two thinkers pool their collective intellectual heft and name-recognition together for a common cause we should assume that they’re onto something significant. When they also enlist noted feminist philosopher Martha Nussbaum as an ethical center of gravity, we can be sure of it. Such a joint-force operation recently occurred at a University of Chicago-sponsored conference on speech, privacy, and the Internet.* Working against the liberationist theology espoused by many technophiles, the conference sought to ground specific problems created by the Internet in much older problems of ethics and law. The conclusions reached suggest that, like so many frontiers in human history, the Internet too will be civilized.

As a communications technology the Internet unquestionably distributes the tools of speech to more individuals than ever before. It also—unquestionably—has led to more anonymous speech than ever before. These are two fairly straightforward observations, but they are often taken to mean more than what they actually are. Like so many technological revolutions and fads, empirical facts about the Internet are too quickly assumed to reveal something normatively inherent about the Internet (if it has any inherent character at all) that portends some significant change in human nature. It is, after all, far easier to argue for revolution than to engage in the challenging and complicated work of re-stating our eternal questions in the latest jargon.

While acknowledging the many obvious benefits of the Internet, the participants at this conference held that the wide distribution of anonymous speech had significant harms that cannot justify the continued libertarian utopia of free identity now known on the Internet. The example of AutoEmit, a discussion forum for law students, came up frequently. A few years ago anonymous posters repeatedly and viciously attacked two female students in this public space. It was vile, with threats of rape, sodomy, and violence during pregnancy. Clearly, to the extent that restricting expression through threats and intimidation is a crime—and both civil rights law and sexual harassment law provide numerous precedents for this claim—a case can be made that these anonymous posters broke the law. Gangs of hackers that assault and shut down female-written blogs are another example.

According to Nussbaum, these kinds of anonymous attacks also do something even more significant. Objectification, simply defined, is the stripping down of a complicated human identity to a few salient characteristics. These two law students’ public identities were reduced to the worst slander a few deranged minds could imagine. They literally existed in no other way than as sluts and harpies to an overwhelming number of their peers, and they had almost no recourse to recover lost reputations. Putting aside whether such anonymous speech should be illegal, it seems clear that it is deeply unethical.

These conclusions are obvious, but what follows is the whole crux of the argument of the conference. In any other context slanderous objectification, threats of rape, and the like, have an established system of law for the victims to appeal to. Such a body of law does not currently exist on the Internet. Other law is occasionally awkwardly applied, but in the case of these two law students the technology of the Internet prevented the very first step in prosecuting the law: identifying the offender. The students brought a suit against their provocateurs, but AutoEmit did not keep the IP addresses associated with the offending comments.

Identity is the first step towards responsibility. Without a consistent system of identity on the Internet, crimes like this will go unpunished. Identity, however, can be construed in different ways. The conclusion of these lawyers is that anonymity is inherently unsustainable. As more and more people integrate the Internet into their social lives, the more harmful the speech crimes will be, particularly as we look forward to a future generation coming of age with artifacts from their entire lives preserved in digital form. (As Facebook and cameraphone users grow into positions of responsibility, it might be good to know who is publishing the compromising photo from college so that you can ask them to stop.) A regime of pseudonymity offers a possible compromise.

The most successful websites operate under a pseudonymous regime. Wikipedia, Ebay, Amazon.com, the Huffington Post: all insist upon a user’s identity being held, in some way, responsible and accountable to the real world. While Wikipedia, for example, can’t necessarily trace their editors to a specific real-world person, they do insist on a stable identity if one wants to rise to a position of responsibility. This pseudonym is crucial for building reputation and trust over time.

Returning to the two observations about the Internet—its diffusion and anonymity—the Internet facilitated the unethical and potentially criminal activity by the AutoEmit posters. Of course there are other social contexts where one can anonymously threaten rape—the bathroom wall was brought to mind. But there is a body of law that applies to bathroom wall speech. If caught, the writer can be prosecuted for vandalism and held responsible for defamation. The owner of the wall can be held responsible for taking down the offending comment. But putting all that aside, the most obvious difference is the scale in audience. Comparatively few people will ever read a scribble in a stall, yet there is a body of law that applies to speech acts in that medium. On the Internet, one can potentially reach millions with one’s speech, and yet there is no consistent body of law to protect victims. Think about Juicy Campus for an example.

