Author: Joseph Reagle
Date: 07 November 2002
Audience: TPP Colleagues at MIT
Question: A Personal History of Technology Policy
References:
Also see the following lectures:
A Personal History of Technology Policy
- 1992-1995: First Wave - The Cypherpunk Years
- 1995-1996: The CDA, RSAC, and PICS
- 1997-1999: The Birth and Adolescence of P3P
- 1998-1999: Second Wave - The Rise of Free and Open Source and P2P
- 1998: Considering Internet Governance
- 1999: An Entangling Patent
- 2000: The Crackdown - Napster and the DMCA (DeCSS/2600)
- 2002: The Race: Patents, Digital Right Management
1993-1995: First Wave - The Cypherpunk Years
Tim May and the Crypto
Anarchist Manifesto:
"Computer technology is on the verge of providing the ability for
individuals and groups to communicate and interact with each other in a
totally anonymous manner. Two persons may exchange messages, conduct
business, and negotiate electronic contracts without ever knowing the True
Name, or legal identity, of the other. Interactions over networks will be
untraceable, via extensive re- routing of encrypted packets and
tamper-proof boxes which implement cryptographic protocols with nearly
perfect assurance against any tampering. Reputations will be of central
importance, far more important in dealings than even the credit ratings of
today. These developments will alter completely the nature of government
regulation, the ability to tax and control economic interactions, the
ability to keep information secret, and will even alter the nature of trust
and reputation."
Barlow and A
Declaration of the Independence of Cyberspace:
"Governments of the Industrial World, you weary giants of flesh and
steel, I come from Cyberspace, the new home of Mind. On behalf of the
future, I ask you of the past to leave us alone. You are not welcome among
us. You have no sovereignty where we gather."
1995-1996: The CDA and PICS
This philosophy of Internet independence and individual control was
engaged in Washington:
- The CDA made it a felony to knowingly expose a minor to "indecent"
material over the Net.
- PICS was a meta-data technology (among others) that permitted narrower
means of limiting children's access without infringing adults' rights.
The Supreme Court finds these arguments compelling.
However, Lawrence Lessig and others begin to ask, what if this personal
tool becomes the infrastructure and prone to abuse? "PICS is the Devil."
W3C posts a Statement on
Public Policy:
"The philosophy of independence and individual control was engaged in
Washington. This architecture must allow local policies to co-exist without
cultural fragmentation or domination..."
and Statement on the
Intent and Use of PICS: Using PICS Well, which recommends explicit
labelling, transparency, localized control, and multiple rating systems.
1997-1999: The Birth and Adolescence of P3P
Generalized the problem of computer mediated agreements in the new context
of web site privacy practices.
Designing
a Social Protocol: Lessons Learned from the Platform for Privacy
Preferences.
- Mechanism not policy: unlike Robert Mose's bridges.
- Complexity: simplicity versus sophistication and the solution of
"recommended settings" (i.e. defaults).
Eskimo
Snow and Scottish Rain: Legal Considerations of Schema Design
- Syntax,
Semantics, and Protocol State
- Political
Consensus in Schema Design
When developing the P3P vocabulary both marketers and regulators might
oppose a term for difference reasons! Marketers don't want to be
compelled to disclose their practice (e.g., indefinite retention);
regulators don't want it to appear that the option is legal within their
jurisdiction (e.g., law requires that data be disposed of).
- Computer
Agreements and Contract Law
What is necessary for a complete and final agreement, devoid of
mistake and impossibility? What of the "hidden drafter" (GUI
designer)?
1998-1999: Second Wave - The Rise of Free and Open Source, and P2P
The particulars of the cypherpunk dream never materialize:
- widespread cryptography never deploys,
- remailers are closed from abuse and spam,
- anonymous digital cash and micropayment systems and companies fail.
But there is an alternative dream arises giving many computer users (geeks
and gradmothers alike) get a sense of the freedom envisioned:
1998: Sabbatical
- Why
The Internet is Good: Community Governance That Works Well.
(19990326)
- Agent:
I don't think it means, what you think it means.(19990524)
Unfortunately, much of the legal literature on the question of
computer agency is preoccupied with concepts of intelligence,
consideration, and intention within a computer program; this is because
these concepts are found in law. However, these concepts are premature
in a technical context -- regardless of hand-waiving about artificial
intelligence... This examination also allows me to point out open
questions and confusion, best described by a phrase from the movie The Princess Bride,
"You
keep using that word — I do not think it means, what you think
it means."
- Boxed
In: Why US Privacy Self Regulation Has Not Worked.
Self Regulation by Sustaining User Ignorance, Enforcing Norms May
Violate Anti-Trust, Being a Good Actor Increases Liability, and Privacy
is Expensive.
1998: Internet Regulation
Internet behavior is regulated as explained by Lessig.
- Law: n/a?
