DRAFT: This is a work in progress. Please do not quote or cite without asking for a more recent copy.
November 23, 1999
After a brief introduction to Jürgen Habermas's discourse ethics, I describe the IETF process, a specialized standard-making discourse, and certain other Internet norm-formation mechanisms. I then argue that the Internet standards process may be the first important international decision-making process, and perhaps the first important contemporary rule-making process of any kind, to meet Habermas's demanding criteria for a legitimate law-making process.
Contents
Introduction 1
I. Habermas on Discourse Theory 4
A. Critical Theory 4
B. Best Practical Discourse 7
C. Substantive Criteria 11
II. The Internet Standards Process: A Discourse About Discourse12
A. What is the Internet? 13
1. Rapid Growth 14
2. Interconnection of Other
Networks 15
B. A Short Social and Institutional History of
the Internet Protocols 15
1. The pre-historic period:
1968-1972 16
2. Formalization Begins:
1972-1986 17
3. Further Formalization:
1986-1992 18
4. Institutionalization:
1992-1995 18
a. The Internet Society (ISOC) 19
b. The Internet Engineering Task Force (IETF) 19
(1) The IETF Secretariat 20
(2) The Internet Engineering Steering Group (IESG) 20
c. The Internet Architecture Board (IAB) 21
5. The Internet Standard
Creation Process Today (1996- 22
C. Force of Internet Standards 24
1. Conform or Else 24
2. Debate Over Whether an RFC is "Law" 25
D. De Facto Internet Standards Formed Outside
the RFC Process27
1. Market Induced Standardization 27
2. Peer Pressure 28
3. Delegation: the USENET Example 29
4. Mass Revenge/Vigilante Justice: The Usenet Spam Problem and its (Partial)
Solution 31
a. Great Spams 33
b. Responses to Usenet Spam 34
c. The Usenet Death Penalty 36
5. Responses to Email Spam 37
6. Coping With Growth: Will "Newbies" Undermine Existing De Facto Standards?
39
E. ICANN: the Creation of A New Governance Structure40
1. A Quick Technical Introduction to the DNS System 40
2. Enter ICANN 42
3. ICANN In Action 43
III. The Internet as a Case Study in Discourse Ethics 45
A. Internet Norms -- Discourse Ethics in Action?46
1. The IETF Standards Process 46
2. Informal Standards 49
3. ICANN 52
B. Counter: The IETF Standards Process is Too
Male and Monolingual to Be the "Best" Practical Discourse 52
C. Counter: It's Too Specialized to Matter53
1. It is "Technical" and
Thus Outside the "Public Sphere"? 54
2. Can It Be Generalized?
55
IV. Conclusion 57
In what has been called "a monumental achievement ... that provides a systematic account of major issues in contemporary jurisprudence, constitutional theory, political and social philosophy, and the theory of democracy,"(1) Jürgen Habermas has proposed a discourse ethics as the basis for legal institutions. In so doing, Habermas seeks to explain and identify morally valid law and legal institutions by relying on specialized forms of consent and reason. As a result of this dual foundation, Habermas's discourse theory is both a sociological theory of law and a philosophical theory of justice.(2) Attempting to bring moral philosophy into the realm of political science, Habermas seeks nothing less than to describe a system under which some moral choices, notably those about how society should be organized, can be said to be wrong, while others can be said to be right. In so doing, Habermas directly confronts the most difficult obstacles to moralizing about society: the fact/value distinction, false consciousness, and the injustices and imbalances caused by unequal distributions of power and knowledge. The outcome of this inquiry is of enormous relevance to the construction and legitimacy of the legal system.(3)
In the spirit of Habermas's project of linking sociological observation with legal philosophy, this article offers an account and analysis of the Internet standards process -- a complex non-governmental international rule-making discourse which appears to at least approximate and perhaps even validate the best practical discourse required to actualize Habermas's theory of law. One caveat bears emphasis from the outset: the process described in this Article is the one used to define the technical standards and basic parameters that allow the Internet to function. Thus, this article does not attempt to describe or characterize discourse on the Internet as a whole but only a much smaller, slightly more formalized, set of cooperative procedures that make the other Internet discourses possible. (4)
Part I outlines the portions of Habermas's theory of discourse ethics which are suitable for empirical testing, and situates these elements of Habermas's work in the larger context of critical theory.
Part II is a social and institutional history of the Internet standards process. In summary, it argues that:
The Internet is a complex, predominantly self-regulating, system. Although national governments and a few international agreements regulate certain aspects of the Internet, these regulations generally cover few of the technical standards and almost none of the social standards. Despite the general absence of applicable national or international law, the Internet is an orderly anarchy.
Decision-making concerning fundamental issues of Internet management (including both technical matters and issues of social propriety) is primarily by consensus. The processes of consensus formation and action based on consensus takes several forms, notably:
In light of the description provided in Part II, I argue in Part III that the core Internet standards-making institutions and process, the IETF, is an international phenomenon that conforms well to the discourse required to actualize Habermas's discourse ethics. I also suggest that the informal processes exhibit some of the attributes of the best practical discourse, but that the case for these processes is less clear.
In short, I assert that at least one part of the Internet standards process is a tolerably good existence proof of Habermas's theory of discourse ethics. In so doing, I am making a very limited claim. I am not asserting that discussion over the Internet as a whole in any way complies with Habermas's ideals, and indeed there is ample evidence in most discussion groups that it does not. Nor am I suggesting that computer-mediated communications are necessarily the harbinger of a new more democratic and legitimate regional, national or international town meeting although I suggest there are some signs that the public sphere can be reorganized with the right tools. Nor do I claim that the Internet standards process takes place in an "ideal knowledge state"; I claim only that it approaches very close to and may in fact be the "best practical discourse". And, as more fully described below, even if I am right about the legitimacy of the Internet standards process, I make only limited claims concerning the implications for other processes-- that they look bad in comparison, and that one argument for their legitimacy ("this may not be great, but it's the best we can do under the circumstances") is eroded. I do suggest, however, that if the Internet standards process has special legitimacy, then it follows that those special virtues are worth preserving, and that alternate governance models should be viewed with caution.
In another way, though, my claim may be less modest. So far as I am
aware, there has not to date been an existence proof of Habermasian discourse
ethics in action in an important contemporary rule-making process.(6)
Finding a real-life example of discourse ethics in action may serve to
disarm one oft-heard criticism of the Habermasian project. In so doing,
it may add weight to his explicit and implicit critique of existing institutions.
I. Habermas on Discourse Theory
"[I]t is no accident that legal philosophy, in search of contact with social reality, has migrated into the law schools."(7)
Jürgen Habermas has recently offered a discourse ethics, a reformulation of the philosophical foundations of legal and social organization. Given the breadth and complexity of Habermas's work, no short summary can do more than sketch the outlines of the relevant parts of his argument. This Part briefly situates Habermas's social theory in relation to modern movements in critical theory, sets out a summary of Habermas's suggestion that communicative action suffices to provide a grounding for a moral or ethical theory of society, and contrasts discourse ethics to earlier articulations of Habermas's theory, notably those which relied on an "ideal speech situation."
Two complementary ideas, one procedural the other ostensibly substantive, lie at the heart of Habermas's discourse ethics. Much like Kant, Habermas believes that rationality can be used to reason out truths about values. Also like Kant, Habermas believes that these truths transcend the individual, and that rational people can come to agree on them.(8) Therefore, consent sufficient to confer legitimacy upon a legal rule or institution occurs, ideally, as the result of a special type of discourse, one in which participants come together with commitment to jointly finding the best answer by means of rational argument; outcomes tainted by threats, force, coercion, trickery, or impairment of participants are not legitimate. But, even in the absence of adequate procedures, rules can be legitimate if they would have been adopted had the proper procedures been used.
A critical theory claims to be a special form of knowledge. It claims to provide a guide to human action, at least in some general (as opposed to strictly personal) areas such as the meaning of social justice and the correct regulation of human interactions,(9) by helping persons understand their true interests and by helping them escape from ideological coercion. Critical theories are "reflexive," a critical theory always includes an account of itself, of how the theory came to be.(10) A critical theory is an account of morality that is sensitive to the historically contingent nature of the culture that spawned it: by "adopting a hypothetical stance towards their own traditions and on this basis grasping their own cultural relativity" participants in the formation of a critical theory take a questioning stance towards their own practices while nonetheless not being morally paralyzed by relativism.(11)
Critical theorists believe that purely descriptive (positive) theories explain nothing, while all that scientific theories aim to do is allow the user to achieve short-term goals (i.e. to manipulate the world in some way). A reflexively consistent theory, it is argued, differs from a purely descriptive theory because it aims to increase understanding, to achieve moral enlightenment.(12)
An example may make this clearer. Consider the Ik:
[T]he Ik, who live in the border area between Uganda, Kenya and the Sudan are said to recognize a full stomach as the only good -- they routinely steal food from the very young, the old, and the infirm, leaving them to die -- and their chief joy in life seems to be Schadenfreude. The anthropologist who first described this tribe thinks that this value system is a response to a couple of generations of famine, but that the value system is now 'stable' and does not change even when the food supply improves, . . . "If they had been mean and greedy and selfish before with nothing to be mean and greedy and selfish over, now that they had something they really excelled themselves in what would be an insult to animals to call bestiality."(13)
Perhaps one would wish to convince the Ik that their way of life is not ideal, particularly if the food crisis that is thought to have formed their value system is now past. But a well-fed Ik is simply a stronger, nastier Ik. And no matter how well-informed the Ik become about facts, no matter how good the Ik descriptive theories, the Ik's values endure, even if the Ik somehow acquire an abstract, scientific understanding that their preferences are pathological. The case of the well-informed, or even perfectly-informed, Ik is akin to that of the unreformed alcoholic: the alcoholic may rationally apprehend that drinking is wrong, perhaps fatal, yet still chooses to drink.(14) Only if we are willing to make the claim that the Iks' preferences are somehow wrong, that their circumstances, their history, have rendered them unable to appreciate their true interests, can we justify overruling their value system.
Many people would be prepared to admit to a moral intuition that there is something wrong with the Ik. But post-Nietzscheian relativism makes this claim difficult to articulate in philosophical terms unless one is prepared to invoke a deity.(15) Habermas argues that flawed ideologies such as the Ik's can be criticized legitimately without making a purely moral judgment if one can devise an adequate self-reflexive critical theory. Such a theory contains an "ought" that the Ik could rationally be expected to respect(16) if they were able to participate in unfettered discourse because, like the Kantian theory from which it springs, a self-reflexive theory arises from the application of reason, logic, and especially self-reflection and historical understanding, rather than from a transcendent source.(17)
The hallmark of a self-reflexive theory is that it includes an account of itself, i.e. of its own origins and perhaps of why these origins entitle it to the peculiar status it claims. As examples of theories that asserted this property Habermas cited the perhaps unhappy examples of Marxism and psychoanalysis. Marxism purported to explain not only what form the revolution should take but why it would come at a particular moment in social history. Similarly, in the political or legal context a reflexively consistent theory will outline both a desired outcome and the circumstances that necessitate a change from whatever approach to moral or political issues is currently favored.
Unlike mainstream Marxists,(18) however, Habermas maintains that a self-reflexive theory is not scientific or predictive; a self-reflexive theory does not say that the Ik can or will be brought to see the pathology of their belief system through the action of some desired on inevitable social process. Rather, Habermas sees critical theory as being assertive and counter-factual, taking the form that if persons were sufficiently aware of their condition, both physical and cognitive, and if they were aware of the theory, then rationality would require that they adopt the conclusion suggested by the theory:(19) "It doesn't merely give information about how it would be rational for agents to act if they had certain interests; it claims to inform them about what interests it is rational for them to have."(20)
A theory that is self-reflexively consistent is, Habermas argues, one that moral actors would form if competent to do so. Originally, Habermas appeared to require a level of free discourse and a level of competence among participants -- sometimes called an "ideal speech situation" -- that appeared impossible to achieve in real life. An ideal speech situation would occur if the parties to the discourse were armed not only with an accurate descriptive theory (including a correct account of their history) but also with perfect knowledge of the sorts of preferences theoretically possible. In addition, the moral actors would need the reflective capacity to appreciate the causal relation between their current preferences -- their ideology -- and what they or their ancestors had experienced in the past. In this earlier version of discourse theory, the Ik would not only need to understand the benefits of, say, cooperation, but also have to understand that given different preferences they would be and feel better off than now.(21) This is more than the Ik, not to mention others closer to home, are likely to be capable of. As described in the next section, Habermas's more recent writings suggest that a democratic system can legitimately seek to aid the Ik, even against their will, by adhering to procedures that are just within the realm of the possible.
Habermas's critics have argued that the demanding discourse required to actualize discourse ethics is only an unrealizable, imaginative, counter-factual, construct. To the extent that in his earlier work Habermas may have relied upon an "ideal knowledge state," this criticism had more than a little justice.(22) But in his more recent work, particularly in Between Facts and Norms and The Theory of Communicative Action,(23) Habermas has provided an account of discourse ethics that does not rely upon an unrealizable ideal, although it does call for a far more demanding type of discourse than one commonly encounters in the political arena.
Habermas does not claim that the all problems of social organization always will be resolved simply by people sitting around in talking about them from the heart -- that would be silly and naive. Habermas recognizes that in real life much social interaction is "strategic," i.e. that people bring their personal agendas to many discourses, and seek to exercise their power and influence to achieve what they consider to be a personally advantageous results rather than approaching discourse in a selfless search for the true and the just. Strategic communication consists of making threats and promises in the hope of persuading others to do as one wishes, by the use of force or economic threat, rather than attempting to persuade others of the rational merits of one's cause.
The problem of strategic communication is compounded by the difficulties inherent in choosing the right strategy. Like all critical theories, Habermas's view is acutely sensitive to the problem of false consciousness. In Habermas's view, the essence of capitalism in a liberal democracy is the acceptance of strategic action using economic coercion. Thus, Habermas asserts that people do not necessarily have sufficient understanding of their own circumstances to figure out what is best for them, and might not recognize it if it was explained to them, and that the structure of liberal democratic capitalist regimes contributes to the problem just as much as other, less savory, social structures. It may be no exaggeration to suggest that Habermas's view of society leaves open the possibility that everyone in its is a victim of some degree of false consciousness(24) -- at some level we are all potentially as self-deceived as the Ik.
In the spirit of the Frankfurt school, some of Habermas's earlier work was directly concerned with the problem of "ideology critique," a form of social criticism designed to help reveal contradictions and injustice in the reigning ideologies and world views of liberal democracies, notably the problems of economic, legal, and ideological domination. Given that there is no single agreed fundamental justification for a community's values, Habermas showed how the existence of these problems and divisions makes society vulnerable to a "legitimation crisis" in which the fundamental justifications for the social order become more and more difficult to explain once the citizens start asking uncomfortable questions. The system may be efficient, but people are seriously uneasy about it: the "social solidarity preserved in legal structures" is, Habermas says, endangered and "in need of continual regeneration."(25) Citizens should be uncomfortable about the moral foundations of the social order since it is not based either on consensus or on a morally provable correct set of values.(26) To a great extent, law supplies a substitute for moral solidarity, since legal system both instructs and announces the behaviors that the community, or its representatives, have chosen to label as acceptable. Society requires a degree of order, yet in a democracy citizens seek a degree of personal autonomy which threatens to undermine that order; in the absence on the sort of discourse Habermas believes would produce a moral outcome, society substitutes a more limited, almost authoritarian, discourse in which power and law together shape the terms of debate for what is acceptable. "Legal norms... make possible highly artificial communities, associations of free and equal legal persons whose integration is based simultaneously on the threat of external sanctions and the supposition of a rationally motivated agreement."(27) As a practical matter, in modern liberal democracies law becomes accepted as legitimate when it provides least some private autonomy for individuals and sufficient autonomy for public institutions that citizens will be able to accept them as not being purely the product of self-interest and special-interests.
Given a world vulnerable to false consciousness, one in which potentially everyone is insufficiently informed to understand their true interests, how can a moral theory that depends on communication among rational parties hope to achieve an agreed outcome, much less a morally defensible one? Rawls imagined an "original position" in which people would not be blinded by where they sit. Although in his earlier work Habermas appeared to make a similar simplifying assumption -- that of an "ideal knowledge state," in his more recent work, notably The Theory of Communicative Action and Between Facts and Norms, Habermas now argues that no such assumption is necessary.
In his description of discourse ethics, Habermas now suggests that in order to decide how social interactions should be regulated, parties must adopt a perspective similar to a very limited form of Kant's categorical imperative, one of impartiality in the search for consensus as to what all could will.(28) In other words, the minimum that is required is a good-faith commitment to a communal, cooperative, and interactive search for truth and justice. This intermediate level of discourse, which Habermas calls the "discourse principle," lies somewhere between Kant's purely moral vision of ethical and rational obligation on the one hand, and civic republican accounts that emphasize civic virtue or shared traditions on the other hand. Habermas argues that this intermediate level of discourse is possible, and that it provides a true foundation for social decisions that are the product of a properly discursive decision-making procedure. It is as if a Kantian theory were married with a legal process theory: "[M]odernity, now aware of its contingencies, depends all the more on a procedural reason, that is, on a reason that puts itself on trial."(29) The attraction of this middle way is that rejects both the pure moralistic, seemingly impractical, formulations of Kantian philosophy while also rejecting the almost inhuman "autopoeitic" accounts drawn from systems theory and the purely procedural accounts offered by the Republican social political theories.
Habermas argues that the commitments required for the best practical discourse arise inevitably from a good-faith commitment to honest debate. Once parties undertake to debate with one another, non-strategically, they are embarked in a course that requires that all affected parties must deliberate together in a reasoned conversation that aims at reasoned agreement. This requirement, Habermas claims, arises from the requirements of reason and the cognitive requirements of language.(30)
Thus, Habermas argues that the decision to communicate carries with it four implicit assertions that are universally presupposed by anyone who honestly(31) seeks to communicate with another: (1) that the utterance is comprehensible, (2) that the utterance is true, (3) that the speaker is truthful, and (4) that the utterance is the right one for the situation.(32) These shared fundamental values, without which Habermas claims any real communication is not possible, suffice to create a foundation for an ethic of social interaction.
