Week 5: Identifying the Threads of Cyberlaw--Review and paper topic discussion
October 1, 1998

JZ: Forgive my tardiness. I was talking to our guest for next week from the Justice Department, who suddenly is getting cold feet about being in the same room as a hacker, which was our other guest for next week. So I assured them that the lawyer for the FTC had no problem being in the same room as somebody who violated kid’s privacy. He did not seem entirely persuaded, making continual reference to his supervisor. So, anyway, I assured him that this class would be perfectly willing to let drop subjects that he says, in the best sort of G-Man fashion, he’s not at liberty to discuss. So, hopefully, we will see him next week but I am not so sure.

So, a bunch of things. We have at least another day just among ourselves. First, a number of people have asked about the domain name situation, what’s happened. I was actually down yesterday in Washington for a hearing before a number of House subcommittees. It’s amazing how many committees they have in the House. Everybody at the committee was a chairperson of something. So it was sort of Mr. Chair was recognizing Madame Chair; it’s just a subcommittee, I think, of one for each person. But they all were very concerned about the domain name situation. The way it’s shaping up this new organization known as ICAM or ICON, the Internet Corporation for Assigned Names and Numbers, has been proposed by IANA. It has a fifth draft of its bylaws out. Another set of proposed bylaws was lodged by something called the Boston Working Group, a rump group of people who were originally planning to show up at the Berkman Center sponsored meeting, which we then canceled. They showed up in Boston anyway, met at Hale & Doerr and developed the Boston Working Group proposal, which they submitted. It’s largely derivative to the ICAM document. Actually, on our Web site we have sort of a very nifty comparison site, which you’re welcome to visit if you want to follow up on some of this stuff.

It actually runs through each of the documents and shows where they differ and where they agree. It goes down along the left. I don’t know how easily that’s viewable with the lights the way they are. Along the left you have the difference sorts of things that you’d worry about in a corporation and then if you click on them it actually tells you does the white paper have anything to say about it. Does the so-called consensus have anything to say about it. And what is the IANNA document saying and what is the Boston Working Group document saying.

So, these documents were actually submitted to the NTIA, a ring of the Commerce Department. Waiting for the Commerce Department to decide which it likes best. The Commerce Department has decided to post them all on its Web site and solicit comments from the Internet at large. Some rumor has it that it’s a done deal that the ICAM document will be chosen. I think that’s probably a good bet, were I a betting person. And, along with the ICAM document came a slate of potential board members. The way the ICAM document works, they actually have a basically bicameral structure. They have a senate, which is made up of engineers chosen by the engineering community however it sees fit, and a house which is essentially the other half of the board. At large members that are kind of to be picked by the Internet at large. Since there is no way, that they knew of, to pick them from the Internet at large they chose them themselves and then-- I’m not making this up. Charged the with, as one of their first tasks, coming up with a workable way for them to have successors chosen by the Internet at large.

So they’ll be hard at work on that. There’s actually a slate of names that has been proposed. At one point in the hearing one of the Congresspeople was very confused and actually asked of the IANNA, now apparently ICAM, lawyer “How exactly did you let these people even know? Who ran this process?” And he said “Well, you know, we all did.” He said “Well, who actually placed the call and offered these people seats on the board?” He said “I don’t know.” And there was sort of this moment where he was looking through his notes to find out who may have placed this key call and said he would have to get back to the committee with that information.

So, anyway, that’s where it stands right now. It looks like the ICAM document will become the new document, that is the new corporation. And, at the same time, Network Solutions after a week’s extension of their cooperative agreement that had been five years in the making and in the running, after a week’s extension with the government came up with a new agreement that’s also up on the Net. By which they are to transition slowly to having ICAM, or whatever it may be, as their overseer rather than the National Science Foundation or the Commerce Department. So that’s sort of where it stands right now. Are there any questions? Scott?

Scott: How revenues are-- Is it now non-profit? Are they still going to be getting millions of dollars?
JZ: Well this company, this ICAM company, is meant to be a non-profit or a not for profit. However, it won’t be doing what Network Solutions does. It’s just that Network Solutions will be contracting with them to do what they do, instead of with the government. So, Network Solutions will still be making the money that they make, subject only to whatever new requirements this new company imposes on them. For instance, to share registrations in dot.com, so that NSI isn’t the only way to get something registered in dot.com. Maybe somebody else could register a name in dot.com. But this new company will not take over registering things in dot.com.
__: So how exactly-- Is there going to be an open bid for the license or what have you to register these names?
JZ: That would be a policy matter, to be decided by the new company in consultation with all parties, etc., etc. So who knows? Yes?
__: Well, actually, Network Solutions gets to keep the databases. So their competitors will register names using their databases. They will keep the ...(inaudible) server, at least until June of ‘99, as far as I know. So they get to charge their competitors actually.
JZ: Well, that’s not necessarily clear. The agreement, which it would be worth reading actually, and it sounds like you have, actually suggests that as soon as this new organization is capable, for instance, of taking over the root server, the server that says here’s where a person who knows what dot.com is and anything else you may designate-- As soon as they’re capable of taking that Network Solutions is supposed to hand it over to them.
__: They have to establish any ...(inaudible) signed agreement--
JZ: Yes. And realize that handing it over does not mean handing the file over. Everybody already has the file. It’s not some secret document. Everybody knows what the file says. Handing it over actually means asking the downstream servers, the eleven that mirror it, to suddenly start paying attention to the new company rather than to NSI. And that’s ultimately a decision that those eleven mirrors could make and they’re not bound contractually to anybody to listen to one side or the other. Yes, Darryl.
Darryl: There are lots of political implications in this ...(inaudible). In other words, in terms of do they have established views of what the future might look like in terms of what other top level demands might be created or these kinds of issues. Aren’t there established policy choices they’ve made just by having this initial slate.
JZ: Well, certainly to the extent to which they are dominoes that are being set up to tip in a certain direction once the first one falls, sure. I mean, what decisions will come out of the board depends on who they are and what they believe and to whom they may think they allegiance. The list of names that was put forward is sufficiently obscure that people don’t really know which way they would go on anything. They were, according to the guy who picks them, picked for intentionally that reason. Meant to be distinguished, to have resumes that would have them as expert witnesses in a case about domain names perhaps or at least about technology or about society. Esther Dyson is one of the names, for example.

But not people who would necessarily be identified as participants in the domain wars. And, therefore, known to anybody. So it’s unclear exactly how this board would vote on any of the issues. So, anything else on this? It offers still plenty of opportunities if you’re interested in focusing a paper topic on it or actually doing I guess what you might call clinical work on it in some way. There are plenty of opportunities to get involved with it. If you sort of want to get into the clinical component of it, actually doing something as the debate is ongoing, get in touch with me. I’m happy to sort of steer you in the right direction there. So that’s the domain name update for now.

The moot court, I think, is solidifying for November 11th, so mark your calendars now. That’s a Wednesday evening, kind of a post-dinner event. I think we have at least one Federal Court of Appeals judge who will be available to judge it, as well as some faculty from the Law School. And it’s on plagiarism and term paper mills that offer papers over the Net. There’s actually evidence, adduced in large part in a paper from last year’s class, to show that these things are incredibly popular. That a business model of advertising, banner ads, works actually really well. So you need not even buy the paper, you just go and get it for free. And having seen the ad is enough to put money in the pocket of the person who put together the Web page. And there are actually some laws on the books that try to prohibit exactly this phenomenon and the moot court will be testing that out.

We have two people I know that are very much interested in doing it. I’m happy to make it two two-person teams, so if there’s anybody else that wants to get in on this amazing, ground floor opportunity I also encourage you to let me know and we can get you plugged into it. Any other questions on the moot court? Yes?

__: That was--
JZ: Wednesday, November 11th.
__: Is there like a record or how is it done?
JZ: Yes, there will be a record. It’s under development right now. I actually may ask co-counsel to help develop the record in somewhat conflict of interest fashion. But with that done, yes there will a record; a brief lower court opinion, briefs presented, and then argument in front of an active panel.
__: And what’s the timeframe? Like when get the record, how long do you have to write the brief?
JZ: Drafts of the brief should be done by November 11th, with final versions due at the end of the term, as any paper might be. I actually remember-- They do a moot court at a conference called Computers, Freedom, and Privacy. And a Harvard team has done the brief for two years in succession now. And each time they’ve been asked for the brief, before there actually being any lower court opinion or record, means they’ll be able to get the record only after they write the brief. So it’s an odd kind of procedure that one will try not to emulate. So we should have something in short order.

I imagine we’re talking a week or so. Having a record mature enough that somebody could happily go to town on the briefs. The two issues-- One issue certainly will be a First Amendment issue as to how readily you could prescribe such conduct. Including having technological safe havens, that if you as a Web site managed to make certain technological steps, such as watermarking your papers so that they’re difficult to change, putting them up, say-- I don’t know if anybody is familiar with Adobe Acrobat format. Adobe Acrobat has it that you just download the paper and you print it, and it comes out looking very nicely like a paper but is very difficult to actually make any edits to. So, you can’t take out some name and put in another. It offers those as safe havens. So, it’s actually a nice way of mapping back to the Communications Decency Act and the so-called technological safe havens that it offered for people willing to check a credit card number to make sure that somebody calling on a Web site was not a kid.

