[AfrICANN-discuss] Remember the "borderless" Internet? It's officially dead

[Anne-Rachel Inné]

Remember the "borderless" Internet? It's officially dead
http://arstechnica.com/tech-policy/news/2011/11/the-borderless-internet-is-officially-dead.ars

By Nate Anderson <http://arstechnica.com/author/nate-anderson/> |
Published about
22 hours agoLast updated about 21 hours ago
 [image: Remember the "borderless" Internet? It's officially dead]

"The past is a foreign country: they do things differently there," wrote
L.P. Hartley in his terrific novel *The Go-Between*. But Hartley knew
nothing of the Internet when he wrote his novel of adolescent sexual
awakening; if he had, he might have been shocked at just how *quickly* the
past became a foreign place. Indeed, from the perspective of the recently
introduced Stop Online Piracy
Act<http://arstechnica.com/tech-policy/news/2011/10/house-takes-senates-bad-internet-censorship-bill-makes-it-worse.ars>(SOPA),
which would set up US website blacklisting, require search engine
censorship, and divide the Internet into "domestic" and "foreign" sites,
the sorts of Internet arguments being made in the late 1990s don't sound
like something from a foreign country so much as something from a foreign *
planet*.

An important strain of thought in the mid-1990s was "cyberlibertarianism,"
a view that saw the Internet as something truly novel in world history.
This exceptionalist position led to arguments that governments should leave
the 'Net alone; existing law stopped at the modem jack, and beyond was a
new realm called cyberspace that would solve its own problems.

"You claim there are problems among us that you need to solve," wrote
rancher, EFF co-founder, and Grateful Dead lyricist John Perry Barlow in a
1996 manifesto to
governments<https://projects.eff.org/%7Ebarlow/Declaration-Final.html>.
"You use this claim as an excuse to invade our precincts. Many of these
problems don't exist. Where there are real conflicts, where there are
wrongs, we will identify them and address them by our means." The conflicts
would be worked out based on the Golden rule—the only one recognized by
"all our constituent cultures." The Internet was its own place, and needed
its own government.

As for all the horrific stuff that humans get up to in every place they
have so far lived, Barlow downplayed it. "All the sentiments and
expressions of humanity, from the debasing to the angelic, are parts of a
seamless whole, the global conversation of bits,” Barlow wrote. It simply
wasn’t possible to “separate the air that chokes from the air upon which
wings beat.”

Incredible sentiments when considered 15 years later—but perhaps
understandable when coming from someone like Barlow. What was more
surprising was that the most famous Internet case of the era went even
further.
Welcome, chaos!

The Communications Decency Act (CDA) was a Congressional attempt to keep
"indecent" (but still legal) online speech away from minors—think of it
like an online porn shield. The practical difficulties were immense—how
would sites know who a visitor was?—and suggested approaches like requiring
a credit card ran headfirst into free speech concerns, given the extent of
the material that would be affected.

But when the law was thrown out by a three-judge panel in 1996, Judge
Stewart Dalzell went well beyond questions of practicality. “Any
content-based regulation of the Internet, no matter how benign the purpose,
could burn the global village to roast the pig," he wrote in his
opinion<http://www.pas.rochester.edu/%7Embanks/CDA/decision/dalzell.html>.
*Any* content-based regulation!

As a principle, this seemed to invite chaos. Sure, one would gain
terrifically in free speech, but freedom didn't count for much if the
Internet's usefulness was lost in a sea of spam and piracy and phishing
sites. Dalzell didn't shy away from the implication. He concluded:

The absence of governmental regulation of Internet content has
unquestionably produced a kind of chaos, but as one of plaintiffs' experts
put it with such resonance at the hearing:

“What achieved success was the very chaos that the Internet is. The
strength of the Internet is that chaos.”

Just as the strength of the Internet is chaos, so the strength of our
liberty depends upon the chaos and cacophony of the unfettered speech the
First Amendment protects.

Remember, this was a senior federal judge in a highly-watched case—and he
explicitly embraced a chaotic Internet. This vision of chaos didn't mean
"anything goes," exactly, but it was close enough to stir up plenty of
opposition from groups like the Family Research Council, which explicitly
called out Dalzell's support of "chaos" and called for "order" on the
Internet instead.

The cry of "order!" would be taken up later by the RIAA. "An Internet of
chaos may meet a utopian vision but surely undermines the societal values
of safe and secure families and job and revenue-creating commerce," said
the music group<http://arstechnica.com/tech-policy/news/2010/05/axis-of-p2p-evil-congress-riaa-call-out-six-worst-websites-in-the-world.ars>in
2010. It later
called<http://arstechnica.com/tech-policy/news/2010/08/riaa-googleverizon-deal-needs-yet-another-gaping-loophole.ars>for
"an Internet predicated on order, rather than chaos."

Law professors also provided theoretical reasons why Internet control
simply wasn't practical. "Individual electrons can easily, and without any
realistic prospect of detection, 'enter' any sovereign's territory," wrote
law professors David Post and David Johnson in a well-known 1996 *Stanford
Law Review* article <http://www.temple.edu/lawschool/dpost/Borders.html>.
"The volume of electronic communications crossing territorial boundaries is
just too great in relation to the resources available to government
authorities to permit meaningful control."

The Internet was borderless! Governments couldn't stop the signal! But of
course they could, and have done so for years, in large part by simply
ordering intermediaries like Internet providers and payment processors to
take action or risk huge penalties. By 2006, the "non-exceptionalists" were
on the offensive, arguing that the Internet did little to remove
traditional notions of sovereignty and state control. (See books like *Who
Controls the Internet? Illusions of a Borderless
World*<http://www.amazon.com/Who-Controls-Internet-Illusions-Borderless/dp/0195152662/arstech-20>by
Tim Wu and Jack Goldsmith, or
papers<http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1095&context=law_pubs>like
"The Not So 'Borderless' Internet'." The "borderless" Internet began
to have plenty of borders—and that wasn't always a bad thing. (In
democratic societies, borders *should* represent lines of division where
people have made different choices about what behavior to allow and
condemn.)
How far we've come

But SOPA would write these *de facto* borders right into US law, setting up
two classes on online entities. Right up front, the bill defines terms like
"Domestic Internet Protocol Address" and "Foreign Internet Site." The
concepts are messy if you think about geography, because a site in Spain
can register a .com domain name with a US registrar and be considered
"domestic."

But they make much more sense when you think of the concepts as pertaining
to power, not location. The bill doesn't care if a domain name or an IP
address actually resolves to somewhere in the US; it simply relies on the
location of the (easy-to-lean-on) registrar or Internet provider to make
its determinations.

The trends have been present for years, but if SOPA passes, it will make
them explicit: the chaotic, unfilterable, borderless Internet of the 1990s
is truly dead, replaced by an Internet of order, filtered connections, and
national borders.

Balancing chaos and order has always been a challenge; you want to curtail
botnets and spam and phishing and other Internet ills without destroying
the productive chaos that allowed a million websites and online businesses
to launch without permission from any gatekeeper. Early Internet theorists,
caught up in this chaos and still somewhat insulated from criminal gang
activity behind so much spam and fraud and hacking online today, worried
about breaking the Internet's best qualities. Today, with 15 years of
online bad behavior to look back on, governments have increasingly ignored
Dalzell—but they sometimes risk imposing so much "order" on the 'Net that
creativity, commerce, and free speech is affected.

How would *you* strike the proper balance?
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