It follows from this that in discourse ethics the communications between parties do not have to be "ideal"; rather, the parties need only engage in a "practical discourse" that is as good as it can be. The parties have to understand the limited, contingent nature of any agreement they may reach so that they remain open to further improvements if these become possible.(33) The best practical discourse is achieved by coming as close as possible to an ideal where "(1) all voices in any way relevant get a hearing, (2) the best arguments available to us given our present state of knowledge are brought to bear, and (3) only the unforced force of the better argument determines the 'yes' and 'no' responses of the participants."(34)
Since discourse lies at the heart of Habermas's vision of collective truth-finding, Habermas's theory inevitably requires a fairly strong understanding of the community in which the discourse will take place.(35) If nothing else, members of the community must be able to communicate. Not only must they share a common language, but they must also share sufficient agreement about fundamental concepts that meaningful communication -- communication which is not completely undermined by misunderstanding -- is at least theoretically possible. Indeed, the mass of participants need to have some substantial familiarity with the other's worldview, or at least be able to reconstruct it mentally when needed:
In order to understand an utterance in the paradigm case of a speech act oriented to reaching understanding, the interpreter has to be familiar with the conditions of [an utterance's] validity; he has to know under what conditions the validity claim linked with it is acceptable, that is, would have to be acknowledged by a hearer. But where could the interpreter obtain this knowledge if not from the context ...? He can understand the meaning of communicative acts only because they are embedded in contexts of action oriented to reaching understanding...(36)
Habermas's theory would not apply to a completely formless society, or to an anarchy in which people not only lived separate lives, but were gripped by divergent aesthetics so alien to each other as to defy mutual comprehension. Total pluralism and pure procedural justice are ultimately incompatible.(37)
Given the "multiplicity of individual life projects and collective forms of life" the procedures of discourse required to achieve rational agreement are the only things capable of commanding universal assent.(38) To the criticism that some people may have no interest in achieving or participating in universal assent, and might instead prefer to agree to disagree, or just disagree entirely, Habermas responds that the objection misunderstands his point. It would be perfectly consistent with discourse ethics, for example, for a group to decide that it will decide disputed questions by majority vote, given the need to make decisions in real time, so long as the "decision [is] reached under discursive conditions that lend their results the presumption of rationality: the content of a decision reached in accordance with due procedure."(39) As for those, such as the Ik, who just wish to disagree, presumably they are invited to participate in the discourse, but if they persistently refuse the invitation, the discourse goes on as best it can without them, as it does without any those who consider themselves so superior to their neighbors that they are not worthy partners for debate.(40)
Can a theory which prides itself on releasing persons from all bondage be used to coerce the Ik? Can it legitimate the use of force against the IK? The answer is clearly "yes" although once one accepts that even a self-reflexive theory may not succeed in emancipating the Ik, one is reduced to making claims on the basis of what a consensus of other people in the relevant community believe would be the Iks' behalf. While this creates a danger of philosophical imperialism, the alternative is to give up in the face of evil; indeed, it would create additional incentives for strategic displays of greed and intransigence.
The substantive element to discourse theory addresses both the individual and the legal system.(41) At the individual level, it begins with a basic commitment to the fundamental moral equality, and equal moral worth, of all persons.(42) Citizens must acknowledge certain minimum universal rights if they wish to legitimately live together under the rule of law.(43) At the systemic level, a legitimate legal system must be made up of those rules that would have been enacted as a result of the best practical discourse.(44)
The two elements are intertwined; they have a reflexive relationship. If a social and legal system reproduces itself in a way that disables honest discourse among citizens, then it deserves to be criticized: it is not right, and potentially evil. The Ik value system is more than just repulsive to outsiders--it is substantively invalid in terms of discourse ethics because it prevents the Ik from engaging in the very discourse that might allow them to learn why they are making themselves so miserable. In contrast, a social system that encourages citizens to embark on the intellectual exercise of viewing life from the perspective of others, to try to walk in each others' shoes,(45) to respect each other enough to engage in honest discourse, and to recognize in each other sufficient basic rights so as to create sufficient autonomy to make the discourse possible, this society is on the path to legitimate lawmaking. Such a society enjoys a least a relative legitimacy,(46) even if the rules in place today are not yet (are not ever) the ones that discourse theory would demand.
Habermas's own discussion of a concrete political agenda includes recommendations for increased decentralization in order to allow pluralistic decision making. Decentralization also serves to counteract the generation of mass loyalty sought (and increasingly, he believes, achieved) by mass institutions such as political parties and states.(47) Under these conditions, Habermas seems to be suggesting, the best practical discourse cannot be achieved within society as a whole; sub-groups must break off to form smaller discourse communities, either to practice good discourse, or to create the conditions in which some day a coming together of many parts may produce a suitably discursive whole. "[T]he question remains of how, under the conditions of mass democracies constituted as social-welfare states, of discursive formation of opinion and will can be institutionalized in such a fashion that it becomes possible to bridge the gap between enlightened self-interest and orientation to the common good, between the roles of client and citizen."(48)
Ultimately, Habermas "locates rational collective will formation outside
formal organizations of every sort. ... [T]he variegated multiplicity of
spontaneously formed publics engaged in informal discussions of issues
of public interest [] is the core of the democratic public sphere."(49)
As Habermas puts it, "[d]iscourses do not govern. They generate a communicative
power that cannot take the place of administration but can only influence
it. This influence is limited to the procurement and withdrawal of legitimation."(50)
II. The Internet Standards Process: A Discourse About Discourse
The Internet can be seen as a giant electronic talkfest, a medium that is discourse mad. Thanks to the significant hardware and software that makes it possible, for most users the Internet is the exchange of information, i.e. discourse itself. In contrast, the Internet standards processes discussed in this section are not, in most cases, part of the ordinary Internet discourse -- rather than being about politics, art, or commerce, the Internet standards processes are the discourses that set the terms for all other Internet-based discourses. Standards processes literally are a discourse about the conditions for other discourses.
Ideally, the best practical discourse would encompass all those affected by the outcome.(51) The Internet standards process does not involve every potential user of the Internet, nor even everyone who uses the Internet. It is, however, potentially open to all, although in practical terms only those who use the Internet would find it easy to participate. Before discussing the ways in which the standards process fits Habermas's discourse ethics, it is necessary to understand a little about the Internet and the technical standards that make it possible.
The Internet is not one thing; it is the interconnection of many things -- the (potential) interconnection between any of millions of computers located around the world.(52) Each of these computers is independently managed by persons who have chosen to adhere to common communications standards, particularly a fundamental standard known as TCP/IP(53), that makes it practical for any computer adhering to the standard to share data with any of the others even if the two computers are far apart and have no direct line of communication. There is no single program one uses to gain access to the Internet; instead there is a plethora of programs that adhere to the "Internet protocols". A computer connected to the Internet may have any number of users, all of whom may have any of widely varying levels of access to other computers in the network.(54)
The TCP/IP standard makes the Internet possible. Its most important feature is that it defines a packet switching network, a method by which data can be broken up into standardized packets which are then routed to their destination via an indeterminate number of intermediaries.(55) Thus, two parties do not need to be in direct contact to communicate. Under TCP/IP, as each intermediary receives data intended for a party further away, the data is forwarded along whatever route seems most convenient at the nanosecond the data arrives.(56) Neither sender nor receiver need know or care about the route that their data will take, and there is no particular reason to expect that data will follow the same route twice.(57) It is likely that multiple packets originating from a single long data stream will use more than one route to reach a far destination where they will be reassembled. This decentralized, anarchic, method of sending information appealed to the Internet's early sponsors, the U.S. Defense Department, who were intrigued by a communications network that could continue to function even if a major catastrophe (such as a nuclear war) destroyed a large fraction of the system.(58) This built-in resilience to even major obstacles to communication is the primary reason that any effort to censor the Internet is likely to fail. As John Gilmore put it, "the Net interprets censorship as damage and routes around it."(59)
The prevalence of TCP/IP enables the functions that have come to be identified with the Internet, notably: electronic mail (e-mail), USENET, the World-Wide Web (Web), a common file transfer protocol (FTP), Gopher, the Wide Area Information Server (WAIS), Internet Relay Chat (IRC), Multiple User Dungeons/Domains (MUDs) and Mud Object Oriented (MOOs), to name only the most commonly used functions. A user who has access to one of these functions does not necessarily have access to others, because the user's level of access is determined by the type of computer available, the capacity of the Internet connection, the cost of access, the software available, and the policy of the person or organization operating that computer. In some places, national governments impose additional constraints on Internet connectivity. Today it is still possible for a government to restrict access to the Internet; once a person is connected, however, it is currently beyond the power of any government to limit what is accessible via the Internet.(60)
In 1983, there were perhaps 200 computers on the precursor of the modern Internet, the ARPANET. As of January 1993, there were more than 1.3 million computers with a regular connection to the system. In 1995, there were perhaps 5 million Internet hosts,(61) with a large fraction located outside the United States.(62) There were only a handful of networks in 1983;(63) a 1993 estimate suggested that the Internet connected to approximately 50,000 networks and 30 million users. Current estimates (July 1999) put the number of computers directly connected to the Internet at over 56 million;(64) each host can of course serve multiple users and often does. At this rate of growth, the Internet cannot help but reach far into the general population of industrialized countries. Indeed, within a year or two there may be as many as one billion people with some sort of Internet access.(65)
In the earliest days of the Internet and its predecessors, almost everyone who used the network was either involved in building it or worked for an organization that had a role in its creation. As the network grew, it reached larger and larger circles of people -- first computer scientists, then academics and graduate students in major universities, and then others as well.
The two most successful Internet applications have been e-mail and the World-Wide Web (Web). Approximately 1.25 billion e-mail messages were be sent in 1995.(66) The Web is an Internet client-server, hypertext, distributed information retrieval system.(67) Within two years of its introduction to the public in 1991, the share of Web traffic traversing the NSFNET Internet backbone reached 75 gigabytes per month or one percent of the total. By July 1994, it was one terrabyte per month,(68) and a recent estimate puts it at [] percent of the total Internet traffic.(69) Web browsing programs such as Internet Explorer, Netscape or Opera run on the user's computer and allow the user to navigate the Web in hypertext. Hypertext links inserted by document authors refer the reader to other documents by their Uniform Resource Locators (URLs). A mouse click on a link refers the user to remote documents, images, sounds or even movies that have been made Internet-accessible by their owners.(70)
2. Interconnection of Other Networks
Today's Internet is an amalgam of many networks. In addition to the ARPANET, two other early networking projects, BITNET(71) and CSNET(72), were influential. In 1987 BITNET and CSNET merged to form the Corporation for Research and Educational Networking (CREN).(73) These networks have been joined by increasing numbers of commercial and nonprofit information service providers who also have chosen to connect to the Internet, including Dow Jones, Telebase, Dialog, CARL, the National Library of Medicine, and RLIN.(74) The relationship between the Internet and commercial consumer information providers such as America On Line (AOL) exemplifies this convergence. At their inception these services provided no Internet connectivity. They then began to offer limited gateways for the exchange of electronic mail. Now they have expanded their gateways to allow their users to gain access to the Web, and most other Internet services.
The increasing internationalization and commercialization(75) of the Internet, as well as the simple increase in number of users, creates new constituencies. What had once been the preserve of computer science and electrical engineering departments, of computer nerds, now raises legal, social and commercial policy questions ranging from pricing to privacy.(76) The traditional policies and mores of the Internet risk becoming victims of their success. Fortunately, these policies and mores have considerable resilience due in large part to the way that they have evolved.
B. A Short Social and Institutional History of the Internet Protocols
As the Internet rests on the use of particular protocols, the history of the Internet begins with the story of how those protocols came into being. The negotiated consent procedure used to decide on those early protocols became the template for subsequent decisionmaking on technical standards; the procedure has also had some effect on the means by which social norms are created in virtual communities.
1. The pre-historic period: 1968-1972
In 1968, the Advanced Research Projects Agency (ARPA)(77) expressed interest in a packet-switching network. That summer, the four existing ARPA computer science contractors (UCLA, SRI, UCSB and The University of Utah), met to discuss what this network might look like.(78) Although they came up with more questions than answers, "we did come to one conclusion: We ought to meet again. Over the next several months, we managed to parlay that idea into a series of exchange meetings at each of our sites, thereby setting the most important precedent in protocol design" -- that of a nomadic, collegial, open and consensus-based process.(79)
Most of the attendees at the early "Network Working Group" meetings were graduate students at UCLA and the University of Utah. In the words of a founder-member, "we expected that a professional crew would show up eventually to take over the problems we were dealing with."(80) Instead, the initial group of six people found themselves in charge by default.(81) By March 1969, the de facto design team concluded that it would have to begin documenting its work, if only to protect its members from recriminations later.(82) The Network Working Group issued its first documentation in April 1969.(83) Steven Crocker, the author of the first standards document, entitled it a "Request for Comments" (RFC), because "we were just graduate students at the time and so had no authority. So we had to find a way to document what we were doing without acting like we were imposing anything on anyone."(84) Crocker later recalled that,
I remember having great fear that we would offend whomever the official protocol designers were, and I spent a sleepless night composing humble words for our notes. The basic ground rules were that anyone could say anything and that nothing was official. And to emphasize the point, I labeled the notes "Request for Comments."(85)
Originally, RFCs were working documents to be used within a small community.(86) They included everything from careful papers to notes of a discussion held between two people.(87) "If a protocol seemed interesting, someone implemented it and if the implementation was useful, it was copied to similar systems on the net."(88)
As the network protocol and hardware began to function, and the number of linked machines on what came to be known as the ARPANET grew to double-digits,(89) attendance at Network Working Group meetings grew to as many as 100 per session. With the increasing number of participants, RFCs proliferated. RFC 1 issued in April 1969; RFC 50 issued one year later, in April, 1970; RFC 100 issued ten months after that, in February, 1971; the next year and a half saw another 50% increase in the rate of production, with RFC 400 issued in October 1972.(90)
2. Formalization Begins: 1972-1986
The informal Network Working Group formally became the International Network Working Group (INWG) at the October 1972 International Conference on Computer Communications in Washington D.C. Vinton Cerf, one of the original graduate students, organized and chaired INWG for the first four years.(91) Meanwhile, work on the TCP protocol continued. Concurrent implementations occurred at two sites in the U.S. and at University College London.(92)
In 1973, the U.S. Defense Advanced Research Projects Agency (DARPA) initiated the "Internetting project" which would lead to the creation of the modern Internet.(93) In July 1975, the ARPANET was transferred by DARPA to the Defense Communications Agency (now the Defense Information Systems Agency) as an operational network.(94) In 1979, Cerf, who had become the DARPA program manager for the Internet project, established the Internet Configuration Control Board (ICCB) as an informal committee to advise DARPA, and to guide the technical evolution of the protocol suite.(95) In recognition of the important role played by the government in funding and managing the ARPANET, the government had ex officio seats on the IAB, with Cerf holding the DARPA seat. The ICCB set the basic structure for everything that was to follow.(96) Although the ICCB had a U.S. focus, dictated in part by the funding of the ARPANET, this was partly offset by the parallel foundation of the International Collaboration Board (ICB) which served European and Canadian interests, notably issues arising from the Atlantic Packet Satellite Network (SATNET), which included Norway, the United Kingdom, Italy and Germany. The ICB also addressed requirements of transatlantic and NATO use of the Internet protocols.(97)
In 1983, Cerf's successor at DARPA reorganized the ICCB into several task forces and dubbed the reorganized group the Internet Activities Board (IAB).(98) Like its predecessors, the IAB was a small, self-selected, self-perpetuating body. Also like its predecessors, the IAB was a very open organization from its inception. It publicized its meetings, published its minutes, welcomed standardization proposals from anyone with the time and energy to make them, created informal task forces open to all comers that developed new draft standards, and subjected all proposed standards to public comment before adopting them. But the IAB itself remained something of a small, private, highly meritocratic, club which could do what it liked, subject to the very real constraint of peer review and the need to conform at least loosely to its federal paymaster's needs. Indeed, a representative from DARPA had one IAB seat ex officio.
3. Further Formalization: 1986-1992
The public's role in Internet standard setting was formalized in 1986, when the IAB created the Internet Engineering Task Force (IETF). Although the IAB also created several other task forces at the same time,(99) the IETF was special as it was asked to take over "the general responsibility for making the Internet work and for the resolution of all short- and mid-range protocol and architectural issues required to make the Internet function effectively."(100) In so doing, the IAB divested itself of the main part of the standard-creation work, and relegated itself to making the final decisions in a supervisory, appellate and management role. The IETF became the main forum in which the technical standards were proposed, tested, and debated.(101)
In 1989, the IAB, which until that time oversaw many "task forces," changed its structure to leave only a (somewhat changed) IETF and the IRTF.(102) Meanwhile, the ARPANET formally died in 1989, but no one noticed, as its functions were already being performed by the Internet.(103)
As the Internet became increasingly large and international, the IAB explored the possibility of associating with an existing standards body, but was unable to come to an arrangement it found satisfactory.(104) Matters were further complicated by a dispute with the International Standards Organization (ISO), the voluntary, nontreaty, umbrella body for international standards in computers and telecommunications. ISO refused to accept TCP/IP as an ISO standard, preferring a competing system called Open Systems Interconnection.