And an other issue may well be a privacy issue. What if Boston University, say, were to put the appropriate snoopers and sniffers on to its wires so that the dumb student, using the BU account to actually visit the site and then download a paper, would be brought to the attention of the relevant authorities. That’s something that they could try to do and that wouldn’t necessarily be beyond the pale. Diana, did you have a question?

Diana: No.
JZ: Oh, okay. So, it should be an interesting question. Question? No. Lots of gesticulation, okay. With respect to another clinical opportunity; I don’t know if anybody has heard about the fact that in the Microsoft litigation two professors, one at MIT and one at the B-school who wrote a book about Netscape and Microsoft, had their notes and transcripts and tape recordings subpoenaed by Microsoft to gather as evidence in their litigation. The professors have refused and actually just won a victory today in Federal court, that they don’t have to give up the notes. That’s likely to go on appeal. We have a connection to each of the professors. So if somebody actually wants to work on that case, that aspect of the case, that would be a perfectly good vehicle for work in this course. And it’s something that may well be available.

You’d have to kind of be willing to go along with-- If the case happens to go away because Microsoft doesn’t appeal, suddenly you’re writing a paper about it rather than an actual brief. But if you’re willing to go along with the vagaries of actually having something happen in the real world that would be another great project you might want to pursue. So, I’ll keep you updated on other kinds of clinical opportunities as those emerge too. We get sort of emails-- We get letters. Boy, do we get letters. We get emails from people who are having some problem or another, some thing to which they object happening on the Net and seeking help from an Internet center and some of them may well be suitable for work. I’m happy to even try to create a database of those.

I have created a database of-- Well, I guess database is a little much. It’s a list of papers from last year, at least of titles and we’re slowly going to fill it in with actual soft copies of the papers-- I hope this is the right address. Maybe it’s paper titles. Oh really, that’s where it is? How about that. So these are titles of papers, dramatically dim the lights, that were written last year for the course. The NGI Initiative; Accounting for the Peculiarities of an Information Technology, Then Setting R&D Policy; Between Big Brother and the Bottom Line; Privacy Rights in Cyberspace; and a whole bunch of others which you’re welcome to look at. Including Photographic Evidence, Naked Children, and Dead Celebrities: Digital Forgery and the Law. A lot has happened since then so you could update that. But I encourage you to look at these and we do have most of these on file, if you’re interested. Other questions or just gesticulations?

That’s it. I hope people are going nicely on paper topics. Today I think is putatively the day by which if anybody is still doggedly insisting on doing the take home exam you would let me know that fact. I won’t actually ask for a public show of hands, given what I’ve commented before on it. But do let me know today, either by email or just coming up to me, if you really do still want to take the take home exam. If you don’t, this is the time-- I know some people have emailed me. Thank you and I’ll get back to you in some fashion. I also encourage you to post thoughts on topics to the discussion group that we have. This is the time to be thinking about it. Before you actually come up with some kind of abstract, you might want to circulate around on the list. Speaking of circulating around I would love, at this point, to hear thoughts on how our question and answer software is working out or not. Either technically or pedagogically or any other way. Your thoughts on that?

__: Maybe it’s happening and I’m just a technological idiot, which is always probable. When we respond to someone and someone responds to us, are we able to see what they responded to, what we had to say? I’m kind of curious--
JZ: Yes. What you do is-- And it’s, unfortunately-- This is just a marketing problem here. We had the unfortunate idea of calling the thing the Archive and have a file cabinet as the icon, which ensures that no one would ever look there. So, if you go down to the file cabinet and you click on it, it gives you an opportunity actually to view all responses to an earlier question or view a classmate’s response to all earlier questions. So you can either pick a person or pick a question. If you’re not on a Dell it will open right up.

So it tells you who has not yet answered, are we having fun yet. There’s some great answers there. If you read through it, on some of the answers-- I guess in this particular instance because the response period hasn’t closed yet no responses are showing. But certainly if you look at earlier weeks, the page will pop up, and then you see indented each of the responses to each of the questions. It actually gives a really good sense of the dialogue that’s going on.

How many people actually knew about this feature? Alright, that’s about half the class. Okay. So, it’s quite good. Although it does seem like perhaps calling it the Archive and even conceiving it as the Archive is not so good. I mean, here we go to all this trouble to generate this conversation and then we shove it into a file cabinet. There ought to be some nice way of bringing it around to closure. We have some way of doing that in that we have a class scribe now, Mark Bellamy, I’m not sure how to pronounce it. Really, I’m not sure how to pronounce it. You can imagine that I’ve had this in my life at times too.

So, you’ve posted an introduction to the discussion group and you’ve actually posted sort of your manifesto. Which is to try to make sense of what is an incredibly large database now of answers to a week’s worth of questions and responses each week. And see what trends there are, what people are saying, see if it gravitates to pulls and debate, that kind of thing. So, that’s one helpful way to make use of it. I’m open to others too. Kim?

Kim: Well, something I just noticed. If you’re just interested in responses to yourself, if you look at your page, like your profile, it will have all of your responses and then everyone’s responses to you, I think.
__: The same with stuff up here.
JZ: Oh great, yeah. And then I guess these are internal jumps so you can see what somebody said to each question. And then, I guess, it also has what you responded to each of the questions as well. Yeah, Glenn?
Glenn: This is a really minor point but I appreciate that the friendly class reminds that you have your answers due in one or two nights. But I think it send a reminder if you’ve already answered.
JZ: It does.
Glenn: Okay. I don’t know if that’s--
JZ: It’s hard for me to defend that as a feature.
__: I’ll take up the feature charge.
JZ: Yes, Alex.
Alex: The reason that is is because you can respond to a question and just put a place holder in and it will-- It’s hard for us to have a--
JZ: You mean your answer could be “I plan on answering this later” and you wouldn’t want the BOT to be fooled.
Alex: And rather than have our BOT make that judgment we thought that you’d appreciate it--
__: Okay. How do you do the placeholder?
Alex: You just answer. You still get cut off.
JZ: You give an answer that you don’t believe or one that doesn’t actually seem responsive to the question. That’s then deemed a place holder.
__: Or you put your notes in.
Alex: Like a rough draft or something.
__: Okay.
JZ: Does that actually make it seem like a feature? It works for you, okay. It’s kind of like if you’ve already paid this bill, please disregard our threat to break your knees. It’s already in the mail, that kind of thing. Other thoughts on this software? I mean, is this actually a helpful tool each week to be having a couple of questions to respond to? Yeah?
__: I was just going to say comparing it with Professor ...(inaudible)’s class, I actually like this better.
JZ: Well alright then.
__: I mean, like you don’t have to read through thirty things and then draft a response. If there’s one thing you can make intelligent conversation about, that’s one comment. As opposed to having to read what thirty people said and then ...(inaudible).
JZ: Yeah. Alex?
Alex: Can I ask another question, which is when you went through the discussion group-- How many people still can’t get to the discussion group or don’t know what it is or have questions about it? Anyone? Everyone knows, okay. Sorry.
JZ: So, the paucity of discussion is just people not-- I think people feel like damn it, I just answered this question. I don’t see why I should have to go to the discussion group too.
Alex: Well, the scribe put so many inflammatory things up there I feel like someone should be responding.
JZ: Perhaps the BOT could respond. Thank you for another interesting post. No, the discussion group has been excellent. I actually find that it shows a great relationship between the architecture and behavior. Push works so much better than pull. I don’t know how many people have gone to the trouble of walking through Hyper News to say “Please send me an email with the post every time there’s a new post.” But if you ask Hyper News to do that for you, it’s very nice. It then sends you an email every time there’s a new post. And that way you don’t have to keep visiting the discussion group; it visits you whenever there’s activity. If you actually just hit reply, reply by email, I think it finds its way into the group. So, I encourage you to figure out how to subscribe so that it’s bothering you, rather than you having to bother it. Yeah?
__: At the end of the session, I don’t know whether the class would agree to this, would you respond to people’s questions-- For me I find it was more helpful to actually have a live conversation because there are other issues that somebody supports. Which to me, maybe if we have ten minutes at the end of the class or in the middle of the class, just to get together with a person who critiqued us or we critiqued, to put up--
JZ: That’s an interesting idea. Not that we’re a democracy here but how does that sound? I mean, that’s actually kind of-- I don’t know how many people have-- Do people know each other enough to even know typically who it is who answered your--
__: No.
JZ: Yeah, Alex?
Alex: You’d have the problem-- It would have to be a chain conversation because you don’t respond to-- You don’t trade responses with someone.
JZ: In other words we have to talk as a class.
Alex: Like when you respond to someone else. So we’d need a long chain, which would be workable.
JZ: I see your point.
__: (Inaudible.)
JZ: So this is an interesting architectural problem. I think, as a first cut this is-- Yeah, this is a really good idea. So maybe actually, in consultation with our tech wizards, can see if we can do it. I’m happy to lend the time, perhaps just making the break a little bit longer, to have it happen then. People can clump and then walk to the Hart together to get a stale bagel, rather than have to ...(inaudible) alone. So, cool.

