• Selected
• Entire List

Abstract:
Scholars have neglected the privatization of the Internet, despite the obvious significance of the U.S. Government turning control over a powerful new communication medium to the private sector. This article provides a detailed historical study on the transition from a government sponsored backbone network to multiple commercially owned backbone networks. Next we document a number of problems that occurred during these privatizations. Not only have these problems led to a lack of competition in the backbone industry, but also the same types of problems are reoccurring in the ongoing privatization of Domain Name System (DNS).

The three types of problems that occurred in both privatizations, and will likely occur again in future Internet privatizations, unless recognized, can be categorized as follows: problems with procedural fairness in the processes adopted by the government; the government's management of competition during the privatizations; and problems related to the management of the technological infrastructure. In response, we have developed a series of proposals to address existing problems and to prevent these problems from reoccurring in future privatizations.

The specific proposals for the backbone industry are twofold. First, there must be an interconnection policy that ensures all networks non-discriminatory access to the Internet. Second, the government should support the development and use of standardized technologies, which contribute to interconnection, through a new Code-based technological interconnection policy. Such a policy is informed by a guiding principle that new technologies should not amplify network effects and should instead facilitate competition. Thus, we wish to place a discussion of network effects squarely within the discourse on Internet privatization.

To increase competition for the ongoing privatization of the DNS, we have three main proposals. First and most importantly, the U.S. Government must ensure that ICANN is accountable to the Internet community as a whole and not just business interests. Second, the U.S. Government must ensure that there is more transparency and public input into ICANN's decision-making. Finally, it must be remembered that a privatization is a means to achieve desirable public purposes, such as the creation of competition, and not an end all by itself since privatization does not, in and of itself, guarantee competition in the relevant market. Without multiple competing firms, the proper use of interconnection agreements to counter network effects in the DNS, and fair treatment by ICANN, there will continue to be problems with the privatization of the DNS.

In analyzing the privatizations of the Internet, our analysis is steeped in the theoretical construct of "Code." Throughout this work, we explained how Code could regulate behavior, for example, by affecting competition between backbone providers. However, Code all by itself cannot create competition; instead there must be put into place the requirement of policies that all parties shared common ground rules for all competitors. Thus our analysis shows that both Code and policies are necessary to bring competition to the Internet. Additionally, the privatizations have also highlighted two important roles for the government with respect to Code. First, government must be vigilant in ensuring Code is not implemented which is contrary to our societal interests, such as the maintenance of competition in the marketplace. Second, the government should consider encouraging or mandating the development of Code for vindicating certain societal interests, especially in those areas that the private sector has little interest in.

The results of this study provide insights and evidence about the appropriate role of government in regulating the Internet. While most rulemaking on the Internet is conducted in a decentralized "bottom-up" manner, this approach has its limitations. Some of these limitations include the private sector acting as top-down rule makers; the limited mobility of most individuals to switch between different rule sets; the role of network effects; and how "bottom-up" rulemaking could be contrary to our society's values. Similarly, the history of the privatizations demonstrates the problems the government had with their use of "top-down" rulemaking. The overarching lesson is that both "top-down" and "bottom-up" modes of regulations have their limitations and problems.

Abstract:
Open standards are widely considered to have significant economic and technological benefits. This has led many governments to consider mandating open standards for document formats. Document formats are how a computer stores memos or spreadsheets. Governments are moving away from Microsoft's proprietary DOC format to open standard document formats, such as the OpenDocument Format (ODF) and Office Open XML (OOXML). The belief is that by shifting to open standards, governments will benefit from choice, competition, and the ability to seamlessly substitute different vendor implementations.

This paper suggests that governments seeking the benefits of open standards need to consider the role of interoperability. Without multiple interoperable implementations, i.e., "running code", users will not gain the advantages of competition and substitutability. To highlight the issues around interoperability, we examined the interoperability issues around ODF and OOXML.

This research assesses interoperability among different software implementations of each document formats. For example, the implementations for ODF included KOffice, Wordperfect, TextEdit, Microsoft Office, and Google Docs. A set of test documents was used to evaluate the performance of other alternative implementations.

Our analyses show that there are significant issues with interoperability among various implementations. Users face numerous issues when transferring files between different implementations. While the best implementations may result in formatting problems, the worst implementations actually lose information, e.g., information found in pictures, footnotes, comments, tracking changes, and tables. Our findings include specific scores for each implementation. There was considerable variation among how well each implementation performed. For ODF, the compatibility scores ranged from a raw score of 151 (100% - weighted percent) to 48 (55% - weighted percent).