4. Institutionalization: 1992-1995
The Internet standard-setting process continued to evolved from its origins when a few graduate students anxiously wrote up their notes in 1970. As it grew, however, it continued to permit unlimited grassroots participation in the detail work of creating and debating standards through the IETF. The unlimited grassroots participation is the work of the IETF, and the relatively large, open agenda-setting was balanced by allowing specialist groups such as the IAB to retain a veto power over proposed standards. The IAB also retained considerable control over the terms of reference given to the almost ad hoc task forces who create them. Where once the IAB had been entirely self-selected and unaccountable, other than through peer review and the marketplace, now the IAB acquired some quasi-democratic legitimacy since its members were selected by the IETF and the Internet Society. Anyone could become a full member of the IETF by attending two meetings, and ISOC was open to anyone willing and able to join for a small annual fee.
a. The Internet Society (ISOC)
The Internet Society (ISOC) was founded in January 1992 as an independent, international "professional society that is concerned with the growth and evolution of the worldwide Internet, with the way in which the Internet is and can be used, and with the social, political, and technical issues which arise as a result."(105) Vinton Cerf became the first president of the ISOC, established as a non-profit organization incorporated in Washington, D.C.(106)
The ISOC Board of Trustees must approve all nominations to the IAB.
b. The Internet Engineering Task Force (IETF)
The IETF plays a crucial role in the standard-setting process.(107) In particular, the IETF does most of the actual day-to-day work of standard writing, and randomly selected members of the IETF control the nominations to the IAB, the body that oversees the process.(108) The IETF has no general membership; instead, it is made up of volunteers, many of whom attend the IETF's triennial meetings. Meetings are open to all; similarly, anyone connected to the Internet can join the e-mail mailing list in which potential standards are discussed.(109) Although the IETF plays a role in the selection of the IAB, it is not part of or subject to the IAB or the ISOC. Indeed it is not entirely clear to the membership who if anyone "owns" the IETF, or for that matter who is liable if it is sued.(110)
The IETF's meetings attract increasing numbers of attendees. Where once they were small, during this period they grew to upward of 700 attendees, with many others participating in the standards process entirely by e-mail.(111) Approximately one-third of the attendees at each meeting were attending for the first time.(112) Then and now, everyone who attends a meeting has an equal right to participate. The flavor of IETF meetings in this period can perhaps best be explained by quoting the "Dress Code" for attendees:
Since attendees must wear their name tags, they must also wear shirts or blouses. Pants or skirts are also highly recommended. Seriously though, many newcomers are often embarrassed when they show up Monday morning in suits, to discover that everybody else is wearing t-shirts, jeans (shorts, if weather permits) and sandals. There are those in the IETF who refuse to wear anything other than suits. Fortunately, they are well known (for other reasons) so they are forgiven this particular idiosyncrasy. The general rule is "dress for the weather" (unless you plan to work so hard that you won't go outside, in which case, "dress for comfort" is the rule!).(113)
The IETF is divided into several areas of specialization, with an area chairman who supervises work in that area (and has a virtual veto on the creation of new projects in that area). Each area is further subdivided into several working groups. A working group is a group of people who work under a charter to achieve a goal such as the creation of an informational document or the creation of a protocol specification. Working groups ordinarily have a finite lifetime and are expected to disband once they achieve their goal.(114) As in the IETF, there is no official membership for a working group. In practice, a working group member is anyone on the working group's e-mail list.(115)
The IETF has two bureaucratic elements that ensure its continued existence and cohesion. (1) The IETF Secretariat
The IETF Secretariat organizes the triennial meetings and provides institutional continuity between meetings, e.g. by maintaining a Web site. The Secretariat is administered by the Corporation for National Research Initiatives, with funding from U.S. government agencies and the Internet Society. The Secretariat also maintains the on-line Internet Repository, a set of IETF documents.(116)
(2) The Internet Engineering Steering Group (IESG)
The Internet Engineering Steering Group (IESG) effectively controls the progression of standards towards final acceptance. In particular, the IESG controls whether a proposed standard can be promoted to draft standard status and then to final approval. IESG custom requires that the proposed standard have been implemented in at least two functioning products to be promoted to Draft Standard status.(117) Appeals from IESG decisions go to the IAB.(118) The IAB chooses the IESG from nominations made by a nominating committee drawn from the IETF. The IETF chair is also the chair of the IESG. The IAB can overrule decisions made by the IESG.(119)
c. The Internet Architecture Board (IAB)
In 1992, the Internet Activities Board (as it then was) failed to approve a recommendation from the IESG(120) regarding the IP protocol's management of the rapidly increasing number of computer addresses on the Internet. The IESG's recommendations were based on the prior work of an IETF task force, but the IAB felt that the solution failed to address long-term issues. The IAB thus returned the proposal with questions for further discussion. This set off a firestorm of criticism of the IAB as unrepresentative and undemocratic and threw into question the legitimacy of the IAB.(121)
Ironically, at about the same time as the IAB was making its controversial decision, the IAB agreed to become a subsidiary of the ISOC with responsibility for "...oversight of the architecture of the worldwide multi-protocol Internet" including continued standards and publication efforts.(122) During INET92 in Kobe, Japan, the ISOC Trustees approved a new charter for the IAB to reflect the proposed relationship.(123) As part of the move, the IAB changed its name to the Internet Architecture Board to reflect the final separation of the IAB from direct participation in the operational activities of the Internet.(124) The IAB thus became a technical advisory group of the ISOC responsible for providing oversight of the architecture of the Internet and its protocols, although the membership of the IAB remained unchanged.
Nevertheless, controversy over the IAB's decision and powers continued. In particular, members of the Internet community objected to the self-perpetuating nature of the IAB, the potentially unlimited terms granted to members, and its vague and general powers over Internet Standards.(125) As a result of these complaints, Internet Society President Vinton Cerf called for the formation of a working group to examine the IAB function procedures. Cerf asked Steve Crocker, the author of the first RFC,(126) to chair a working group charged with making curative proposals.(127) As the committee itself recognized, it was easy to say that the IAB should represent the consensus choice of the participants in the IETF, but that body's very openness made the idea of polling the membership problematic:
[T]here was a strong feeling in the community that the IAB and IESG members should be selected with the consensus of the community. A natural mechanism for doing this is through formal voting. However, a formal voting process requires formal delineation of who's enfranchised. One of the strengths of the IETF is there isn't any formal membership requirement, nor is there a tradition of decision through votes. Decisions are generally reached by consensus with mediation by leaders when necessary.(128)
Traditional voting works badly as a means of making representative decisions if the potential electorate is in constant flux and is open to all comers.
The working group returned with consensus recommendations that worked a radical change in the selection of the IAB. Instead of the previous, somewhat clubby, system, the committee recommended opening up the process. These recommendations were adopted, and as a result the IAB's charter was revised again. There are now 13 voting members, composed of the IETF chair and 12 full members who each serve for a term of two years. There are no term limits. Six IAB members are selected each year by the ISOC Board of Trustees from a list of nominees prepared by a nominating committee of the IETF.(129)
The IETF nomination process relies on volunteerism and randomness to achieve a fair result.(130) The nomination committee is formed annually and consists of a non-voting chair designated by the ISOC and seven members picked at random from a pool of volunteers. Any person who took part in two IETF meetings in the last two years may volunteer for this pool.(131) The nominating committee must put forward at least one name for each opening, but may forward more than one name per opening if it wishes. The ISOC Trustees then select the new members from among the nominees.(132)
The IAB has a recursive relationship with the IETF. IETF members nominate the IAB; in turn the IAB appoints a new IETF chair and all other IESG candidates from a list provided by the IETF nominating committee.(133) The IAB is also the body that hears appeals from decisions of the IESG regarding Internet standards, and the body with ultimate control over the RFC creation process.
5. The Internet Standard Creation Process Today (1996-
The Requests for Comments series remains the heart of the Internet Standards process.(134) (It bears emphasis that not all RFCs are Internet Standards, but all Internet Standards are RFCs.) New Internet Standards begin with a Proposed Standard, which can originate from anyone. The IESG then writes a charter for an IETF working group and assigns a working group chair. The working group works via e-mail and at IETF meetings.
Once approved by the IETF and the IESG as a worthy subject for discussion, a proposed standard is then discussed in the IETF working group. IETF working groups reach decisions by negotiated consent -- the working group is expected to reach a "'rough' consensus about decisions." This means something less than full unanimity, but more than a simple majority of those present; voting is discouraged in favor of finding a way to agree on what was the dominant opinion of those attending the meeting. Working groups have no formal membership and hence no voting. Parties who believe that their voices were unjustly ignored must either live with that result or appeal it to IETF leaders, the IESG, and ultimately to the IAB.(135) Once the working group has a "rough consensus," it submits its work to the IESG for public review and ultimate approval as a Draft Standard.(136)
A Proposed Standard can usually become a Draft Standard when there exist "at least two independent implementations which have interoperated to test all functions, and the specification has been a Proposed Standard for at least six months."(137) The (informal) requirement that there be at least two products using the standard is important. It means that no completely proprietary standard can ever become an Internet Standard. If a company wishes to retain full control over a patented technology, for example, it is free to do so, but its product cannot become an Internet Standard, although it can be "incorporated by reference" into a standard if the proprietors agree to give licenses to the technology on "specified, reasonable, non-discriminatory terms."(138)
When a Draft Standard has demonstrated its worth in the field and at least four more months have passed it can become a full Internet Standard and be published as an RFC.(139)
Nevertheless, as the IETF continues to grow, the Internet Standard process is showing signs of strain. Attendance at the most recent IETF meeting well exceeded 2,000,(140) with some reports suggesting double that number. The increased attendance at IETF meetings means that informal relationships among participants are more difficult because personal and professional familiarity declines. Decisions regarding standards now have important financial consequences for would-be providers of Internet hardware and software, and tempers can flare when tens of millions of dollars are at stake.(141) Furthermore, "[w]hile more people are participating, the number of senior, experienced contributors has not risen proportionately. ... Without [their] guidance, working groups run the serious risk of hav[ing] good consensus about a bad design."(142)
IETF veterans are concerned about these problems. They have reacted to them by treating them as if they were an Internet Standards problem. As with any technical problem, they are discussing it, writing papers about it, and trying to design systems that are participatory and fault-tolerant. Changes are proposed in incremental steps, and everyone understands that if a design fails in the field it will have to be replaced.(143)
C. Force of Internet Standards
From 1973 until the late 1980s, the U.S. government provided a significant share of the funding for the Internet through the National Science Foundation, the Defense Department, the Department of Energy and other departments. This gave the U.S. government considerable control over the network, although this control shrank as the network became larger, more international, and increasingly capable of carrying large amounts of traffic over private (non-governmental) connections.
From the early 1970s, software applications were being developed to take advantage of the emerging TCP/IP protocols. In order to test these applications against the moving target presented by the ever-evolving TCP/IP, the architects of the new network engaged in a series of "Bake Offs". The Bake Off principle was simple: all applications competing in a Bake Off would "shoot kamikaze packets at each other" and see if the recipient crashed.(144) Winner/survivors would be hailed as conforming to the standard and fit for use.
The initial TCP suite was completed in 1978. In 1982, the ARPANET's administrators decided to convert the network to TCP/IP. The network administrators were concerned that users would not take the trouble to change from the previous protocol, called Network Control Protocol (NCP). In order to signal that the move was imminent, the network managers programmed the computers that formed the "backbone"(145) of the ARPANET to reject all data transmitted under the old protocols for a day. Even this failed to convince some users, so the ARPANET administrators repeated the demonstration for a two day period. On January 1, 1983, the NCP was turned off permanently, forcing all network users to use TCP/IP or lose their connectivity.(146)
A similar, if less dramatic, fate awaits those who stray from the Internet Protocols today. Unless they persuade others to switch also, there will simply be no one on the other end of the line. It is of course possible to build a parallel network that is not part of the Internet. The French Minitel system, for example, has almost no Internet connectivity; whether the French now perceive this as an advantage is open to doubt. A better example of a parallel network is the "Intelink," created by the U.S. intelligence community to serve as a secure alternative network for communications too important to be entrusted to the Internet.(147) Similarly, on-line services such as AOL and CompuServe began as autonomous networks; the competitive trend, however, seems to be to link these services to the Internet as quickly as possible.
2. Debate Over Whether an RFC is "Law"
RFC 1602, issued in March 1994 (and later obsoleted in October 1996(148)) , described the Internet Standards Process. Unlike some of the RFC's produced in accordance with its dictates, RFC 1602 was not an "Internet Standard" but merely purports to be an "informational" document.(149) The IETF/IAB/ISOC standard-making structure had been designed with technical standards in mind; there was no agreed procedure for defining formal social standards with the same formality as the technical ones. Nevertheless, RFC 1602 was a critical document. It did more than codify prior practices, it changed them.(150) Unlike most RFCs, which are authored by one or two people, RFC 1602 had institutional authors, the IAB and the IESG themselves. This was enormously significant, as it signaled to authors of future standards documents that any would-be standard not prepared in accordance with RFC 1602's dictates could expect to face difficulties winning the IAB and IESG approval that every Internet Standard requires.
RFC 1602 stated that proprietary specifications could only be incorporated into the Internet standards process if the owner made the specification available on-line and granted the ISOC a no-cost license to use the technology or works in its standards work. The owner also had to promise that "upon adoption and during maintenance of an Internet Standard, any party will be able to obtain the right to implement and use the technology or works under specified, reasonable, non-discriminatory terms."(151) Worst of all from the point of view of a corporation considering the donation of a technology, RFC 1602 required that the donor warrant to the ISOC that the donated technology "does not violate the rights of others."(152)
Understandably, even corporations willing to promise to give the required licenses were hesitant to provide a warranty against all patent infringement claims, especially those that might be unknown at the time of the donation. Some corporations were also unwilling to promise to provide licenses on "specified, reasonable, non-discriminatory terms" and sought to limit their promise to "reasonable" terms. Alas for them, RFC 1602 created no mechanisms for exceptions or alterations to its relatively onerous intellectual property provisions.(153) Indeed, it was unclear who, if anyone, would be authorized to negotiate with a potential donor as to its representations, since the donation of the rights was to the ISOC, but it was the IETF that did (and does) the work of defining the draft standard -- a process which by the terms of RFC 1602 seemed unable to go forward before the legalities were sorted out.
The intellectual property provisions of RFC 1602 caused controversy. As a result, members of the IETF and the IAB reconsidered the status of "informational" documents that, in practice, seem to have as much force as a technical standard, and began a debate about whether "informational" RFCs are "law". Inability to decide these questions paralyzed at least one IETF working group for months. The group's inability to complete its work culminated in an appeal to the IAB, which debated the issue in April 1995. The IAB's minutes suggest that IAB itself was divided as to the legal and moral status of RFC 1602. Some called it a rule, others a documentation of current practice. One attendee argued that the IETF "is supreme and can change things whenever it wants. What is the status of RFC 1602--is it the law?"(154) After much debate, the IAB concluded that "If RFC 1602 is the law, it is broken." The IAB also noted that,
Another cause for confusion is that RFC 1602 is "only" informational. (It is hard to imagine that RFC 1602 should appear on the standards track, since it describes processes, not protocols.) Perhaps we need a "Process" series of documents that includes an extended last call process like a standard but not the various levels, the requirement for interoperating implementations, etc. The series might also include a (standard) escape route for quickly changing the process when it is found to be broken.(155)
The IAB thus issued a public statement a few days later that, "RFC 1602, which defines how the IETF/IESG should operate, has a procedure for adopting external technologies which is unimplementable. ... The IAB supports ... revisions to RFC 1602 which would: (a) designate an owner of the intellectual property rights process; (b) specify a procedure to negotiate variations."(156) Of course, the only body that can initiate revisions to RFC 1602 is the IETF.
Subsequently, the IETF revised its policy on intellectual property rights. On the vexed question of patents, the new policy states that the IETF Executive Director "shall attempt to obtain" an agreement that anyone will be able to implement, use and distribute conforming products "under openly specified, reasonable, non-discriminatory terms" from a person known to claim intellectual property rights that would be required to implement a proposed Internet standard.(157) This, so far, echoes the earlier rule. If, however, the rights holder fails to make this promise,
The results of this procedure shall not affect advancement of a specification along the standards track, except that the IESG may defer approval where a delay may facilitate the obtaining of such assurances. The results will, however, be recorded by the IETF Executive Director, and made available. The IESG may also direct that a summary of the results be included in any RFC published containing the specification.(158)
Thus, in the new regime, unlike RFC 1602, a standard can go forward with proprietary specifications if there is no alternative. Furthermore, the revised rule makes clear that no one is expected to make warranties about patent infringement claims by third parties.
D. De Facto Internet Standards Formed Outside the RFC Process
TCP/IP and the other Internet Standards do not define what software or hardware should look like nor, save in the most general terms, what those tools should do. The standards set out in the RFCs only define how those various tools should communicate with each other. And, of course, the Internet Standards are silent on what users should do with their tools. Informal, but powerful, standards have evolved parallel to the more formal standards process and have created norms regarding which tools are preferred and what is acceptable use of certain Internet applications. The following sections give three examples of the varying means in which these standards take shape.
1. Market Induced Standardization
Market pressures create de facto standards. This is not just an Internet phenomenon, as anyone who owned a BetaMax can testify.(159) The computer industry, and the Internet in particular, are ruthlessly competitive markets. Information propagates quickly on the Internet; if someone learns of a superior product, or of a defect in a new product, this information can be shared with interested parties via newsgroups and mailing lists. Furthermore, if the product is freeware(160) or shareware(161) the Internet itself can be used to distribute it.
Products judged to be superior can quickly establish themselves as a standard, as the experience of programs such as Pretty Good Privacy (PGP)(162), PKZip,(163) and Netscape Navigator demonstrate. Netscape Navigator, a product of the Netscape Communications Corporation, provides a particularly good example because it caught on so quickly. Netscape Navigator is a graphical browser for the World-Wide Web, that is a program that lets users read "pages" created by others and stored on their computers. The company gave away millions of copies of version 1.0 to anyone who wanted it.(164) Netscape Communications Corporation hoped, perhaps vainly, to make its profits offering support to users who wanted more help than the documentation provided, and especially in selling server versions of the software to companies that wanted to establish Web pages of their own. The response by the Microsoft Corporation to the specter of a standard being dictated by a commercial rival is already legendary.(165)
Once a product becomes a de facto standard, it is tremendously difficult to dislodge.(166) Most experts seemed to agree that if one were starting from a clean stlate, IBM's OS2/Warp was technologically superior to Microsoft's Windows;(167) but OS2/Warp never managed to compete seriously with Windows.(168) As a result, far more consumer and business PC software was written for Windows than for OS2, further entrenching Windows's domination of the marketplace.
Some de facto Internet standards are set by a combination of peer pressure and socialization. The main channels by which this is communicated other than one-to-one education is through electronic documents, often entitled "FAQs" for (answers to) Frequently Asked Questions. These documents, prepared by self-selected volunteers, attempt to distill some Internet wisdom, or Internet norms, for newcomers.
Two types of documents deserve mention. While most FAQs are identified with a particular topic, newsgroup or mailing list (e.g. the alt.fan.dan-quale FAQ, or the net.loons FAQ), there are also meta-FAQs about how to behave on the Internet. Many of these attempt to set out the basic rules of conduct that have come to be called "netiquette." Basic rules of netiquette include asking permission before forwarding a private message, respecting copyrights, reading the FAQ before asking silly questions, and remembering not to send messages in all capital letters except for emphasis.
