115 Pages Posted: 16 Jun 2003
This essay addresses the fundamental questions of Internet governance: whether and how the architecture of the Internet should affect the shape and content of legal regulation of the global network of networks. Our answer to these questions is based on the concept of layers, the fundamental architectural feature of the Internet. Our thesis is that legal regulation of the Internet should be governed by the layers principle - the law should respect the integrity of layered Internet architecture. This principle has two corollaries. The first corollary is the principle of layer separation: Internet regulation should not violate or compromise the separation between layers designed into the basic architecture of the Internet. The second corollary is the principle of minimizing layer crossing, i.e., minimize the distance between the layer at which the law aims to produce an affect and the layer directly affected by legal regulation. The essay argues that layers analysis provides a more robust conceptual framework for evaluating Internet regulations than does the end-to-end principle.
The layers principle is supported by two fundamental ideas. The first idea is transparency: the fact that layer-violating regulations damage transparency combined with the fact that Internet transparency lowers the cost of innovation provides compelling support for the principle of layer separation: public Internet regulators should not violate or compromise the separation between layers designed into the basic architecture of the Internet. The second idea is fit: the fact that layer-crossing regulations result in inherent mismatch between the ends such regulations seek to promote and the means employed implies that layer-crossing regulations suffer from problems of overbreadth and underinclusion; avoidance of these problems requires Internet regulators to minimize the distance between the layer at which the law aims to produce an effect and the layer directly targeted by legal regulation.
Finally, the essay provides a detailed discussion of several real or hypothetical layer-violating or layer-crossing regulations, including: (1) The Serbian internet interdiction myth, (2) Myanmar's cut-the-wire policy, (3) China's great firewall, (4) the French Yahoo case, (5) cyber-terrorism, (6) Pennsylvania's IP address-blocking child-pornography statute, (7) port blocking and peer-to-peer file sharing, and (8) the regulation of streaming video at the IP layer.
Suggested Citation: Suggested Citation
Solum, Lawrence B. and Chung, Minn, The Layers Principle: Internet Architecture and the Law. U San Diego Public Law Research Paper No. 55. Available at SSRN: https://ssrn.com/abstract=416263 or http://dx.doi.org/10.2139/ssrn.416263
By Phil Weiser