We consider several implications of these results including the lack of perfect compatibility between implementations, the lack of good implementations outside of Windows, and the surprisingly good overall performance of OOXML implementations. The interoperability issues are troubling and suggest the need for improved interoperability testing for document formats. The results also highlight the importance of interoperability for open standards in general. Without interoperability, governments will be locked-in to the dominant implementations for either standard and in the process lose many of the benefits that might accrue from adopting an open standard in the first instance.

Abstract:
This Article deconstructs code using case studies and shows that code is not neutral and apolitical but instead embodies the values and motivations of the institutions and actors building it. The term "code," as we use it, consists of the hardware and software components of information technologies. Code is increasingly being sought as a regulatory mechanism in conjunction with or as an alternative to law for addressing societal concerns such as crime, privacy, intellectual property protection, and the revitalization of democratic discourse. Our analysis examines how societal institutions, such as universities, firms, consortia, and the open source movement, differentially influence the production of code. Relying on four case studies, we analyze how institutions differ in structure and motivation, and how they are affected by different social, political, economic, and legal influences. We then analyze how these societal institutions, which all approach code creation differently, influence the technical and social characteristics of the code that is developed by them. For example, code developed by a university is likely to contain different values and biases, regarding societal concerns such as privacy, than code developed by a firm. This analysis provides a crucial first step in understanding how society shapes these new technologies. Ultimately, this work may assist policymakers in proactively shaping the development of code to address societal concerns.

Abstract:
Policymakers are increasingly pondering or evaluating the use of software and its influence on societal concerns such as privacy, freedom of speech, and intellectual property protection. A necessary step in this process is deciding what the "settings" should be for the relevant software. In this paper, we build upon work in computer science, behavioral economics, and legal scholarship to establish a well-defined framework for how default settings in software should be determined. This normative approach towards software settings stands apart from most previous scholarship, which focuses on the effect of software settings.

Our recommendations include several scenarios where policymakers should intervene and ensure that defaults settings are set to enhance societal welfare. These recommendations are illustrated with three examples. If policymakers change the default settings in our examples, they would enhance competition, security, and privacy. We believe that the manipulation of software to enhance social welfare is a powerful tool and a useful complement to traditional legal methods.

Abstract:
As our initial awe over the Internet diminishes, policymakers are recognizing the need to consider regulating Internet technologies. Legislation has been passed on a number of issues from security, filtering software in schools, spam, cell phone portability, and perhaps, spyware. This approach has been ad hoc because of the lack of a comprehensive analysis of the various approaches to regulating Internet based technologies.

This paper fills this gap by providing a systematic analysis of the government's ability to shape these technologies through the use of its regulatory power, its fiscal power, and through the definition of intellectual property rights. The regulatory issues considered include prohibitions on code, using standards or market-based incentives, modifying liability, and requiring disclosure. The fiscal issues considered include government funding of research and development, the use of the government's procurement power, tax expenditures, and funding of education and training.

This paper draws from Justice Breyer's seminal work on regulation and applies it to Internet technologies. This article stands apart from other work in this area because it does not focus on just one mechanism to shape code. It is the first article that considers these issues from a broader perspective that examines the complete panoply of government powers to regulate and shape code. In the process, it insightfully bridges work in regulation to that within cyberspace law and communication technologies.

Abstract:
Regulation through "code," i.e., the hardware and software of communication technologies, is growing in importance. Policymakers are addressing societal concerns such as privacy, freedom of speech, and intellectual property protection with code-based solutions. While scholars have noted the role of code, there is little analysis of the various features or characteristics of code that have significance in regulating behavior. This paper examines three universal governance characteristics that policymakers may use to ensure code comports with societal concerns. The characteristics that are studied are transparency, defaults, and standards. For each characteristic, the paper discusses the salient regulatory issues for manipulating code. Additionally, the paper provides normative proposals for modifying some characteristics, such as defaults. In the future, our analysis should aid policymakers seeking to manipulate code to ensure that code comports with our societal values and addresses our societal concerns.

Information, Communication processes, Technology led strategy, Regulation, Standards, Modulators

Abstract:
It is widely recognized that software affects fundamental societal concerns, such as privacy. Software does not just appear, but is produced within a variety of societal institutions. This article analyzes how societal institutions shape the development of software and its resulting implications for society. Specifically, we consider how institutional rules are evident in the different structures, motivations, and influences of four societal institutions. We begin by discussing universities and continue on to firms, consortia, and the open source movement. Once we understand how all of these factors operate, we can offer predictions on the resulting attributes of software. In the final section, we show how these institutional factors explain the variation in the development of web browsers as well as in the incorporation of the societal value of security into software.