So, anything else about our little mechanism here? I, for one, would love it if it actually had shoes dropping more than just statement response. If, in fact, you actually found yourself, statement, response, response to response, trying to see if you could talk the other side into some kind of consensus on whatever the issue is. That might be a trade off between-- I know people both have to post initial thoughts and then do a response. I could imagine a trade off where you would just have to do one and that would be-- There would only be single pairs of people each week and you could unfold over a period of days a more nuanced discussion than just thought and response. Did that make any sense? Do people understand that?

__: Maybe we could try that once and see how that works.
JZ: Yeah. Mike?
Mike: All I can say about that is I don’t know if people are being amazingly polite or whether or not they actually feel that way but when I was reading through all the responses and the responses to responses, the number of people that agreed wholeheartedly with what the other people had to say was astronomical. You had very few people that actually--
JZ: Even as their initial statement elsewhere on the site was completely in disagreement.
Mike: Yeah. So I don’t know whether there’s-- I don’t want to say a lack of interest or whether they actually feel that way. But there doesn’t seem to be the tension that would generate that kind of discussion that you’re talking about.
JZ: Right. Well, one other thought would be-- I mean, most of us here, at least lawyers in training, you could imagine a forced adversarial system. Where you take a view and then the other side has to argue against it, as if assigned it as a case or something. Which would very quickly destroy the polite decorum we’ve spent weeks building up among the class.

Alright, so these are things to think about. I encourage people to consult with Alex and Wendy about it. A lot of these ideas don’t necessarily even entail a change to the software. But if we can flesh it out to a kind of revision three proposal or something, I’m happy to try it starting next week.

__: I haven’t read the class roster. Does it include photos?
JZ: It does not.
__: Because that was an aspect of Professor Hayes’ environmental law course. Everybody knew everybody within a matter of a week because if you didn’t agree or something you clicked on the name and the bio and everything else.
JZ: Oh, you’re saying you could print out a little picture of them and then throw darts. There is on Roscoe, which is the Law School server I think, a repository of everybody’s photo. But I think they may have just cleaned out all the old ones to make room for the 1Ls.
__: The 3Ls have photos, I could be wrong. No 3Ls in the class? Do you guys have photos-- Did you photos online when you were 1L?
__: Yes.
JZ: Yeah, I don’t know if they’re still on the system. I can ask about that. I mean, it would be nice to have the photos.
__: It would be immediate. Because when I was doing this I had up the yearbook from last year, trying to figure out who’s who and it took me a bit longer than it should have.
JZ: Gotcha’.
__: Actually, they still are on the system. They actually sent us notes asking if we wanted to block our pictures this year. So they still have them in the records. As I understand it the registrar keeps a copy. So even if you do block it, it’s just another--
JZ: They just asked you if wanted to block it. They didn’t say they would if you said yes. Okay, great. So, I’ll consult with the registrar’s office about it. It may be actually a very quick fix to peg the photo into the page. Yeah?
__: Can we not do that. Some of us don’t like our photos.
JZ: This is where we then get into the “as long as there’s a toggle box where you can say hide my photo or substitute the following for my photo” we can do that. Okay, that would be fine. So, we’ll find a way to let you ask that it not appear on the page or that it be morphed or that something happen to it, make it different. Yeah?
__: Is our site inside of the Harvard fire wall?
JZ: No.
__: I don’t want my picture on it.
JZ: Alright, you’ll have the check box that says “my picture is not here”. It won’t even say something like “withheld at the request of the person”. It will say something like “sorry, 404 not found.” Something innocent looking. Good. Yeah?
__: I have a question that goes back to the ...(inaudible) that we were togging about. I’m confused about credits being talked about. There’s one additional credit if we ...(inaudible) a paper. Is that applicable to this ...(inaudible) page paper or is that for a longer paper?
JZ: It’s for a more in depth, third year paperesque paper, that would be a third year paper. So, with consultation, you can do that but the default position is two credits. I’m certainly thinking a later iteration of this course would do well to be a four credit course, meet twice a week, once with the panel, once to kind of do a post mortem. And that actually properly reflects the amount of reading and work too. It’s just that the number of credits is pretty much pegged to the number of classroom hours. So, you’d actually have to have the extra session that met each week. Yeah?
__: Would the ...(inaudible) paper be due also on November 15th or 19th? Or do you have more time?
JZ: December 22nd is the due date for the papers in general. And if you’re doing a third year paper you could either opt to be tied to the mast and have it done by then or have a draft of it in by then, for which you’d do a later one later. Or have a final chunk done, for which you would then build upon it in some modular way at a future date. Let’s just say it’s very flexible. Okay, great.

The last thing that isn’t really wholly substantive is that of this tech session. I know we’re in the midst of a bunch of interviews. Let me just float right now-- Tomorrow seemed to be the best day among the days offered. How many people actually could make an eleven o’clock, say eleven to twelve, session tomorrow? One to two was the original proposal.

__: Eleven is the intellectual property course.
JZ: Ah, it’s also con law. So, eleven would be a very bad time to hold it. Alright, one to two is an okay time slot then. It was just conflicting. Are interviews this week and next, as well? It’s the next month. Just get a job, I mean what’s the deal. They’re all the same. Sorry. So, alright, one to two I don’t think will work tomorrow at this point. I had been thinking the eleven o’clock time slot was actually preferable. I was clearly living in a fantasy land.

But next Friday, from one to two, how does that work for people? Is that okay? Nick, did you have a-- Oh, that’s good, that’s a yes. So is there anybody for whom next Friday from one to two does not work? One, two. What’s that?

__: I don’t have my schedule here.
JZ: I see, you’re reserving the right to say it doesn’t work. So, let’s tentatively plan then a week from tomorrow, from one to two, we’ll have this tech session. There’s a number of tech questions that have been raised on the site. Including somebody who went to the stalkers home page and found, to her chagrin, that her name showed up. They knew who she was.
__: That’s me.
JZ: That’s you.
__: How does that work? How do they do that?
JZ: It actually has nothing to do with cookies, which we’ll talk about at the tech session. But instead every point of presence on the Net is from the point of architecture sort of equally endowed as any other point of presence on the Net. So, for example, www.law.harvard.edu is a point of presence on the Net. So, too, is your computer when you’re surfing and it’s capable of having a domain name just like law.harvard.edu does. Even though, for the most part, it’s surfing rather than offering up information to the world at large.

Harvard, at least Harvard Law School, has chosen to assign domain names to everybody with a registered Ethernet connection that is a derivative of your name. And your domain name goes with you on the Net as you surf along. Unless you use a service like the anonymizer. In which case you tell anonymizer inevitably what your name is, hope that they ignore it since that’s their point, and then they pretend that you are them and they surf on your behalf, and show what they’re looking to you. It’s a proxy and therefore quite slow. But it does hide your domain name if you trust them.

If you’re not using anonymizer your domain name travels with you when you surf. Now, in the event of dialing in to the Harvard Network they actually assign a sort of random generic name to you, like NAS-51.fas.harvard.edu, so you’re a little bit more protected there. But if you are on an Ethernet connection it’s going to have your name on it and every single site will see it. Now why that would be the policy, given everything we talked about privacy, is a perfectly reasonable question and perhaps a path for clinical work that you might want to do in conjunction with the course. Yeah, Kim.

Kim: Actually this is completely, I guess, not related to us but dealing with privacy. Apparently Harvard has had the same problem again this year that they did last year, where everyone knows Social Security Numbers now on the Web. I thought people might be interested in that. The same thing happened last year.
JZ: This is through the BSA site?
Kim: It’s through the face book, it’s not up yet. But in order for people to make changes to their face book page, you input your Social Security Number. So there is a file on there that people can find--
JZ: Have you actually read the file?
Kim: A good friend of mine has.
JZ: Because the Department of Justice may not be able to come to class if you’re here next week.
Kim: I haven’t but a friend of mine has. It was very easy.
JZ: I see. Well, to be sure, when this did happen last year many conniptions were experienced and they tried to get rid of it. So that it has come back like a medfly doesn’t mean they’re wanting it to be back. They could try to get rid of it.
Kim: It’s the same exact file location as last year.
JZ: Gotcha’. Short memories, that’s okay. Alright, so all that being said we have a chance today to try to tie together a lot of what we’ve been talking about over the past few weeks to start off the course.

At the very beginning I offered a framework that stated with the kind of metaquestion of what makes the Net different, if anything. It has proven to be a question that we’ve gotten in the habit of asking a little bit, one session to the next. And sometimes finding a satisfying answer, sometimes not necessarily being sure. Last week I offered a counter or a sort of corollary maxim, which is perhaps differences in degree are enough to be differences in kind. So, to say that it’s merely bigger, faster and louder than the real world might be enough to say why it is, in fact, different and worthy of different treatment under whatever legal regime you’re thinking of or technology regime or that kind of thing.

Under that metaheading I suggested three possible consistently true hypotheses about what makes the Net different than the physical world when comparing legal regimes between the two. The first was that of the thorny problem of governance, which is itself linked to problems of jurisdiction. And ways in which the Net is pretty much everywhere at once. The same click in one place will typically take you to the same place as a click in another. And, therefore, attempts to make rules that would apply within the proper bounds of a jurisdiction are very difficult to do on today’s Net. And that problem comes up again and again. Be it trying to come up with proper ways of regulating trademark on the Net, which is itself meant to be geographically based in part. Content control, which might be perfectly legal to try to do when confined to one jurisdiction becomes troublesome when it appears to be an all or nothing clamp, where you apply it to either the whole Net or not at all.