A FAQ is typically the work of one person, or a small committee, who self-selects. More recently there have been attempts to codify and propagate basic ideas of netiquette in a more organized way, through the RFC process and under the offices of the various Internet institutions such as the ISOC. For example, an IETF working group produced an RFC describing "a minimum set of guidelines for Network Etiquette (Netiquette)."(169) The RFC contains guidelines for e-mail Internet talk,(170) mailing lists, Usenet and other Internet applications. The basic suggestions are not controversial. For example, the e-mail section directs that one should "[n]ever send chain letters on the Internet", the Internet talk section cautions "that talk is an interruption to the other person", and the mailing list and Usenet sections note that "a large audience will see your posts. That may include your present or your next boss."(171)
3. Delegation: the USENET Example
USENET, known to many of its users as "news" or "netnews", is a distributed bulletin board system. A bulletin board system is a means of communication by which users leave messages for anyone else to read. Subsequent readers can reply, leading to dialog, discourse, or cacophony as the case may be. (Imagine an infinitely long chalkboard, nearly indelible chalk, a prominent location, and a sign that says, "any comments?") A computer bulletin board often resides on one computer; users wishing to participate in its discussions must establish contact directly with that machine. A distributed bulletin board system is a bulletin board that is replicated on many computers.
Technically, Usenet is a separate network from the Internet: not all Internet capable computers subscribe to Usenet, and not all Usenet hosts are on the Internet, although the overlap is large and growing. Usenet has been called "the largest decentralized information utility in existence."(172) Usenet is divided into thousands of "newsgroups," each effectively its own specialized bulletin board. Newsgroups are organized in a topical and alphabetical hierarchy, each with an independent name such as misc.legal, rec.pets.cats, or comp.risks.(173) Topics include social, cultural, and hobbyist information as well as newsgroups devoted to the sciences and arts. As one might expect, there is a newsgroup for practically every software and hardware product in widespread use, and a newsgroup exists for almost every social, sexual, political, and recreational practice.
Usenet operates on a very different technical principle from the Web. On the Web, information resides on one host computer and users instruct their clients to retrieve a copy when they wish to view it. On Usenet, messages "posted" by a user are directed to an existing newsgroup. The message is then circulated to every participating machine that carries that newsgroup,(174) to be held there for the convenience of local users. Messages do not necessarily travel quickly; delays of a day or more for a message to travel a long distance via many intermediaries are infrequent but not unheard of. Since the full Usenet feed now (Nov. 1999) exceeds sixty gigabytes a day,(175) a full Usenet feed imposes significant storage costs on host machines, particularly since it is common practice to archive groups for a week to a month in order to accommodate users who do not check news every day. Many sites therefore do not carry every group.
The administration of each site (computer or LAN) that participates in Usenet is free to carry as few or as many groups as it wishes. Since a newsgroup concerned with any but the most parochial topic needs wide propagation in order to function effectively, the smooth functioning of Usenet depends on the ability of the operators to come to some agreement as to which groups to carry, and what those groups should be called. The coordination problem is particularly acute because the various system administrators have essentially no contact with each other, and usually feel that they have better things to do with their time than to worry about whether economics qualifies to be under the "sci" hierarchy or should be relegated to "misc" or "soc.religion". Sites that have unlimited disk space can solve the problem by carrying everything; ordinary sites must choose, yet often lack the knowledge or inclination to do so.
Usenet propagation used to be particularly reliant on the good offices of the "backbone," known to its detractors as the "backbone cabal". Before communications costs dropped and before it became easy to transmit Usenet news through an Internet link, the large majority of Usenet traffic propagated widely due to the efforts of a small number of sites that were willing and able to pay the long-distance telephone charges required to ensure that news was transmitted swiftly across the country and across the globe. With propagation came power, and these sites, notably UUnet, were able to shape Usenet policies.(176) Although UUNet no longer has nearly as much control over Usenet propagation, the policies -- and the reliance they have engendered in most site administrators -- live on.
Like the Internet Standards that they resemble, Usenet newsgroup creation procedures have become formalized in a set of Guidelines.(177) The Guidelines require that the proponent of a new group in the major hierarchies draft a proposed charter, submit it for discussion in news.announce.newgroups and any other appropriate newsgroups, and amend it as needed given the comments received.(178) When consensus has been achieved that the charter is ready, a Call for Votes is issued. Voting has three aims: (1) To demonstrate that there are enough interested persons to justify creating the group; (2) to ensure that the group does not duplicate other existing groups (if it did, the participants in those groups would presumably vote against the new group so as not to dilute their old one); (3) to ensure that the proposed name for the newsgroup fairly represents its contents and is properly located in the hierarchy.(179)
Votes are collected and counted by a neutral party, drawn from the "Usenet Volunteer Votetakers".(180) The voting period varies from 21 to 31 days, and anyone with Usenet access is welcome to vote either for or against the proposed newsgroup. Any newsgroup that gets 100 more valid yes votes than no votes and also receives at least a 2/3 majority in favor of creation is declared passed.
New Usenet groups are created by sending out a "control" message, which is an ordinary message with a predetermined form; groups are deleted in the same fashion, although legitimate decisions to delete a group are rare. Many users of Usenet have the technical capability to send a "control" message; the technical obstacles that might prevent them from sending control messages are usually easy to evade. As a result, spurious messages are not uncommon and most sites that carry Usenet therefore do not act immediately on control messages. Instead they send them to the system administrator who must then decide whether to honor them. As noted above, however, system administrators frequently do not want to be bothered with having to figure out what is a legitimate group that is likely to be carried by other systems around the world, and what is a practical joke. In practice, therefore, many system operators program their systems to accept control messages only from one source: tale@uunet.uu.net, which is the Usenet control address for David C. Lawrence. Lawrence has been active in Usenet since it was founded, and is an employee of UUNet, which remains a major Usenet news disseminator. He also created and guides the "Usenet Volunteer Votetakers."
Many Usenet administrators rely on "Tale" to administer the newsgroup creation process and to send out control messages only for those groups that have complied with the guidelines. While there remain other ways of creating a group, notably the "alt" hierarchy, the alternatives propagate less widely than groups in the major Usenet hierarchies that Tale administers. As a result, a large number, perhaps a majority, of sites have effectively delegated administration of the newsgroup creation process to one person.
4. Mass Revenge/Vigilante Justice: The Usenet Spam Problem and its (Partial) Solution
In Internet parlance, "to spam" is to e-mail or post the same message over and over in different fora, and "a spam" is the e-mail or Usenet(181) posts that result from spamming.(182) Spamming can be carried out in any number of ways. A person(183) can send mail to many mailing lists, directly to users whose names have been culled from mailing lists or newsgroups, or by individually posting the message to many (even all) newsgroups. The newsgroup method is probably the most common because it is the simplest to implement.
Usenet-compatible news reading software allows the user to indicate the group(s) to which a message (called a "post" or "posting") should be directed. A message can easily be "cross-posted" to more than one group. This in itself is not a spam. Often, cross-posting is appropriate since a topic may legitimately be of interest to more than one group. A legal question about the Clipper Chip, for example, legitimately belongs in talk.politics.crypto, misc.legal, alt.privacy.clipper and maybe misc.legal.moderated as well. Cross-posting a message ensures that responses to a message will be cross-posted as well, allowing cross-fertilization among different newsgroups on topics of mutual interest. Cross-posting has another, crucial property: it ensures that the recipient need only download and read the message once.
Only one copy of a cross-posted message is stored on the host machine. Its headers identify it as a message that belongs in multiple newsgroups. Most newsreading software allows users to track which messages they have read across newsgroups. If the user reads a cross-posted message and then encounters it again in another group, the software will automatically mark the message as already read in the second group, saving the user the annoyance of viewing it many times.
A spam is typically not cross-posted. Instead the identical text is individually posted to every newsgroup with no consideration of the message's relevance to that group's purposes. This has several disagreeable effects. First, each host computer is tricked into storing multiple copies of the same message instead of one message with a header identifying the cross-post. If the message is long, and storage space is tight, this creates a burden on the system. Second, users have no way of automatically flagging the message as read after their first encounter with it. Depending on the nature of the user's Internet access, this may require the user to manually delete the message every time it appears on the screen. Second, users who pay for the access by the byte or the minute will be forced to pay for every incidence of the message; similarly, users who download their news from a remote computer will have to wait longer while the multiple copies are each downloaded. If users access their news by telephone, this may cost them additional telephone charges. Whether there is a financial cost or not, many people find it very annoying -- the electronic equivalent of mass junk mail.(184)
The two great early spams in the history of Usenet were the Canter & Siegel advertising spam and the strange career of the "zuma-bot" named "Serdar Argic". Although there has been an enormous amount of spam since these incidents, they defined the issue, and also incited technical and social responses to spam that remain active today.
"Serdar Argic" was the name attached to innumerable Usenet posts claiming that the Armenians committed genocide against the Turks. (Most historians believe it was the other way around.(185)) Some Usenet detective work-linked the Serdar name with two different people, first Hasan B. Mutlu, an employee of AT&T Bell Laboratories, and then Ahmet Cosar, a former student at the University of Minnesota.(186) Serdar Argic's posts were concentrated in a small number of newsgroups, e.g. soc.culture.turkish, soc.culture.russia,(187) but were so numerous at times as to drown out almost everything else. In addition to large numbers of semi-coherent rants on the subject of Armenian genocide appended as replies to Usenet posts on matters pertaining vaguely to Armenia, Turkey and other nearby states, Serdar Argic appears to have used a computer program that searched all articles in certain groups for the word "Turkey" and appended anti-Armenian replies. Thus, the .signature line "On the first day after Christmas my truelove served to me...Leftover Turkey!" received a long rambling reply about Turkish suffering at the hands of the Armenians.(188) This incident earned him/it the sobriquet the "zuma-bot" since the postings appeared to originate at a computer with the (probably forged) address of "zuma".
Serdar Argic may have been a case of automation or obsession, but the spam created by lawyers Laurence A. Canter and Martha S. Siegel was a simple tale of greed. Canter and Siegel have been described as "gothically clumsy" spammers, "so intent on making a buck" and so unrepentant when criticized that an entire Usenet newsgroup (news.admin.net-abuse) was created to discuss their antics.(189) On April 12, 1994, Canter ran a program from his computer in Arizona that individually posted copies of a message entitled "Green Card Lottery 1994 May be the Last One!! Sign up now!!" to approximately 6,000 newsgroups. The message advertised the Canter & Siegel law firm's services in helping would-be immigrants to the U.S. complete the application forms for the green card lottery being held by the U.S. Immigration and Naturalization Service.(190) (In fact, applicants could have, if they wished, obtained the forms directly from INS and applied for free, but the message did not explain this.)
Confronted with wide-spread condemnation by other Usenet users, Canter and Siegel not only were unrepentant but wrote a book, How to Make a Fortune on the Information Superhighway(191) advocating spamming as the road to riches. The book claims that their spam garnered them 1004 clients, who paid between $95 and $145 each, for a total revenue of more than $100,000. The response from the Usenet community was vitriolic.
Canter and Siegel received 20,000 e-mails complaining about their original spam, and "reams" of junk faxes.(192) The traffic, including "mailbombs" (long, irrelevant, messages designed to clog the recipient's mailbox) became so great that the computer system providing C&S's Internet access crashed more than 15 times, leading the company that owned the system to terminate C&S's account as an act of self-preservation. C&S then switched to a second company, Netcom, which closed their account as a precaution when Canter gave a TV interview in which he promised to spam again.(193)
The striking thing about the e-mail response to spammers such as Canter and Siegel is that it was and is both widespread and spontaneous. So far as one can tell, spammers who find their mailboxes clogged are not the victim of one or two angry people who have set up mailbombing programs. Rather, the spammers are victims of mass action: thousands of people who notice the spam independently "reply" to the message either by quoting it in full, or by attaching a long irrelevant reply (most news and mail software makes it the work of a keystroke to reply to sender quoting the sender's text). There does not appear to be any overt coordination among the counter-spammers; they seem to be using a feature of the software in mass petulance, which amounts to mass self-defense.
Another tactic with some effectiveness is for many offended recipients of a spam to complain to the operator of the system that provides the spammers Internet access. Being seen to endorse spam is bad for business; having to reply to dozens of angry letters is annoying; having users who get so much hate mail that they crash your system is disastrous. E-mail complaint campaigns have driven some service providers to suspend a spammer's account, or to require the spammer to apologize and promise never to do it again as a condition of keeping the account.
The most significant anti-spam developments, however, are the creation of news.admin.net-abuse, the rise of Cancelmoose[tm], an Internet vigilante. News.admin.net-abuse is a moderated newsgroup; that means that a human being screens every post before it is forwarded to the group as a whole. This screening keeps down the volume, and keeps up the quality (sometimes called the "signal/noise ratio"). The newsgroup is the place in which spam sightings are reported, debates are held as to whether a given set of messages are large enough to qualify as spam, and the ethics and mechanics of message cancellation are discussed. According to the news.admin.net-abuse FAQ, the group has reached a rough consensus that any Usenet message reposted (as opposed to cross-posted) more than twenty times qualifies as spam.(194) News.admin.net-abuse is also the place that Cancelmoose reports his/her/its activities and requests comments and guidance.
Cancelmoose [tm] is a vigilante who monitors Usenet for spams and sends out cancellation messages to erase the spams.(195) A cancellation message instructs all the computers in Usenet to delete a message. In theory, only the original sender of a message should be able to cancel a message (e.g. a message sent in error); in practice cancellation messages can be forged. Because of this possibility, some Usenet hosts do not honor cancellation messages, but most do. After cancelling a spam, the 'Moose posts an anonymous message to news.admin.net-abuse announcing the action and inviting discussion of the reasonableness of the action. So far, to quote the news.admin.net-abuse FAQ, the Moose "has behaved altogether admirably -- fair, even-handed, and quick to respond to comments and criticism, all without self-aggrandizement or martyrdom."(196) As a result, "Cancelmoose [tm] appears to have near-unanimous support" from the group's readership.(197) Part of the 'Moose's popularity may be that the anti-spam campaign appears completely selfless: "Nobody knows who Cancelmoose [tm] really is, and there aren't really even any good rumors"(198) other than the perennial legend, perhaps deriving from the name, that the 'Moose is Norwegian.
In contrast to relatively successful vigilante justice meted out to mass spammers, attempts to stop the zuma-bot usually failed. There were two reasons for this. First, zuma posted to only a limited number of groups; the posts, while repetitive were not carbon copies of each other. Perhaps because the zuma-bot's activities were confined to fewer than twenty newsgroups,(199) no one set up an automated canceling device to respond to his/its posts. Second, "Zuma" got its Usenet feed from "anatolia.org" which was registered to Ahmet Cosar, and anatolia.org gots its Usenet feed from Uunet which considers itself a common carrier bound to serve all customers. At the time, there seemed to be relatively little that could be done to stop the zuma-bot, or anyone else with similar Internet access, although some people from time to time sent out messages canceling posts by Serdar Argic in certain newsgroups.(200) Since Serdar Argic appeared to control its own Internet host, it was less vulnerable to targeted anti-spam tactics.
In the early days of the Usenet, users, not system administrators, were the source of spam. Running a news site was complicated, and often required expensive hardware. In this, as in other things, the zuma bot was a sign of things to come. Rather than relying on Internet services provided by a system administrator who could be relied upon to share the Usenet community's norms against spamming, and might ever be willing to cut off an offending user, the zuma bot had insulated itself from this simple form of discipline. Indeed, over time, as the software became easier to use, Internet configuration became less arcane, and the price of hardware continued to drop, it became increasingly common for spammers to become their own system administrators. Simultaneously, software designed to automate spamming became easily available; indeed, one of the most common spams marketed the software, or services based on it.
The combined effect of these developments was an enormous increase in the amount of spam. Entire newsgroups became unusable due to the quantity of irrelevant material. Storage costs increased, resulting in messages being kept for shorter periods; spam crowded out the real content, reducing the utility of Usenet for infrequent readers. Users who had metered Internet access or telephone service also suffered a financial penalty.
Enter the Usenet Death Penalty (UDP).(201)A site subjected to a UDP has every single Usenet post originating from it immediately canceled or at least not forwared. Thus, every person using that Internet Service Provider (ISP) loses the ability to post to Usenet regardless of their guilt or in most cases innocence.(202) NNTP, the basic Usenet news program, is set up to accept cancels by default. News administrators who don't take explicit steps to change this default effectively allow all articles originating from a site subject to the UDP to be automatically removed from their news spool, without any human intervention.
Anyone can initiate a debate over a UDP by posting a call in the appropriate newsgroup, news.admin.net-abuse.usenet. The proposal may be ignored, or it may prompt a discussion. If there is a consensus that the UDP is justified a notice is (usually) posted to the newsgroup and mailed directly to all known the offending site. After a short period, currently five business days, the UDP goes into effect, and volunteers start sending automated cancel notices, unless the site demonstrates that it will change its policies.(203)
The UDP remains controversial, both because it is administered by self-selected vigilanties, and especially because it harms large numbers of innocent users who have done no wrong. This controversy caused considerable soul-searching among advocates and implementers of the UDP. A leading vigilante was moved to justify his actions as follows,
"Historically, as any society has grown (and usenet is a society of a sorts), people have rules that they believe should be enforced. A consensus on those rules is achieved, and the technical means to enforce those rules are developed. People who are trusted by the majority are allowed (or requested) to enforce those rules. In this case, the rules were set down by those administrators who actually run usenet - and who own and operate the actual hardware it runs on and purchase and utilize the bandwidth that it is connected with. Those who have volunteered or been asked to perform the spam cancel functions or UDP enforcement do so under "license," so to speak, of the majority of those who made the rules. They do so under a very strict code of conduct - and are constantly monitored to see that they do not exceed that code of conduct. If they do, that "license" is revoked and they are considered rogue and are shut down just as quickly as any other abuser. Greater than 90% of the spam canceling that goes on is done entirely by volunteer effort by those few trusted enough to fulfill that role without being accused of being rogue."(204)
Whether, given the collateral damage, tacit consent of this sort suffices is controversial. As one UDP partisan admitted, "[t]he ethics and morals of active UDPs are, of course, still in debate."(205)
Although originally the term "spam" referred only to inappropriate multiply cross-posted Usenet messages, the growth in unsolicited commercial email (UCE) soon lead to the word being adopted to "make money fast" e-mail and other unwelcome UCE. Spam e-mail requires more effort from the sender than do spam Usenet postings. A Usenet post needs only be sent once per newsgroup, and then the ordinary propagation of the network does the rest; while the number of newsgroups is growing, there are still only a few thousand in the main hierarchies. In contrast, e-mail spam requires some way of harvesting or guessing e-mail addresses, then one e-mail must be sent per recipient.