Abstract:
The ability of communication technologies to favor certain societal concerns, such as privacy, is widely recognized. This article argues an institutional analysis is central to understanding how a technology affects a societal concern. This is demonstrated with a case study of the cookies technology, which has been shaped in differing ways by universities, firms, and consortia. A comparative institutional analysis finds that each of these institutions acted according to their own norms and processes in influencing the recipe for cookies. It is these institutional tendencies that shaped the cookies technology. By understanding these tendencies, policymakers can better assess, predict, and proactively influence the development of communication technologies to improve societal welfare.

Institutions, Communication Technologies, Law & Policy, Privacy, Cookies

Abstract:
This study employs empirical data to provide insights into the impact of open standards. This work moves beyond the existing literature's reliance on hand-picked case studies by analyzing a very large number of open standards. The results of this research are timely as governments are advocating, and sometimes mandating, the use of open standards. Our study reveals inequalities in the impact of open standards that suggest a power-law relationship. We have also found that the duration of the development process in creating an open standard does not affect the ultimate impact of the standard, but that the length of the document describing the standard affects its impact.

There are two datasets used in our analysis. The analysis focuses on standards developed by the Internet Engineering Task Force (IETF) because it is held as the exemplar for developing open standards. The first set encompasses 3221 IETF publications from August 1987 to January 2006. The second set consists of 32 standards, selected randomly from 2000 to 2003. The variables of interest include information about the standard document, the authors, the development process, and the impact of the open standard.

The first part of the analysis found a power-law relationship in the impact of open standards. A few open standards have a very high disproportionally large impact, while there are many other standards that have a slight impact. This relationship should not be surprising. Standards are analogous to other decisions that fit the power-law relationship, because people can freely choose between many standards. This result has implications for improving the development process within standards organizations.

The second part of the analysis considers significant variables that affect the impact of open standards. Our results show that the length of the standard document (as measured by the number of words) is a crucial factor affecting the impact of a standard. The length of a standard often reflects the fact that there are multiple participants, divisiveness in opinions, and overall technical complexity, all of which suggest greater interest during the development process of the standard, likely resulting in a higher impact once the standard is promulgated. We also find that the duration of the development process does not affect the impact of an open standard. This finding carries significant policy implications as reforms are underway to shorten the IETF development process.

Abstract:
In 2003, Massachusetts embarked on a policy to transition to open standards for information technology. This policy led Massachusetts to switch the format of its electronic documents for its public records from a proprietary standard to an open standard. This article documents this historic process because Massachusetts was the first government to switch its information technology over to open standards. In the process, we develop a set of lessons learned from the Massachusetts experience. These lessons are invaluable for other governments as well as scholars studying the adoption of standards.

The Massachusetts policy towards open standards is being careful watched by many governments. A number of other governments including several states in the United States, such as Minnesota and New York, as well as other national governments such as Belgium, Finland, France, Japan, and South Africa are moving towards or considering open standards policies. These policies are led by a desire to save money and have greater flexibility with respect to IT. However, the switch towards open standards can be fraught with difficulties that encompass economic, socio-political, technological, and institutional issues.

Our analysis offers a number of lessons from the Massachusetts experience for other governments considering a similar policy switch. The first lesson is the need for government to consider the impact of their policy on both direct and indirect stakeholders. Support from stakeholders is essential for a seamless transfer to open standards. The second set of lessons focus on several decisions around setting up an open standard policy, such as establishing how principled (e.g., avoid vendor lock-in or promote public autonomy) or how practical (e.g., save money or increase efficiency) a policy initiative should be. There are also lessons for addressing a "close call" decision between an open standard and a proprietary standard, and how to handle proprietary standards that are "dressed up" as open standards. The third set of lessons is the need for government to look for support both from within the government as well as the open standards community. The support can consist of financial, logistical, technical and political resources. The lessons are applicable, not only for open document standards, but also for open standards policies for other technologies. In addition, these lessons are relevant for any policy shift to open standards in general. The paper ends by considering two main lessons for other governments considering open standards for document formats. Indeed, open standards for document formats was the principal area of controversy for the open standards policy in Massachusetts.

Abstract:
Information technologies affect a variety of fundamental societal concerns, such as privacy and free speech. Policymakers currently analyze each societal concern as sui generis, ignoring commonalities among IT issues. This paper develops a comprehensive descriptive framework to address a variety of IT policy problems. The Information Technology and Societal Interactions (ITSI) framework theorizes how information technology develops, evolves, and influences society. This framework ties together several existing theoretical concepts, while translating them into a practical framework that policymakers can apply to real problems. The framework is illustrated by analyzing wireless security issues.

