<h2 class="title">Remember the "borderless" Internet? It's officially dead</h2>
<div class="byline"><span class="author"><a href="http://arstechnica.com/tech-policy/news/2011/11/the-borderless-internet-is-officially-dead.ars">http://arstechnica.com/tech-policy/news/2011/11/the-borderless-internet-is-officially-dead.ars</a><br>
<br>By <a rel="author" href="http://arstechnica.com/author/nate-anderson/">Nate Anderson</a>
</span> | <span class="posted"><span class="published updated"><span class="name">Published </span> <abbr class="timeago datetime">about 22 hours ago</abbr></span><span class="modified" style="display: none;"><span class="name">Last updated </span> <abbr class="timeago datetime">about 21 hours ago</abbr></span></span></div>
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<p>"The past is a foreign country: they do things differently there," wrote L.P. Hartley in his terrific novel <em>The Go-Between</em>.
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 <em>quickly</em> the past became a foreign place. Indeed, from the perspective of the <a href="http://arstechnica.com/tech-policy/news/2011/10/house-takes-senates-bad-internet-censorship-bill-makes-it-worse.ars">recently introduced Stop Online Piracy Act</a>
(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 <em>planet</em>.</p>
<p>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.</p>
<p>"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 <a href="https://projects.eff.org/%7Ebarlow/Declaration-Final.html">manifesto to governments</a>.
"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. </p>
<p>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.”</p>
<p>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.</p>
<h3>Welcome, chaos!</h3>
<p>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. </p>
<p>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 <a href="http://www.pas.rochester.edu/%7Embanks/CDA/decision/dalzell.html">wrote in his opinion</a>. <em>Any</em> content-based regulation!</p>
<p>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:</p>
<blockquote>
<p>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:</p>
<p>“What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos.”</p>
<p>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.</p>
</blockquote>
<p>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. </p>
<p>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," <a href="http://arstechnica.com/tech-policy/news/2010/05/axis-of-p2p-evil-congress-riaa-call-out-six-worst-websites-in-the-world.ars">said the music group</a> in 2010. It <a href="http://arstechnica.com/tech-policy/news/2010/08/riaa-googleverizon-deal-needs-yet-another-gaping-loophole.ars">later called</a> for "an Internet predicated on order, rather than chaos."</p>
<p>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 <a href="http://www.temple.edu/lawschool/dpost/Borders.html">well-known 1996 <em>Stanford Law Review</em> article</a>.
"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."</p>
<p>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 <a href="http://www.amazon.com/Who-Controls-Internet-Illusions-Borderless/dp/0195152662/arstech-20"><em>Who Controls the Internet? Illusions of a Borderless World</em></a> by Tim Wu and Jack Goldsmith, or <a href="http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1095&context=law_pubs">papers</a>
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 <em>should</em> represent lines of division where people have made different choices about what behavior to allow and condemn.)</p>
<h3>How far we've come
</h3>
<p>But SOPA would write these <em>de facto</em> 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." </p>
<p>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. </p>
<p>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. </p>
<p>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.</p>
<p>How would <em>you</em> strike the proper balance?</p>