A History of Online Gatekeeping

The brief but intense history of American judicial and legislative confrontation with problems caused by the online world has demonstrated a certain wisdom: a reluctance to intervene in ways that dramatically alter online architectures; a solicitude for the collateral damage that interventions might wreak upon innocent activity; and, in the balance, a refusal to allow unambiguously damaging activities to remain unchecked if there is a way to curtail them. The ability to regulate lightly while still curtailing the worst online harms that might arise has sprung from the presence of gatekeepers. These are intermediaries of various kinds - generally those who carry, host, or index others' content - whose natural business models and corresponding technology architectures have permitted regulators to conscript them to eliminate access to objectionable material or to identify wrongdoers in many instances. The bulk of this Article puts together the pieces of that history most relevant to an understanding of the law's historical forbearance, describing a trajectory of gatekeeping beginning with defamation and continuing to copyright infringement, including shifts in technology toward peer-to-peer networks, that has so far failed to provoke a significant regulatory intrusion. I argue that the U.S. Supreme Court's Grokster decision upholds this tradition of light-touch regulation that has allowed the Internet to thrive. The decision thus is not a landmark so much as a milestone, ratifying a continuing detente between those who build on the Internet and those in a position to regulate the builders. Grokster may have achieved such a fit with its ancestors by avoiding a set of now-pressing issues about gatekeepers. This avoidance is revealed by looking at Grokster's outcome: a loss for Grokster Ltd. that has no practical impact on the distribution and use of the sort of PC software that got Grokster Ltd., in trouble. The most recent peer-to-peer technologies eliminate a layer of intermediation from the networks they create; there are often no longer central websites or services that can be blamed, and then shut down or modified, to dampen the objectionable activities that they enable. Even decentralized Internet service providers may prove unable to intercede much as new overlay networks cloak users' network identities in addition to their personal ones. The loss of these natural points of control will cause those with challenged interests to foreground a new and less palatable set of intermediaries: software authors. These authors may be asked to write their software in such a way that it can be recalled or modified after it has been obtained by a user and then put to an undesirable purpose. They may even be asked to program their software to disable the installed software of others. Control over software - and the ability of PC users to run it - rather than control over the network, will be a future battleground for Internet regulation, a battleground primed by an independently-motivated movement by consumers away from open, generative PCs and toward more highly regulable endpoint platforms

The Fourth Quadrant

Jonathan Zittrain, The Fourth Quadrant, 78 Fordham Law Review 2767 (2010)

What’s In a Name?

Book Review: Ruling the Root, Milton L. Mueller, Cambridge, Mass.: MIT Press, 2002, 301 pages. A review of Milton L. Mueller\u27s Ruling the Root, The MIT Press, 2002. In the spring of 1998, the U.S. government told the Internet: Govern yourself. This unfocused order-a blandishment, really, expressed as an awkward statement of policy by the Department of Commerce, carrying no direct force of law-came about because the management of obscure but critical centralized Internet functions was at a political crossroads. In Ruling the Root, Mueller thoroughly documents the colorful history both before and after this moment of inflection, and gives a fair appraisal both of the interests at stake and of the ways in which those interests have influenced the course of that history

Future of the Internet--and how to stop it

vi, 342 p. : ill. ; 25 cmLibro ElectrónicoOn January 9, 2007, Steve Jobs introduced the iPhone to an eager audience crammed into San Francisco’s Moscone Center.1 A beautiful and brilliantly engineered device, the iPhone blended three products into one: an iPod, with the highest-quality screen Apple had ever produced; a phone, with cleverly integrated functionality, such as voicemail that came wrapped as separately accessible messages; and a device to access the Internet, with a smart and elegant browser, and with built-in map, weather, stock, and e-mail capabilities. It was a technical and design triumph for Jobs, bringing the company into a market with an extraordinary potential for growth, and pushing the industry to a new level of competition in ways to connect us to each other and to the Web.Includes bibliographical references (p. 249-328) and index Acceso restringido a miembros del Consorcio de Bibliotecas Universitarias de Andalucía Electronic reproduction. Palo Alto, Calif. : ebrary, 2009 Modo de acceso : World Wide Webpt. 1. The rise and stall of the generative Net -- Battle of the boxes -- Battle of the networks -- Cybersecurity and the generative dilemma -- pt. 2. After the stall -- The generative pattern -- Tethered appliances, software as service, and perfect enforcement -- The lessons of Wikipedia -- pt. 3. Solutions -- Stopping the future of the Internet : stability on a generative Net -- Strategies for a generative future -- Meeting the risks of generativity : Privacy 2.0. Index32

The Generative Internet

The generative capacity for unrelated and unaccredited audiences to build and distribute code and content through the Internet to its tens of millions of attached personal computers has ignited growth and innovation in information technology and has facilitated new creative endeavors. It has also given rise to regulatory and entrepreneurial backlashes. A further backlash among consumers is developing in response to security threats that exploit the openness of the Internet and of PCs to third-party contribution. A shift in consumer priorities from generativity to stability will compel undesirable responses from regulators and markets and, if unaddressed, could prove decisive in closing today's open computing environments. This Article explains why PC openness is as important as network openness, as well as why today's open network might give rise to unduly closed endpoints. It argues that the Internet is better conceptualized as a generative grid that includes both PCs and networks rather than as an open network indifferent to the configuration of its endpoints. Applying this framework, the Article explores ways--some of them bound to be unpopular among advocates of an open Internet represented by uncompromising end-to-end neutrality--in which the Internet can be made to satisfy genuine and pressing security concerns while retaining the most important generative aspects of today's networked technology

