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Abstract:
Three problems of online life - spam, informational privacy, and network security - lend themselves to the peer production of governance. Traditional sovereigns have tried and, to date, failed to address these three problems through the ordinary means of governance. The sovereign has a role to play in the solution to each of the three, but not as a monopoly and not necessarily in the first instance. A new form of order online, brought on by private action, is emerging in response to these problems. If properly understood and encouraged, this emerging order could lead to an accountable internet without an offsetting loss of those aspects of online life that we have found most attractive.

There has been a great deal of loose talk about the need for "internet governance," particularly in the context most recently of the World Summit on the Information Society, but much less careful analysis of the question whether the online world really does pose special problems, or present special opportunities, for collective action. There has been a general discussion as to whether the internet, as a general rule, lends itself to governance by traditional sovereigns or if something in the net's architecture resists such forms of control. We do not seek to re-open this debate, acknowledging at the outset the important role that traditional sovereigns have to play in most areas of decision-making and enforcement on the internet. Rather, we seek to look more closely at a series of particularly thorny issues that have proven especially challenging for policy makers seeking to impose governance by states. We seek the special problems - and corresponding opportunities - of online activity and assess the relative merits of various options for how to resolve them.

Internet governance, spam, privacy, and network security, democracy, peer production

Abstract:
Corporations are increasingly finding themselves caught in the crosshairs as they are asked by local authorities to carry out censorship and surveillance online. This chapter describes this growing, thorny problem and some possible means to resolve it. The most promising approach is neither local law nor a new international covenant, but rather a strong, enforceable code of conduct created by the corporations themselves, in concert with nongovernmental organizations (NGOs), academics, states, and other stakeholders.

Abstract:
China's Internet filtering regime is the most sophisticated effort of its kind in the world. Compared to similar efforts in other states, China's filtering regime is pervasive, sophisticated, and effective. It comprises multiple levels of legal regulation and technical control. It involves numerous state agencies and thousands of public and private personnel. It censors content transmitted through multiple methods, including Web pages, Web logs, on-line discussion forums, university bulletin board systems, and e-mail messages. Our testing found efforts to prevent access to a wide range of sensitive materials, from pornography to religious material to political dissent. We sought to determine the degree to which China filters sites on topics that the Chinese government finds sensitive, and found that the state does so extensively. Chinese citizens seeking access to Web sites containing content related to Taiwanese and Tibetan independence, Falun Gong, the Dalai Lama, the Tiananmen Square incident, opposition political parties, or a variety of anti-Communist movements will frequently find themselves blocked. Contrary to anecdote, we found that most major American media sites, such as CNN, MSNBC, and ABC, are generally available in China (though the BBC remains blocked). Moreover, most sites we tested in our global list's human rights and anonymizer categories are accessible as well. While it is difficult to describe this widespread filtering with precision, our research documents a system that imposes strong controls on its citizens' ability to view and to publish Internet content. This report was produced by the OpenNet Initiative, a partnership among the Advanced Network Research Group, Cambridge Security Programme at Cambridge University, the Citizen Lab at the Munk Centre for International Studies, University of Toronto, and the Berkman Center for Internet & Society at Harvard Law School.

Internet web filtering, government, China, ONI points of control

Abstract:
The online environment and new digital technologies threaten the viability of the music and film industries' traditional business models. The industries have responded by seeking government intervention, among other means, to protect their traditional models as well as by developing new models specifically adapted to the online market. Industry activity and public debate have focused on three key policy areas related to copyright holders' control of content: technical interference with and potential liability of P2P services; copyright infringers' civil and criminal liability; and legal reinforcement of digital rights management technologies (DRM).

This paper seeks to support policymakers' decision making by delineating the potential consequences of policy actions in these areas. To do so, it assesses how such action would impact relevant social values and four business models representative of current and emerging attempts to generate viable revenues from digital media. The authors caution that government intervention is currently premature because it is unlikely to strike an appropriate balance between achieving industry goals while supporting other social values, such as consumer rights, the diversity of available content, and technological innovation.

Copyright, digital media, peer to peer (P2P), DRM

Abstract:
This paper traces the evolution of thinking about the technical concept of the end-to-end principle and the legal concept of the regulation of the flow of packets across the Internet. We focus on the manner in which the state, in concert with private parties, has approached the tension between restricting the flow of certain packets and vindicating their citizens' interests, legal and otherwise, in free expression. We argue that the primary mode of legal regulation on the Internet has shifted from a focus on outlawing activities at the nodes—end-points in the network—to a growing emphasis on regulating closer to the middle of the network. This trend is, on its face, good for the law enforcement officer but worrisome to the technologist and the democratic activist: the end-to-end principle, held dear for decades by those who built the Internet, is under threat. In the process, this shift also places corporations, often based in jurisdictions beyond those in which they are doing business, in the position of enforcing the rules of the regime in which they are doing business, but whose views on free expression and other civil liberties the corporations' officers and directors do not share. We argue that the end-to-end principle, once translated loosely into political speak as "net neutrality," is a forceful rhetorical concept - and, if done right, sound public policy - but that it no longer describes Internet on the ground, if it ever did.

