HECHOS CONSENTIDOS POR LAS PARTES 1) Allanamiento

Although it has already been observed that the Internet is more than a technical artifact, but also (and perhaps more importantly) a social phenomenon, the reason for the technical focus of the preceding introduction to the Internet’s early structure and protocols is that the technical and social are closely interrelated. After all, the architecture of the Internet—the physical design of the network and the manner in which communications traverse it—was shaped by the ethos of the hackers who developed it. They created an Internet that featured:

ˆ decentralisation (a flat, peer-to-peer network topology that distributed network intelligence, and resisted centralised monitoring and intervention—reflecting its designers’ preference for decentralisation and autonomy over hierarchy and control);

ˆ interactivity (a default policy of unrestricted bidirectional access between hosts through design principles such as “end-to-end connectivity,” thus maximising its capacity for the exchange of information, in line with the Hacker Ethic);20

ˆ openness (the use of freely available tools and protocols that empowered the individual Internet user to communicate and publish information without the intermediation of third parties such as media outlets or governments);21

ˆ anonymity (the absence of built-in authentication mechanisms either in the transport or network layer (eg. in TCP/IP) or the application layer (eg. in SMTP, the email protocol), which were not only unnecessary within a mutually trusting community, but also fostered anonymity and privacy);

ˆ cosmopolitanism (addressing and routing protocols that cut across boundaries of geogra- phy and politics, as its founders collaborated across state and later national boundaries when designing the network);

19. Levy, Steven, Hackers: Heroes of the Computer Revolution (2001), 43.

20. This can also be, but is not universally, conveyed by the term “net neutrality”: Mueller, Milton, Net Neutrality as Global Principal for Internet Governance (2007).

Chapter 1. Introduction

ˆ egalitarianism (the absence of any framework for certain users to be assigned elevated rights or privileges on the network); and

ˆ resilience (routing intelligence built into the network that impeded attempts at censorship, in accordance with its designers’ iconoclasticism and distrust of authority). As John Gilmore of the EFF is attributed as saying, “The Net interprets censorship as damage and routes around it.”22

The Internet promoted these values not merely through its culture, but through its very design, which embedded engineering principles that reflected the values of its designers, who had “hardwired their way of life in the Internet architecture.”23 _{This produced an innate}

congruence between the technical and the social architecture (or culture) of the Internet.24

1.3.1. Shaking the architecture’s foundations

However, in the forty years since the Internet’s earliest years, the Internet’s architecture has not proved unmalleable. Laurence Lessig famously made this point in describing the archi- tecture of the Internet as “West Coast Code,” and claiming that it could enable the inherent freedoms of the Internet to be subverted at the behest of commercial interests just as could “East Coast Code”—legislation—at the behest of governments.25

It is true that the design features noted above have been affected by a variety of factors, including not only commercial interests, but also technical limitations and political or public policy pressures (since after all, it has been noted above that technical and public policy management of the Internet are inextricably linked). Examples of how such forces have been pitted against the architectural features of the Internet will be given in respect of three such features in turn; decentralisation, anonymity and egalitarianism:

ˆ Despite the intentions of its designers, the Internet was never fully decentralised, and the respect in which it currently most falls short of decentralisation is the DNS. In contrast to the network topology of the Internet, the domain name system is hierarchical. Thus, only the administrator of the “murdoch.edu.au” domain may add sub-domains underneath it such as “www,” only the administrator of “edu.au” may add new domains at that level for new universities, and only ICANN as the administrator of the root of the DNS may

22. See http://www.toad.com/gnu.

23. Engel, Christoph, Governing the Egalitarian Core of the Internet (2005), 9

24. For a more comprehensive list of the architectural features of the Internet, see IETF, Architectural Principles of the Internet (1996).

Chapter 1. Introduction (with the approval of the United States government, at present) add new domains at the top level.26

Whilst this arrangement for most purposes creates an efficient division of authority, and sensibly reflects the principle of subsidiarity (that governance should be exercised at the lowest practical level), its does also concentrate authority at its apex. It is therefore no coincidence that it is through ICANN that regulators have most commonly sought to gain a purchase upon Internet governance, nor that control over administration of the DNS root was one of the main bones of contention that gave rise to the establishment of the IGF. In other contexts, the Internet’s decentralisation has tended to prevail against opposing forces. An example is found in the case of the original Napster software, which provided access to a peer-to-peer (P2P) file sharing network over which MP3 music files could be exchanged by its users. When downloading an MP3 file using this service, a user’s copy of the Napster software would look up the file’s location in a central directory maintained by Napster Inc. By maintaining this central directory, Napster Inc was found to be complicit in breaches of copyright held in music that was transferred using the service. The same charge failed against the publishers of the Kazaa, Grokster and Morpheus file sharing software that used a decentralised directory of files (although they were found liable on the alternate ground that they actively induced acts of infringement by users of the software).27

ˆ Anonymity and privacy on the Internet are being challenged on several fronts. Lessig iden- tifies three: the increasing requirement that unique identifiers and passwords be used to access Web resources, the use of “cookies”—small text files that Web sites can create on a user’s computer to track their activities on that Web site and which can be accessed on the user’s subsequent visits, and digital signatures, with which users can be required to identify themselves before using certain services;28 _{an Australian example is that the}

Australian Taxation Office requires Australian businesses to authenticate their assertions of identity using a digital signature when submitting their Business Activity Statements online.

