Regulating the Internet
In August 2001 I attended the international Hackers at Large convention in Enschedé (The Netherlands). Not because I'm a hacker, don't worry, but because I'm a lawyer and was asked to interview Ryan Lackey, Chief Technology Officer of a company called Havenco, which is established at Sealand.
Sealand is an abandoned anti aircraft platform just outside England's territorial waters. It was first occupied during the 60s by a retired English major who proclaimed it his land and called it Sealand. He now calls himself King of the principality of Sealand. His wife is Queen and their son Michael is a prince.
Havenco, which is established at Sealand, is a company that provides hosting services for what it calls 'controversial content': gambling, racism, pornography, peer to peer services such as Napster and Gnutella.
In other words, all content that is outlawed in the civilised world is welcome at Sealand. Ryan Lackey was quite convinced that Havenco could escape international laws by being located at Sealand. I asked him, if this was true, what are the laws of HavenCo?
The only laws HavenCo has are: no child pornography and no dissemination spam or junk e-mail. If this was all they outlawed, I asked him, who would protect their clients against Havenco itself. Lackey was startled by this question. He looked at his shoes and said: I don't believe any law can protect you, only technology can.
This remark, obviously, was applauded by the audience of young hackers.
There is an inherent truth in Ryan Lackey's remark: technology regulates.
The technology that designs the internet regulates and therefore creates a certain behaviour.
The idea that design can regulate and create behaviour is not exclusive to the internet. We can also find such design in the off-line world.
Some time ago I read an article about the village Celebration. Celebration is an American village created by the Walt Disney Company. It is a place filled with nostalgia: the houses look as though they were built a century ago, with charming porches and painted in pastel colours. The streets are broad and are kept clean three times a day; the houses are situated close to each other.
All this creates a peaceful and quiet atmosphere in which there is, according to the article, no crime. People keep an eye on each other and know what is going on in their village.
One may also consider that one of the downsides of Celebration: lack of privacy. The vast majority of the villagers is white, the average age is fifty years, and seventy five percent voted on George Bush during the last elections. Different opinions are not appreciated in Celebration. Neither is repainting your house.
The design of Celebration has helped regulate the behaviour of its inhabitants.
Design of the internet
What is the design that regulates the internet? In its purest form it is constituted by a set of code - by the software and hardware that forms the internet.
This code regulates, since it incorporates certain values and it enables certain practices. It protects, for instance, free speech. Everybody can say what they want without being controlled or suppressed by your neighbours or the government.
It also protects privacy. One can surf the internet anonymously. The technologies that regulate the internet make it easy to hide who you are. On the internet nobody knows you're a dog, is an often heard quote.
The internet also protects the free flow of content. Perfect copies of text, software, images and music can be distributed freely via peer to peer technologies such as Napster and Gnutella.
Finally, the internet protects its inhabitants from local government, since there is no such thing as 'local' on the net.
Now most of us consider this code and these values as given. The hackers at the Hacking at Large convention consider it the nature of the internet.
I don't think so. The idea that technology regulates is crucial to understand why the technology we build the internet with is important.
What if one had to have a broadband connection to publish freely on the internet? What if a company called UPC decided at its sole discretion whether or not to grant you such a connection? What if you wanted to say bad things about UPC?
What if it becomes easier to identify you? What if everybody had a Microsoft passport? What if it became possible to encrypt content so that you could not copy or disseminate it?
The answers to these questions are that speech, privacy and content would be less free. Behaviour would be more regulated, since local companies or states could condition access upon confirming certain behaviour.
The technologies that govern the internet are changing.
A while ago it was reported that China is going to build its own internet. It will be called C-net. The U.S. and Europe strongly criticized this clearly suppressive act. However, it may not take long before the entire internet will be cut up in different intranets: B-net for Belgium, E-net for England, N-net for the Netherlands.
The possibility was highlighted in December 2000 when a French judge ordered Yahoo Inc. to prevent French web surfers from purchasing pro-Nazi items through its on-line auction site. The French court was enforcing French law, which makes it a crime to sell Nazi stuff. Before a U.S. court this verdict would be quashed, since it would entail a prevention of free speech under U.S. law. This and the fact that the Yahoo-site is located in the U.S., however, was not a problem to the court, since the site could be viewed on computers in France.
Yahoo's lawyers argued that enforcing this judgement was not possible, as a result of the open design of the internet. Then the French court called upon three expert witnesses, one of whom was Vint Cerf, one of the founders of the internet design. The expert witnesses stated that a complete block of French web surfers was impossible. However, one could block about 80 percent with the help of a certain technology.
The technology in question is called 'mapping'. It is designed on the simple principle that every computer that is connected to the internet has a unique IP-address in order for them to be separated from each other. Otherwise the net would not know which computer had to receive a certain e-mail. Every network and every internet service provider is awarded a range of IP-addresses or numbers by the national naming authority. These numbers are then divided among the network users and ISP subscribers. As a result, one is able to determine the country in which the computer is hosted by its IP-address.
The mapping technology was first designed by a Dutch company called RealMapping for direct marketing purposes. Advertisers would be able to differentiate the content of an advertisement according to nationality of the web surfer.