It’s most, I guess, glaringly illustrated in the Quebec problem. Where Quebec was trying by its own terms to limit its rules just to Web sites operating in Quebec and trying to sell products to people at least in Quebec, although not exclusively in Quebec. And such a regime might well be possible because you could enforce it by finding where they live and finding them if they don’t listen to the regime. But it actually does seem like sort of a drop in the ocean attempt to achieve the goal of the regulation, which is to have a lot more French stuff than English in that case or at least equal amounts on the Net. When everything else is not subject to the rule. And helping Quebec figure out a way to implement the policy goal while dealing with the current truths about the Net is a really good question.

We’ve gotten a little bit into technologies that suggest Quebec isn’t necessarily permanently up the creek. We haven’t hit them head on and we may be a little bit into that today as part of the review. We’ll certainly describe them in greater depth at this tech session; that there are reasons to think that you could change the Net so that being able to impose a rule on your citizens or on people currently present in your physical jurisdiction is something that’s more readily done than it is today. And we can walk through the actual technical means by which that might happen in any of the contexts that we’ve studied so far. Any of the problems we’ve looked at.

Aside from jurisdiction we also looked at kind of the primacy of code, code being the surrounding technology. And ways in which it’s a lot more malleable than you might think and ways in which, thanks to its being so malleable, it might be an instrument of policy far more readily than whatever it’s analog in the real world might be. Lessig has taken the analog in the real world to be altering features of the real world.

The great idea of code regulation in the real world, he would say, is the speed bump. You don’t have to pass a law prescribing a certain speed. Instead you put the bump in the road and anybody who values their car, who tend to be the people maybe who have the capacity to speed the most, are the ones who will slow down in order not to damage their car on the bump. That kind of manipulation of the environment to achieve a policy aim, Lessig has argued and others have now joined him so that it’s become almost even trite to say so, is built into the architecture much more readily in the cyberworld. And the fact that you can change it so readily leads to a whole new host of problems.

Not the least of which are who are the people that are making these changes. If they’re just engineers in the back room doing it should we be leaving it only to them. These kinds of decisions that have behavioral, and therefore policy, implications. And also when people find the world around them changed, particularly as they come on to cyberspace fairly clueless about what to expect, they may well not see regulation the same way they notice it in the real world. The opportunity to trespass in a patch of Vermont woods, despite the sign that you see or to speed, despite the fact that the speed limit is whatever it’s set at, is something that may be taken away from you in the cyberworld. If something is put behind the firewall, unless you’re one of the very few wizards who may know how to break it, you are stuck. And there’s actually no way to get behind it if you wanted to do some kind of civil disobedience. I don’t agree with this law, try and catch me. And you may not even see it as a policy decision.

You might see the password, or for instance the artifact of your name being part of your domain name, as just that’s the way the system is and that’s, then, just something I have to take into account when I surf the Net. If I’m surfing from Harvard they know who I am. And being able to see-- Again, it’s a wonderful case study. Who decided that your name would be the domain name. Did they decide it as a policy matter or just as an engineering matter. Was it a way to conveniently to assign them. Why wouldn’t they just use your Harvard ID number or something like that. Getting in to who made the decision, to whom they are accountable, and the ways in which the decision is influencing your behavior, particularly if you’re taking the decision for granted, is a really good question to ask. And one that consistently comes up across the problems we’ve been looking at so far.

The third area that I had suggested was that of sort of the big guy versus the little guy. And put more generally, who are the parties to a given debate in cyberspace. And what assumptions are we making about who the parties would be. It’s related to the code point because it says that there may have been a leveling of the playing field, that anybody for example can create a Web site, can utter things that can be potentially read by millions of people, that it creates a very different landscape of parties than that which we’re used to in the real world. And when there is dissonance between law that has grown up assuming certain parties and corollary sophistication and access to law and ability to conform to particular standards, do you resolve the dissonance by trying to make the cyber-landscape more like the real one. Try to see to it that the people speaking there aren’t particularly little people any more, in which case the real world laws make a lot more sense. Or do you try to actually adapt the laws to be sensitive to the landscape that’s there.

And trying to kind of have a discussion between the policy decision about what kinds of parties we want doing what kinds of things in cyberspace and the laws that govern the behavior is one of the things that would be great to see and to test out in different areas. We may have a chance to see it, as well-- A number of people have wanted to delve into electronic commerce as an area. And I’m trying to see if we can adapt one of our spare sessions, that we had actually left open for review, to be a session at least focused in part on electronic commerce. And, in particular, on the phenomenon so called of disintermediation. To what extent is the Net actually eliminating middle people and letting a seller and a buyer be able to come to terms, regardless of geographic distance, otherwise access to each other. That’s a very open question.

And actually whether the Net is moving to just a whole new set of middle people or to eliminate old ones, be it for real estate, for cookie recipes, or anything else, is a wonderful question and one that I think we’ll get a chance to explore in that session. So that’s the three sort of areas we looked at and I’d love to just throw it open and see if anybody thinks that we’ve-- Has thoughts basically on where we’ve moved since they were first introduced, with respect to each of the sessions we’ve had so far. I know it’s kind of a daunting thing to throw it open after that.

You know, it’s 5:05-- an opportune time for a break at which point, when we reconvene, you’ll have the same opportunity to say something. So why don’t we take the seven minute break and reconvene.

[General conversing, many conversations going on at once]
[Individual students asking the Professor questions]
JZ: Another question was raised about the paper during the break which was does the paper actually have to be legal. And by that the person meant would it be okay if the paper did not actually cite a case or a statute, would that still qualify as a paper. And it certainly would not ace it out, kind of. It would not be presumptively wrong to write a paper that way. It would be just fine. I guess what I’ve said so far on it is the one kind of paper I encourage you not to write, for your own good, is the survey paper that compares and contrasts blah, blah, blah. There are many different ways and issues raised in the area of blah and that just kind of walks through them. Those are nice, they are treatises, you can find them at a library near us. But much better and more fun to write is one in which you actually develop the contestable proposition of some kind. Something you want to actually go about setting to prove. Proving it by giving the absolute best arguments you can against it. And then switching in midstream and showing why all those arguments fail.

It’s a wonderful way of organizing what otherwise would be a big pile of treatise stuff, as you try to work it into a framework that argues for or against some proposition. So, the hardest part on finding the topic is actually what thesis am I ready to go to battle for, either with respect to a particular case, and by that I don’t mean necessarily a legal case. It could be any particular problem identified on the Net and there are lots of them. The syllabus covering only a few. Or any other issue you find out there that bears on the technology we’ve been kind of looking at.

So, I definitely encourage you to think different, as they say. And I’m also open to the idea of a paper is not the only vehicle. You can have something commensurate to it you could do. But if there are some other-- If you’re feeling technically inclined, some other Web expression or something might be just fine too.

So all that being said, let me actually start by saying is there-- I identified three possible hypotheses. Has anybody come up with a fourth? Is there a fourth way? Yeah?

__: I don’t want to call it a fourth but I’d like to split off your third. About the big guy--
JZ: Okay.
__: I like the way it’s structured but I think that a lot of times we assume, as a class, that people in general have a lot more knowledge about the Internet than we really do. I think that we can even make a distinction-- The big guy we see as a big corporation. The people that conventionally control the media and advertising and everything else. Then you have the little guy who’s the individual, maybe the small business owner, maybe one of us, maybe a student, whatever. I think within the little guy, the traditional group, the little guy, we now have a split even there.

Maybe we have the little guy with a capital “L”, the little guy with a small “l”. The little guy with the capital “L” would be the one with the knowledge and the computer to be able to access the Internet and the knowledge to weed through and cause the types of harm, through harmful speech, to make their voice be heard the same as the big guy. In that sense I think there’s a level playing field.

At the same time I think there’s a little guy with a lower case “l”, that doesn’t have the technology, doesn’t have the know how, doesn’t have the impetus or whatever to access the Internet. And that makes them susceptible not just to the big guy but also to the little guy with a capital “L”. I don’t know if I’m making any sense but basically you have a whole segment of society that’s affected directly by what goes on on the Web. Can either be attacked directly or missed opportunities, missed e-commerce, whatever. But because they’re not involved in the whole Web ...(inaudible), that they’re kind of left out. I think by assuming that everybody knows something about the Web and knows how to use it, then we start talking about things like hearing speech and all that, we’re totally missing the boat.

I mean, the idea was suggested that somebody can just get on the Web and counter an accusation that’s make against them doesn’t float with the person who doesn’t know how to use the Internet. Is maybe 60 years old and doesn’t want to even use a digital telephone.

JZ: So this is a good proposition. The proposition, as I understand it, is that there are technological haves and have nots. If you are a have not, because you don’t have the equipment because you can’t afford it or probably more important because you just don’t understand it or haven’t been educated in it, you are affected quite differentially by a world that is increasingly mediated through technology. And either you’re going to be with it or not. And you be at some unfair disadvantage.

