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Electronic copy of this paper is available at: http://ssrn.com/abstract=962596 0502_010_CRAWFORD_PRODUCTION 2/4/20079:33:19PM 467 INTERNET THINK SUSAN P. CRAWFORD * There are many lawyers and policymakers now engaged in debating laws concerning high speed broadband connections to the Internet. What do they mean by “the Internet”? Does it matter what they mean? This essay suggests that how “the Internet” is understood has substantial legal, social, and cultural consequence
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  Electronic copy of this paper is available at: http://ssrn.com/abstract=962596 0502_010_  CRAWFORD  _  PRODUCTION  2/4/2007   9:33:19   PM 467 INTERNET THINK S USAN P.   C RAWFORD * There are many lawyers and policymakers now engaged in debating laws concerning high speed broadband connections to the Internet. What do they mean by “the Internet”? Does it matter what they mean? This essay suggests that how “the Internet” is understood has substantial legal, social, and cultural consequences. In particular, what is meant by “the Internet” determines which actors’ voices will be listened to, what arguments will be respected, and which goals will be considered legitimate. If “the Internet” means “a logical architecture” (as the origi-nal engineers would say it does), protections for speech may not be rele-vant, and that architecture could change at any time. If “the Internet” means “privately-owned pipes” (as the incumbent telephone companies would say it does), fundamental principles developed over centuries to avoid monopolies over communication may be lost. If “the Internet” means standards and relationships that give rise to persistent social worlds (as Internet futurists would say it does), economic arguments made by the owners of the transport pipes may be undermined. Both the FCC and Congress have been confronted with all three of these defini-tions at one time or another. Which one will be chosen to frame our do-mestic approach to “the Internet”? What effects will choosing one or an-other have on policy? This essay represents a brief exploration of this issue from my intui-tive perspective that public policy should “protect the Internet.” I ac-knowledge this starting point, but I want to be open-minded about where this intuition leads and what stumbling blocks it will (and should) en-counter. To the extent policymakers have an opportunity to choose one or another of these three definitions, I would like to understand what these choices mean in some detail. Then, instead of committing myself in advance to abstract economic talk or theories of democracy, I would like to understand the social and cultural implications of choosing one defini-tion over another. 1  If the shared goal of pro-“network neutrality” advo- * Associate Professor, Cardozo School of Law; member, ICANN board. Email: scraw-ford@scrawford.net. 1. I gratefully acknowledge Julie Cohen’s suggestion that this “social and cultural” question is the right one to ask. Prof. Cohen made this suggestion in response to a different draft paper of mine. See Julie E. Cohen, Commentary,  Network Stories , 70 L AW &   C ONTEMP .   P ROBS . (forthcoming 2007); see also  Susan P. Crawford,  Network Rules , L AW &   C ONTEMP .    Electronic copy of this paper is available at: http://ssrn.com/abstract=962596 0502_010_  CRAWFORD  _  PRODUCTION  2/4/2007   9:33:19   PM 468  J. ON TELECOMM. & HIGH TECH. L.  [Vol. 5 cates is to “protect the Internet,” what exactly will we be protecting, and to what social and cultural end? In Part I of this essay, I will very briefly describe representative  proponents of each of these views, and the historical contexts in which their particular definitions have been put forward. In Part II, I will de-scribe some of the changes in the Internet that have taken place since the FCC’s and Congress’s initial involvement, and the ways in which these changes relate (if at all) to the three “definitions” I have suggested. And in Part III, I will outline what these changes suggest for our future if one or another of them is chosen for protection. I.   T HE I  NTERNET D EFINED    A. The Engineers At this year’s Silicon Flatirons Conference, Robert Kahn defined the Internet as follows: One of the things about the Internet that escapes a lot of people but was mentioned today, is that it really is composed of things like routers and lines and computers and the like, but those do not define the Internet. They’re just the things of which it’s built. The Internet really was a logical architecture that allowed you to connect virtually any type of networking machine together. So when people ask me what’s the Internet, I say it’s this logical construct, independent of the  particular elements that go into it. So if this network went away and got replaced by a new technology in the future, it’s still the Internet. 2 Kahn’s views on “what is the Internet” are taken seriously because he was one of the co-inventors of the TCP/IP protocol. His views are also representative of a class of computer engineers who “invented the Internet” thirty years ago (the “Engineers”). From the Engineers’ perspective, the Internet began with the ARPANet and the idea of packet switching, both of which had their in-tellectual srcins in the work of J.C.R. Licklider of MIT. 3  In September P ROBS . (forthcoming 2007), available at   http://www.scrawford.net/display/061406%20network%20rules.doc. This essay is a first step towards taking on the task of establishing a “social theory of regulation by protocol” that Prof. Cohen suggested, by beginning in the context of a particular definitional swamp: “What is the Internet?” 2. Video: Robert Kahn, Keynote Address at the The Digital Broadband Migration (Sili-con Flatirons Telecommunications Program 2006), available at   http://telecom.colorado.edu/index.php?load=content&page_id=126. 