The Yahoo! verdict shows that mapping can also be used for different means. Until now national courts were reluctant to enforce their national laws on internet activities that take place abroad. It may be feared, however, that mapping will lead to more judgements similar to the one in Paris, France. This fear is intensified by the fact that Italian and German judges have handed out rulings like the French court's in national proceedings.
In its 1998 memo 'Legislation for the Electronic superhighway' - Electronic superhighway is how one called the internet in 1998 - the Dutch government stresses that national judges should not easily enforce national laws on foreigners situated abroad. According to the Dutch government, this would hamper free speech as well as the development of e-commerce.
Nevertheless, certain sectors of e-commerce are pushing for the internet to be compartmented along the lines of the Yahoo! verdict.
The content industry fears the international character of the internet and welcomes the ability to architect the net so that it can control its content. Would it not be great to release the internet version of Star Wars first on E-net, then on F-net and to forget about N-net, because the audience is too small?
Mapping can be easily used to enforce national copyright laws. A company that uses mapping for this purpose is Quova. Comply with domestic and international distribution restrictions on Webcasts, music downloads, video clips, and other online content by limiting access from unauthorized areas. it reads on Quova's website.
Complying with domestic copyright laws is something the users of Napster do not do. The dissemination of copyrighted works via the Napster network and other peer to peer networks is clearly an infringement of copyright law. Authors of original content are denied a remuneration for their creative labour. Copyright law is supposed to provide that, not only because we consider it just, but also because rewarding authors enhances innovation.
The US Constitution speaks of legislation to promote the progress of science and useful arts. Copyright protection grants authors an incentive to create original works for the enjoyment of the public at large. Thus, ultimately copyright law serves the public interest.
The music and movie industry are fighting peer to peer technologies in a number a ways: in court, by lobbying for more and stronger copyright laws and with technologies. The content industry uses intelligent copyright agents to track down the infringers of copyrighted works. In March, 2001, various news sites reported that the content industry uses a program, MediaTracker, which mimics a user on a file-sharing networks, such as Napster, and this way collects information about the musical works stored on the computer hard drives of other users. In the process it also collects the IP addresses of these alleged infringing users.
The IP addresses point to certain computers and users of whom only the ISP knows their identity. The ISP that connects the users to the internet has their names and real addresses via subscription forms.
The ISP then receives letters such as the following:
The Motion Picture Association (MPA) represents the following motion
picture production and distribution companies:
Columbia Pictures Industries, Inc.
Disney Enterprises, Inc.
Metro-Goldwyn-Mayer Studios Inc.
Paramount Pictures Corporation
TriStar Pictures, Inc.
Twentieth Century Fox Film Corporation
United Artists Pictures, Inc.
United Artists Corporation
Universal City Studios, Inc.
Warner Bros., a Division of Time Warner Entertainment Company, L.P.
We have received information that an individual has utilized the above
reference IP address at the noted date and time to offer downloads of
copyrighted motion picture(s) through a 'peer-to-peer' service, including
such title(s) as:
2) Star Trek (TV)
The distribution of unauthorized copies of copyrighted motion pictures
constitutes copyright infringement under the Copyright Act, Title 17 United States Code Section 106(3). This conduct may also violate the laws of other countries, international law, and/or treaty obligations.
Since you own this IP address, we request that you immediately do the
1. Disable access to the individual who has engaged in the conduct
described above, and
2. Terminate any and all accounts that this individual may have through
Then comes the evidence: the user's entire hard drive, including Hannibal and Star Trek. But also some other content.
''1) 9 10 MB Bus Fuck - gay anal sex.mpg
2) 11 950 KB gay - 2 frat jock boiz fuck - ends with huge load of jiz -
3) 4 997 KB gay - 2 russian guys fuck then shoot their load.mpg''
You probably would not be laughing if you were the owner of this hard drive. Or if you work at the ISP in question, and are married to this guy. This information was unnecessary to provide. What the music industry is saying here is: not only is this guy a pirate, he is also a dirty porn addict. Moreover, gay porn.
The use of this technology can be considered an infringement of the privacy of the users in question. That is exactly the message the movie industry is sending out: we are keeping an eye on you. This is the content industry regulating behaviour by the use of technology.
The content industry would like to regulate for perfect control.
But copyright law is not about perfect control. It is limited, for instance in duration, in order for the law not to stifle the innovation it is supposed to foster. Copyright law allows the use of protected works in certain instances, since no work stands on itself. Each work builds upon the works that precede it.
The majority of hackers at the Hackers at Large convention were boys between the ages of 16 to 22. They were mostly interested in the one gigabyte pipeline that connected their computers via the network of the University of Twente. The camp site was crowded with tents with dim lights and huge computers and these boys downloading films, at the speed of light, probably Hannibal and Star Trek.
I wonder if they realize that the technology they embrace is also regulating their behaviour. I wonder whether HavenCo realizes that its off shore adventure may be blocked as a result of IP mapping. I wonder if we realize what this means for the free flow of information, privacy, government control and the internet at large.
Of course, technology regulates. However, I invite you to stand back and think about whether this is the kind of regulation you want.