The same technology that makes Usenet spam propagate itself also makes it vulnerable to cancellation messages. There is, however, no e-mail equivalent of a Usenet cancel for an e-mail once it has been sent. Some unhappy recipients of UCE responded by mailbombing the senders. Others attempted to persuade the spammers' ISPs to close down their accounts. Spammers countered by posting from false addresses; when that proved insufficient to foil recipients who knew how to read IP packet traces in e-mail message headers, the spammers turned to new tactics. Having learned that if they used their own accounts, or their own ISPs, to send spam they risked being disconnected, the spammers began to take advantage of the Internet's many "open relays"-mail servers configured to allow third parties to send mail to anyone(206)-- to send spam via other ISPs.(207)
Anger at what they considered a theft of service -- using someone else's equipment to send e-mail, Internet pioneer Paul Vixie and others(208) established the Mail Abuse Prevention System Real-Time Blackhole List (MAPS RBL).(209) As they describe it, "The MAPS RBL is a system for creating intentional network outages for the purpose of limiting the transport of known-to-be-unwanted mass e-mail."(210) When the MAPS RBL maintainers decide - on their own, without consultation - that they have identified an ISP that is " friendly, or at least neutral, to spammers" by hosting them or having an open relay, they add it to their blacklist-and refuse all Internet traffic from the site until its administrator persuades the RBL maintainers that they have changed their ways.(211)
Being listed on the MAPS RBL list can have a devastating effect on a the target's Internet connectivity because many other sites copy the RBL(212) and then refuse to all email originating from the blacklisted site. Users on a blacklisted machine find that they are unable to exchange email from any site that uses the RBL. Indeed, participants in the RBL project will not even forward mail originating at a banned site. Blackholed sites' Web traffic is unaffected, but mail bounces back to the sender with a pointer to the RBL home page. "[B]eing listed in the RBL is the equivalent of an Internet Death Penalty, because of the sheer numbers of RBL subscribers and the broad scope of the denial of service by those subscribers."(213)
The designers of the RBL justify this break with the assumption that all participants in the network will forward mail(214) by stressing their property right in their own equipment:
No Internet user has any fundamental right to send you e-mail or any other kind of traffic. All information exchange on the Internet is consensual, and unless you opt into some advertising feed, the automatic presumption on the part of all Internet users is that you would be annoyed by e-mail which promotes a unilateral cause (such as making money for the sender). By creating and maintaining the MAPS RBL we are exercising our right to refuse traffic from anyone we choose. We choose not to accept any traffic at all from networks who are friendly in any way to spammers. This is our right as it would be within anyone's rights to make the same choice (or a different one, so long as only their own resources were affected by their choice). (215)
While the MAPS RBL web pages stress that "Our goals in doing this are to stop spam and educate relay operators. We almost always remove relays from the MAPS RBL as soon as we are contacted by an apparently-cooperative relay operator, and we spend a lot of our volunteer effort helping people upgrade their mailers to get them to stop relaying indiscriminately"(216) it appears that both the decision to list and to remove a site from the RBL is made unilaterally, without input from outsiders.
6. Coping With Growth: Will "Newbies" Undermine Existing De Facto Standards?
Socialization, or education, in the Internet traditions is an important part of keeping the informal standards alive. The pressure on IETF procedures from the influx of new members is nothing compared to the strain on Internet norms caused by the massive inflow of new persons unschooled in the informal Internet norms:
In the past, the population of people using the Internet had "grown up" with the Internet, were technically minded, and understood the nature of the transport and the protocols. Today, the community of Internet users includes people who are new to the environment. These "Newbies" are unfamiliar with the culture and don't need to know about transport and protocols.(217)
The Internet community is aware of the problem -- almost hysterical about it at times.(218) It is responding to the influx with a massive education effort, producing FAQs, books, web pages, and of course, flaming away at violations of netiquette. Whether these efforts will suffice to preserve the Internet's norms is unclear; if they do not, something valuable will have been lost.
E. ICANN: the Creation of A New Governance Structure
The establishment of the Internet Corporation for Assigned Names and Numbers (ICANN), is the case where the IETF has being displaced by another body. As the new body uses very different procedures from the IETF, the circumstances may be worth discussing in some detail.
Since the early days of the Internet, the United States Department of Commerce has controlled the sole "legacy root" to the Internet domain name system. Although it is only a tiny data file, this legacy root is the cornerstone of a complex system that enables people to register for domain names ending in ".com," and in other things, and helps catchy names get translated into numerical addresses so computers can find each other. This single root file holds the data that authoritatively identifies the machines which hold the legitimate master copies of the much larger data files that in turn hold the data ensuring that my e-mail address is global yet unique. As a result of this system, e-mail addressed to my Turkmenistan address, froomkin@law.tm, finds me in Miami.
The Clinton administration's "DNS White Paper"(219) set off a process that culminated in the creation of the Internet Corporation for Assigned Names and Numbers (ICANN), which was then recognized by the Department of Commerce as the entity that should take over the federal government's role in regulating domain names. ICANN is formally a California non-profit corporation; the Commerce Department has announced a desire to turn over its powers over domain names to ICANN at some unspecified future date. Meanwhile, ICANN has acquired defacto control of the most important parts of the domain name system (DNS).
1. A Quick Technical Introduction to the DNS System(220)
The registration side of the current DNS architecture is arranged hierarchically to ensure that each domain name is unique. A master file of the registrations in each top level domain(221) (TLD) is held by a single registry.(222) In theory, and ignoring software glitches, having a single registry ensures that once a name is allocated to one person it cannot simultaneously be assigned to a different person. End-users seeking to obtain a unique domain name must obtain one from a registrar. A registrar can be the registry or it can be a separate entity that has an agreement with the registry for the TLD in which the domain name will appear. Before issuing a registration, the registrar queries the registries database to make certain the name is available. If it is, it marks it as taken, and (currently) associates various contact details provided by the registrant with the record.
While one can imagine other possible system architectures, the current domain name system requires that each domain name be unique.(223) In a different Internet, many computers controlled by different people might answer to http://www.law.tm. In that world, WWW users who entered that URL, or clicked on a link to it, would either be playing a roulette game with unpredictable results, or they would have to pass through some sort of gateway or query system so their requests could be routed to the right place. (One can spin more complex stories involving intelligent agents and artificial intelligences that seek to predict user preferences, but this only changes the odds in the roulette game.) Such a system would probably be time-consuming and frustrating, especially as the number of users sharing popular names grew. In any case, it would not be compatible with today's e-mail and other non-interactive communications mechanisms.
The resolution side of the DN system is an interdependent, distributed, hierarchical database.(224) At the top of the hierarchy lies a single data file that contains the list of the machines that have the master lists of registrations in each TLD. This is the "root.zone" or "root" sometimes the "legacy root." Although there is no technical obstacle to anyone maintaining a TLD that is not listed in the legacy root, these "alternate" TLDs can only be resolved by users whose machines, or ISPs as the case may be, use a domain name server that includes this additional data or knows where to find it. A combination of consensus, lack of knowledge, and inertia among the people running the machines which administer domain name lookups means that domain names in TLDs outside the legacy root, e.g. http://lighting.faq, cannot be accessed by the large majority of people who use the Internet unless they do some tinkering with obscure parts of the their browser settings.(225)
Domain names are resolved by sending queries to a set of databases linked hierarchically. The query starts at the bottom, at the name server(226) selected by the user or her ISP, and works its way up the chain until the query can be resolved. At the top of the chain is the root zone file maintained in parallel on thirteen different computers. These thirteen machines, currently identified by letters from A-M, contain a copy of the list of the TLD servers that have the full databases of registered names and their associated IP numbers. (To confuse matters, some of these machines have both a copy of the root zone file and second-level domain registration data for one or more TLDs.) Each TLD has a registry that has the authoritative master copy of the second-level domain names registered for that TLD, and the root zone file tells domain name resolving programs where to find them.
Since every Internet-related communication requires an address, and people tend to use domain names rather than IP addresses, DN lookups occur millions of times per hour. Most queries, however, do not make it to the computer holding the master list because copies are distributed to thousands of other name servers, and many local ISPs keep a cache of frequently-requested or recently requested IP numbers to provide better service to their customers. If a "local" nameserver doesn't have the information needed, it can send a query up the tree, querying caches all the way, perhaps even going as high as a root server if the query involves a TLD whose address is not present in the local cache.(227)
Although there are no technical obstacles to alternate roots, and alternate roots need not imply duplicate addresses, inertia stops people re-tuning their Internet settings to alternatives. While this inertia persists, control over the legacy root is control over whether competitors to .com (imagine .web, .biz, or .smut) have a meaningful existence. This control provides a rare choke point over the Internet. It can be leveraged to do good things, like ensure there is competition among domain name providers, or very bad things, such as forcing other participants in the system to facilitate or even enforce content controls.
Control over the legacy root allows one to determine which top-level domains are visible to the large majority of Internet users. The legal status of the Department of Commerce's control over the legacy root is a product of contract and consensus. The DNS is embodied in Internet standards.(228) For many years the actual work of managing the legacy root was performed by a body called IANA - the Internet Assigned Names and Number Authority - with funding from the federal government.(229)
Since 1993, the legacy root data resided on a computer owned by the government's monopoly contractor for registrations in .com, .org, and .net, a company called Network Solutions Inc. (NSI).
In practice, policy decisions about which TLDs should be listed in the root, and other key TLD management issues,(230) were the province of IANA, and especially of its Director, Jon Postel, a founder of ARPANET and ISOC. Postel died in 1998, so any account of his beliefs requires some reconstruction, but it seems clear that by 1996 or so he and others had decided that the somewhat informal system he was running could not go on indefinitely without some changes.(231) On the one hand, users were pressing for additional "generic" TLDs as the supply of the most memorable and desirable names in .com continued to shrink under the first come, first served-as-often-as-you-like domain name allocation rules. On the other hand, interest groups that had not previously cared about the Internet or about Internet governance were showing an increasingly keen interest in DNS management. Chief among them were large trademark holders, and representatives of trademark holders, who felt that their rights were infringed if others registered domain names identical to their company names or trademarks.(232) These groups were also concerned about the emerging practice of "cybersquatting" -- registering domain names in the hopes of holding them for ransom by the mark holder. At one point Postel proposed creating hundreds of new gTLDs, but pressure from trademark interests who feared, with some justice, that this would make their problems of policing the use of their trademarks much more difficult and expensive.
In June 1998, the Commerce Department issued a White Paper calling for the creation of a private body to take over the legacy root in a "transparent" process.(233) In October 1998, NSI's contract with Department of Commerce was amended to make clear that NSI would make no changes to the legacy root without authorization from Commerce or its delegate.(234) Meanwhile, behind closed doors, an internationally diverse group of Internet worthies (selected in a manner that was anything but transparent) incorporated ICANN, the Internet Corporation for Assigned Names and Numbers, and set to work making "interim" decisions and creating a new, still-evolving governance structure.(235)
What emerged from all this is a curious hybrid of the corporate form and open discussion. The ultimate decisional authority for all issues within ICANN's competence(236) is the ICANN Board. Beneath the Board, ICANN created a complex structure designed to funnel the views of various identified groups of stakeholders to the Board, and ostensibly to propose policies and gauge the degree of agreement on them. Within a year this produced an acronym soup of a Names Council(NC), the Domain Name Supporting Organization (DNSO) and its seven (or so) constituency groups, the Protocol Supporting Organization (PSO), the Address Supporting Organization (ASO), the DNSO General Assembly (GA), the Membership Advisory Committee (MAC), the Governmental Advisory Committee (GAC), the Advisory Committee on Independent Review, and the Committee on Reconsideration, not to mention a profusion of working groups, ad hoc committees, and even a "small drafting committee". While perhaps motivated by a genuine desire to be inclusive, the result has had some elements of divide and conquer.
On the other hand, ICANN has taken a number of actions designed to establish and protect itself, without enormous attention to whether anyone else agreed. Thus, for example, the corporation proposed to charge a $1 fee for every registration (and backed down when members of the US Congress objected); it borrowed money from corporations with a vested interest in ICANN's decisions; it decided to hold closed Board meetings despite a commitment to "open and transparent processes"(237) ; and, most recently, decided that contrary to the original structure proposed a year ago individuals would not be statutory members of the corporation.(238)
Perhaps most troubling has been the ICANN Board's
manipulation of the term consensus as it reached its first substantive
decisions on matters as diverse as revising its bylaws, whether individuals
(as opposed to corporations, non-profits, governments, and NGOs) would
have a formal place in the organization and any voting power, and new dispute
policies aimed at cybersquatters. Some matters never went to working groups
or other constituency groups. In other cases, working groups have been
set arbitrary deadlines Then, once a document leaves a working group, ICANN
commonly provides a two week comment period for the rest of the world to
digest the result before calling on the Names Council to determine whether
there is consensus for the recommendations. A combination of lack of clear
procedures failure to follow its own rules,(239)and
short times for comment, and the declaration of consensus where critics
see none has lead to several calls for reform.(240)
III. The Internet as a Case Study in Discourse Ethics
One of the most trenchant and perhaps effective dismissals of Habermas's project for an ethics based on discourse is that it's fine in theory, but it cannot be done in real life. Thus, for example, Professor Rosenfeld notes that,
Habermas does not locate the problem on the level of actually occurring communications...Instead, he employs a theory of how the reasonable coordination of action can take place if assured of freely rendered agreement of all involved. ... That such communications could take place, is not a satisfactory answer. If the theme 'facticity and validity' is to retain its meaning, they must, at some point, also take place in fact.(241)
Indeed, Habermas's original vision of an "ideal speech" situation was often criticized as unrealizably utopian. The subsequent reformulation into "practical discourse" similarly has been criticized as requiring "unlimited transparency in human life by demanding that all evaluative commitments be understood as voluntary commitments that are publicly justifiable."(242) In this view, even if one agrees in principle that "only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a real discourse"(243) the sad fact is that "real discourse" of this demanding type is not possible in our constrained lives. Although Habermas himself rejects this criticism,(244) it seems to have resonance for many.(245)
In this Part I will argue that this critique is falsified by the account in Part II above. I argue that the Internet standards-making institutions and process are international phenomena that conform relatively well to the discourse required to actualize Habermas's discourse ethics. The participants in the development of both formal and informal Internet standards are engaged in a very high level of discourse, are continually reflecting on their actions, and in fact are continually documenting them in a self-conscious manner.
A. Internet Norms -- Discourse Ethics in Action?
According to Habermas, "the legitimacy of law is to be gauged from the standpoint of a collectivity of strangers who mutually recognize one another as equals and jointly engage in communicative action to establish a legal order to which they could all accord their unconstrained acquiescence. By means of communicative action, a reconstructive process is established through which the relevant group of strangers need only accept as legitimate those laws which they would all agree both to enact as autonomous legislators and to follow as law abiding subjects."(246) In general, there is a striking similarity between the procedures used to generate Internet standards via the IETF and Habermas's account of the "best practical discourse" needed to produce legitimate rules. The same does not necessarily hold for the more informal procedures that generate defacto Internet standards, however, because those processes are more vulnerable to strategic behavior - especially when persuasion crosses the line to direct action.
The procedures evolved to make formal Internet standards exhibit a very high degree of openness and transparency and a surprising degree of self-consciousness that can fairly be called reflexivity. Both the opinions that are brought to the standards making process and the "rough consensus" that comes out of it are understood by at least many parties as "voluntary commitments that are publicly justifiable." Overall, although the IETF standards process could in no way be characterized as an "ideal knowledge state" being composed as it is of real people of necessarily limited cognitive capacity, existing in real time, it nonetheless meets or very closely approximates, the still very exacting criteria of the best practical discourse.
As Habermas defines it, the best practical discourse requires that, "all voices in any way relevant get a hearing."(247) IETF working groups are open to anyone with the ability to attend meetings or to participate in e-mail discussion groups. All participants are formally equal, and in practice all have equal access to the discussion. Similarly, the Usenet group creation procedure allows for full discussion by all interested parties.(248)
Habermas suggests that the best practical discourse requires that, "the best arguments available to us given our present state of knowledge are brought to bear." By their nature, IETF groups tend to attract persons with experience in the subject of the proposed standards. Anyone else would probably be bored to death. Certainly my own personal experience on IETF mailing lists such as SPKI(249), Poisson,(250) or Raven(251) suggests that the discussion is regularly of a very high caliber, and (almost) always civil.
Habermas's third condition for the best practical discourse is that "only the unforced force of the better argument determines the 'yes' and 'no' responses of the participants." IETF working groups decide by "rough consensus" of those present, not by votes.(252) IETF work products are reviewed by the IESG and the IAB to ensure that all points of view received a fair hearing.(253) Observation suggests that these obligations are taken seriously by the vast majority of paritcipants.
Within the IETF structure itself, the participants are diverse, widely separated in space, and often unknown to each other except as e-mail or Usenet correspondents. In particular, even though there are participants who have by dint of experience or longevity acquired a reputation which may give them additional credibility in debates, there really is very little that anyone can do to pull rank because (other than the working group chair whose role is primarily facilitative(254)) there is no rank to pull. As a result, there is very little that participants can do to each other except seek to persuade by force of argument.(255) It seems reasonable therefore to suggest that the Internet standards discourse sometimes achieves the best discourse practicable given the diversity of its participants, and does so in a context where the opportunities for strategic behavior are very low, albeit not zero.
As noted in Part I, a critical theory claims to be a special kind of knowledge. A critical theory of rulemaking requires not only that the participants engage in the best practical discourse, but that they bring to the discourse a self-reflective perspective. This perspective is essential if participants are to avoid excessive selfishness or ideological error, for understanding the historically contingent nature of their personal circumstances allows participants to navigate between dogmatism and relativism. Furthermore the rulemaking enterprise itself must include an account of itself, of how it came to be, of why its rules are entitled to respect.(256)
Both the opinions that are brought to the standards making process and the "rough consensus" that comes out of it are understood by at least many parties as "voluntary commitments that are publicly justifiable." As demonstrated in Part II, from the earliest days of the Request for Comments issued timorously by worried graduate students to the current more routinized procedures, the participants in the Internet standards process have been engaged in continual introspection about the entire enterprise. The absence of a formal legal basis for the IETF which remains an unincorporated association, and the very fluid membership, have perhaps prevented the growth of any unthinking complacency about fundamentals. Working groups such as Poisson (Process for Organization of Internet Standards ONg) have re-examined and re-defined the internal workings of the IETF, its relationship with the IAB, with ISOC, and most recently with the newly formed Internet Corporation for Assigned Names and Numbers (ICANN). The result has been a steady re-invention and evolution of the IETF's internal procedures, the creation of formal mechanisms for challenge and review of the products of IETF working groups. Checks and balances have been built into the system; where once the issue occupied but a single paragraph in RFC 1602, now there is an entire procedure spelled out in RFC 2282, by which an IAB member can be recalled.(257)
Although attendance at physical IETF meetings is undoubtedly the way to maximize one's participation in the setting of Internet standards, participants remain aware that many people are unable to attend the meetings. Rough consensus is never judged on the basis of a physical meeting; all decisions of the IETF require that the issue be aired on line, on a mailing list. While many have noted that the use of electronic communication seems to remove some inhibitions against intemperate speech, leading to "flaming," it can also be argued that reducing participants in a discourse to the written word also removes many of the opportunities for prejudice. Words on a computer screen do not necessarily come signed, and even when they do, there need be nothing to indicate the gender, age, race or national origin(258) of the author.