Since Lessig wrote, another prominent limitation on the privacy and anonymity of Internet users has been the use of records of IP addresses allocated to users as evidence of ille- gal conduct alleged against them. Such records are maintained by ISPs (Internet Service

26. But see Section 4.1.2.

27. See MGM v Grokster (2004) 380 F 3d 1154 for the decision in the defendants’ favour, MGM v Grokster (2005) 545 US 913 for the decision on appeal which succeeded on different grounds, and Samuelson, Pamela, Legally Speaking: Did MGM Really Win the Grokster Case? (2005) for commentary.

Chapter 1. Introduction

Providers) and have in numerous instances been the subject of discovery orders and subpoe- nas against those ISPs by copyright owners who allege that a user allocated a particular IP address by the ISP has downloaded copyright material, or made it available for download, without authority of the copyright owner.29

On the other hand, although there are methods by which Internet users can be made to identify themselves, the fact that these methods must be grafted onto the Internet’s basic architecture makes them expensive and difficult to enforce. In response to lawsuits against users alleged to have infringed copyright through the use of P2P file sharing software, many users have simply switched their P2P software of choice to one of the newer applications that better protects their privacy, such as BitTorrent, which divides the shared files across multiple hosts on the network, so that seldom does any user upload or download a complete file to or from a single host.30 _{This has made it much more difficult for copyright owners}

to allege large-scale infringement of copyright against those using BitTorrent to exchange files.

For anonymity in conducting other activities on the Internet, the Tor project is an one of a number of services that facilitates anonymous Web browsing and publishing, instant messaging and other activities.31 _{One of the techniques used by the Tor project is digital}

cryptography, which ironically is also the cornerstone of many of the techniques used to authenticate users’ identities on the Internet. Tor also draws inspiration from the technique of anonymous remailing, which has been used for many years to disguise the origin of Internet email.32

ˆ Whilst the protocols on which the Internet is constructed may be intrinsically egalitarian, the means by which a user gains access to the Internet in practice may entail limitations being imposed upon her access to the network by her ISP, the nature of which limitations she may not even know about. If the ISP is subject to the laws of a country such as China, Vietnam or Saudi Arabia that has an Internet content regulation regime in place requiring the ISP to filter Internet content before it reaches the user, it may be effectively impossible for the user to participate on the network on the same level as a citizen of a country without such laws.

29. The first round of 261 lawsuits against individual Internet users at the suit of the Recording Industry Association of America (RIAA) were filed in 2003: Cassavoy, Liane, Music Labels Declare War on File Swappers (2003).

30. Interestingly this is done for reasons of technical efficiency, not to frustrate the attentions of copyright owners, which is merely a side-effect.

31. See http://www.torproject.org/. 32. See also Section 4.1.

Chapter 1. Introduction Such filtering techniques also limit the Internet’s resilience in being able to “route around” censorship. The hardware used by ISPs to route Internet traffic is now being specifically designed to facilitate the imposition of such restrictions on users.33 _{As the techniques by}

which ISPs transparently filter their users’ access to the network are not specified in any Internet standard, these decision decisions are not subject to broad community review. On the other hand, once again because filtering of Internet access, works against the grain of the Internet’s design, it tends to be either costly, ineffective, or both. For example whilst China has perhaps the most sophisticated content filtering regime in the world, there are products that allows China’s citizens to very easily bypass their government’s filtering.34_{Other methods by which filtering may be evaded include the use of international}

telephone calls to dial up to foreign Internet providers, or less expensively, the use of “proxy servers” located outside the jurisdiction. Access to known proxy servers is blocked by countries such as China, but it is still possible (if not legal) for knowledgeable users to gain access to them through an encrypted tunnel, using freely-available software such as Tor.

The above examples illusrate that whilst the Internet no longer quite so closely reflects the values of its founders as it once did, endeavours by commercial interests, governments or even the Internet technologists themselves to work against the values implicit in its design meet with resistance or expense that work against change, and reinforce the status quo. To make this point is not necessarily to assert that it is a positive feature of the Internet; indeed, it poses considerable difficulties to those who, in accordance with near-universally-accepted public policy norms, seek to battle such evils as cybercrime, spam (unsolicited commercial email) and trafficking in child pornography and copyright material. On one view, Internet governance as it stands is out of balance in favour of egalitarian hacker values.35