Exceptionally well said, Andy. Thank you for sharing it.
Diane Cabell
Berkman Center for Internet & Society
Harvard Law School
----- Original Message -----
From: Andy Oram <[EMAIL PROTECTED]>
> 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.
>
> --------------------------------------------------------------------
----
>
> Cyber Rights moderator, Computer Professionals for Social
[EMAIL PROTECTED]
> Editor, O'Reilly & [EMAIL PROTECTED]
> This article can be reposted for non-profit use.
>
