Since we've been discussing both Lessig's book and Internet
regulation, I thought the following would be appropriate.
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http://www.oreilly.com/~andyo/ar/intergovernmental.html
November 30, 1999
WTO + SDMI = NWO (NEW WORLD ORDER)--AND THAT SPELLS TROUBLE
by Andy Oram
American Reporter Correspondent
CAMBRIDGE, MASS.--WTO, IMF, EU: has one of these changed your life recently?
How about SDMI, PICS, or CALEA?
You'll probably recognize the first set of acronyms as a few of the
intergovernmental organizations that have received increasing public
attention over the past few years, often being criticized as
"supergovernments" that impose their decisions on member nations. The second
set of acronyms will be gibberish to most people, but refer to another kind
of control: decisions built right into hardware and software.
Intergovernmental organizations are in the headlines as the World Trade
Organization opens its Seattle global summit on November 30. Widespread
grassroots protests will shine light on rulings that affect environmental
and labor policy, on China's attempt to join, and--most significant for this
article--on intellectual property disputes.
The heavy-handed pronouncements of the WTO and the International Monetary
Fund excite warnings about their vast power from many critics, some speaking
sinisterly from the left and others righteously from the right.
Intergovernmental organizations do play a significant role nowadays, but we
must remember that ultimate power still rests in national governments with
their police, their armies, and their popular mandates.
Plenty of times, a national government has reacted to an intergovernmental
organization by ignoring it, stonewalling it in court, or even threatening
its continued existence by withdrawing funds. While the United States is the
most common rebel, there are others as well. Israel has no intention of
obeying U.N. Security Council resolutions regarding the Palestinian Arabs.
As a more trivial example, France refused to lift a ban on British beef when
ordered to earlier this month by the European Commission.
And while everybody, including the IMF, admits that the IMF can exacerbate a
crisis, it can rarely gain leverage over governments until their own
corruption and poor financial regulation lead to grief. Furthermore, the
spectacular failures of the past two years suggest that the IMF is not as
powerful as its critics claim.
So in the areas of Internet and telecommunications, corporations have
stumbled upon another way to get what they want: build it into information
architecture. The complex relationship between government regulation and
software regulation has been tracked for several years by law professor
Lawrence Lessig, who has just released a book called Code And Other Laws of
Cyberspace (Basic Books, October 1999, ISBN:0-465-03912-X). Rather than
cover what Lessig has so adeptly handled in his book, my goal in this
article is to bring a similar analysis to intergovernmental organizations.
A simple example involves electronic commerce. It is fully reasonable to
expect that, over the next decade, the bulk of contracts and payments will
move to the Internet. But some critical pieces of the infrastructure for
this commerce are still missing, and they'll come online much faster if
aided by governments and international coordination.
So companies have asked for laws requiring electronic or digital signatures
to be accepted where feasible, and for help in creating the clearing houses
(certificate authorities) that hand out such signatures. The European
Commission came out in 1998 for such regulations. And the U.S. Congress
passed a bill on the subject earlier this month, after narrowly avoiding
defeat over critics' concerns for customer rights.
The plot thickens when we turn to an area beset by more controversy,
intellectual property. Companies excited about using the Internet to deliver
this material--news, music, travel listings, software, movies, and things
whose existence we probably don't even imagine today--are obsessed with
preventing people from making unauthorized copies. Laws have traditionally
offered adequate protection to generate a profit on intellectual property,
but in the new digital age they may fall short.
Intellectual property is a major issue at the WTO, particularly the goal of
getting China to cut down bandits within its borders. There's also a body
called the World Intellectual Property Organization to bring international
laws into harmony. But if you can't have a policeman on every corner in real
life, you certainly can't have one at every router in cyberspace.
Thus, companies are trying to batten down their products by turning to
"technical protection measures." Encryption restricts viewing to people with
passwords. Digital watermarks embed information about the owner in the
document. Conversely, companies can also mark a document with information
about the user in order to trace who generated a contraband copy. Further
protections against copying are built into devices, so they will cause
quality to degrade after a certain number of copies, or just shut down and
refuse to make more copies.
Copy-protection is an old idea. Crude anti-copying techniques were used on
floppy diskettes in the 1980s, but were rejected decisively by the public,
who had many legitimate reasons to make copies. But current encryption
technologies and security on Internet sites allow for more sophisticated
measures.
The Secure Digital Music Initiative, mentioned in the first paragraph of
this article, is an example of a technical copyright protection measure. It
was developed by record companies with high hopes that it will allow them to
supersede MP3 and end the free exchange of music over the Internet.
To companies producing intellectual property, the ideal protection would be
a technical system that was unbreakable. But no such system exists. Witness
the recent cracking of the DVD format (originally Digital Video Disc, now
Digital Versatile Disc) by some anonymous programmers in Europe. And it is
highly unlikely that current digital watermarks can survive stretching,
shrinking, darkening, lightening, and other standard techniques that anybody
can do with PhotoShop.