3. ARPANet was a precursor to the Internet. M.   M ITCHELL W ALDROP ,   T HE D REAM M ACHINE :   J.C.R.   L ICKLIDER AND THE R  EVOLUTION T HAT M ADE C OMPUTING P ERSONAL  178 (reprint 2002) (2001).  0502_010_  CRAWFORD  _  PRODUCTION  2/4/2007   9:33:19   PM 2007]  INTERNET THINK   469 1969, Bolt Beranek and Newman, Inc. (BBN) installed the first packet-switching device (an Interface Message Processor, or IMP) at UCLA; three more nodes were soon added (at the Stanford Research Institute, UC Santa Barbara, and the University of Utah); and by the end of 1969 four host computers were connected together into the initial ARPANet. An initial packet-switching protocol, called the Network Control Proto-col (NCP), was used through the early 1970s. 4  NCP did not have the ability to allow one network to address another, because it was designed to work within the single ARPANet network. In 1972, Bob Kahn (then at BBN) began work on a meta-level in-ternetworking architecture that would allow addressing of machines and networks other than ARPANet. Vint Cerf became involved in 1973, and together Kahn and Cerf developed the Transmission Control Proto-col/Internet Protocol, or TCP/IP. The overall plan was to make it possi- ble for any machine attached to any network to connect to any other. The TCP portion of the protocol was designed to check (through ac-knowledgments) whether packets had made it to their destination; the IP  portion was designed to allow communications to be chunked into  packet-sized informational units, addressed, and forwarded to hosts iden-tified through numerical “octets.” From Kahn’s perspective, TCP/IP is the Internet. It is a logical ar-chitecture designed to be a general infrastructure on top of which new applications could be introduced. Protocols constrain, but this one con-strained only in that (1) it provided only for “best efforts” quality control (if packets didn’t make it to their destinations, the source would try again), (2) it suggested that the gateways between the connected net-works would not retain information about the packets flowing through them, and (3) it did not suggest that there would be any global control of these operations. 5 ARPANet and the two other early national US packet-switched networks (packet-switched radio and packet-switched satellite) had few hosts, and the identity of these hosts could be kept track of easily. 6  With the rise of Local Area Networks and Ethernet technology, the number of hosts (each with a unique IP address) proliferated quickly. Because IP addresses were difficult for humans to remember, Paul Mockapetris of USC/Information Sciences Institute invented the domain name system (DNS), which is a distributed mechanism for translating textual host names into IP addresses. 7 4. B ARRY L EINER ET AL .,   ISOC,   A LL A BOUT THE I  NTERNET :   H ISTORIES OF THE I  NTERNET  (2003), http://www.isoc.org/internet/history/brief.shtml. 5 . Id  . 6 . Id  . 7 . Id  .  0502_010_  CRAWFORD  _  PRODUCTION  2/4/2007   9:33:19   PM 470  J. ON TELECOMM. & HIGH TECH. L.  [Vol. 5 The idea behind this TCP/IP logical architecture was that networks could do their own form of routing and forwarding as long as they used a common gateway method of routing. 8  TCP/IP was incorporated into the Unix operating system, and that operating system was adopted by many computer science researchers. According to the Internet Society, the adoption of Unix (and the responsiveness of researchers to updates to that operating system) was key to the widespread use of these protocols. 9  Beginning in 1985, the U.S. NSFNet program required that “the connec-tion must be made available to ALL qualified users on [academic] cam- puses,” 10  and mandated use of TCP/IP. 11 The NSF national backbone could only be used for educational pur- poses until 1995, when NSF defunded the backbone and redistributed the resulting funds to regional networks to buy connectivity from private long-haul networks. 12  By 1995, the Internet was connecting 50,000 net-works around the globe, and TCP/IP was in wide use worldwide. The task that Kahn and Cerf took on was to interconnect independent net-works. They did that, and the resulting logical architecture, to them, is “the Internet.” For the Engineers, then, the definition of the “Internet” that makes sense is the one adopted by the Federal Networking Council in 1995: RESOLUTION: The Federal Networking Council (FNC) agrees that the following language reflects our definition of the term “Internet”. “Internet” refers to the global information system that – (i) is logi-cally linked together by a globally unique address space based on the Internet Protocol (IP) or its subsequent extensions/follow-ons, (ii) is able to support communications using the Transmission Control Pro-tocol/Internet Protocol (TCP/IP) suite or its subsequent exten-sions/follow-ons, and/or other IP-compatible protocols, and (iii) pro-vides, uses, or makes accessible, either publicly or privately, high level services layered  on the communications and related infrastruc-ture described herein. 13 Two points about this definition characterize the Engineers’ ap- proach. First, this definition of the “Internet” emphasizes globally unique addressing (supporting interconnectivity) and the use of TCP/IP,  but makes clear that these elements can change. IP can have “exten- 8 . Id  . 9 . Id  . 10 . L EINER  ,   supra note 4. Government involvement in the early Internet was crucial. Federal agencies helped pay for common infrastructure, coordinated with other networking organizations, and encouraged networks to find commercial customers for local services. 11 . Id  . 12 . Id  . 13 . Id.  
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