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Lessigs Lösung


Zoning Speech on the Internet: a Technical and Legal Model

Lawrence Lessig and Paul Resnick 

Presented at the Telecommunications Policy Research Conference,
Washington, DC, September 1998.  To appear in book edited by Sharon
Gillett and Ingo Vogelsang. Substantially revised and expanded version
to appear in the Michigan Law Review. 
  MS Word (Office97) format
  PDF format 


This article proposes an abstract model of mandated access controls. It
includes three types of actors: senders, intermediaries and recipients.
Control decisions are based on three types of information: the item, the
recipient?s jurisdiction, and the recipient?s type.

With the architecture of today?s Internet, senders are ignorant of the
recipient?s jurisdiction and type, recipients are ignorant of an item?s
type, and intermediaries are ignorant of both. It is easy to see, then,
why, with today?s Internet architecture, governments are having a hard
time mandating access controls. Any party on whom responsibility might
be placed has insufficient information to carry out that responsibility. 

While the Internet?s architecture is relatively entrenched, it is not
absolutely immutable. Our abstract model suggests the types of changes
that could enhance regulability. Senders could be given more information
about recipient jurisdiction and type, either through recipients
providing certificates, or through a database mapping IP addresses to
jurisdictions. Recipients could be given more information about item
types, either through senders providing labels or through government
pre-clearance lists of permitted or prohibited items. 

Since the two interventions are analogous, the analyses of their costs
and effectiveness are analogous as well. In either case, there will be a
natural incentive to provide information if the default action of the
responsible party is to block access unless the information is provided
(a prohibited unless permitted regime). Otherwise, there will be no
natural incentive, and the government
will have to require the provision of that information. 

The secondary effects of these two infrastructures are also analogous,
but quite different. The by-product of a certificate regime is a general
ability to regulate based on jurisdiction and recipient characteristics,
even for issues beyond content control, such as taxation and privacy.
Such a regime also enables senders voluntarily to exclude recipients
based on jurisdiction or type, a facility
which might be used for negative as well as positive purposes. The
by-product of a widely used labeling infrastructure is a general ability
to regulate based on item characteristics, even characteristics that
governments have no legitimate reason to regulate. Such a regime also
enables intermediaries and recipients voluntarily to exclude some item
types, a facility that may empower parents and teachers but may also be
overused if it is poorly understood or difficult to configure. 

If intermediaries are to be responsible for blocking, they will need
both types of information. In addition, architectural changes will be
necessary to enable application layer blocking of individual items
rather than cruder network layer blocking of all traffic from or to an
IP address. A requirement of application layer blocking, however,
introduces significant costs in terms of openness to
innovation and vulnerability to hardware and software failures.
Intermediaries, then, are the most costly place to impose
responsibility. On the other hand, they are the most easily regulated,
since there are fewer of them, they are more stable, have assets and
their governing jurisdictions are clear. 

While our sensitivity analysis does suggest consequences that might not
have been readily seen, our ultimate conclusion is one others have
reached as well. It will be difficult for governments to mandate access
controls for the Internet. Given today?s architecture, any such mandates
would of necessity be draconian or ineffective. Changes to the technical
infrastructure or social
practices could enhance regulability, although such changes would entail
both direct costs and would create secondary by-products whose value is
debatable. Given that the costs of any such architectural change would
be significant, it is important for governments to answer the
fundamental question of how important such changes are: perhaps a
lessening of governments? traditional power to control the distribution
of harmful information would be preferable. 

Kristian Koehntopp, Knooper Weg 46, 24103 Kiel, +49 170 2231 811
"Basically, the mere appearance of new technological forms of
 have never been a reason to change the existing 'legal rules of play'."
	-- WIPO rechtfertigt ein globales Trafficabhoer- und Filtersystem