Good morning. I’m pleased to be here today to briefly discuss some thoughts on a new framework that policymakers can employ to tackle many of today’s most pressing online issues.The chief purpose is to base the framework on a deep grounding in the Internet’s actual design architecture.The primary takeaway is straightforward: Policymakers should do what they can to understand and respect the Net’s structural and functional integrity.
Many of you will remember last fall, as Congress was considering legislation to block the online dissemination of unlawful content -- SOPA and PIPA. Both bills were based on the same premise: impose certain technical requirements on website owners, search engines, ISPs, and other entities.Dozens of notable network engineers had pointed out, however, that the proposed means of filtering the Internet’s Domain Name System, and interfering with routine naming and routing functions, was problematic on at least two scores. First, it could be easily circumvented by people with the right technical know-how. Second, both the tech mandates and the circumventions would adversely affect countless innocent online activities. In other words, the pending legislation suffered from both ineffectiveness, or under-inclusion, and collateral damage, or over-inclusion. It was a bad functional fit to the goal of minimizing online content piracy. Strangely, those voices were not heard in any of the Congressional debates. Instead, the bills moves forward in both chambers and appeared close to passage.Of course many of you know what happened next. On January 18th a host of online companies participated in “Internet Blackout Day.” In protest over the SOPA/PIPA bills, over 115,000 websites committed what was the Web’s version of a collective work stoppage. Lawmakers received some 14 million email messages from users. The response was swift – the legislation would not be brought to the floor of either chamber. Despite their absence in the deliberations, the Internet nerds, it seems, had won the day.So why is that not the end of the story?
Despite the Internet Blackout Day, it is fair to say that many in Congress still do not have an informed appreciation for the structural and functional nature of the Net. Instead, the debate turned into a classic political battle, won only by unconventional but straightforward lobbying tactics, rather than the power of legitimate ideas. The SOPA/PIPA battle is just one of the major policy bookends for 2012. This December, the International Telecommunication Union (ITU) will be considering dozens of member-nation proposals that could have the effect of imposing government regulations on Internet activities.With SOPA/PIPA, politics as usual won the moment. Frankly this is not a desirable outcome. Such shows of political force are usually difficult to replicate, complicated to harness, and can quickly lose their novelty and impact. Moreover, while most impressive and effective, at least for the moment, the show of force convinced politically, without convincing intellectually.
For all practical purposes, the Internet is becoming the chief operating system for society. And yet, confusion and misapprehension about how the Net functions – its basic design attributes and architecture– remains frighteningly high. Perhaps the Net community shares some of the blame for this predicament. For too long we urged policymakers simply to look the other way whenever talk about Internet regulation surfaced. After all, many of us simply laughed when a certain US Senator railed about the Net as a “series of tubes,” or a certain US President referred to “the internets” and “the Google” We were convinced that ignorance about the Net – just a big mysterious, amorphous cloud, right? – would lead our politicians to shy away from imposing law and rules. Just “don’t regulate the Internet,” whatever that means, and all would be fine. Unfortunately it has become painfully obvious that the days of easy sloganeering are over. It is time for the Internet community to explain itself. A new slogan may now be appropriate. A more modest but well-grounded one, to “respect the functional integrity of the Internet.”
Obviously the Internet has fostered numerous collective “Net benefits.” In brief these include: -- user innovation. Years of research show that the Internet actually provides the optimal background conditions for the creation and dissemination of innovations. Cerf: “innovation without permission.”-- economic growth. As economist Paul Romer puts it, “technological change is the heart of economic growth.” If it were a national economy, the Internet would rank in the world’s top five.-- the free flow of information. The Internet facilitates free expression and the marketplace of ideas.-- user empowerment and human flourishing. We should not overlook the very real benefits at what some call “the social layer.” Consumers are now empowered users and entrepreneurs and digital citizens.Of course, we also have what could be called “Net Challenges,” bad acts like dissemination of child pornography and denial of service attacks and online content theft. Importantly, the fundamental design features built into the Internet’s architecture actually facilitate the background conditions necessary to produce and enhance both the many beneficial properties, and the not-so-beneficial ones as well.And what are those basic design features that fuel both Net benefits and Net challenges?
The policy framework I have in mind takes seriously the design attributes built into the Internet. There are four of them, by my count:-- modular assembly (the “what” function); layering is the overall structural architecture of the Net, in which functional tasks are divided up and assigned to different software-based protocol layers – physical, logical, apps, etc.-- end-to-end control (the “where” function); this translates to some as “smart edges, dumb core,” but the basic point is that many functions can be more completely and correctly implemented at the network end points.-- interconnected networks (the “why” function); the overall rationale of moving traffic from Point A to Point B, using a network of networks; open and voluntary interoperability is the baseline goal embedded in the architecture.-- agnostic protocols (the “how” function); IP acts as the ubiquitous bearer protocol, supporting countless user activities and networks alike.These design features were derived organically and bottom-up, in open and transparent standards processes, through years of rough consensus from well-understood engineering principles.I use the term “integrity” to describe how these design elements fit together and function cohesively to create the user’s overall experience of the Internet.