And to the extent to which a policy is expressed online, those who are technologically savvy know how to deal with it, get around it. Others don’t. You end up with this kind of unequal application of opportunity, law, policy, etc. ...(inaudible) to this fault line. Yeah?

__: I was just going to say-- I mean, even within that there’s ...(inaudible) address this. There are people who are tech savvy and not tech savvy within the Internet users. But then there’s a whole class of people that just don’t have access to the Internet. I was just wondering one thing. I’ve been trying to add, rather unsuccessfully, to the links in the library.
JZ: You’re one of the technological have nots?
__: Well, I think I was doing it right.
JZ: It refuses to accept.
__: It was a study that the NGIA or something did. They had a power tool of something called Volunteers ...(inaudible). It was a fairly extensive study on Net usage and things like that, especially inner city access to the Internet. Tomorrow I’ll try and figure out how to post it to the discussion area. But it’s through the NGIA site, there’s a link to it.
JZ: And what did part two say, boiled down?
__: A lot of it-- It’s just numbers and graphs and things like that. It’s not particularly sexy. It’s just things to look at there that are instructional just in terms of what percentage of people--
__: The number of people that are going to understand the graphs.
__: You know, rural areas and cities and things like that, who has-- What the penetration is on the Internet. And then it’s just something to think about. You look at that big section of that pie that basically is not at all-- I mean, is not even on the Internet. So none of this stuff applies to them. I mean, to the extent that sort of commerce and things like that are moving more online. It’s one thing for someone to opt out because they’re scared of technology. It’s another thing when they never had an opportunity to begin with. It’s just driving a bigger wedge ...(inaudible) to what already could be wide wedge between ...(inaudible).
__: To build on what you had to say, I think my bigger concern is the big guys with the lower case “b”, who don’t know what they’re doing but they’re the ones sitting in Washington or the Federal Trade Commission or what not and trying to legislate or regulate this stuff. And they don’t know what they’re doing.

One of the chairs on one of the subcommittees dealing with these issues his Web site, for his campaign for example, is two years out of date.

JZ: Did he win or lose?
__: We won, that’s why he’s a subcommittee chairman now. But we’re doing a project over at the Kennedy School, looking at Web sites, and this guy’s-- You know, Mr. Y2K, Steve Horn, grading others on well they’re doing it and his own personal campaign Web site is two years out of date. So these are people who are making these decisions who don’t know what they’re doing. And the little guys with the capital “L” ought to be more afraid of the lower case “b”, big guys.
JZ: Forget the lower case thing, I don’t know if it’s working so well. Into the tech have and have nots, and powerful people who happen to be technically ignorant making decisions about things is, to be sure, a danger. It’s wonderful they’re coming to the Kennedy School, “Hi, we’re from the Kennedy School, we’re here to help”. Experts on you name it, boy we’ve got the strategic computing and the telecommunications program. So the point is well taken.

Well, let me suggest that if you think of the information haves and have nots, one question would be is the market ultimately willing to fix this. For instance, Steve Case and Bill Gates are making inroads, respectively, into putting computers on every desk and floppy disks on every lawn. They’ve saturated the public with access at lower and lower cost to the technology. Now as they do so those who are not yet on board are less and less inclined to get on board. Which is to say your cost of acquisition goes up as you hit all the easy targets and you’re only left with hard targets.

Part of why it probably might be hard is because they don’t know about computers, they don’t understand the benefit of having their recipes online. They can’t relate to it, they don’t know how to work it, etc., etc. But you might say why wouldn’t market forces already be at work to see to it that pretty much everybody gets on the thing. Because that way it’s another market. I mean, as long as they’ve got a single penny in their wallet, that you could take out of them by offering them the service they want, why isn’t that going to do it.

Think about the cash register at a McDonalds. You look at the cash register at McDonalds it has like icons. You look at it and it’s like french fries spilling out of the bag on one key. Then there’s like a hamburger on the other. You push the picture to correspond to the meal the person just ordered. And that’s a way of having the technology be accessible to somebody who may not want to have to deal with punching in $2.79 for this or even a button that says the word “hamburger” on it. They can just go and it will punch ...(inaudible), and they’ve got the hamburger. So, that’s an example of the technology.

Maybe we could say to MIT isn’t it just a matter of time before you guys figure out the ergonomics to make this stuff accessible. And a corollary question would be how many people learned how to do technology in school. How many learned it in class. How many people here actually learned what they know about computers from a class? So, assuming there are some people here who know something about technology-- Are there some upper case “L” little guys here?

They learned it because they lived it. And while there may be some component of home ec that you could imagine being tech ec, where you actually sit down and it’s like here’s a sample ...(inaudible) machine. Now let’s see if you can lift ...(inaudible) ten bucks. You could imagine training at that level but that otherwise it’s as second nature as using a remote control on your television set. Now whether that’s a good thing or bad thing is another great question. But I want to put out the hypothesis that maybe this problem will solve itself by the hunger of the market to reach people who otherwise aren’t particularly technologically sophisticated.

That doesn’t get at whether along the way people who know how to work the register from the back end, rather than just by punching the pictures, are at some consistent advantage. And whether that advantage or disadvantage is somehow more pronounced or has different dynamics than the classic disadvantage/advantage of just life skills and education that is at a constant tilt in the playing field of the world at large. Until you entitle everybody to a really good education and all the attention they need to get it, there will be people who when they get a summons from a judge-- I mean, a number of us here can walk in to the judge and find a way of presenting a cogent argument as to why Your Honor, that light was green. Where somebody else would go “Oh, I guess I’ve got to pay”. I mean, there are sort of consistent ways in which a lack of education is disadvantaging somebody.

One question might be is the tech split significantly different. And it may well be. There may be a way in which it’s endemically different and you have to try to deal with it. It’s a great beginning of a paper topic.

I’m reminded also of the case of the Internet in China. Here you have a country that wants as much as it can, the government wants as much as it can of international trade, business, commerce, modernization is totally the key as far as the government sees it now. And yet they’re somewhat chary of a system in which people can pseudonymously or anonymously post screeds read by many. That may have things to say about the government. And the steps they’ve taken are steps that pretty much count on a lot of technological have nots. And most of the people getting to the Internet in China are going to be people who have already bought into the system and part of the elite, rather than people out in the countryside that would be somehow a more volatile group to expose to dangerous ideas. They also may count on the fact that they can do domain name blocking.

So that if you’re dialing in on a Chinese node, you’ve got an Internet Service Provider, and as part of this you’ve signed a statement at the police station that says you’re not going to use it for unpleasant purposes. You do that and you ask for www.cnn.com, it actually goes through a server that’s supposed to find the corresponding number of cnn.com. Which somebody has been able to say actually, ...(inaudible) some other time. It will say “I’m sorry, I don’t know that domain name”. Now there are work arounds to that. If you actually know the hard wired number of cnn.com you could just use that. But it’s counting on a number of technological have nots, that can’t benefit from the so-called hackers, who are going to be blocked at exactly that elementary stage at seeing the Net. There’s some extent to which the government may well be counting on that to achieve a policy that-- Here we keep talking about how you can be an anonymous on the Net, you can do all these things. But the slightest movement by a government to make it difficult might be all it takes to preclude that from hundreds of millions of people actually having that subversive power of the Net at their fingertips.

So that would certainly be a nice mode of analysis of the international question of the Internet in China.

__: Almost becoming an intranet in China?
JZ: Well, China has actually explicitly-- It’s funny you say that. They’ve explicitly said that’s what they want. They’ve proposed the China-wide Net, the CWW, which is to be a big intranet. And they’re hoping that most of the business or most of the kind of electrons zipping around will be within the mainland and not necessarily going out for sites.

At the same time as China is blocking cnn.com, which it is through its main server, a deal has been inked between CNN/Time and a company called the China Internet Corp, CIC. Which is majority owned by China, which is the propaganda arm of the Chinese government. That allows Chinwa to translate anything they want off of CNN and offer it in Chinese on their own site. Editing, of course, for clarity and appropriateness. And CNN has signed just such an agreement to do that. So, certainly, there is a movement afoot to make the cocoon that surrounds you, ...(inaudible) China, naturally one that keeps you inwardly directed. So that there’s less incentive to even want to go to the outside world. Yeah?