What the Publisher Can Teach the Patient: Intellectual Property and Privacy in an Era of Trusted Privication

Individuals have long had the desire but little ability to control the dissemination of personal information about their health. Law has been a weak instrument for such control, given the articulate and powerful interests that insist upon maintaining and enhancing access and use of others' personal information, with sensitive medical data proving only a sporadic exception. Technology has so far only made exploitation of personal information easier. The evolving federal framework for the protection of electronic medical records is, at the moment, one in which individuals are third-party beneficiaries of what are likely to be flexibly-interpreted, ponderously-enforced fair information practices created in the shadow of a Congressionally-mandated networking of sensitive medical data. This networking promises to greatly lower the costs of accessing and using medical data for any number of purposes--including ones not central to health care, such as direct marketing. It is ushering in what some call the "Era of Promiscuous Publication." The danger this era portends is that what is gained in efficiency of health care provision may be lost in erosion of privacy. Privacy advocates could learn a new approach to this problem from an unlikely teacher: publishers of intellectual property--specifically the American music industry. The music industry until recently feared ruin from the unauthorized swapping and rebroadcasting of high-quality audio reproductions among its customers, a phenomenon enabled by increasingly cheap networks, cheap data storage, and cheap processors again, the Era of Promiscuous Publication. Despite access to a sympathetic Congress and extensive enforcement resources, the music industry has found recourse to law largely unavailing against this tide of technological progress. The industry is now embarking on a different strategy--changing the technology itself. At the core of the technological response lies the idea of "trusted systems": computer databases of the rights and privileges of specific entities vis-a-vis information, linked to hardware and software that recognize and enforce those rights. If fully deployed, trusted systems could trump the Era of Promiscuous Publication with what I call an "Era of Trusted Privication": one in which a well-enforced technical rights architecture would enable the distribution of information to a large audience--publication--while simultaneously, and according to rules generated by the controller of the information, not releasing it freely into general circulation--privication. In my view there is a profound relationship between those who wish to protect intellectual property and those who wish to protect privacy. Their common desire to control the distribution of information, and the music industry's potential success at regaining control through the implementation of trusted systems, offer several lessons to privacy advocates seeking to protect the privacy interests increasingly threatened by the advent of the Era of Promiscuous Publication. The paper explores these lessons first by mapping out the problem presented to the music industry by the advent of fast, cheap, and perfect copies, along with the music industry's legal and technological strategies for regaining control. Second, it describes the similar problem faced by privacy advocates in the arena of medical privacy, the legal solutions that have been and might be attempted, and a hypothetical technological solution that demonstrates the enforcement power of the trusted system. Finally, it looks beyond the enforcement potential of the technological solution to demonstrate how thinking in terms of privication architectures might help negotiate the allocation of rights to medical data to account for the interests of individual "producers" of personal data in ways that need not disparage the legitimate interests of the sophisticated institutional players who wish to consume that data

The Rise and Fall of Sysopdom

"Sysop" has gone from a term of art known only to the bleeding-edge few to a dusty anachronism known only to the bleeding-gums few, without the usual years-long general linguistic acceptance and respect in between. In case the reader is not among the bleeders: sysops (from "system operators") run electronic areas accessible by typing furiously on one’s networked computer, through which one can meet, talk to (well, at least type at), and develop nuanced social relationships with other people similarly typing and reading. Few know what a sysop is because these electronic areas — aspirationally, and sometimes accurately, known as "online communities" — have never quite flourished and today are in decline. Indeed, "online community" joins "sysop" in the oversize dustbin of trite or hopelessly esoteric, hence generally meaningless, cyberspace vernacular. Not that "online community" is obscure, like "sysop"; rather, the term’s emptiness results from its abuse. "Online community" is used by Internet companies the way a motivational speaker uses "excellence," an academic uses "new paradigm," or a lawyer uses "justice": it represents something once craved and still invoked (if only as a linguistic placeholder) even as it is believed by all but the most naïve to be laughably beyond reach. Since it’s applied to almost anything, it now means vague warm fuzzies and nothing more. The craft of sysoping and the phenomenon of online community (non-hollowly defined) have gone down together even as the Internet has burgeoned, and I want to explain what has happened to sysops as a way of explaining what has happened to the truly great and transformative promise of online communities. Law has played a major role in two distinct ways. First, sysops and the members of the communities they lead have struggled through lawlike reflection to arrive at just solutions to the disputes that inevitably arise in the course of their interactions. This struggle is a large part of what has made the communities so interesting. Second, fear of the formalistic application of the machinery of the real-world legal system is threatening to drive the amateur sysop to extinction and thereby to destroy what’s left of online community

Ubiquitous Human Computing

Ubiquitous computing means network connectivity everywhere, linking devices and systems as small as a thumb tack and as large as a worldwide product distribution chain. What could happen when people are so readily networked? This short essay explores issues arising from two possible emerging models of ubiquitous human computing: fungible networked brainpower and collective personal vital sign monitoring

Book Review: What's in a Name?

In the spring of 1998, the U.S. government told the Internet: Govern yourself. This unfocused order - a blandishment, really, expressed as an awkward "statement of policy" by the Department of Commerce, carrying no direct force of law - came about because the management of obscure but critical centralized Internet functions was at a political crossroads. This essay reviews Milton Mueller's book Ruling the Root, and the ways in which it accounts for what happened both before and after that crossroads