So, how can we get more precise in terms of defining what we are trying to promote?Here I will employ the martini glass, rather than the more traditional hour glass, to explore the Net’s functions by using the modular model built into its structure. In short, you are what you do. Of the seven layers of the original OSI stack, one can delineate between three groupings of functions: those in the Lower Layers, the Middle Layers, and the Upper Layers. The Middle Layers functions constitute the narrow yet essential waist of the martini glass. These are the basic addressing and routing functions of the Internet:Layer 5: Session (HTTP, DNS)Layer 4: Transport (TCP)Layer 3: Network (IP)They constitute the demarcation between software facing inward and talking to the network, and software facing outward and talking to users; the “glue” that holds the Internet together. All four of the basic design attributes run through, and help define, these crucial Middle Layers. This also constitutes the place in the network where the various Internet standards bodies like IETF and W3C do their thing.The Lower Layers functions are the world of telecom networks and standards. They define the communications standards, protocols, and interfaces, such as Ethernet, WiFi, DSL, and DOCSIS, as well as the physical infrastructure itself. Upper Layers functions reside in Layers 6 and 7. Layer 6 is the world of end user applications, while Layer 7 is all the content and services generated by these interactions.
The overarching principle I am proposing is that policymakers should respect the functional integrity of the Internet, and resist government regulation that would violate or compromise the Net’s fundamental design attributes, located in the Middle Layers. My reasoning is that over the years the Internet was designed in a certain way, with certain standards processes, for very sound engineering reasons, and that its functionality has produced a raft of user benefits. Those design attributes and standards processes remain in place today.Where policymakers need to deal with Net challenges – the bad acts and actors – they should avoid adopting legal mandates that violate the Net’s functional integrity.Such tech mandates often represent a poor fit to the perceived policy challenge. In particular, this lack of fitness threatens to be under-inclusive (and thus not effective) and/or over-inclusive (and thus imposing collateral damage on innocent activities). In short, the ends and the means should align.
We need a way to frame correctly the policy debates involving the Internet. Here, I suggest using three different dimensions: the right functional target (Code), the right institutions (Rules), and the right organizations (Players).Just as important as what you do is how you do it. In assessing how to approach a perceived policy concern involving the Internet, there is more than just figuring out which functional aspect of the network to target. The policymaker also must determine the institutional tool to utilize, and the organizational entity to carry it out. A key takeaway is that there is a wide range of both institutions and organizations available to help structure market relationships.As long as we are sensitive to the tradeoffs involved with each of the three dimensions of Code, Rules, and Players, we can come up with some optimal policy solutions.
Here is a concise summary of my suggested Internet policy framework, as represented by a flaming adult beverage. Layers here provides the framing; the focus is on the three dimensions of the relevant functions and players and processes.One implication is clear: national and international political bodies should defer to the Middle Layers functions of the Internet, the pure “public commons.” The technical community there is actively engaged – via an impressive degree of transparency, participation, expertise, and accountability -- in figuring out where and how to draw the line between the way the Net has been operating, and where it will go from here. Policymakers should practice what Benkler calls “regulatory abstinence.”At the same time we should recognize a more explicit system of national overlays and underlays (aimed respectively at Upper and Lower Layers activities).
Finally, let’s talk quickly about two real-life examples.We’ve already touched on SOPA/PIPA. Both bills suffered from the same common defect: they sought to regulate functions in all three Layers , in order to address concerns about specific Upper Layers activities. This constitutes a classic layers-violation, one that is both over-inclusive (by harming substantial innocent uses) and under-inclusive (by failing to address technically-feasible alternatives). One also could see the proposed action as a violation of end-to-end design.A solution suggested by some, “follow the money,” has the virtue of targeting the basis for the concern – the lucrative nature of selling stolen content – without creating either functional undertargeting or overtargeting concerns. It may not be the right overall solution, but it is the right type of solution.A second example is the ITU, poised for the first time to regulate Internet-based activities. As an arm of the UN, the ITU engages in government-to-government negotiations over int’l telecom traffic. But in the WCIT conference in December, the ITU will be considering a host of troubling nation-member proposals. Some would make the telecom recommendations mandatory, thus supplanting the existing multi-stakeholder bodies for standards development. Other proposals would override existing methods of Internet naming, numbering, and addressing; regulate IP routing; and extend the scope of the regs to include Internet companies. The European telecom carriers have submitted their own proposal to expand the regs to include Internet connectivity, and seeking a “sending party network pays” compensation scheme that essentially levies a content fee on foreign websites. All of these proposals would impose telecom-style regulation of the Internet’s Middle Layers activities.In addition to possibly adopting bad substance, the ITU is also far from a multistakeholder model of openness and transparency. Thus the ITU seems to violate all three dimensions of the Internet policy framework: the wrong functional targets (Upper Layers activities and Middle Layers protocols), the wrong institutional tool (an international telecom treaty), and the wrong organizational body (the UN’s chief telecom regulator). The solution here is straightforward: the ITU should stick to its telecom knitting.
Thank you very much.
Whitt citi conference presentation.final.10.17
A Deference to ProtocolA Public Policy Framework for the Internet EraRichard S. WhittMotorola Mobility LLCCITI Conference -- September 24, 2012