__: Do you know whether in that case, whether the edited CNN footage would be portrayed as from CNN? In other words--
JZ: Oh yeah, the brand is certainly in there. Absolutely, they credit it as a CNN story, translated by China Internet Corp under agreement. The translation is just a wonderful-- So much is built into translation--
__: Do you have any idea how much, if any, controls CNN has over that? It raises such obvious questions about what then is reported to be news. You have Dan Rather kicking off the news when he’s saying--
JZ: With Dan Rather it could mean anything.
__: What’s the frequency.
JZ: But assuring yourself of the authenticity of what you read, it has to come back to the source and how willing the source is to say “Sure, translate my stuff, that’s fine.” Or whether they’ll say “We want to translate it ourselves”, which they don’t. Or “We want to be able to read your translation. If it’s the opposite, and if it’s not in various places where we would want it not, we would like to register a protest.” But to my knowledge CNN hasn’t been particularly concerned about this problem.
__: I was just going to say that it’s a wonder-- This is another, I assume, a little guy/big guy problem. Saying that CNN is kind of a little guy, I don’t think I could comprehend if the New York Times or one of the really old--
JZ: The old guard, the quaint notion--
__: Exactly.
JZ: Their integrity.
__: Like yeah, sure, use our name. Especially if you censor-- You don’t let our real news in but use our name to put whatever propaganda you want.
JZ: It’s a good question. I suggest, again, it’s another wonderful kind of clinically based problem if somebody wants to be or play journalist and get to the bottom of what’s the deal between CNN and China. Exactly how has it been placed, what remedies are there and how likely are they to ...(inaudible). How does CNN do it. They should be pretty happy to go on the record about it. What they might say would be worth reading. It would be a great paper.
__: Another issue, though, which I think is an important issue to look at in all of these things is legitimacy. It seems like the Internet and particularly the governance on the Internet really raises legitimacy questions that we haven’t had to deal with since I don’t know when.
JZ: Well, I guess we certainly saw it with large domain names. The problem of this system that had collaboratively developed ...(inaudible) and suddenly who owned it and controlled it, and had the authority to say what should happen to it was very much up in the air. And the natural referee or owner, the US government say, is itself hamstrung because the rest of the governments of the world are not wanting US hegemony over this global--
__: With every standards setting, we see it in ...(inaudible), we see it in P3P, every single time someone sets a standard they have to-- I mean, Microsoft has a lot of trouble setting standards. Aside from the fact that they just can’t. But in terms of getting buy in from the parties their legitimacy is questioned every single step along the way.
JZ: Now, do people remember Joe Riegle? He was here with the different colored hair, talking about P3P on privacy day. He’s a fellow attorney, he’s actually also somebody very much involved with W3C. That kind of rolled off, I’m sure most people ...(inaudible). The World Wide Consortium, started by somebody who has a bit of a cult following, a guy named Tim Bernardsly. Tim Bernardsly started this as a means of trying to come up with standards that wouldn’t bind anybody. You can’t enforce it. But if they are good and you build it maybe people will come and maybe people will start using these standards. We’re talking about P3P, that emerged from W3C.

W3C may have had more opportunity to get it off the ground than any one company might have because immediately its competitors would suspect that there’s some ulterior motive or some built in advantage to that company. If Netscape alone, for example, tried to implement something. It would be hard to see Microsoft going along with it. So W3C is the result of a bunch of these companies, ponying up a good amount of money every year to belong, which gives them a seat on the policy making board. Which, in turn, decides what kinds of initiatives will go through.

There was recently an article, which I will put into the link database or otherwise highlight, called something about “The Black Helicopters Are Coming: The Shadow Government of the W3C”, written by another ...(inaudible) Center fellow, who seems to get along great with Joe. Like the sheep and the wolf that check in in the morning, they punch in--

[Laughter]
JZ: So, they have an amazing amount of power. There’s actually some debate over exactly where it stands. There’s another, again, possible clinical topic. There’s a show called “The Connection”, with Christopher Lydon. Has anybody heard this, it’s on WBUR, NPR, radio news, 90.9. Chris would not be happy to hear this. But anyway they’re actually wanting to put together a program that pits Simpson, who wrote this article about W3C, against Tim Bernardsly or failing that Joe. About actually Internet governance and the place of these kind of quasi-nongovernmental organizations in setting policy. And there’s plenty of work to be done actually in mapping that out. Greg?
Greg: I was just interested in something you said previously. That the Internet cuts out the middle man. Because I guess I’ve just kind of been in the back here thinking about it. I don’t think it does at all. I think that what the Internet does is it makes the middle man anonymous. I think that the Internet itself is the middle man and people make money that way. Like I was thinking about it in terms of like trading over the Internet, which is something I’m interested in.

So you sort of think that you’re doing the trade yourself but you’re really not. Or you are making the trade yourself but there is a middle man who makes money every time you make a trade. And that’s why-- So, I think it’s more psychological. You’re doing it yourself but there’s someone who still makes money. I mean, ...(inaudible), the recent IPO, it went off at an enormous amount because there’s a psychological factor and everybody wants to be able to do this. That you’re doing it yourself but there’s still someone there and that person-- I guess you can’t really say that person. But that thing is the Internet. And the fact that you can do it means that there’s someone out there, some anonymous individual, who makes money.

JZ: Well, that may be. I guess the hypothesis of the people who are touting disintermediation as a consistent feature of the Net, it’s going to kind of be twofold. One hypothesis is going to be that it leads to frictionless markets. Whereas, for example, anybody who’s tried to find an apartment in New York City can tell you, you fork over amazing amounts of money to a broker, who trots you around to a bunch of equally unacceptable cockroach-ridden mousetraps that are meant to be your new home. And then ultimately you pick one and then fork over a bunch of money. That is-- I mean, it’s certainly partly an artifact of a lot of demand and not a whole lot of supply and the lack of rent control. Okay, that’s one problem there.

But the other problem is that if I have an apartment I want to let, I’ve got to find the broker too. I mean, I guess I could run an ad in the Village Voice and then I get all the phone calls and the nightmares. You know, it just goes on. But if there were a way to bring together buyer and seller, such that the thing in the middle were merely mechanical; where merely a thing, where I kind of-- Imagine it almost as the difference between NASDAQ and the New York Stock Exchange. The New York Stock Exchange as it was in the old days. You kind of wandered down in it like a market. You say “Hi, does anybody have some IBM”. And the NASDAQ says “Let’s just automate the whole thing”. And you put in your bid and it floats into the ether and then others that are subscribed can see what your bid is. And they can say “This is what I’m going to sell at.” At some point the system will come to a match between a seller and a buyer and consummate the deal.

And that may be a much different intermediary than the human broker, who’s exercising a lot of discretion in choosing what to show you. And is much more necessary and able to gouge a lot more because of the lack of kind of grease in the market gears to get things going. If you could shop for a car without having to go down to Bob Lossey Ford and be subjected to the whole thing about the manager and do you want the rustoleum. You just check your boxes and click yes, buy it. And give me a new Dell while you’re at it. It may be, arguably, disintermediated.

But that’s just that side of it. And you’re right that there’s always something in the middle. But the idea is the market forces would at least make it so that it’s awfully cheap to provide that middle thing. I don’t care if Charles Schwab on the Web is collecting a penny off my deal, they’re entitled to it. One of the things to think about on this is to the extent that the technology can enable people to very likely take that bite out of the deal, it’s actually easier to be nickeled and dimed to death than it is in the real world.

The best example is the invention of withholding on income tax. People actually jumped for joy when after April 15th it turns out the government owes them money. And then they get a check in the mail. Boy, Uncle Sam, how about that. They don’t realize that all along every paycheck has had hundreds of dollars deducted from them and sent so much to the government that they’re overpaying. Now that’s just an architectural feature for which, if it weren’t there and at the end of the year you had cut out a check for thousands of dollars in one fell swoop to the government-- I mean, the tax system would be dysfunctional. People would not pay it. They would not have the money. They would gamble it away on an Internet gambling site.

So, being able to suddenly take that bite actually may be important. And one session we’re not going to have this term, which is a very interesting area, is Internet taxation. The Internet Tax Freedom Act is one step closer to passage now. If you actually read the text of this Act, the only thing it proscribes is things that states would never want to do. Like usurious surcharges on the Internet because it’s there. Taxing a penny per bit, as bits float across the ether. I mean, stuff like that you’re not allowed to do. Collecting sales tax on stuff that happens, that you are legally able to tax, there’s a whole host of concerns there, that’s perfectly allowed by the Internet Tax Freedom Act. And it’s something that can be done amazingly invisibly.

Where I ask the site-- If I want to buy something, the site computes where I’m coming from to where it’s being shipped and the amount. Sends it out the server that then comes back with “Please also add this amount to the price and immediately remit it to the Commonwealth of Massachusetts server, which is over here.” And you never even realize you’ve been paying sales tax. So it’s actually, in that sense, allows for a lot more intermediation that’s very subtle.

__: With this disintermediation what also comes to mind is this big article-- About a month ago I was reading about the Chicago Board of Trade was about to go-- The big commodities trading ...(inaudible) is about to go electronic and there’s this huge uproar in Chicago because there’s--
JZ: People that are used to hand signals and running around with a paper--
__: And what happened in Paris just a couple of months ago. After the electronic exchange opened and the ...(inaudible) exchange lasted like three weeks or something like that, and their prediction is this might result in like 100,000 people being laid off in Chicago. All the people that work on this board and all the other economic activity there--
JZ: Apparently they are serving no useful purpose as long as the technology is in place.
__: Right. My question is when you have huge massive dislocations like that, that the Internet allows, especially now with people who can make their voice heard, who are predominantly upper middle class people who are making large amounts of money--
JZ: Their job is a sophisticated job because they had to work arcane computers. Now they’ve been replaced by simpler computers that eliminate them.
__: So the question is what kind of backlash might ensue from things like that that are taking place and all the other types of disintermediation people are decrying now?
JZ: Now, Neil ...(inaudible) would have a ready answer for that, right.
__: I was just going to say that.
__: Well, I was just thinking back to the ...(inaudible) by code and all of the accountability questions that it raises. That the speed bump on the road, you know that the city has to have put it there and if you have a problem with it you can go lobby the city council and have it removed or at least have your voice heard. When it’s in the code many people don’t even know how it gets there and don’t know whether to go to the government, to go to the engineering group. And who’s doing this and how to get it changed.
JZ: Being able to think of a really good set of kind of great examples of that would be a worthy enterprise. If you come up with-- The speed bump is a great example and you can think of a few more, then they start to fall off. Even ways in which there may be subtler attempts at regulation in the real world. Such as refusing to take the stretch of highway that links whatever that little nub of the Cape is, Truro, out to Provincetown. Like that’s just two lanes and it’s four lanes on Route 6 or 3 or whatever it is on the other part of the Cape. And that decision, of course, must in some ways bear on behavior. You’re going to get a lot more people sitting in Provincetown if you widen the road to four lanes. And that may not be as obvious as the speed bump. You may assume well, it’s a two lane road, what are you going to do.

