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Internet and Society 2002
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by Jonathan Zittrain
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| Class 1: How it all got started... - ICANN - Monday, 1/28 |
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Class 2: Getting between you and where you want to go - CDA, PICS &
ISP Liability - Monday 2/4
Early on, some people surmised that the Internet was about "disintermediation"
- a long word for "getting rid of the middleman." It was a blissful thought.
From the demand side of the equation, people who needed something could
just access the Internet and get it on their own. If you wanted to find
information about your hobby or your job search or your elected representatives,
you could just go to a Web site and find out what you needed to know.
If you wanted to buy a gift for someone, no need to go to a retail outlet;
you could go straight to the wholesaler, and pay lower prices as a result.
Likewise, from the supply side of the equation, those who wanted to publish
something could publish what they liked, without needing a publisher and
without fear of sensorship.
But the blissful picture of no more middlemen turned out to be much more
complicated. The process of getting to the Internet, and then sifting
through its unfathomable mass of information, proved hard for most people.
Some of the familiar old middlemen may have gone, but new middlemen replaced
them. Instead of "disintermediation," there was "reintermediation." Sometimes
the new middleman was your Internet Service Provider: AOL, say, or Compuserve
or Prodigy. Sometimes the new middleman was your cable provider: AT&T,
MediaOne, or RCN. Sometimes the new middleman was a filtering service
that you paid to keep your kids away from dangerous online content. Some
fear that the new middleman is your government. Various authorities, both
public and private, also became interested in telling people what they
could and could not post to the Internet, raising speech and privacy issues.
What started out as a simple ideal quickly became a quagmire.
Readings:
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Class 3: Too Much Music - IP, digital music, Napster, P2P - Monday, 2/11
Napster started a revolution, there's no question about it. A couple
of guys, a cool idea, and a simple technology flung the music publishing
business into turmoil. The biggest players in the entertainment industry
were badly frightened. Campus computer networks policies will never be
the same, as bandwidth concerns became the order of the day. Some of America's
most famous lawyers fought it out in court; some of the richest venture
capitalists lost their shirts; and ultimately a business deal closed out
the story - at least for now.
The much harder question is what Napster's story - and the Peer-to-Peer
(P2P) movement in general - means for the law related to the Internet.
The notion of file sharing persists, in many formats and many business
models. Some of the thorny intellectual property issues raised in the
Napster case (and, in some cases, in the Sony case before it), remain
unresolved. Entertainers and publishers continue to line up on both sides
of the debate. And the lawsuits keep coming.
Readings:
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Class 4: Too Little Music - Trusted Systems, DeCss, Anti-Circumvention - Monday, 2/18
Last week we saw how the digital music revolution swept the web. At times
this "revolution" has seemed unstoppable. But, this week, we will see
that that while the law provides one option, technology may provide more.
This session will address the technological advances related to trusted
systems and the legal mechanisms set in place by the Digital Millennium
Copyright Act. The pieces by Stefik and Zittrain answer the question you
may be asking yourself at this moment ("What's a trusted system?") and
explore what the advent of these technologies means for content control.
We'll explore the drawbacks of these technologies, and the possibility
that trusted systems which only work a little may still be good enough.
Readings:
Background
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Class 5: Meet the new boss, same as the old boss - Webcasting, CARP - Monday, 2/25
This lecture will explore the compulsory licensing scheme that exacts
royalties from online webcasters. Why are webcasters different from conventional
radio broadcasters? We will consider the technology behind webcasting
and the fears of copyright holders in coming to understand the death of
a new industry at the hands of copyright legislation. Lastly, we will
consider similar mandatory royalties exacted from audio recording device
manufacturers by the Audio Home Recording Act and some piecemeal exemptions
from copyright infringement found in the Fairness in Music Licensing Act.
Readings:
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Class 6: Privacy: Commercial Surveillance - Monday, 3/4
Today privacy is something of an endangered species. More and more personal
information and communication are available online, and ever more effective
government surveillance technology takes advantage of this source of knowledge.
Frequently the government can easily access information online that would
not be available offline or would at least require a warrant. Commercial
surveillance is also extremely effective. Online tracking and data collection
allow many companies to amass very specific consumer profiles.