The Internet, the conference participants argued, changes nothing substantive about anonymous speech. It merely changes the degree to which anonymous speech is possible, and questions of degree are precisely the questions where lawyers excel. A few possible solutions were thrown out, including a consistent and portable online identity similar to a driver’s license (Identity 2.0 explains this technological solution). Another idea is to have all web site owners opt in to a tiered liability structure, to hold sites responsible for what they publish and allow users a verified way to gauge the reliability of a site’s information.

The most important conclusion of the conference is that some kind of process is needed for linking speech and responsibility on the Internet. This need not be a direct real-world identity, as most can obviously see how that would take away many of the benefits the Internet provides. Properly construed, we actually see very little anonymous speech in the world except on the Internet, because anonymous speech is typically linked with a responsible intermediary like a bathroom wall’s owner, or a book publisher, or a journalist. By taking on responsibility in the case of libel, defamation, and slander, these mediators allow for a kind of pseudonymity by the speakers themselves.

Any attentive observer will worry that the imposition of an identity regime on the Internet will inhibit speech. But we might ask whether it’s really such a burden to have responsible mediators. Sites like this one take responsibility for the comments on it, as do the most successful and useful websites. Anonymity has an obvious value, but there is no reason to think that anonymous political speech must necessarily be held to an unsavory alliance with juvenile hate speech. Pseudonymity might offer a productive compromise.

Ever since its rise to popular consciousness during the 1990s the Internet has often been referred to metaphorically as a kind of Wild West. The predominant interpretation of the metaphor to date has focused on its positive and aspirational aspects. But respectable people are staking their own claim to the Internet, and just as churches and schools worked their way across the North American west 150 years ago, it appears that laws and institutions are coming to civilize the web.

Five Minutes With: Lawrence Lessig

Originally published July 6, 2006 on Campus Progress with Mark Pike

As the first generation to grow up online, a lot of us take the internet for granted, and too few of us think of the internet itself as a political issue. But powerful forces are teaming up to change the basic structure of the internet, threatening what has become a fundamental institution of modern society. Right now, any kid in a dorm room can set up a website as easily as a Fortune 500 company because access to the information superhighway is neutral. "Net neutrality" is the principle that preserves an open internet that allows for free speech and civic participation, allowing tiny blogs the same access to users as AT&T. In a net neutral system, the network just moves the data you want, you know, like a (super) highway; it doesn't choose what data to provide. But now, internet providers like Comcast and Verizon are spending plenty of money lobbying Congress to destroy net neutrality, as a major overhaul of the Telecommunications Act is being debated on the Hill.

Luckily, people like Lawrence Lessig are fighting back. A former young Republican and smart-guy law professor specializing in internet law at Stanford, Lessig is one of the leading advocates for net neutrality and a staunch supporter of "free culture." Known as the "Elvis of Cyber Law," he drops hip-hop references into his lectures, is up on all the coolest viral videos, and has a profile on Facebook. The author of last year's Free Culture: The Nature and Future of Creativity, Lessig has won numerous awards including Scientific American's Top 50 Visionaries, for arguing "against interpretations of copyright that could stifle innovation and discourse online." (And just to add one more feather in his cap, we'll note that in 1985 Lessig famously smuggled a heart valve device into the Soviet Union in the crotch of his pants to help a Jewish dissident.)

Lessig chatted briefly with Campus Progress over email (naturally) about Facebook, copyrights, and saving the internet.

You recently gave a lecture at the Center for American Progress in the nation's capital (your "least favorite city") about "The Withering of the Net: How DC Pathologies are Undermining the Growth and Wealth of the Net." Currently, it seems that a group of rich old white men are making some important decisions about a technology they don't fully comprehend and didn't grow up with. How can young people, the most plugged-in generation, speak up and influence the outcome of this debate?

If Congress does what it promises to do--kill the mandated neutrality of the internet--then you can count on the most interesting features of the internet being driven out. Young people can help us flood Congress with the demand that they not sell out the internet to the telecom and cable companies.

How do we do this without sounding like a bunch of whiny kids who just want to download the new Beyonce and Jay-Z duet for free?