Re-enter the intergovernmental organizations. WIPO issued a Performance and
Phonograms Treaty in 1996 that required member nations to "provide adequate
legal protection and effective legal remedies against the circumvention of
effective technological measures" that prevent copying. In the U.S.,
penalties appear in an audio recording law, in the omnibus 1998 copyright
law, and in an act called UCITA regarding software. In effect, governments
and intergovernmental organizations are saying, "We can't completely protect
companies, and they can't completely protect themselves, so we will work
together."
The DVD flap shows that the laws can have an effect. The Motion Picture
Association of America is threatening a lawsuit against every site they can
find that offers the free-software DVD player. But the clever code-breakers
were not planning to make or distribute illegal copies of movies. They broke
the code in order to create a DVD player that ran on the trendy
free-software operating system Linux, for which the DVD manufacturers have
not provided players. Thus, even though we're at the very start of the era
of "technical measures," we have evidence both of their fragility and of
their potential to hold back technological progress and consumer choice.
The link between technology and law is not always just for the benefit of
businesses. As Professor Lessig points out, it can be used to meet the goals
of governments and intergovernmental organizations too. In fact, governments
show a liking for hiding behind technical measures, which everybody knows
are supposed to be "objective," "flexible," and "value-free."
Take content control. When the Communications Decency Act turned out to be a
dud, Senator (and current Presidential candidate) John McCain pushed through
restrictions on schools and libraries using federal universal service funds
to gain Internet access. The vehicle for these restrictions is technology:
the bill requires all such schools and libraries to install software filters
for Internet content. In short, Congress is using filters to achieve what
the Supreme Court would not let it do directly. (Even this law will probably
be overturned, but Congress will keep trying until it manages to navigate
the constitutional straits.)
In Europe an even more elaborate shell game is emerging, with the
participation of the European Union, national governments, filter
manufacturers, and Internet providers. Ready to hack through this thicket?
Here are the steps in marrying law and technology.
1. The European Union announced that it would support a system for putting
control over content in the hands of individual users. They put up 25
million Euros (which are roughly equivalent to dollars) for the
development of a rating system that is culturally neutral. That's an
impossible goal, but it can be faked enough to become the basis for
law.
2. Meanwhile, a technical standards body, the World Wide Web Consortium,
has developed a filtering protocol called the Platform for Internet
Content Selection. It is explicitly designed to allow the blocking of
Web traffic at any point along its route (an Internet provider, a
corporate hub, or an individual user).
3. The EU has then encouraged the Internet providers of each country to
create codes of conduct. Such government intervention is a
bait-and-switch ruse, because the control was originally advertised as
the choice of the individual user. But no one can challenge codes of
conduct legally, because they're voluntary.
4. Now for the kicker. National governments can pass laws that make
Internet providers liable for any content passing over their routers
that is illegal or harmful to children--but only if blocking is
"technically possible" and they "can reasonably be required to prevent"
transmission. (The phrases I quoted come from a German law that was
promoted as protecting Internet providers from liability.)
Did you catch the trick? PICS and software filters, with all their
weaknesses, give governments the excuse to claim that blocking is now
feasible. Governments can say that Internet providers are responsible for
content that the government doesn't want to see online. The fear of going to
jail for something done by some Web site in Idaho is plenty of incentive for
an Internet provider in Germany to adopt voluntary filters! There is even a
proud new term for the solution: coregulation.
And even though no filter will work perfectly, well-known sites can be
censored while a chilling effect will restrain all content providers.
Commercial, regulatory, and technical measures intertwine--at the expense of
liberty.
We are seeing many other areas where technology and governments start to
overlap; espionage and privacy top the list. In the U.S., after passage of
the Communications Assistance for Law Enforcement Act, technology is being
built into the phone system to preserve government's ability to wiretap, and
the body responsible for Internet protocols (the Internet Engineering Task
Force) was asked to hack Internet protocols to the same end. Luckily, the
IETF firmly refused--but future trials loom.
But protocols are starting to come under the formal purview of
intergovernmental groups. The unusual corporation/governing body ICANN has
been given responsibility by the U.S. Department of Commerce for protocols
related to Internet names and numbers. The International Telecommunication
Union, one of the grand-daddy intergovernmental groups that ratifies
communication protocols, is also trying to get a say in the development of
the Internet.
I highly recommend Lessig's book for examples and a deep analysis of how law
and technology combine powerfully for good or ill. One consequence of their
merger is that everybody can stop taking responsibility.
Thus, intergovernmental groups call for the development of technologies.
Countries pass laws enforcing their use, leaning on the excuse that they're
conforming to international treaties. Software and hardware developers put
the technologies of control into products because they know a market exists
for them. Companies simply offer their wares using "available technologies."
And the rest of us don't know what hit us.
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Cyber Rights moderator, Computer Professionals for Social
[EMAIL PROTECTED]
Editor, O'Reilly & [EMAIL PROTECTED]
This article can be reposted for non-profit use.