But you’re right, finding more examples in the real world and then correspondingly on the Net, where it may or may not be so subtle, would help the case.

__: On the Net it could just as easily be put in by Netscape thinking that it was more convenient to move to the end users.
JZ: Yes. My favorite example of that is actually Dave Clark, the guy who was a discussant in the transcript you may have read on domain names. His current obsession is finding a way to label packets such that they can have priority over other packets, as they zoom around the Net. This is a good idea from an engineering standpoint because email packets can fall a few seconds or minutes behind and you still get the email eventually. Whereas streaming video needs to be a high priority or you keep getting it very choppy as it comes across the line. Of course, once that’s in place you could imagine being able to designate some people as low packet people and other people as higher packet people. And having a whole scheme by which China can say there are certain sites we don’t want you to visit and we’ll just slow your packets down really slow. And it’s amazing how if there’s something you want to get on the Net, if there’s a link you really want to follow, and after about seven seconds of host contact and running through-- You’re like stop, I’m going to go like ...(inaudible).
[Laughter]
JZ: And you’ll never know why the conduit was pretty slow there. It might have been Dave Clark’s tweak that could enable somebody or seeing to it that some conduits are there more than others. Yeah?
__: I want to address the Chicago Board of Trade thing. It’s funny you should say that there are now some professionals that are going to be out of work. I suspect that history is not on the side of those people and this is a good example. Because what drove the CBOT to install electronic trading was the price of a seat on the exchange had dropped, precipitously over the course of the past 18 months. They’d gone from something in the seven figures to something around $400,000-- [end of tape]

In this case and then--

JZ: So let’s pay some attention to that. I mean, that’s the kind of thing that ...(inaudible) should tell Postman to pack up and go home, right. Stop worrying to so much or worry all you want, it’s inevitable. What would Postman say back to that?
__: I think he would legitimate the attempts to stop that sort of thing and cushion the shock associated with these kinds of social changes.
JZ: A job retraining program. This is what ...(inaudible).
[Laughter]
__: For every guy that you paid a million five for a CBOT seat three years ago, that’s now maybe out of work, there’s a hundred other people who have been able to buy small order exchange seats on NASDAQ and all they need is their own blooper terminal for, I think, a grand a month, and whatever capital stake they can scrape together. And then they can be a trader just like anybody else and have that same amount of ...(inaudible).
JZ: Is a logical extension of it eliminating seats entirely? If people can authenticate who they are, that they’ve got the cash to back up their desire, who can fill out their own forms and simply place their own bid into the system?
__: Are you looking for a defensible answer or what I think is the answer?
JZ: No, a defensible answer.
__: I think it depends on the commodity. It depends on what you need to create an effective market. It’s heavily regulated. Traders have a lot of obligations to the Exchange, to the companies they trade, to the people they’re trading for.
JZ: But a lot of these ...(inaudible) on Schwab and I’ve placed some idiotic trades. You know, Russians buying rubles. They don’t say “Excuse me, are you sure you have your wits about you?” Their fiduciary duty to you is-- This broker is to warn you against this.
__: No, the guys at Merrill Lynch will say that’s exactly right. We will tell you that.
JZ: Right. I can use Merrill Lynch if I want but I don’t. I want to use this ...(inaudible). In fact, I don’t want to use any broker. I want to go on and buy rubles.
__: Well, in theory, you’ll get nailed more often.
JZ: So this is almost saying the intermediary is-- You know, you see it again and again. It’s the physician who’s required to dispense a prescription for something that isn’t any more dangerous or less dangerous than that which you get over the counter. But for which the government wants there to be some moment where a physician and a patient, their worlds collide. The physician says “Yeah, I’ll write you a prescription. By the way, it might give you a headache.” Then here’s your new prescription.

So, similarly you can imagine almost I want a prescription from Merrill Lynch for 400,000 rubles. That would be something that maybe Toni Levin as the helpful government figure seeing as her mission the protection of people who may be aren’t going to be able to fend for themselves in a tough market, they may well see that as some role. Very much like the role that you saw ...(inaudible).

__: And that’s probably something close to an endorse.
JZ: And enforcing it by law. A couple of thoughts?
__: I have a question that’s only generally related to the specific things we’ve been talking about. But has anybody looked at-- I know there have been discussions about developing micro-commerce, it’s also electronic commerce, that you can spend a tenth of a cent and it can be accurately accounted for. And then at the end of the month or at the end of they year when it’s something you can actually write a check for, then you settle your account. It just seems to me that-- I don’t know what technical barriers there are, there are certainly several at this point. But that that would change the nature of some of the commercial aspects that have just been discussed. Where it’s a barrier to me to say-- Like let’s say a newspaper charges for its archives and the New York Times does. It’s a dollar to download and you have to spend the fee and sign up all that. I just say “Oh, it’s not worth it.”

But if it was like a tenth of a cent but everybody in America was spending a tenth of a cent every week the New York Times would probably like to do that. So, has anybody looked at studies on if this is possible, or more likely when is this possible, what effect would that have on consumer demand over the Net.

JZ: Yes and these are so-called micro transactions. It’s probably helpful to think about micro transactions by dividing physical goods ordered over the Net and then delivered to you just as if you’d dialed a 1-800 to get them from some mail order house. But electronic goods, stuff that is delivered to you at the moment you click to spend. The simple thing would be the latter category of stuff that the micro transactions would be most apt for. Because you don’t have shipping charges and everything else.

And you’ll find some people with the theory that says as soon as we figure out micro transactions, which is only a matter of time-- In fact, there are even some companies now that will let you aggregate micro transactions with them. They will then, once it reaches a threshold, charge your credit card the ten dollars’ worth of micro transactions. Then you go on to the next one. Or you prepay it so you have some creditor/lender relationship with them. As soon as the standards ...(inaudible) say there is some widely accepted currency on the Net, that I guess at some point, by some actual government issued currency but the dynamics of that could be quite unpredictable, you would see a lot of this going on.

Now, we might touch upon this in the disintermediation class. There’s actually a wonderful dispute between experts on this predicting just how popular this would be. There’s a whole bunch of people who will say this is the key to opening up the log jam of thousands of dollars coursing through the Internet regularly from regular old consumers. Because it’s true, they’ll pay five cents for something and not be that upset when it turns out to be crap than they would if they paid either a lot of money for it or not at all. It would also turn the current kind of banner advertising model, which hasn’t clearly earned a lot of money for anyone, on hits head if it actually was generating revenue.

The other side of it is bundling is the best way to sell goods that aren’t easily substitutable for one another. Let me unpack that a little more. Goods that happen to be, say, I don’t know, a Stephen King book. Now the market for books isn’t wonderfully greased because if you can’t read that Stephen King book you want to read, it’s not like you can just dial up ...(inaudible) and feel satisfied. The people that are into Stephen King want to read the Stephen King book. Imagine even more with your favorite song. You want to hear Madonna and, like, how about Damonna, it’s only $2 less and you’ll save some money. You know, it’s kind of jangly. I mean, they’re not easily substitutable.

So, in the case of things protected by intellectual property and ...(inaudible) is hard to substitute for goods without just duplicating them and violating the IP laws. You end up with bundling as the best way to send them out. There’s kind of a whole complicated theory behind that but what it basically boils down to is somebody who can be the music warehouse and you subscribe for $20 a month and with it you can do 500 listens of your favorite artist. It’s like the twelve CDS for a dollar from Columbia House or for a penny if we’re talking about a micro transaction. That kind of thing tends to work better than actually trying to sell individual Madonna stanzas for a penny and you can string them together and have a whole song for a quarter, and then listen to it again.

There are economists who will tell you it’s much better for the seller to choose to aggregate stuff or to join up with somebody aggregating at a flat rate. They’ll make more money that way than they will if they sell it just individually. It has to do with price discrimination. At some point it might require going to the chalkboard to explain it. But there’s just a wonderful debate about price discrimination at which equally credentialed experts will go completely opposite on what it portends.

