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From Mozilla Internet as a Public Good Event

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Susan Crawford is Associate Professor of Law at Cardozo Law School (http://www.cardozo.yu.edu) in New York City, where she teaches cyberlaw and communications law. Ms. Crawford was a partner at Wilmer, Cutler & Pickering ( Washington, D.C., now WilmerHale) until the end of 2002, when she left that firm to enter the legal academy.

Ms. Crawford writes about communications policy, digital copyright issues and Internet governance. She has also published many online essays about ICANN and maintains a website and blog at www.scrawford.net.

Ms. Crawford is a Policy Fellow with the Center for Democracy & Technology (http://www.cdt.org), a Fellow with the Yale Information Society Project, and a member of many advisory boards. She is the founder of OneWebDay (http://onewebday.org), a celebration of the Internet that takes place each September 22. Ms. Crawford, a violist, holds B.A. and J.D. degrees from Yale and lives in New York City.

email:  scrawford at scrawford.net, cellphone 202 669 0430

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We need to convince a new generation of legal activists that communications law (that boring province of insiders citing section numbers and mumbling acronyms) is to the networked age as intellectual property law was to the information age and labor law was to the industrial age.  It is our lense, and it is a hopeless one.  It is scratched and cloudy, based heavily on antecedents from two hundred years ago drawn up by men who loved railroads; it knows all about telephony, with its centralized control and dependence on geographic referents; it knows nothing, reflects nothing, about the possibility of a network that has a life of its own.  Our new direction must be to revolutionize this impoverished body of law, and we need a better set of theories than we now have to do the work.     

Many of our usual tools are too puny to help us here.  Economics provides checklists but no real assistance.  Rhetoriticians on both sides can try to come up with empirical evidence supporting their claims, but numbers will always be less than helpful in some fundamentally undermining way.  Democratic theory may help, but the best of us become muddled when we try to explain exactly how.  In understanding the internet, we can no longer rely on theories that forever temporize between individual freedom and state power to constrain that freedom, or between individual ownership of things and state ownership of things, because none of these theories fits what this network is.  

This network is built on relationships that are, by and large, not those of individuals but of groups; these relationships are persistent, multidimensional and far richer than anything the sliding scale of property versus competition can capture.  The internet is greater than the sum of its parts, both because it is a complex system in which autonomous agents are reacting to produce nonlinear results, and because it facilitates the emergence of order without anyone being in charge. It is nothing less than a new ecosystem, like the ocean—but instead of having its origins in nature, it has grown through the efforts and the attention of the people who use it. 

The theory that will see us through focuses on the meaning and liveliness of “the network” (the name I will give the internet; the name for all the layers of the internet above the transport layer). This network is a commons, like the ocean.  

The vast majority of its value emphatically does not come from the access providers who now claim to “own” it.  Instead, its value comes from the gifts and interactions and attention of the people who use it and whose minds it reflects. The central paradox of networks generally is that they they are more than the sum of their parts; this network is even more than that.  This network, the internet, is exponentially more than the sum of access plus computers because it allows and generates unpredictable interactions among groups.  Once we reframe our theoretical approach to this network, we can move on to assert that access to it, like access to the oceans of this Earth, is essential to human flourishing.  And our government has a duty to protect this access.  The exercise of this duty has not yet been called for, but it may soon be triggered.

What the telcos/cablecos have is beachfront property, over which access to the sea—the internet—will be required by the public at whatever speed is widely commercially available.  Such access will make it possible for humans to use and contribute to this resource into the future, always in unpredictable ways. If the telcos/cablecos degrade internet communications by slowing the rate at which humans can add to the value of this resource (the rate at which we can upload, rather than passively download) and degrading our access to the contributions of others and the global mind that the internet represents, the telcos/cablecos will be effectively damming rivers that would otherwise flow towards the ocean and blocking birds from flying overhead, at the same time that they will be keeping humans from walking freely down the beach.  So far, the telcos/cablecos are promising that they will not degrade internet access.  We should hold them to this promise.  Access to (and further development of) this resource is more valuable to all of America than any private ownership could possibly be.  The telcos/cablecos do not have a right to slow this collaboration, and we will need to rise up (possibly with government assistance) if they breach their promise.

This reframing will force us to think about “governance” of this network in terms of collective values guiding a collectively-owned commons.  It may require law to intervene to protect that commons and to prohibit forms of private ownership that interfere unreasonably with access to it.  It also allows for private ownership of elements of the commons, just as a boat may cross the sea or a whale may be outstanding in its liquid field.

As a country, we provided rights of way for railroads to run and we have rights of way for streets and their fixtures.  These efforts were tangible, and understandable, and the people whose private property rights were forced to give way to them were dispersed and hardly able to fight back.  Here, a concentrated and well-funded duopoly, made up of incumbent telephone companies and cable companies, will fight fiercely, using every possible tool, about an intangible technical interest that ordinary citizens have not grown used to having:  high-speed access to the internet.  If these incumbents break their promise to allow high-speed access to the internet to continue, it will be very difficult to overcome their resistance. 

But there is reason to be optimistic:  the romantic figure of the builder of networks is hardly as big a brand as the romantic author in his garret was.  For ten years the network has been growing, creating value and almost-miraculous interactions that clearly did not stem from entrepreneurial efforts inside traditional telephone companies.  The internet has changed lives dramatically, in ways that have had more effects than “fair use” has had on the people you see on sidewalks and trains and planes.  These people—all of us—actually “own” the internet, and can rise up on its behalf if their access is curtailed.  

Indeed, the claims of the telcos/cablecos can easily be revealed as historically contingent.  These companies have a strong “bellhead” orientation in their focus on controlling all services that use “their” networks, they have duopoly control over broadband access in this country, and they are absorbed with making the internet more like a telephone or cable network—all claims that depend very much on the peculiar history of telecommunications in the U.S.  We can collectively imagine other approaches; indeed, other countries are doing a far better job of making high-speed access available to their citizens than we are.  All we have to do is take the network seriously as a crucial resource for human development. It is essential to our shared future that we reframe the debate.
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From Mozilla Internet as a Public Good Event

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