The Internet standards process also fits the reformulation of Habermas's conditions proposed by Willhem Rehg. Rehg starts with Robert Alexy's basic rules of discourse, under which everyone in the discourse must agree that,
(a) every subject with the competence to speak and act is allowed to take part; and
(b) (i) Everyone is allowed to question any assertion whatever;
(ii) Everyone is allowed to introduce any assertion whatever into the discourse;
(iii) Everyone is allowed to express his attitudes, desires, and needs.
(c) no speaker may be prevented, by internal or external coercion, from exercising his rights in (a) and (b).(259)
These conditions describe the rules of an IETF working group.
Of course, lacking omniscience, participants in a discourse can never be certain that these three conditions have been sufficiently fulfilled, the conditions are at once aspirations, regulative ideals, and shared assumptions,(260) having a cognitive status eerily reminiscent of pre-antinomian Puritan views of salvation. Yet, in the context of the Internet standards process, Rehg's "puzzling conclusion" that in discourse ethics "the individual's practical insight is inseparably bound up with the insight of every other individual affected by the issue at hand"(261) is anything but a puzzle-it's a design feature; standards discourse requires not only free debate in a public space, but accommodation to many points of view and "the testing of the deliberating community of all those affected."(262)
One problem which concerns Rehg is that he fears that even in its current form discourse ethics presupposes the good of rational cooperation and thus verges on a transcendental, or at least pure-reason foundation, potentially a great problem for a theory that, in its current form, lays claims to a sociological foundation. Rehg resolves this problem by concluding, apparently heuristically, that "in today's world such a good admits less and less of stable alternatives for persons who consider themselves rational."(263) In the case of the IETF, however, it does not seem at all unreasonable to claim that practice alone suffices to demonstrate that almost all participants have an actual commitment to rational discourse. The relationship is not, however, perfect. Some IETF mailing lists have degenerated into violent argumentation, at least for a time, and it is also true that a number of lists have had to deal with off-topic rants, or spam. Nevertheless, systems exist for guarding against such strategic behavior by what are, by their own actions, effective non-participants. Neither discourse ethics nor the IETF rules require participants in a discussion to allow it to be held hostage to those who would destroy it.
"Every social interaction that comes about without the exercise of manifest violence can be understood as a solution to the problem of how the action plans of several actors can be coordinated with each other in such a way that one party's actions "link up" with those of others. And ongoing connection of this sort reduces the possibilities of clashes among the doubly contingent decisions of participants to the point where intentions and actions can form more or less conflict-free networks, thus allowing behavior patterns and social order in general to emerge."(264)
While the IEFT standards process fits Habermas's conditions for the best practical discourse extraordinarily well, the same cannot be said with equal conviction about most of the procedures which have evolved to make informal Internet standards, especially those that have evolved to combat spam. These variegated procedures, which span a gamut that includes FAQ creation, the creation of Usenet groups, market-based standards making, spontaneous mailbombing, and the various responses to spam, all exhibit a very high degree of transparency, and in most cases a self-consciousness about their activities that might fairly be called reflexivity. They are also open to all comers. Although there is some congruence, the fit between informal standards processes and the demanding strictures of discourse ethics is varied, and often not as strong as in the IETF case, although some come close.
Market-based standards are one clear example of an informal standard setting process that cannot be seen as the result of any Habermasian discourse. The reason is primarily definitional. A proponent (or victim) of a system-theoretical sociology, Habermas divides life into three only somewhat interdependent systems, the administrative, the economic, and the public sphere. The individual's "lifeworld" is made up of her contacts with everyone and everything else; it thus intersects all three spheres. Discourse theory aims to explain the creation of legitimate rules in the public sphere. These rules may then regulate conduct in the other spheres. As the market is part of the economic system that is somewhat independent of the public sphere, and (in Habermas's view) it is not legitimate for exigencies of the market sphere to directly dictate rules to the public sphere-although it is of course legitimate for participants in a discourse to consider the effects of their choices on the economy. Indeed, one of Habermas's major complaints is that the "lifeworld"is being "colonized" by alien systems such as the market and the power-regulative systems of administration. It follows, definitionally, that within the Habermasian construct market-based decisions cannot be considered legitimate without some considered, prior, discourse-based, decision to delegate those decision to the marketplace. While free marketers may say that this demonstrates a deficiency in Habermas's theory, for present purposes it suffices to say that market-based defacto Internet standards evolve without much in the way of any sort discourse, much lest the best practical discourse.(265)
Most other informal Internet standards arise and evolve almost organically. However some of the informal standards processes, especially those which rely on vigilantism use coercion in a way which suggests they rely not on real discourse aimed at rational persuasion, but rather on what Habermas calls "strategic" behavior.(266) (Recall that "strategic" behavior consists of making threats and promises in the hope of persuading others to do as one wishes, by the use of force or economic threat, rather than attempting to persuade others of the rational merits of one's cause.) Usenet cancellations, and especially the Usenet Death Penalty, are close cases because decisions as to whether coercion is appropriate occur primarily after public debate in a newsgroup, news.admin.net-abuse,(267) a debate that occurs in the content of widespread agreement among interested parties (other than the spammers themselves) as to the seriousness of the problem, and it would appear almost as general agreement as to the validity of the solution.
For all of its noble motives, the Real-Time Black Hole project seems to be the clearest case of strategic behavior. The RBL is not, however, a product of the IETF but a spontaneous act by its originators and those who choose, voluntarily and independently, to refuse to forward email originating from blacklisted ISPs. Anti-spam efforts such as the RBL and the spontaneous mailbombing of spammers have two troubling properties. First, the effect of both anti-spam self-help activities and the RBL is to cut off or greatly reduce the effective Internet access of the alleged spammer. Although this affects only one channel of communication, it nonetheless comes perilously close to censorship that would violate the fundamental discourse principle that discussions must be open to all. Second, anti-spam activities seem to have at least as much in common with strategic behavior as anything related to a discourse. Rather than engaging the spammers in dialog, anti-spammer engage in simple retaliation; direct action of this sort would seem the antithesis of discourse.
It might be argued there is as little point in reasoning with spammers as in trying to convert the Ik to ordinary conceptions of humanity. It might even be argued that some anti-spam activities are the product of some kind of non-spam community consensus, and that anti-spam activities such as the RBL are the consequence of a plan of a consensus action plan rather than any type of formation of a plan. The problem with this argument is that the facts do not support it. Both CancelMoose and the RBL were coded and deployed first, and gained their support later. The number of Cancel notices issued by the CancelMoose, and the growing number of sites using the RBL both suggest a substantial body of agreement, although it would be vastly premature to claim consensus for either.
[To come: A more plausible argument that anti-spam activities are nevertheless legitimate (albeit not, exemplars of the best practical discourse) would start with Habermas's claim that legal norms can have assent based on strategic behavior.(268) ]
ICANN's processes do not-and given the history of their creation could not-conform to Habermas's stringent requirements for the formation of morally compelling norms. Employing a rhetoric reminiscent of discourse ethics-ostensibly searching for "consensus" and "bottom-up" decision-making - ICANN is using complex and often rushed procedures to make decisions about key Internet standards and finding "consensus" in a way materially different from the IETF's procedures. While it does not follow that these new processes are for this reason alone any less legitimate than other commonly used means of reaching political decisions, it does mean that they lack the moral high ground occupied by Internet standard-making procedures they displace. It should be noted, however, that the key participants in the DNS standard-setting system ICANN replaced felt that the old system was breaking down under pressure from parties who were imperfectly represented in it, and that something had to change.
[more to come]
B. Counter: The IETF Standards Process is Too Male and Monolingual to Be the "Best" Practical Discourse
Although women may make up about half of all Internet users,(269) a large majority of the active and vocal participants in the Internet standards process appear to be male. Thus, it is fair to ask of this process, as indeed many have asked of Habermas's work before Facticity and Validity,(270) "Where are the Women?"(271) Similarly, the vast majority of both the formal and informal Internet standards activity is carried out in English. It seems fair to ask, therefore, whether these processes are too male, or too monolingual to be the best practical discourse at the international level.
Habermas distinguishes between social tasks of material reproduction and those of symbolic reproduction. Material reproduction is basically making new stuff: growing crops, building buildings, making machinery. Symbolic reproduction is the work of maintaining and transmitting to new members of a society the linguistic norms and patterns of interpretation that do the work of constituting social identities. It is the socialization process by which a society maintains group solidarity and perpetuates its traditions. Not everyone accepts that the distinction is as sharp as Habermas suggests. For example, the distinction has been challenged on the grounds that many tasks that might seem to be primarily or solely concerned with material reproduction -- think farming for example -- also replicate social identities.(272) Similarly, tasks such as child-rearing that at least in Habermas's classifies primarily as concerning social reproduction clearly have a large material component also.(273)
Several writers also have criticized Habermas for equating the male viewpoint with the universal, and thus failing to note a "conceptual dissonance between femininity and the dialogical capacities central to Habermas's conception of citizenship" arising from the silencing of women and the systematic denigration of their viewpoint.(274) Assuming the correctness of this critique, its application to Internet-based discourse may be blunted by the medium. Computer-mediated communications need not reveal the gender of the speaker; indeed communications can be anonymous, pseudonymous, and authors have a choice as to whether they maintain a consistent identity or re-inaugurate themselves.(275) On the other hand, some research suggests that men and women use recognizably different writing styles in computer-mediated environments,(276) and that the adversarial male style tends to drive out the female style--and the women along with it.(277) While the flame wars characteristic of USENET and some mailing lists are relatively rare in the IETF working groups, they are not unheard of.
The dependence on English undoubtedly makes the IETF a less-universal debating forum than it would otherwise be. Yet, as Habermas notes with some regularity, discourse is not possible unless the participants are able to communicate; they must, in fact, have a common language (and more) or nothing is possible.(278) Thus, although the reliance on English is regrettable, until a more widely used international language is available, this reliance does not seem inconsistent with the best practical discourse.
C. Counter: It's Too Specialized to Matter
I have argued above that the IETF standards process, and perhaps some other more informal standards processes also, constitute an existence proof of the best practical discourse. It might fairly be asked whether, even if my account of the standards processes is accurate, whether a debate carried out among a professionally homogenous group, about primarily technical issues, can fairly be cited as an example, much less any sort of model, for wider-ranging debates in the public sphere. Do debates about IP packet have anything to teach us about the abortion debate? More fundamentally, is a debate about the certificate structure in a hypothesized public-key infrastructure fairly a debate in the public sphere at all, or should it be relegated to some special ghetto for technical talk? Although it has a certain plausibility, the complaint that Internet standards talk has relatively little to teach us because is not about the lifeworld, but just about computers,(279) is not well taken.
1. It is "Technical" and Thus Outside the "Public Sphere"?
Although in his earlier writings Habermas specifically discussed the role of technology, he has had very little to say on the subject in the past twenty years. Habermas's (relatively few) earlier writing on technology tended to concentrate on two topics. First, Habermas flirted with the idea, popular in earlier writing by other members of the Frankfurt School, that technology was somehow suspect, that man's use of technology was an example of an urge to control and dominate. Second, Habermas attacked the idea that there was anything value-neutral about technological inquiry while, however, rejecting suggestions that technology should be identified with a specific historical epoch or class. Instead, he preferred to categorize it as "a 'project' of the human species as a whole."(280) More recently, however, Habermas's near-total silence on the subject has been read to suggest that technology is somehow "non-social."(281)
If technology is part of a different system than the public sphere, if it is truly non-social, then a discourse focused on technological issues, even those related to enabling communication, cannot properly serve as an example of the best practical discourse in the public sphere. There are reasons, however, to doubt the force of this concern.
First, although the imprecision of Habermas's use of the term makes it somewhat difficult to tell, it appears that by "technology" Habermas often means physical science as opposed to social science. It is thus debatable whether the sort of matters canvassed in the Internet standards process are"technology" in his sense. IETF debates are not about basic or even applied research, nor research strategy. They are about defining common protocols, essentially definitions, to allow various different products and projects to interoperate relatively easily.
More significantly, a substantial number of IETF debates, though by no means all or even most, concern matters which the participants understand to have direct social consequences that reach far beyond the structure of a conforming data packet and the social consequences weigh at least as heavily as do issues of technological optima. One example is the debates about the structure of the IETF itself, discussed in Part II. Another notable example is the currently ongoing debate in the Raven(282) list about the proper role of the IETF (and technologists in general) when confronted with governments that seek the capability of wiretapping communications (including e-mail, HTML, voice and even video) transported over the Internet. The group is considering to what extent it is appropriate to write standards that are wiretap-friendly, which risks encouraging government intrusions into personal privacy. On the other hand in a world where many users of any potential standard live in countries (e.g. the USA) that have laws which require some participants in the network to comply with lawful wiretaps, issuing standards that ignore the issue, or are designed to make wiretapping difficult, ensures that some important participants will be unable to adopt it for legal reasons. Thus, any standard that is not designed to meet these legal needs may never become a true, widely used, standard at all. The archives of this discussion, which to be fair is probably unrepresentative, make clear just how deeply in the public sphere an IETF discussion can be.
The IETF seems to be a model of exactly the sort of small, spontaneous, citizen-organized fora that,
incorporates the republican idea of self-defining or public good-constituting discourses as one key aspect of politics. Given pluralism, different self-defining discourses must occur at both the societal and group level. This implicitly requires different "public spheres"--those in principle open to all and also those open to all who are members of, or who identify with, smaller, pluralistic groups.(283)
It may be, however, that the Internet standards debates differ from most other discourses. It is aimed at an overtly communitarian end - interoperable devices available to all participants designed to enhance communication over the Internet. It also contains features which naturally discipline participants in a way that tends to enhance the quality of the discourse: Anyone is free to run any type of communications protocol they wish across the Internet. Using a non-standard protocol, however, risks drastically reduces the number of people with whom one can communicate. Thus, persons interested in maximizing the potential reach of their tools, whether for communicative or commercial purposes have a strong interest in participating in the discourse, and in conforming to the norms of civil discourse; failure to do either tends to ensure that one's ideas will have no influence. In other words, the role of "Exit" in the Internet standards debate tends to promote "Loyalty"(284): Exit is trivially easy, but tends to be lonely.(285) Furthermore, there is a strong incentive to come to some agreement, for a standard cannot advance without rough consensus. Without rough consensus, nothing happens (on the other hand, the downside of a failure to agree is bounded -- no one dies). Finally, in the very large majority of cases standards are not exclusive. The TCP/IP protocol is very flexible, and in most cases competing standards can co-exist side by side. Thus, for example, there needs to be a standard for .jpeg encoding so that photographs can be exchanged and viewed by different programs adhering to that standard; the existence of that standard does not, however, prevent other standardardized encoding systems, such as .gif, from being used in different applications.
There are reasons to think that the Internet standards process is not unique, and that it provides a model that could be applied to at least some other situations. As noted at above,(286) this article has been concerned with an issue preliminary to that debate. The primary goal has been to document the existence of a real-life, trans-national, discourse which substantially meets the demanding conditions of Habermas's best practical discourse. Nevertheless, as the Internet user base increases, and as the network is harnessed to serve an increasingly wide range of purposes,(287) it becomes increasingly easy to believe that some combination of the IETF model with other techniques might make a larger-scale global discourse possible. Discourse-enabling tools are currently being developed at a rapid pace,(288) and some combination of these with more informal processes may suffice someday to overcome the daunting problems of scale.
The creation of ICANN sits uneasily with these
intuitions. The short and not completely happy early history of ICANN might
be read as evidence that the IETF model often cannot be generalized., or
indeed is headed for a period of jurisdictional shrinkage. Perhaps when
large sums of money are at issue, the pool of affected stakeholders is
very diverse, and interests are at loggerheads, consensus cannot be achieved
and discourse ethics loses its relevance, and the law schools should return
it to **. I think, though, this would be the wrong conclusion. Discourse
ethics is a fundamentally proceduralist theory. It requires actual or reasonably
hypothesized consensus as to the procedure for making decisions, not on
the decisions themselves. ICANN's chief failures have been in institutional
design, not in the content of the decisions it has so far taken, which
(so far) are arguably little worse than the alternatives on offer. If anything,
the chief lesson for discourse ethics of the ICANN experience may be the
importance of getting procedures right from the beginning, and a reminder
of the special value of the IETF as a model of procedural consensus, if
not necessarily a template for the procedures that should be applied to
every facet of public life.
The participants in the development of both formal and informal Internet standards are engaged in a very high level of discourse, are continually reflecting on their actions, and self-consciously document them frequently. It appears that in the Internet standard process, at least for the moment, the Internet harbors an environment capable of providing the "best practical discourse" that Habermas suggests is a prerequisite to the creation of morally acceptable norms.
If this is correct, then the Internet standards process amounts to a critical theory workshop, and the conditions in cyberspace are ripe for the construction of a critical theory of how decisions might be made in a globalized society. To the extent that the formal and informal Internet norms contain within them assertions about how the Internet should be governed, the outlines of a critical theory implicitly challenging the governance of social interactions that do not involve computers may already be taking shape. That this should be happening online, amidst new and somewhat radically constructed institutions, comports well with discourse theory. Not only is the medium geared towards communication, but "[t]he deciphering of the normative meaning of existing institutions with a discourse-centered theoretical approach ... supplies a perspective on the introduction and testing of novel institutional arrangements that might counteract the trend toward the transmutation of citizens into clients."(289) Thus, the Internet supplies one possible answer to this powerful challenge raised against the possibility of ever applying discourse theory to broad ranges of public life:
For Habermas..not only lawmaking but governance in its ongoing, administrative aspect must draw its energy and authority form the citizenly generation of communicative power. This bold vision would seem to call for a vast increase in the amount of "communicative power" presently flowing through this or any other contemporary democracy. As Habermas points out, communicative power is generated only "from below," only from mobilized citizenries. Thus, his vision seems to demand a substantial renovation of our existing public spheres, and the creation of many new spaces and institutional forms for citizenly engagement in the processes of lawmaking and governance.(290)
This is a tall order, but it is a fair description
of what the widespread actualization of discourse ethics would require.
