I’m off to California, so this blog may have to pause until April 23.

I’m going to Berkeley to give a talk at the Center for the Study of Law

and Society (co-sponsored by the Berkeley Center for Law and Technology).

My title is "Building the Electronic Commons," and I

will be discussing ideas that I have described elsewhere

on this Website, as well as some new thoughts. This is my abstract:

Legal theorists like Lawrence Lessig, Yochai Benkler, and James Boyle

have defended various versions of a "commons" theory of cyberspace.

They argue for reforms that would considerably reduce property rights,

thereby returning the Internet to its orginal state of benign anarchy

while enhancing innovation and civil liberties online. I argue that

this vision is attractive but flawed. It is politically naive, since

majorities of voters and organized special interests have incentives

to undermine such an online commons. Also, this vision promotes innovation

and negative liberty to the exclusion of other values, including democratic

ones. However, there is another understanding of the "commons"

that is just as venerable and supported by rigorous theory. This is

the notion of a commons as a voluntary nonprofit association (or network

of such associations), governed by rules. I will discuss politically

realistic ways to enhance the role of such associations in cyberspace.

The talk is scheduled for Monday from 12:30-1:45. Details

here.

Here’s a troubling technological development, pointed out by Jeff Chester

of the Center for Digital Democracy.

A company called Ellacoya provides

"network traffic control" software and hardware that

allows Internet Service Providers (ISP) to track their own customers closely

and to "enforce a very large number of policies" regarding Internet

use. The technology can, for example, limit traffic from particular sites

or categories of sites to a certain speed, or block connections altogether

to particular sites, or block connections at certain times of the day

for certain customers. The great danger is that ISPs can now speed up

connections to Websites that have paid them for special treatment, while

subtly slowing down other sites. ISPs will certainly have the incentive

to discriminate in this way if they are owned by a major content provider,

such as Microsoft or AOL Time Warner.

This means that if your favorite low-budget nonprofit seems to have a

slow Website, your ISP may actually be responsible. Also, ISPs may slow

down users who want to create and post material, rather than merely consume

it. (Ellacoya says: "Operators can easily discover their top talkers

and then set up restricted bandwidth pools for specific applications and/or

user groups during peak hours.") This kind of discrimination will

be hard to detect, so customers will not switch their ISPs to avoid it.

Yet it strikes at one of the fundamental principles of the Internet. You

should be able to share any kind of (legal) material with anyone without

an intermediary throwing obstacles in your path. Whereas overt obstacles

are easily detected and can often by bypassed, subtle discrimination poses

a serious danger.

Some people regard the telephone network as a "commons,"

because the telephone companies have been regulated as "common carriers"

by the FCC. Today, the Commission simply defines

"common carrier" as "the term used to describe a telephone

company." But the underlying idea (which the FCC may have forgotten

in this deregulatory era) would apply just as well to railway lines or

postal services as to AT&T. A true common carrier agrees to move any

good, message, or person (depending on the medium) from anywhere in its

system to anywhere else for a price that depends only on factors that

affect its own costs, e.g., distance and weight or duration. A common

carrier may not discriminate on the basis of the content of the

message or the identity of the customer. For example, a telephone

company may not refuse to carry a phone call because of the speakers’

political views, nor may it charge different fees for different kinds

of speech. A common carrier railroad would have to carry any passenger

from any point A to any point B.

To preserve the common carrier ideal, regulations traditionally prevented

owners of communications systems from providing other services. This was

because firms that provided "content" as well as the "conduit"

would tend to discriminate in favor of their own services. For example,

if the telephone company provided 1-900 services, then it would be tempted

to give its own calls preferential treatment. For similar reasons, cable-TV

providers might give their own channels favored treatment, if they were

allowed to offer programming.

A common carrier telecommunications system is an important base for the

Internet, because it allows digital messages to be transmitted regardless

of their content, thus keeping the Internet uncensored and flexible. But

is a common carrier system a commons? We experience a classic commons

as collective property or as no one’s property—as "free."

I do not think that we view telephone lines as common property. If they

resemble a commons, it is for a combination of three reasons: (1) the

common carrier rules; (2) the very low marginal cost of each minute of

use, at least for local calls; and (3) government programs that have brought

telephones into most homes, even in rural and poor urban neighborhoods.

If any of these three conditions were missing, then the telephone system

would not feel like a commons. This is a significant conclusion because

it suggests that three types of regulations are necessary preconditions

of the Internet as we know it.