__: What are the chances that something like that can turn into you pay your tenth of a cent to visit my Web page and every time you click on a link you pay another tenth. So, eventually, if you surf the Web a lot you’re paying hundreds of dollars a month to visit just individual private Web pages.
JZ: And you have nobody in particular to show your outrage to because, after all, any given Web site was only a tenth of a cent?
__: Exactly, exactly. So, I mean, it doesn’t really-- But if you’re a really popular Web site then you’re going to get a lot more than that tenth of a cent. Or if you have fifty gazillion links then you’ll get a lot more than a tenth of a cent. And if that were possible it would really close out the Web to anyone except for those of us who actually had cash. Because then you’re not going to be able-- You know, in some ways you would be able to protect kids because kids aren’t going to have the money to access it. But at the same time you lose the whole free form of communication.
__: Add to that that you have to pay for each of your packets to have any sort of priority to reach you. Now you’ve got-- The thing about the micro economy that bothers me is that right now there are a lot of things we get for free. Like a smile at McDonalds or Yahoo, for example.
JZ: You literally mean a smile from the cashier at McDonalds?
__: Sure.
JZ: Oh, I haven’t gotten one of those.
__: But anyway what I’m saying is these micro economic schemes mean that we’ll start paying for things--
JZ: Price is added on--
__: Yeah, things we don’t pay for otherwise. And the fact that you pay for something allows you to have a lot more right, it seems, in the law. So that when the smile at McDonalds is defective, even though I just paid a quarter of a cent, I’m sure there are lawyers who can come up with a class action to sue for those defective smiles. Whereas before, it’s a smile.
JZ: But isn’t it really just a question of granularity. I mean, what is first class but paying for a smile in a slightly wider seat. I mean, surely though when they don’t smile at you in the first class you’re outraged. How dare they. You’re paying thousands of dollars for this, somebody better smile.
__: But what I’m saying is--
JZ: No but you could see-- You could end up deciding among airlines by how you were treated on a plane. That’s why, I mean they look like they’ve had mouth surgery, in first class they’re like grinning like there’s no tomorrow. So, it’s a different kind of granularity when you can imagine-- I mean, suppose at the supermarket there was a lane that didn’t say eight items or less, it said 10% more. All the items cost 10% more in this lane. And if you’re in a rush and it’s empty, you’ll take it.
__: There is already-- I mean, you’ve got Broadway Market, a block and a half away from here, that charges you 10% to 15% more for the same stuff virtually that you can get--
JZ: So the big question is then if we’ve invented the convenience store, what’s different about the added granularity thanks to micro transactions that we view in this nightmarish world in which the only things you get are that which you pay for. And the converse, of course, is if you don’t want it, you don’t end up paying for it. McDonalds could end up omitting five minutes of training for a whole bunch of workers, who won’t end up smiling as a result, but it will be slightly cheaper and can sell food cheaper in the lines of the grumpy ones.
[Laughter]
JZ: This is at least the paper capitalists kind of competition argument that says you’ll get communities of communities on the Net, each enabled by the use of this. Rather than-- Notice that Emily’s nightmare came about because everybody went the same way. Everybody started nickel and dimeing and there was nowhere for somebody who felt nickel and dimed to death to go and saying “I’m willing to offer up my eyeballs as payment instead of my tenth of a cent and I’ll look at ads.” Whereas the ...(inaudible) one says no ads, we just pay per view. Yeah, Scott.
Scott: Well, my suspicion and I couldn’t think of any examples just in this short time, but first of all ValuJet is basically paying for the grumpy line. Or saving because of the grumpy line. If you’ve flown on there, they’re just not well trained and you don’t have your own seat. So I think my suspicion, based on that, is that there are already forms of this, as you’re saying, larger scale and we’re not going to have-- There will still be competition. There’s going to remain incentive to offer things for free to get something larger lately. Like the newspaper online might say okay, while most people are charging a tenth of a cent per visit, we’re going to do it for free because that means we’ll get more visitors and therefore more advertising revenue. And there will be a tension between these two that will settle itself out.
JZ: Well now it also may be that you would-- Given how much we click around when we surf and imagining not wanting to have to make a purchasing decision every time we click, you’d actually-- Right, this is the magic of P3P. Joe Riegle in a few minutes would come up with a wonderful set of elaborated rules by which you’d either browse your interview, when you first configure it, and one of the question you answer is what’s the maximum amount you’d like to spend on a link before I ask you are you really sure you want to do this. Now there may be people who would say zero. I don’t know. It’s hard for me to conceive of any link, for which it would cost me a tenth of a cent to click on it, that I wouldn’t do it if I were otherwise inclined to do so. But I just must be ...(inaudible) terrible to be thinking that that would be my behavior.

It also may be programs that scoop up lots of links-- For example, Alta Vista, the search engine we all know and love. That works because it sends out ...(inaudible), it collects millions of links. They follow the links, they read the page, that has links, they follow the links, they read the pages, those have links, etc., etc. You get to a whole catalogue of the Net. A tenth of a cent on every link puts all Alta Vista out of business unless they turn around and start charging for search engines.

Now, there’s a wonderful-- Talk about the hidden cost to technology. There’s a wonderful example of bread and butter, a staple of the Net we’ve been taking for granted, the search engine, suddenly killed by the existence of, make it a hundredth of a cent, on a link. Now maybe that wouldn’t be so bad.

__: Well, I don’t think it would ever happen because I think-- First of all, I think-- I’m intrigued with the possibility because I think it would add to the maturity of the Net. I would characterize the Net as being kind of immature now. People are just clicking away because everything is free and there’s just a lot of fat out there. Then you’ll probably have a backlash. Like if you introduce micro cash then nobody is going to click because they’re going to say well, I don’t want to pay for this because it wasn’t worth anything to me anyway. And you’ll have a balancing that will work itself out. One thing that I would think would happen is that Alta Vista would say to companies, who obviously have an incentive in attracting business “Hey, I can’t be in business if you’re going to charge me a tenth of a cent every time I come to your page.”
JZ: If you want your site catalogued you’ll give a waiver to-- I’m holding a certificate saying it’s an Alta Vista box. You’ll let them through the turnstile without charging a tenth of cent. That’s the response to the response.
__: Right. Deals like that would be worked out.
__: Well, the problem with that argument is it assumes the main reason why people are using the Net is only for commercial transactions and not to just get information or to waste time or to read the Drudge Report, which I guess could be considered either one of those depending on how you look at it. It assumes that capital is the main point of the Net. And the problem that I think I could see is not so much like Joe Schmoe down the street charging me a tenth of a cent to visit his Web page but Geocities charging a tenth of a cent to access any page within their realm. And AOL charging a quarter of a cent to access any page.
JZ: Would you as a matter of principle not pay a tenth of a cent?
__: Well, it probably wouldn’t affect me that much because I would say okay, I’m willing to set aside that $50 a month or whatever to be able to do this. But it is going to affect people who are not going into a law firm next year. It is going to affect schools who want to try to access-- Who want to try to have their students--
JZ: They might have to have school certificates that saw we’re surfing for educational purposes, let us through the turnstile.
__: Yeah, there are ways to get around it. This whole conversation started with sort of talking about the haves and the have nots. And that gets to a point where not only is the Net limited to the haves, in terms of technology, it’s very limited to the haves in terms of money.
JZ: Now, we certainly started with the empirical question of is it going to go that way or not.
__: Yeah.
JZ: And you’re right--
__: We started with the question is it possible that this could happen. And foreseeing that it could, then I think that it will completely change the Net as we know it today and not for the better. Because you’re not going to have the sort of creative exploring, potentially building a community element that you have right now. It will be all commercial because there’s no incentive for anything else.
JZ: Right. Certainly being able to play out were it to go this way what would happen. Here’s what would happen with the search engine what way is it coming out. If it happens in schools what way would they do this. It would be a wonderful exercise in trying to kind of both prognosticate and then say assuming these facts, these would be the policy questions and how you try to deal with them. And if what you wanted was the Net that didn’t unduly dispossess a certain group the right or the opportunity to surf.

So, anyway, I hope today we had a chance-- I know there’s no magic bow, yet at least, to tie everything together. But I hope you had a chance to kind of see the threads as we have identified at the beginning played out in a number of situations, both in the classes we’ve had and in the mini-scenarios we’ve been playing out here.

You’ll see that in coming weeks, and this distribution four, is an addendum for next week’s reading, an article by Molly Schaefer Van Haling on why it might be worthwhile to think of private actors as state actors in the Internet context. We’re going to be sticking with free speech for a while. We are going to get to people who, as a matter of they would say civil disobedience, as a matter of the Justice Department would say breaking the law, think that it’s important to be able to get beyond the strictures of the architecture and perhaps of the law in getting speech out on the Net. And we’ll also be, I think on October 22nd, having a quite intense session on the Microsoft case. And there will be a bunch of readings prepared for that. Just to try to give people a grounding in what’s at stake there, in particular looking at so-called network effects. And the ways in which getting on top helps you stay on top and how that might be particularly true in a networked environment.

So, that’s kind of the next chunk of the course we’ll be covering. I hope this has been kind of a fertile ground for thinking of the paper topics, for which the abstracts are due next week. What’s that?

__: How long does the abstract have to be?
JZ: An abstract could be-- I would try to make it no more than a page. This is not meant to be a treatise. Just a page or less. That will be the question of the week.
[Everyone speaking at once]
[Individual students asking the Professor questions]