The threats to the private sphere are real but are the consequences really
dire? There have been many suggestions about how to prevent further encroachment
into privacy through the law, code, norms, and the market, but these suggestions
are slow to be acted upon and are treated by many as attempts to stifle
the growth of commerce and communication on the Internet. In many ways,
it seems as though the public does not really care about privacy, or at
least values the benefits of targeted commercial offers and more effective
law enforcement more than the disadvantages of losing anonymity and being
subjected to greater scrutiny. Maybe this is not surprising since many
of the privacy invasions are almost imperceptible; they are easier to
ignore. Will privacy, thus, become an endangered species more like smallpox
than the giant panda - all but a few academics would rather just let it
become extinct? If the answer is yes, then the final consideration should
be that once gone, certain aspects of privacy will be virtually impossible
to get back. Even if we are willing to sacrifice privacy for certain gains
now, are we willing to relinquish it for all time and let it become extinct?
Readings:
Background
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Class 7: Privacy: Government Surveillance - Monday, 3/11
Today privacy is something of an endangered species. More and more personal
information and communication are available online, and ever more effective
government surveillance technology takes advantage of this source of knowledge.
Frequently the government can easily access information online that would
not be available offline or would at least require a warrant. Commercial
surveillance is also extremely effective. Online tracking and data collection
allow many companies to amass very specific consumer profiles.
The threats to the private sphere are real but are the consequences really
dire? There have been many suggestions about how to prevent further encroachment
into privacy through the law, code, norms, and the market, but these suggestions
are slow to be acted upon and are treated by many as attempts to stifle
the growth of commerce and communication on the Internet. In many ways,
it seems as though the public does not really care about privacy, or at
least values the benefits of targeted commercial offers and more effective
law enforcement more than the disadvantages of losing anonymity and being
subjected to greater scrutiny. Maybe this is not surprising since many
of the privacy invasions are almost imperceptible; they are easier to
ignore. Will privacy, thus, become an endangered species more like smallpox
than the giant panda - all but a few academics would rather just let it
become extinct? If the answer is yes, then the final consideration should
be that once gone, certain aspects of privacy will be virtually impossible
to get back. Even if we are willing to sacrifice privacy for certain gains
now, are we willing to relinquish it for all time and let it become extinct?
Readings:
Governement Surveillance
- Michael Adler, "Cyberspace, General Searches, and Digital Contraband:
The Fourth Amendment and the Net-Wide Search," 105 Yale L.J. 1093
(1996). (Skim until "The Law" section, then read)
- Declan McCullagh, Wired, "TEMPEST
Brewing for PC Privacy?"
- Declan McCullagh, Wired, "Terror
Act Has Lasting Effects"
- Surveillance methods in the US and abroad.
- Declan McCullagh, Wired, "Thumbs
Down on Net Wiretaps"
- Declan McCullagh, Wired, "How
Far Can FBI Spying Go?"
- Ted Bridis, Washington Post, "FBI
Develops Eavesdropping Tools"
Links
- Explanation
of what carnivore is and why they need it
- www.privacy.net (Look at: P3P,
Anonymous remailer FAQ, Bake your own cookies)
- www.privacyfoundation.org
Optional
- FTC Workshop
Report on Online Profiling
- Glance at USA Act: particularly
Sections 203, 206, 210, 212, and 217. (Type in bill: HR 3162 and look
at the "Enrolled Bill")
- ACLU Analysis
of Recent Anti-Terrorism Legislation
- Potential - look for breaking analysis: FTC
Commissioner Swindle to Discuss The Impact of The Patriot Act on Consumers'
Privacy And Corporate Privacy Policies
- Gwendolyn Mariano, CNET, "SafeWeb
sidelines anonymity for security"
- Article
on the Chinese government's Internet regulations
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Class 8: Harmful Speech - Scary speech and ways to stop it - 3/18
The World Wide Web and the Internet significantly shifted two of the
boundaries that used to constrain speech: the ability to speak anonymously
and the ease of making oneself heard. With the increasing popularity of
the web and email, people with something to say could easily get their
message out (whether or not others would choose to read it) and without
making their identities known (to the average computer user). These two
changes encouraged/allowed a proliferation of speech of a sort that used
at a more or less stable level of hard-to-find-unless-you-knew-where-to-look.
For some this change was liberating: it allowed those who were marginalized
in their local environments to find others like them on the net or gave
them access to information on touchy subjects without forcing them to
reveal their identity; it allowed those with unpopular ideas to publish
them more aggressively and to increase their strength in spite of their
small numbers. For others the change appeared dangerous: it allowed children
to gain access to pornography and other material their parents didn't
want them to see, and allowed pornographers and perverts to contact them;
it allowed people to publish hate speech anonymously without fear of accountability
or reprisal. Technical means, such as filters, have been used to try to
make the net safe for kids.