The article seeks to move beyond Lessig's work by providing a clearer and more comprehensive view of how IT interacts with society. An urgent need has arisen for this type of theoretical framework. Unlike other fields, a compelling theoretical approach within IT law and policy does not exist. As a result, each policy issue is treated as unique and policymakers overlook commonalities. This occurs because the existing theoretical approaches, such as structuration and actor-network theory (ANT), fail to provide applicable models for addressing concrete problems.

ITSI is inspired by structuration and ANT, but is tailored to the theoretical and practical needs for analyzing the interactions between IT and society. ITSI focuses on four main relationships within ITSI. These relations are: (1) how technology affects individuals, (2) how individuals reconfigure technology, (3) how developers shape technology, and (4) how society, in mass, can intervene and alter how technology operates. ITSI builds upon a large corpus of descriptive and normative scholarship by computer scientists, sociologists, communications scholars, and legal scholars. The contribution here does not define a new set of relationships between society and information technology, but explicates existing relationships and develops a descriptive framework that provides analytical insights.

This article illustrates ITSI through an analysis of security issues involved in wireless technology. The analysis found that consumers are not provided with simple and effective security because of the increased reliance on user configuration. ITSI led to this finding; it would not have emerged using conventional policy analysis. ITSI also provides solutions to this problem. Instead of looking toward users to improve security, policymakers should look to manufacturers to develop APs that are secure by design. The analysis ends by pointing out a number of strategies to influence manufacturers to improve the design of wireless APs.

Abstract:
Today's internet presumes that individuals are capable of configuring software to address issues such as spam, security, indecent content, and privacy. This assumption is worrying - common sense and empirical evidence state that not everyone is so interested or so skilled. When regulatory decisions are left to individuals, for the unskilled the default settings are the law. This article relies on evidence from the deployment of wireless routers and finds that defaults act as de facto regulation for the poor and poorly educated.

This paper presents a large sample behavioral study of how people modify their 802.11 ("Wi-Fi") wireless access points from two distinct sources. The first is a secondary analysis of WifiMaps.com, one of the largest online databases of wireless router information. The second is an original wireless survey of portions of three census tracts in Chicago, selected as a diversity sample for contrast in education and income. By constructing lists of known default settings for specific brands and models, we were then able to identify how people changed their default settings.

Our results show that the default settings for wireless access points are powerful. Media reports and instruction manuals have increasingly urged users to change defaults - especially passwords, network names, and encryption settings.

Despite this, only half of all users change any defaults at all on the most popular brand of router. Moreover, we find that when a manufacturer sets a default 96-99% of users follow the suggested behavior, while only 28-57% of users acted to change these same default settings when exhorted to do so by expert sources. Finally, there is also a suggestion that those living in areas with lower incomes and levels of education are less likely to change defaults, although these data are not conclusive. These results show how the authority of software trumps that of advice. Consequently, policymakers must acknowledge and address the power of software to act as de facto regulation.

Regulation, Software, Wireless, Defaults, Law, Policy, Internet

Abstract:
The design of communication technologies is not autonomous, but is shaped by conflicting social groups. As a result, communication technologies may have different properties depending upon their designers. In this paper, we show how communication technologies are differentially designed depending upon their institutional environment. Specifically, we examine how the consideration of societal concerns, such as privacy, differs between universities, firms, consortia, and the open source movement. The results show the biases of each institution, whether it is the flexibility given to university researchers, the emphasis on profitable societal concerns by firms, or influential role given to members within a consortium or in the open source movement. The resulting analysis is useful for policymakers seeking to incorporate a specific societal concern into a communication technology. The analysis shows why a firm may not address or incorporate a societal concern, and as a result, policymakers may then have to look to other institutions to vindicate their preferences. To this end, this paper has highlighted tendencies and biases for each of these institutions when incorporating societal concerns.

Abstract:
Governments around the world are considering implementing or even mandating open standards policies. They believe these policies will generate economic, socio-political, and technical benefits. In this article, we analyze the failure of Massachusetts’s open standards policy as applied to document formats. We argue that it failed due to the lack of “running code.” Running code refers to multiple, independent, interoperable implementations of an open standard. With running code, users have a choice in their adoption of a software product, and consequently, gain from the economic and technological benefits that accrue and which were, at the outset, the objectives behind the creation of the open standard. Hence, we urge governments to incorporate a “running code” requirement when adopting an open standards policy.