By showing them the fantastically creative stuff kids are producing and need fast cheap broadband to share.

How can universities, as important contributing architects of the internet, be affected by net neutrality legislation?

Imagine your public library being sold to Barnes and Noble: That's what will happen in neutrality legislation fails. The internet will be shifted to prefer a single, narrow vision of content. The diversity of content it now supports will be narrowed.

Do you think that young people understand what's at stake in the battle for control of the internet? If not, what's it going to take?

Not yet. It is going to take a clearer message to get them to see. Maybe something like this: Look at TV. That's how boring they want the internet to be.

Why does it seem as though a disproportionate number of college students are targeted in lawsuits by the MPAA and RIAA?

Because it is easier to monitor behavior at college. Welcome to the panopticon!

You've been called "The Elvis of Cyber Law." Does that infringe on Mr. Presley's copyrighted image.

You'll have to ask his estate.

What are some of the websites and software that you utilize on a daily basis and what do you love about them?

BoingBoing and joi.ito.com--smart, clear, right (as in correct).

For some reason I've got this gut feeling nobody from today's digital generation will be able to run for office because there's incriminating photos on everybody's Facebook profiles. Do people share too much? Will our collective consciences learn to absolve our collective memories?

Maybe we do share too much, but we'll learn to accommodate.

Finall, will you be our friend on Facebook?

Sure, I've got no standards...

The Great Debate

Originally published July 17, 2006 for the Center for American Progress

In navigating the complex issue of “net neutrality,” the government should protect consumers’ rights amid a rapidly changing and dynamic Internet. Two experts agreed on that much Monday during a panel discussion hosted by the Center for American Progress, but they disagreed on how to do that without stifling innovation.

Bringing together two of the Internet’s founding figures, the Center welcomed Vint Cerf, Vice-President of Google; and Dave Farber, Distinguished Career Professor of Computer Science and Public Policy at Carnegie Mellon University. Carl Malamud, the Center’s Chief Technology Officer, moderated.

Cerf began by quickly surveying the history of net neutrality. From its inception, the Internet has been open to any kind of application or content provider, and those providers could be accessed by any Internet user over a neutral network. “People didn’t have to get permission” to try new ideas, said Cerf, which “helped to stimulate and sustain innovation.”

In a competitive and innovation-rich environment, Internet Service Providers acted as neutral facilitators between content providers and consumers. Consumers paid carrier companies to access the Web, but once they got there they could tap into the full range of content. The recent shift to broadband Internet service, though, creates “a significantly different environment,” according to Cerf.

Compared to the age of dial-up connections, consumers have fewer broadband service carriers to choose from. It is, said Cerf, “at best a duopoly, and half the time not even that much.” Those broadband companies are pushing for the ability to charge content providers, in addition to consumers, who use their networks. The danger is that discrimination will result based on one’s ability to pay, meaning the Internet will no longer be neutral for creative innovation. Instead it will be biased toward big businesses that can afford space on a high-speed Internet. Such a model “will seriously inhibit innovation on the network,” particularly if consumers have no choice in Internet access.

Farber, while largely agreeing with Cerf on the dangers of monopolistic broadband carriers, cautioned against uninformed government interference in a rapidly changing field. We must, he said, “make sure we don’t prejudge the path technology takes.” Concerned about the unintended consequences of hastily conceived legislation, Faber said that there are “plenty of mechanisms in place to solve and to change bad actions on the part of a carrier.” He and Cerf both mentioned the Federal Communications Commission, the Federal Trade Commission, and the Department of Justice as the primary regulators of the Internet.

Cerf, though, was skeptical of the effectiveness of those agencies in managing abusive behavior. Regulation tends to be too reactive and case-specific. In the absence of market competition, he favors legally prohibiting broadband carriers from access discrimination. Otherwise, the ability of consumers to access Internet content may be compromised. “What’s worse than a regulated monopoly?” he asked in reference to broadband carriers. “An unregulated monopoly.”

Both Farber and Cerf agreed that the issues surrounding the Internet need to be better understood in Congress before any decisions are made. Right now, the policy debate is convoluted and reduced to slogans. If legislation is needed to protect the consumer, they said, “it needs to be unambiguous and actionable.”