How effective are they? Are they a good thing? How should the law handle
this? How can U.S. law handle this consistent with the Constitution?
Readings:
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Class 9: Too few boundaries - Yahoo!, bordercontrol.com, iCrave TV - Monday, 4/1
This lecture will explore the issue of jurisdiction on the internet and
an argument for the minimal intrusion of "local" regimes. We will also
discuss two cases where competing legal ideals collided on the internet
and the resulting battles were fought along jurisdictional lines. In one
case, U.S. copyright law was brought to bear on a Canadian company in
order to protect U.S. business interests. In the other, a U.S. company
struggles to resist enforcement of a judgment under French law. Lastly,
we will consider technological "solutions" to the problem of compliance
across disparate jurisdictions and their implications for the evolution
of the internet.
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Class 10: Cyber Security - Monday, 4/8
The protection of the public safety and the protection of civil liberties
often do not go hand-in-hand, and the Internet context is no exception.
Some fear that the national infrastructure is at risk and that criminals
and hackers hide in the tangled digital folds of the Internet - and that
powerful tools in the hands of government officials is a necessary precaution.
Others contend that the fears are overblown, and that the real fear is
the undue intrusion by government into the lives of private, net-using
individuals. Or perhaps there's a middle ground?
Readings:
- Critical Infrastructure Commission Report
- Offensive vs. Defensive Measures - Review week 6 Government Surveillance
readings
- Carolyn Meinel, "How Hackers Break In & How They Are Caught" & Phillip
Zimmerman, "Cryptography for the Internet," Scientific American, October
1998
- Government Response to Cases:
- AUSA Daniel A. Morris, "Tracking
a Computer Hacker"
- - Kent Alexander & Scott Charney, "Computer Crime," Emory Law
Review Vol. 45, No. 3 (Summer 1996) Sections on "Understanding the
Law Enforcement Challenge" & "Developing Computer Crime Policy"
pp. 933-945 & 954-957
- Targets
- The Penalties: Kevin Mitnick
- Background: John Markoff, "Hacker Case Underscores Internet's
Vulnerability" New York Times, (2/17/95)
- Parole
Terms
Optional
- Kent Alexander & Scott Charney, "Computer Crime," Emory Law Review
Vol. 45, No. 3 (Summer 1996) especially Section on Understanding the
Law Enforcement Challenge" pp. 933-945
- Larry Lessig, "Preventing Intrusion through Encryption," Code and
Other Laws of Cyberspace, pp. 30 - 42 (with particular attention to
pp. 35 - 40)
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Class 11: What's different about the Internet? Microsoft, Eldridge v.
Reno -- sometime during week of 4/14
Microsoft is the ultimate technology company success story, from start-up
to the company with the largest market capitalization of any company in
the world within less than two decades. If any company has succeeded in
cornering the markets for control, it's Microsoft. Indeed, according to
the United States Department of Justice and at least one federal judge,
they succeeded too well. The Microsoft case continues to unfold in with
enormous potential implications for the law of cyberspace as well as antitrust
law in general.
Readings:
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QWERTY:
- Paul David, Clio and the Economics of QWERTY, 75 American Economic
Review, 332 (1985).
- Stan Liebowitz & Stephen E. Margolis, Should Technology Choice Be
a Concern of Antitrust Policy?, 9 Harv. J. L. & Tech. 283, selections
(1996).
Microsoft:
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Class 12: There's a new sheriff in town - Vixie, Marsh, Intel v. Hamidi - Monday, 4/22
For better or worse, we are used to a lot of public space, public interaction,
governmental limitations and Constitutional rights in "real space".
Things are different online. The infrastructure of the Internet is privately
owned, from the pipes to the ISPs to the computers we use. Regulation
of behavior online is largely done by "private sheriffs". The
government is left to regulate the sheriffs themselves, and is often constrained
by the Constitutional limitations on interfering with peoples' actions
in a private sphere.
What is the effect of this state of affairs? What are the "private
sheriffs" doing? Are Constitutional rights being violated when the
goverment steps in? Is the Constitutional structure being ignored if the
goverment doesn't step in?
Readings:
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| Class 13: Bringing it all together - The Tivo-ization of America - Monday, 4/29 |
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