Internet, governance, law, technology, corporations, network neutrality

Abstract:
In summer 2005, the United States Supreme Court issued a decision which is surely destined to play a significant role in the interrelation between law and technology in the coming years. The case, Metro-Goldwyn-Mayer Studios Inc., et al. v. Grokster, Ltd., et al., pitted copyright holders against the operators of certain peer-to-peer online file-sharing services and was awaited by many in both the legal and technology communities as a referendum on the landmark legal precedent set in the Sony-Betamax case. The Sony case came to represent the legal standard for determining when manufacturers of dual-use technology - technology capable of both legally noninfringing and infringing uses - should be given a safe harbor from liability for acts on the part of their consumers which violated copyright law.

Surprisingly, the Supreme Court's decision did not center around an affirmation or rejection of the Sony ruling; rather the Court based their opinion on a common law principle which, they held, was not preempted by the holding in Sony. The inducement to infringe copyright, although not a completely novel cause of action, has been perceived by some commentators to introduce a change in the legal landscape of secondary liability for copyright infringement. In this article, we provide an extensive exposition of the Court's decision and discuss the disposition of the decision including the implication of the two concurring opinions. We also speculate on the impact that the Court's decision will have on the technology sector and on technological innovation in particular. Ultimately, we grapple with new questions which the decision has presented for industry and the continued existence of peer-to-peer file-sharing.

file-sharing, peer-to-peer, Sony Betamax, Digital Entrepreneurship

Abstract:
Web services have been wildly hyped for a long while now. Web services, and more specifically mashups, on which we focus here, are an area of enormous innovation. That innovation is manifested through new business models, new technologies, and clever new ways to use and share data. It's also an area where interoperability is the name of the game; the notion that people, data, and code can interact with other people, data, and code is the starting point for these services. The word interoperable is often in the definition of what a Web service is. The focus of this case study is the relationship between innovation in Web services applications and the interoperability (or interoperability potential) that we see. We conclude that the connection between interoperability and innovation is plain in this context. A wide variety of mashups that are useful to individuals, enterprises, and society as a whole have been enabled by interoperability in Web services, and could not exist without it. The drivers of interoperability have been market demand, private ordering, and work done in standards bodies. But the system by which it has come to pass is currently unstable, in the sense that a lawsuit or withdrawal of interoperable interfaces by a key stakeholder could set back innovation considerably. We consider several options for creating greater sustainability over time, such as license interoperability, open standards, and back-up in the form of traditional law enforcement.

interoperability, technology, ICT, innovation, mashup, digital

Abstract:
Interoperability, like openness, is something that we generally think of as a good thing in the context of information and communications technologies (ICTs). One of the reasons why we tend to like interoperability is that we believe it leads to innovation, as well as other positive things like consumer choice, ease of use, and competition.

In this study, we have done a deep-dive on three cases - DRM-protected music, Digital ID, and Mashups in the Web services context - as well as cursory reviews of other narratives with a goal of understanding a range of views on how interoperability comes to pass, what is optimal in terms of interoperability, how interoperability relates to innovation, and how we ought to approach achieving greater interoperability.

Our research suggests that these inclinations about interoperability are on the mark in a general sense, but that the picture is filled with nuance. Interoperability does not mean the same thing in every context. Interoperability is not always good for everyone all the time. And the relationship between interoperability and innovation, while it likely exists in most cases, is extremely hard to prove.

There is no one-size-fits-all way to achieve interoperability in the ICT context. There are a range of approaches that have relative merits depending upon the circumstances: efforts within a single firm to interconnect products or within firms; collaboration between or among two or more firms; standards processes, including open fora and ad hoc cooperation; and a wide range of roles for governments, most of which are ex post rather than ex ante modes of regulation. In various contexts, one or more of these approaches may be the best suited to accomplishing the goal of interoperability and the relevant subsidiary goals (Not surprisingly, European attitudes toward the mode of accomplishing interoperability are quite different from American inclinations).

Our conclusion is that interoperability generally supports innovation in the ICT context, but that the relationship between the two is highly complex and fact-specific. We conclude also that the best path to interoperability depends greatly upon context and which subsidiary goals matter most, such as prompting further innovation, providing consumer choice or ease of use, and the spurring of competition in the field. We conclude further that the private sector generally ought to lead efforts in interoperability, with the public sector ready either to lend a supportive hand or to determine after the fact whether the market has failed in a way such that state action is the best means of rectifying the problem. In many instances, a blended approach - involving one or more approaches concurrently - may be optimal. We recommend a process solution for considering which approach or approaches makes the most sense in a given context.