The "creation of many new spaces and institutional forms for citizenly
engagement in the processes of lawmaking and governance" may seem beyond
our current capabilities. And it may be. But the Internet radically empowers
the individual when unleashed. It also creates new tools that make the
construction of new communities, new spaces if you will, of shared interest
possible. In Habermasian terms, the Internet draws power back into the
public sphere, away from other systems.(291)
It also makes it possible, as never before, to create as many "new spaces
and new institutional forms" as one desires. This radically reshaped public
sphere, one made up of a multitude of sub-spheres of discourse, might provide
an environment in which an informed citizenry could revitalize public discourse,
and engage in the creation of more-legitimate rules.
1. Michel Rosenfeld, Law
as Discourse: Bridging the Gap Between Democracy and Rights, 108 Harv.
L. Rev. 1163, 1165 (1995) (reviewing Jürgen Habermas, Between Facts
and Norms (trans. William Rehg 1995)).
2. See Rosenfeld, supra note ?, at 1164.
3. Jürgen Habermas, Between Facts and Norms xil (trans. William Rehg 1995).
4. For essays with grander ambitions, see Mark Poster, CyberDemocracy: Internet and the Public Sphere, http://www.hnet.uci.edu/mposter/writings/democ.html ; Howard Rheingold, The Virtual Community: Chapter Ten: Disinformocracy, http://www.well.com/user/hlr/vcbook/vcbook10.html; Alinta Thornton, Does Internet Create Democracy, http://www.wr.com.au/democracy/index.html (discussing Howard Rheingold's arguments)
5. See A. Michael Froomkin, The Internet as a Source of Regulatory Arbitrage (book chapter) in BORDERS IN CYBERSPACE (Brian Kahin and Charles Nesson, Eds. 1997), available online http://www.law.miami.edu/~froomkin/articles/arbitr.htm.
6. There has, however been a considerable amount of very interesting and closely related recent writing regarding spontaneous order and norm-formation. Exemplars include but are not limited to Robert C. Ellickson, Order Without Law : How Neighbors Settle Disputes, the contributions to the University of Pennsylvania Law Review symposium volume on "Law, Economics & Norms," 144 U. Penn. L. Rev.1643 (1996); Margaret Jane Radin & R. Polk Wagner, The Myth of Private Ordering: Rediscovering Legal Realism in Cyberspace, 73 Chi.-Kent L. Rev. 1295 (1998); Gunther Teubener, 'Global Bukowina', Legal Pluralism in the World Society in Global Law Without A State 3 (Gunther Teubener ed. 1997); David Friedman, Hidden Order: The Economics of Everyday Life (1996).
7. Between Facts and Norms, supra note ?, Preface at xil.
8. "The crux of the challenge is constructively to maintain the tension between the strongly idealized, context-transcending claims of reason and the always limited contexts in which human reason must ply its trade." William Reigh, Translator's Introduction xiii, in Jürgen Habermass, Between Facts and Norms (trans. William Rehg 1995)
9. See Ciaran P. Cronin, Translator's Introduction in Jürgen Habermas, Justification and Application xxiii (Trans. Ciaran P. Cronin 1994).
10. See generally Raymond Geuss, The Idea of a Critical Theory (1981). It could be argued that Kant too outlined a theory possessing this characteristic, at least if one were to combine the essays, An Answer to the Question: 'What is Enlightenment?' and Perpetual Peace: A Philosophic Sketch, both reprinted in H. Reiss, Kant's Political Writings (1970).
11. Jürgen Habermas, Morality, Society, and Ethics in Jürgen Habermas, Justification and Application 147, 150, 157 (Trans. Ciaran P. Cronin).
12. Geuss, supra note ?, at 53.
13. Geuss, supra note ?, at 49-50. On the Ik, see generally, Colin Turnbull, The Mountain People (1972). Turnbull's account of the Ik has been criticized. [Cites TO COME].
14. Geuss, supra note ?, at 53.
15. Neo-Aristoteleans such as Alasdair MacIntyre argue that the Ik can and should be criticized from the standpoint of a cultural tradition. See Alasdair MacIntyre, After Virtue. This does not, however, explain why the Ik, who are no part of that tradition, should feel obligated to pay attention.
16. See Geuss, supra note ?, at 53-54.
17. One criticism of this argument was that it seemed to take more knowledge to achieve a self-reflexive state than it would be reasonable to expect persons to have in real circumstances. Indeed, much earlier writing about critical theory either begins by positing or ends by requiring an ideal knowledge state. See, e.g., Jürgen Habermas, Legitimation Crisis (T. McCarthy trans. 1975).
18. For a summary of some of Habermas's differences with Marxists and with Marcuse, Horkheimer, Adorno, and the other originators of Critical Theory known as the Frankfurt School see Jeffrey Alexander, Habermas and Critical Theory: Beyond the Marxian Dilemma?, in Communicative Action 49 (trans. Jeremy Gaines & Doris L. Jones) (Axel Honneth & Hans Joas eds. 1991); Geuss, supra note ?.
19. Geuss, supra note ?, at 57.
20. Geuss, supra note ?, at 58.
21. Geuss, supra note ?, at 52-54. A norm is valid only if "all affected can accept the consequences and the side affects its general observance can be anticipated to have for the satisfaction for everyone's interests (and these consequences are preferred to those of known alternative possibilities)." Jurgen Habermas, Discourse Ethics: Notes on a Program of Philosophical Justification 65 (1990).
22. See, e.g., Michael K. Power, Habermas and the Counterfactual Imagination, 17 Cardozo L. Rev. 1005 (1996). Habermas himself would deny this, arguing that critics -- or translators -- misinterpreted the term "ideal knowledge state." See Jurgen Habermas, Reply, 17 Cardozo L. Rev. 1477, (1996).
23. 1 Jürgen Habermas, The Theory of Communicative Action (hereinafter 1 Communicative Action) and 2 Jürgen Habermas, The Theory of Communicative Action (hereinafter 2 Communicative Action).
24. See, e.g. 1 Communicative Action, supra note ?, at 21.
25. Facts and Norms, supra note ?, at xlii.
26. Cf. Jurgen Habermas, Legitimation Crisis.
27. Facts and Norms, supra note ?, at 8.
28. Habermas claims that this formulation is in fact what he originally meant, but that readers were distracted by his use of the term "ideal speech situation." Habermas, supra note ?, at 164.
29. Habermas, Facts and Norms, supra note ?, at xli.
30. See 2 Jürgen Habermas, The Theory of Communicative Action 148 (1987); Kenneth Baynes, The Normative Grounds of Social Criticism 113 (1992); Cronin, supra note ?, at xxiii. "Communicative action... depends on the use of language oriented to mutual understanding. This use of language functions in such a way that the participants either agree on the validity claim for their speech acts or identify points of disagreement, which they can conjointly take into consideration in the course of further interaction." Facts and Norms, supra note ?, at 18.
In philosophical ethics, it is by no means agreed that the validity claims connected with norms of action, upon which commands or "ought" sentences are based, can, analogously to truth claims, be redeemed discursively. In everyday life, however, no one would enter into moral argumentation if he did not start from the strong presupposition that a grounded consensus could in principle be achieved among those involved. In my view, this follows with conceptual necessity from the meaning of normative validity claims. Norms of action appear in their domains of validity with the claim to express, in relation to some matter requiring regulation, an interest common to all those affected an thus to deserve general recognition. For this reason valid norms must be capable in principle of meeting with the rationally motivated approval of everyone affected under the conditions that neutralize all motives except that of cooperatively seeking the truth. We rely on this intuitive knowledge whenever we engage in moral argument the "moral point of view" is rooted in these presuppositions.
1 Theory of Communicative Action .
31. A person who decides to lie is not engaged in communicative activity of the type described. Jürgen Habermas, What is Universal Pragmatics?, in Jürgen Habermas, Communication and the Evolution of Society 41 (trans. Thomas McCarthy 1979). See supra text following note ?.
32. Habermas, supra note ?, at 59-60.
33. See Jürgen Habermas, Discourse Ethics in Jürgen Habermas, Moral Consciousness and Communicative Action 43, 103 (1990) (discourses always situated within lifeworld of participants).
34. Habermas, supra note ?, at 163-64. Perhaps because of the criticism his "ideal speech" formulation received, Habermas's more recent writings make a point of acknowledging the realities of communication and moral reasoning. Like Kant before him, Habermas sees practical human reasoning as ordinarily relying on "maxims," that is "the more or less trivial, situational rules of action by which an individual customarily regulates his action." Jürgen Habermas, On the Employment of Practical Reason in Jürgen Habermas, Justification and Application (Trans. Ciaran P. Cronin) 1, 7 (1993). Maxims are critical to how people actually live: "Maxims constitute in general the smallest units in a network of operative customs in which the identity and life projects of an individual (or group) are concretized; they regulate the course of daily life, modes of interaction, the ways in which problems are addressed and conflicts resolved, and so forth." Id. at 7. A maxim becomes elevated to a rule of moral conduct if a group, engaged in practical discourse would conclude that it should serve as a general rule of conduct. In contrast, whether or not a maxim is a rule of moral conduct, individual may reflect on the ethical problem of whether to adopt the maxim as a guide of personal conduct. Habermas views this personal, ethical, choice as involving a different thought process, and different considerations than reasoning from a more general, moral, view. Ethical reasoning can, however, be affected by moral reasoning. Id. at 7-10.
35. The theory has been criticized for over-reliance on this. See Andrew Arato , Reflexive Law, Civil Society, and Negative Rights, 17 Cardozo L. Rev. 785 (1996).
36. 1 Communicative Action, supra note ?, at 115. Of those who are so deviant that they cannot communicate with others when the mass of participants are able to communicate, Habermas says, "These extreme cases only confirm that the partialities and sensibilities of the wishes and feelings that can be expressed in value judgments also stand in internal relations to reasons and arguments. Anyone who is so privatistic in his attitudes and evaluations that they cannot be explained and rendered plausible by appeals to standards of evaluation is not behaving rationally." See 1 Communicative Action at 17.
William Rehg's formulation focuses on a minimum level of trust needed for discourse to occur rather than on the ability to enter into a foreign sensibility. See William Rehg, Against Subordination: Morality, Discourse, and Decision in the Legal Theory of Jurgen Habermas, 17 Cardozo L. Rev. 1147 (1996).
38. Habermas, supra note ?, at 150.
39. Habermas, supra note ?, at 159; Further Reflections, supra note ?, at 449-50. This formulation begins to resemble social contract theory.
40. See Rosenfeld, supra note , at 811-12.
41. Some have argued that unlike earlier versions of Habermas's theory, the latest discourse ethics contains no substantive component at all, being only a "formalistic" moral theory. A formalistic moral theory does not generate moral commands. Rather, it "specifies an argumentative procedure that any norm must satisfy if it is to be morally acceptable." Baynes, supra note ?, at 109. Habermas himself rejects this critique: insert.
In any case, the existence of a means of generating morally acceptable norms, even if the means is acknowledged to apply to only the interpersonal domain, serves as an implicit challenge to all world views that are unable to satisfy the formalistic conditions. Furthermore, the existence of a formalistic condition for acceptable moral theory focuses the mind on the procedural prerequisites to the formation of a truly moral order; the comparison of existing institutions to this ideal is itself a form of social critique that can reasonably be called a critical theory.
42. See, e.g. Facts and Norms, supra note ?, at 106-09.
43. Facts and Norms, supra note ?, at 82.
44. Facts and Norms, supra note ?, at 107, 459-60.
45. See, e.g., 1 The theory of Communicative Action 115. Ideally, participants need to be capable of walking in the shoes of all other potential participants in the discourse, although they don't actually have to do it, since that would not be practicable.
46. See Facts and Norms, supra note ?, at 101-04, 110.
47. See Baynes, supra note ?, at 178-80.
48. Jürgen Habermas, Further Reflections on the Public Sphere (trans. Thomas Burger) in Habermas and the Public Sphere 422 (Craig Calhoun, ed. 1992).
49. Thomas McCarthy, Practical Discourse: On the Realtion of Morality to Politics, in Public Sphere, supra note ?, at 51, 63.
50. Further Reflections, supra note ?, at 452.
51. Rosenfeld, supra note ?, at 884.
52. See generally I. Trotter Hardy, Government control and Regulations of Networks, paper presented at Symposium on The Emerging Law of Computer Networks, Austin, TX, May 19, 1995.
53. TCP/IP is the fundamental communication standard on which the Internet has relied: "TCP" stands for Transmission Control Protocol, while "IP" stands for "Internet Protocol." See generally, Information Sciences Institute, University of Southern California, Internet Protocol (Network Working Group, Request for Comments No. 791, Sept. 1981), available online http://ds.internic.net/rfc/rfc791.txt (IP specification); Information Sciences Institute, University of Southern California, Internet Protocol (Network Working Group, Request for Comments No. 793, Sept. 1981), available online http://ds.internic.net/rfc/rfc793.txt (original specification for TCP); Gary C. Kessler & Steven D. Shepard, A Primer On Internet and TCP/IP Tools, (Network Working Group, Request for Comments No. 1739, Dec. 1994), available online http://ds.internic.net/rfc/rfc1739.txt (describing major TCP/IP-based applications; Vincent Cerf & R. Kahn, A Protocol for Packet Network Interconnection, in COM-22 IEEE Trans. on Communications 637 (May 1974) (original paper proposing packet switching network).
54. See generally David H. Crocker, To Be "On" the Internet (Network Working Group, Request for Comments No. 1775, March 1995), available online http://ds.internic.net/rfc/rfc1775.txt (describing varying levels of user access to the Internet).
55. See Bruce Sterling,Short History of the Internet (Feb. 1993), gopher://gopher.isoc.org:70/00/Internet/history/short.history.of.internet; Barry M. Leiner et al., A Brief History of the Internet (Feb 1997), available online URL http://www.isoc.org/internet-history .
56. It is as if rather than telephoning friends you were to tape record your message, cut it up into equal pieces, and hand the pieces to people heading in the general direction of the intended recipient. Each time people carrying tape meet anyone going in the right direction, they can hand over as many pieces of tape as the recipient can comfortably carry. Eventually the message would get where it needs to go.
57. More importantly from a technical standpoint, the computers in the network can all communicate without knowing anything about the network technology carrying their messages.
The particular route that the packet took would be unimportant. Only final results would count. Basically, the packet would be tossed like a hot potato from node to node to node, more or less in the direction of its destination, until it ended up in the proper place. If big pieces of the network had been blown away, that simply wouldn't matter; the packets would still stay airborne, lateralled wildly across the field by whatever nodes happened to survive. This rather haphazard delivery system might be "inefficient" in the usual sense (especially compared to, say, the telephone system) -- but it would be extremely rugged.
Sterling, supra note ?.
59. Redefining Community, Info. Wk., Nov. 29, 1993, at 28 (quoting Gilmore).
60. See A. Michael Froomkin, The Internet as a Source of Regulatory Arbitrage, (book chapter) in Borders in Cyberspace (Brian Kahin and Charles Nesson, eds.) (MIT Press, 1997), available onlinehttp://www.law.miami.edu/~froomkin/articles/arbitr.htm .
61. Gary H. Anthes, Summit Addresses Growth Security Issues for Internet, Computerworld, Apr. 24, 1995 at 67 (quoting Vinton Cerf estimate).
62. Compare Louise Kehoe, Surge of Business Interest, The Financial Times, March 1, 1995 at XVIII (about 3.3 million outside US) with Database, U.S. News & World Rep., Feb. 27, 1995, at 14 (1.4 million outside US).
63. Benard Aboba, How the Internet Came to Be, in The Online User's Encyclopedia __ (1993), available online URL gopher://gopher.isoc.org:70/00/internet/history/how.internet.came.to.be.
64. David H. Crocker, Making Standards the IETF Way, 1 StandardView 1, __ (1993); http://www.isoc.org/papers/standards/crocker-on-standards.html. Consider this phenomenal growth in the numbmber of Hosts advertised in the DNS:
| Survey Adjusted Replied Date | Host Count Host Count To Ping* ------+----------------------------------- Jul 99| 56,218,000 - Jan 99| 43,230,000 8,426,000 Jul 98| 36,739,000 6,529,000 Jan 98| 29,670,000 5,331,640 Jul 97| 19,540,000 26,053,000 4,314,410 [last OLD Survey] Jan 97| 16,146,000 21,819,000 3,392,000 Jul 96| 12,881,000 16,729,000 2,569,000 Jan 96| 9,472,000 14,352,000 1,682,000 Jul 95| 6,642,000 8,200,000 1,149,000 Jan 95| 4,852,000 5,846,000 970,000 Jul 94| 3,212,000 707,000 Jan 94| 2,217,000 576,000 Jul 93| 1,776,000 464,000 Jan 93| 1,313,000Network Wizards, Internet Domain Survey, July 1999, http://www.nw.com/zone/WWW/report.html.
65. BBC, Guru predicts web surge,
http://news.bbc.co.uk/hi/english/business/the_economy/newsid_521000/521065.stm (quoting Nicholas Negroponte).
66. Nina Burns, E-mail beyond the LAN, PC Mag., April 25, 1995, at 102.
67. See "World-Wide Web" in The Free On-Line Dictionary of Computing, available online http://wombat.doc.ic.ac.uk/?World-Wide+Web. The Web was invented in the CERN High-Energy Physics laboratories in Geneva, Switzerland.
68. Id. A terrabyte is a million megabytes.
70. See "World-Wide Web", supra note ?. A Web browser can retrieve data via FTP, Gopher, Telnet or news, as well as via the http protocol used to transfer hypertext documents. Id.
71. BITNET used the IBM RSCS protocol. It relied on direct leased line connections between participating sites, most which were in U.S. universities. Today, BITNET and its parallel networks in other parts of the world (e.g., EARN in Europe) have several thousand participating sites. In recent years, BITNET has established a backbone which uses the TCP/IP protocols, thus interconnecting BITNET with the Internet. See Vincent Cerf, A Brief History of the Internet and Related Networks, available online gopher://gopher.isoc.org:70/00/internet/history/_A Brief History of the Internet and Related Networks_ by V. Cerf.