"The Net interprets censorship as damage and routes around it."
Gilmore.
- Architecture: protocols (IETF, W3C)
"Architecture is politics." Kapor.
- Markets: consumption and production patterns
"The Internet isn't free. It just has an economy that makes no sense
to capitalism." Shapcott.
- Social norms: the Internet culture, maxims, and memes
"Some jerk infected the Internet with an outright lie. It shows how
easy it is to do and how credulous people are." Vonnegut.
On the Net, the architecture, markets, and memes have generally opposed
regulation by law.
1998: Questions of Governance
- Does it regulate community action, or individual action?
- Does it regulate by central authority, or individual action?
- Does it implement its policies through coercive means, or individual
acceptance?
- Does it abide by the interests of those that it governs?
The Internet could be characterized as anarchic:
"And, just to state the obvious, anarchy does not mean chaos nor do
anarchists seek to create chaos or disorder. Instead, we wish to create a
society based upon individual freedom and voluntary co-operation. In other
words, order from the bottom up, not disorder imposed from the top down by
authorities." [A.1.1
What does "anarchy" mean? Anarchist FAQ]
1998: Real World Governance
- direct: threat of violence, fines (lack of revenue), and imprisonment
from centralized authority.
- indirect: direct mechanisms require third parties to create incentives
or disincentives against the governed.
- link: couple a related issue to a contentious issue.
(Clipper 3 coupled digital signatures (and their legitimacy) to key
escrow policies, or linking strong confidentiality to export
controls.)
- choke: regulate those that are easy to go after. (CDA
focussed on large ISPs, and telco common carriers, rather than those
creating the content.)
- gouge:regulate those that have deep pockets, often used
with choke. (Some have pushed to criminals the contributory
infringement of copyright.)
- browbeat: use the bully pulpit to abash, or threaten
further regulatory action. (US privacy policy has to date been
predicated on the fact that if the "industry" doesn't self regulate,
the government will get involved.)
- herd: selectively place and remove liability to channel
policy towards a goal without overtly setting the direction.
("Mandatory self regulation" and safe harbor provisions are
frequently proposed solutions to Internet content issues.)
Internet Governance
- Governance is the act of regulation. It need not be through legal,
centralized, or coercive means.
- The establishment of social conventions on a mailing list is
governance.
- The emergent direction of an open source software project is
governance.
- The use of cookies to profile users is governance.
Internet Policy Formation (1/2)
Primary Characteristics
"We reject kings, presidents and voting. We believe
in rough consensus and running code." Clark.
- Open Participation ("We")
- citizen engineer: citizen is a contributor to her space (lists,
Web, MUD, FAQ)
- Consensus. ("... believe in rough consensus ...")
- is it good enough, does it merit moving on, are there show
stoppers?
- No Kings ("... reject kings, presidents and voting.")
- consensus mediated by Elders, citizen engineers who built the space
and institutions others inhabit.
- Running Code / Implementation ("... believe ... in running code.")
- all policy is tested by both its support and formulation through
implementation
Internet Policy Formation (2/2)
Secondary Characteristics
- Coercion and Lack of Choke-Point
- there have been few formal institution that real world governments
could coerce because institutions of Internet policy are decentralized
and non-coercive themselves!
- Limitation of Scope
- most policy is explicitly scoped, defined, and conservative in its
application.
- Funded Mandates and Lack of Fiat
- any change requires work and resources, as tested by running code and
implementation.
- Uniform Enforcement
- policies cannot be selectively enforced as they are in the real
world.
- Veridical Policy
- "your clickstream is your vote."
- Policy Deprecation
- old policies fade into the background
1999: An Entangling Patent
I spent nearly six months preparing an Analysis of P3P and US Patent
5,862,325Intellectual Monopoly Rights can
Two options were available to us: to argue that we did not infringe and to
argue the patent was invalid. We opened by arguing it did not infringe which
was adequate. I learned much about the US Patent system, little of
praiseworthiness.
Serious evidence that even the "Second Wave" can be encumbered with
intellectual monopoly rights.
The W3C soon afterward begins its widely commented upon process to develop
a patent policy for its standards.
2000: The Crackdown - Naspter and the DMCA (DeCSS/2600)
Intellectual monopoly rights are combined with Governmental action of:
linking, choking, gouging, browbeating, and herding.
- The quick death of Napster show how easily institutions on the Internet
can be destroyed.
- The DMCA is used to silence
researchers, spread FUD (Fear, Uncertainty, and Doubt), and encumber
technology. (I bought a DVD player, I bought the DVD, but I can't watch
it because I don't want a proprietary operating system?)
- A marriage of technology and law: digital rights protection
technologies are still design poorly and insecurely, but now by merely
toggling a field in a data format, one can be jailed.
2002: The Race - Open Source and Standards versus Intellectual Right
Monopolies
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