We also highlight the issue that sustaining interoperability - not just establishing it in the first instance - is a key place to focus attention. Our case study of mashups points to the concern that the most informal arrangements in the context of Web 2.0 functioning as a kind of operating system may lead to problems in the future if not stabilized in some fashion.

interoperability, technology, ict, innovation, drm, identity, digital, mashup

Abstract:
This report - representing one of three case studies that are part of a transatlantic research project aimed at exploring the potential relation between ICT Interoperability and eInnovation - examines issues surrounding DRM interoperability within the context of music content. Recognizing that interoperability will likely be defined differently by different stakeholders, we begin by establishing a rough, holistic working definition of interoperability and then assess the implementation of DRM in the music content market and associated problems with regard to interoperability. We then go on to explore the technological, market, and legal environments in their relation to and impact upon the achievement of interoperable DRM systems. In part 2, we analyze potential benefits and drawbacks of an interoperable DRM environment for the music content market. We then evaluate both private and public-initiated approaches towards the accomplishment of interoperability using a series of qualitative benchmarks. Lastly, we conclude by summing up the merits and demerits of the various approaches. Our findings lead us to surmise that normative considerations weigh in favor of greater interoperability in general. The challenge of determining the optimal level of interoperability and the best approach for attaining it, however, points toward consideration of a number of complex factors. We conclude that the best way to determine the optimal level of interoperability and means of accomplishing it is to rely upon economic-based assessments on a case-by-case basis.

interoperability, technology, ict, innovation, drm, music, digital

Abstract:
ICANN's experimentation in running a representative and open corporate decision-making process to manage the domain name system has largely failed. This failure has manifested itself most explicitly by ICANN's retreat from its effort to enable the direct election of a subset of its Board members and, less explicitly, by the extent to which other efforts to engage the Internet user community in the decision-making process have proven ineffective. A systematic review of over 100,000 comments by public participants in ICANN, other inputs that the Board considered, and the Election of 2000 for five ICANN Board members, reveal that ICANN has never fully succeeded in integrating users into the governance model in other than an ad-hoc fashion. Instead, the Board appears largely to have based its decisions upon the recommendations of professional staff and of the powerful Supporting Organizations (SOs), in which users can participate. An Internet user approaching the ICANN process from the outside would have little way to determine how to participate meaningfully in the decision-making process.

Three lessons emerge from this study. First, ICANN's failure shines further light upon the need for an overhaul of its governance structure. Second, ICANN should clarify the way in which users can involve themselves in the decision-making process for managing the domain name system, arguably through the Supporting Organization process. Third, we should look beyond the ICANN model, which has never been the appropriate venue for experimentation in global decision-making, toward new ways to govern the technical architecture of the Internet in an increasingly networked, less clearly bordered world.

Internet, governance, law, ICANN, participation, democracy

Abstract:
This paper, one of three case studies in a transatlantic research project exploring the connection between Information and Communication Technology interoperability and eInnovation, considers the current state and possible evolution of Digital Identity. While consumers would undoubtedly reap convenience benefits from an ubiquitous single sign-on (SSO) technology, the potential for privacy and security issues makes Digital ID a complex issue. The user-centric, federated, and centralized models of Digital ID each have their advantages and drawbacks. While a few companies have previously attempted to establish a single Digital ID standard that they would control, the failure of those efforts has led to a situation where most players in the industry seem to see interoperability as essential to build up the market in the face of frequent ambivalence from consumers, e-commerce merchants, and other potential users.

Broadly, Digital ID could enable a wide range of new Web-based applications, increasing consumers' flexibility and reducing transactions costs. However, having Digital ID be too ubiquitous could threaten the continued viability of anonymous speech in some contexts. It could also lead to more entities having greater access to personal data of consumers, raising the stakes of potential data breaches.

The paper concludes that the route to interoperability most likely to lead to innovation would include continued collaboration among industry players to settle on one or a few consolidated efforts. Except in special areas, governments can best play a peripheral role, encouraging coordination through soft regulatory approaches like bringing stakeholders together and using their market power as major data holders and users. If privacy and security issues are addressed (and current stakeholders seem acutely aware of them), Digital ID interoperability has the potential to be extremely generative, creating new markets and enabling interoperability among other applications and services. If, however, coordination breaks down among market leaders and rival technologies emerge, it seems likely that user adoption will remain low and the benefits will be limited.

interoperability, digital, identity, technology, innovation, security, internet

Abstract:
On November 6, 2008, the J. Michael Goodson Law Library at the Duke University School of Law held a number of events in celebration of its newly renovated and expanded space. This is an edited version of the program, "The 21st Century Law Library: A Conversation," that was held as part of that celebration.

law library, law libraries, duke, library space, 21st century, twenty-first century

Abstract:
This paper analyses and reports on discussions at the international forum held at the University of Oxford, entitled 'Internet Governance for Development: Focusing on the Issues'. It started with an open meeting on 31 August 2006 followed on the next day by a workshop for a specially invited group of knowledgeable and experienced participants, encompassing a broad range of perspectives. They sought to discuss and clarify key Internet governance issues, such as those on the agenda for the first meeting of the United Nation's Internet Governance Forum, held in Athens from 30 October to 2 November 2006. This paper explores underlying values and policy-making dynamics in international Internet government processes, particularly in relation to the needs of developing countries. In addition to the views of participants expressed during the Oxford event, it draws on position papers prepared for it, documents submitted for consideration by the IGF meeting in Athens and other relevant information.

internet, governance, policy making, government, developing countries, IGF, Internet Governance Forum