72. CSNET was initially funded by the National Science Foundation (NSF) to provide networking for university, industry and government computer science research groups. At its peak, CSNET had approximately 200 participating sites and international connections to approximately fifteen countries. CSNET ceased in 1991. Cerf, supra note ?.
75. Network Wizards, Host Distribution by Top-Level Domain Name, available online http://www.nw.com/zone/WWW/dist-byname.html lists Internet hosts sorted by "domain names," which are either two-letter country codes, or three letter codes that specify the type of institution, gives some idea of the distribution of host machines. Of the 36,739,151 hosts in the July 1998 survey, 10,301,570 have "com" suffixes, representing nominally commercial sites.
76. See Aboba, supra note ? (quoting Cerf).
77. ARPA became DARPA, the Defense Advanced Research Projects Agency, in 1972.
78. J. Reynolds & J. Postel, The Request for Comments Reference Guide 2 (Network Working Group, Request for Comments No. 1000, Aug. 1987), available online http://ds.internic.net/rfc/rfc1000.txt [hereinafter RFC 1000].
79. RFC 1000, supra note ?, at 2.
80. RFC 1000, supra note ?, at 2.
81. RFC 1000, supra note ?, at 2-3 ("while BBN [the ARPA contractor] didn't take over the protocol design process, we kept expecting that an official protocol design team would announce itself.").
82. RFC 1000, supra note ?, at 2-3.
83. See, e.g., Steve Crocker, Documentation Conventions (Network Working Group, Request for Comments No. 3, April, 1969), http://ds.internic.net/rfc/rfc3.txt ("The Network Working Group seems to consist of Steve Carr of Utah, Jeff Rulifson and Bill Duvall at SRI, and Steve Crocker and Gerard Deloche at UCLA. Membership is not closed."). RFCs 1 and 2, which dealt with "host software," are so obsolete as to have been taken off line.
84. Aboba, supra note ?. (interview with Vinton Cerf who participated in early development of Internet protocols while a graduate student at UCLA).
85. RFC 1000, supra note ?, at 3 (quoting Stephen D. Crocker, first and to date only RFC editor).
86. Crocker, supra note ?, at _.
88. Crocker, supra note ?, at _.
89. In 1971 there were 15 computers linked to the network, by 1972 there were 37. Sterling, supra note ?.
90. There are now (Nov 15, 1999) 2728 RFCs, see http://www.ietf.org/rfc/ , and hundreds more are continually in various stages of preparation. The contemporary RFC procedure is described in more detail, infra TAN --. Not all RFCs are standards, however. Some are informational, others are "experimental" or "historic". See Christian Huitema et al., Not All RFCs are Standards 1-2 (Network Working Group, Request for Comments No. 1796, April 1995), ftp://ftp.isi.edu/in-notes/rfc1796.txthttp://ds.internic.net/rfc/rfc1796.txt.
95. Vinton Cerf, The Internet Activities Board 1-2 (Network Working Group, Request for Comments No. 1120, Sept. 1989), available online URL http://ds.internic.net/rfc/rfc1120.txt [hereinafter RFC 1120]. Dr. David C. Clark of the Lab for Computer Science at Massachusetts Institute of Technology was named the chairman of this committee. Id.
96. See Crocker, supra note ?, at _ ("Initially consisting of eight members, this is essentially the management structure that is in place today.").
97. See Crocker, supra note ?, at --.
98. RFC 1120, supra note ?, at 2.
99. One other important task force created in 1986 deserves mention: the IAB created the Internet Research Task Force (IRTF) to consider long-term research problems in the Internet.
100. See Vinton Cerf, The Internet Activities Board 5 (Network Working Group, Request for Comments No. 1160, May 1990), available online URL http://ds.internic.net/rfc/rfc1160.txt. Technically this function was delegated to the Internet Engineering Steering Group (IESG), which managed the IETF.
101. For more details see Internet Activities Board & Internet Engineering Steering Group, Internet Standards Process--Revision 2 (Network Working Group, Request for Comments No. 1602, March 1994), available online URL http://ds.internic.net/rfc/rfc1602.txt [hereinafter RFC 1602].
102. See supra note ?. The IAB endured several reorganizations from 1983 to 1994, when the current charter was drafted.
104. Crocker, supra note ?, at -.
105. RFC 1602, supra note ?, at 7.
106. Internet Society, What Is the Internet Society, http://www.isoc.org/what-is-isoc.html.
107. RFC 1602, supra note ?, at 6-7.
108. See infra text at note ?.
109. See IETF Secretariat et al., The Tao of IETF 3 (Network Working Group, Request for Comments No. 1718, Nov. 1994), http://ds.internic.net/rfc/rfc1718.txt [hereinafter IETF Tao].
110. Paul Mockapetris, POISED '95 BOF gopher://ds.internic.net/00/ietf/95apr/poised95-minutes-95apr.txt (minutes of POISED meeting held at April 1995 IETF meeting).
112. IETF Tao, supra note ?, at 1.
113. IETF Tao, supra note ?, at 7.
114. IETF Tao, supra note ?, at 5.
115. IETF Tao, supra note ?, at 5.
116. Crocker, supra note ?, at -.
117. Internet Architecture Board, Internet Official Protocol Standards 3 (Network Working Group, Request for Comments No. 1780, March 1995), http://ds.internic.net/rfc/rfc1780.txt [hereinafter RFC 1780]; IETF Tao, supra note ?, at 1.
118. RFC 1602, supra note ?, at 7.
119. RFC 1780, supra note ?, at 3; IETF Tao, supra note ?, at 1.
121. See Steve Crocker, The Process of Organization of Internet Standards Working Group (POISED) 2-4 (Network Working Group, Request for Comments No. 1640, June 1994), available online URL http://ds. internic.net/rfc/rfc1640.txt [hereinafter RFC 1640].
122. For a description of the IAB prior to this voluntary merger, see supra, TAN ?.
123. IETF Tao, supra note ?, at 4. The 1992 IAB Charter appears as Internet Architecture Board, Charter of the Internet Architecture Board (IAB) (Network Working Group, Request for Comments No. 1358, Aug. 1992), http://ds.internic.net/rfc/rfc1358.txt. The current charter is Internet Architecture Board, Charter of the Internet Architecture Board (IAB) (Network Working Group, Request for Comments No. 1601, March 1994), http://ds.internic.net/rfc/rfc1358.txt [hereinafter RFC 1601].
124. Crocker, supra note ?, at -.
125. See RFC 1640, supra note ?, at 1-4.
126. See supra text accompanying note ?.
127. The charge to the working group asked it to consider: (1) Procedures for making appointments to the IAB; (2) Procedures for resolving disagreements among the IETF, IESG, and IAB in matters pertaining to the Internet Standards; and (3) Methods for ensuring that for any particular Internet Standard, procedures have been followed satisfactorily by all parties so that everyone with an interest has had a fair opportunity to be heard. RFC 1640 at 9.
128. RFC 1640, supra note ?, at 4.
129. RFC 1601, supra note ?, at 1. The IETF chair must be approved by a vote of the 12 full IAB members then sitting. Id.
130. On the use of randomness to achieve democratic results, cf. Akhil R. Amar, Note, Choosing Representatives by Lottery Voting, 93 Yale L.J. 1283 (1984).
131. RFC 1601, supra note 75, at 1-2. The nomination committee also includes four non-voting liaison members, one designated by each of the Board of Trustees of the Internet Society, the IAB, the IESG, and the IRSG. Id. at 2.
132. IETF Tao, supra note ?, at 4.
133. RFC 1601, supra note ?, at 2.
134. See IETF Tao, supra note ?, at 16. Not every RFC contains a standard.
135. The 'rough consensus' procedure, guarantees moments of divisiveness, since parties that lose various debates will occasionally feel that they were not given a fair opportunity to express their views or that the consensus of the working group was not accurately read. All such expressions of concern are taken very seriously by the IETF management. More than most, this is a system that operates on an underlying sense of the good will and integrity of its participants. Often, claims of "undue" process will cause a brief delay in the standard-track progression of a specification, while a review is conducted. While frustrating to those who did the work of technical development, these delays usually measure a small number of weeks and are vital to ensuring that the process which developed the specification was fair.
Crocker, supra note ?, at -.
136. Crocker, supra note ?, at -.
137. Crocker, supra note ?, at -.
138. See infra text accompanying notes ?.
139. Crocker, supra note ?, at -.
140. See http://www.ietf.org/meetings/attendees_wdc.txt (listing more than 2000 pre-registrations for November 1999 IETF meeting).
141. See Crocker, supra note ?, at --.
142. Crocker, supra note ?, at --.
143. "In general, the IETF is applying its own technical design philosophy to its own operation. So far, the technique seems to be working. With luck, it will demonstrate the same analytic likelihood of failure, with the same experiential fact of continued success." Crocker, supra note ?, at --.
144. Aboba, supra note ?. Recently, FTP Software has reinstituted Bake Offs to ensure interoperability among modern vendor products. Id. The Bake Off protocol, complete with instructions to test for "rubber baby buffer bumpers in both directions," appears as J. Postel, TCP and IP Bake Off (Network Working Group, Request for Comments No. 1025, Sept. 1987), http://ds.internic.net/rfc/rfc1025.txt.
145. The backbone is the sites that ensure traffic passes along the top level of the network. G. Malkin, Internet Users' Glossary (Network Working Group, Request for Comments No. 1392, Jan. 1993), http://ds.internic.net/rfc/rfc1392.txt.
147. See William F. Powers, Cloak and Dagger Internet Lets Spies Whisper in Binary Code, Wash. Post, Dec. 28, 1994, at A4 (noting that the intelligence community created the "Intelink" because the "very public, very uncontrollable global mesh of computer networks [(the Internet)] was too risky a place to do business").
148. See RFC 2026, The Internet Standards Process -- Revision 3, ftp://ftp.isi.edu/in-notes/rfc2316.txt .
149. See RFC 1602, supra note ?, at 1.
150. See RFC 1602, supra note ?, at 1 (noting it obsoletes earlier RFC).
151. RFC 1602, supra note ?, at 25, 28-29.
152. RFC 1602, supra note ?, at § 5.4.1.
153. This gap was temporarily filled by J. Postel, RFC 1871, Addendum to RFC 1602 -- Variance Procedure (November 1995).
154. IAB Minutes Apr. 2, 1995.
155. E-mail From: AWeinrib@ibeam.jf.intel.com (Abel Weinrib) Subject: Minutes for April 2 IAB Meeting.
156. (IAB Open Meeting, Reported by Abel Weinrib) available online URL gopher://ds.internic.net/00/ietf/95apr/iab-minutes-95apr.txt.
157. RFC 2062, § 10.32 (C). The definition of "reasonable and non-discriminatory" is also interesting:
The IESG will not make any explicit determination that the assurance of reasonable and non-discriminatory terms for the use of a technology has been fulfilled in practice. It will instead use the normal requirements for the advancement of Internet Standards to verify that the terms for use are reasonable. If the two unrelated implementations of the specification that are required to advance from Proposed Standard to Draft Standard have been produced by different organizations or individuals or if the "significant implementation and successful operational experience" required to advance from Draft Standard to Standard has been achieved the assumption is that the terms must be reasonable and to some degree, non-discriminatory. This assumption may be challenged during the Last-Call period.
Id. at § 10.3.3.
159. For an economic analysis of the costs and benefits of standards, see Stanley M. Besen & Joseph Farrell, Choosing How to Compete: Strategies and Tactics in Standardization, J. Econ. Perspectives, Spring 1994, at 117, 117-18 (asserting that firms manipulate standards for competitive advantage); Michael L. Katz & Carl Shapiro, Systems Competition and Network Effects, J. Econ. Perspectives, Spring 1994, at 93, 93-95 (warning that pervasive standards lead to inefficient market outcomes in "systems markets" characterized by products that require other conforming products to function). But see S.J. Liebowitz & Stephen E. Margolis, Network Externality: An Uncommon Tragedy, J. Econ. Perspectives, Spring 1994, at 133, 133-35 (arguing that the negative effects of standards identified by Katz and Shapiro are infrequent, if they exist at all).
160. Freeware is distributed by the author on a no-cost basis.
161. Shareware is distributed by the author on a try-before-you-buy basis. Anyone possessing an unregistered copy is encouraged to copy it and share it with other potential users. Users who like the product are asked to "register" it by sending in a small fee. Shareware works entirely on the honor system.
162. PGP, currently in version 2.6.2 for shareware and 2.7 for commercial users (ViaCrypt), is a public-key encryption program. Because the program relies on a "web of trust" approach to key management, see generally, A. Michael Froomkin, The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. Penn. L. Rev. 709, 893-94 (1995), the widespread use of PGP has spawned a small cottage industry of "key servers" -- computers that act like telephone books, listing public keys, the username (or pseudonym) attached to them, and any attestations of reliability that may be appended by other users.
163. PKZip, currently in version 2.04g, is a file compression program in wide use on DOS-based personal computers. Files produced by the program commonly have the form, FILENAME.ZIP.
164. See Steve Alexander, The Great Netscape, Star Tribune, May 3, 1995, at D1 (stating 6 million copies given away); Peter H. Lewis, Netscape Knows Fame And Aspires to Fortune, N.Y. Times, March 1, 1995, at D1 (stating 3 million copies download from Netscape server since December 1994). Innumerable additional copies may have been made from those copies.
165. See U.S. v. Microsoft, No. 98-1233 (TPJ) (November 5, 1999 findings of fact), http://www.dcd.uscourts.gov/microsoft-findings.html .
166. See, e.g. Lewis, supra note ? (quoting software engineer as saying, "Once someone starts writing code for one platform, it's hard to leave it. ... If we write a 2,000-page Web site for Netscape this spring, and Microsoft comes out with a superior system in October, we'd have to redo all our work to take advantage of it. Believe me, that's a lot of work.").
167. See, e.g., Ben Rothke, OS/2's Big Problem: IBM, InformationWeek 79 (Feb. 13, 1995).
168. See, e.g., Infocorp Reports On Mac, Windows Duel, Newsbytes News Network (April 18, 1995) (reporting OS/2 market share holding steady at 2%).
169. Sally Hambridge, Netiquette Guidelines, RFC 1855, http://www.cis.ohio-state.edu/htbin/rfc/rfc1855.html (1995).
170. Internet talk is a utility that allows direct real-time terminal to terminal communication.
171. Hambridge, supra note ? at § 3.1.1.
172. "Usenet" in The Free On-Line Dictionary of Computing http://wombat.doc.ic.ac.uk/?USENET. "Network News Transfer Protocol is a protocol used to transfer news articles between a news server and a news reader. The uucp protocol is sometimes used to transfer articles between servers, though this is probably less common now that most backbone sites are on the Internet." Id.
173. "Usenet mainstream hierarchies
are established by a process that requires the approval of a majority of
Usenet members. Most sites that receive a NETNEWS feed receive all of these
hierarchies, which include:
comp Computers
misc Miscellaneous
news Network news
rec Recreation
sci Science
soc Social issues
talk Various discussion lists
"The alternative hierarchies include lists that
may be set up at any site that has the server software and disk space.
These lists are not formally part of Usenet and, therefore, may not be
received by all sites getting NETNEWS. The alternative hierarchies include:
alt Alternate miscellaneous discussion lists
bionet Biology, medicine, and life sciences
bit BITNET discussion lists
biz Various business-related discussion lists
ddn Defense Data Network
gnu GNU lists
ieee IEEE information
info Various Internet and other networking information
k12 K-12 education
u3b AT&T 3B computers
vmsnet Digital's VMS operating system"
Gary C. Kessler & Steven D. Shepard, A Primer On Internet and TCP/IP Tools 34 (Network Working Group, Request for Comments No. 1739, Dec. 1994) http://ds.internic.net/rfc/rfc1739.txt.
174. The technical details appear in M. Horton & R. Adams, Standard for Interchange of USENET Messages (Network Working Group, Request for Comments No. 1036, Dec. 1987), http://ds.internic.net/rfc/rfc1036.txt.
175. See e.g. TeleGeography. (2000), Internet Governance: Then and Now, 131, 131 in TeleGeography 2000: Global Telecommunications Traffic Statistics & Commentary_. Washington DC: TeleGeography, Inc.
176. See Edward Vielmetti & Mark Moraes, What is Usenet? A second opinion (Oct. 26, 1994),.
177. The full description of the procedures is Greg Woods et al., Guidelines for Usenet Group Creation, http://www.ahmdal.com/usenet/creating-newsgroups/part1. [hereinafter Guidelines].
178. See Guidelines, supra note ?. The "alt." groups work differently.
179. There are numerous naming conventions designed to make it easier to find a group on a given topic. For example, discussions of religious issues are found under soc.religion.{name-of-religion}, not as top level entry under soc. Thus, for example, soc.religion.scientology, not soc.scientology or misc.scientology.
180. The institutionalization of the "Usenet Volunteer Votetakers" is a fairly recent phenomenon. The task of finding neutral votetakers used to be left to the proponents of the new group until convincing accusations of vote fraud were leveled at a person who apparently served as his own votetaker under a pseudonym.
181. For a discussion of how Usenet works, see supra text accompanying note ?.
182. The term comes from the Monty Python song in which the word "spam" is repeated over and over and over and over and over.... See news.admin.net-abuse FAQ, http://www-sc.ucssc.indiana.edu/~scotty/acena.html at § 2.2. [hereinafter net.abuse FAQ].
183. Spam can also be created by a computer program. See infra text accompanying note ? (discussing "zuma-bot").
184. Most newsreading software allows the user to define a "killfile" instructing the software to ignore all messages from a particular source. It is possible to killfile the author of a spam, thus ignoring multiple posts. However, by the time one is aware that one has encountered a spam it is too late to avoid any costs of downloading as the damage is already done. In addition, technically unsophisticated users, especially new ones, are often unaware of this feature of their software.
186. See alt.fan.serdar-argic FAQ, gopher://dixie.aiss.uiuc.edu:6969/00/urban.legends/net.legends/alt.fan.serdar-argic.faq at §§ 2.2, 2.4.
187. A list of his 16 favorite groups appears id. at § 3.
188. See Serdar FAQ, supra note ?, at § 2.6.
189. See Net.abuse FAQ, supra note ?, at § 2.4.
190. Charles Arthur, A Spammer in the Networks, New Scientist (Nov. 19, 1994).
191. Laurence A. Canter & Martha S. Siegel, How to Make a Fortune on the Information Superhighway (1994).
194. Net.abuse FAQ, supra note ?, at § 3.1.
196. Net.abuse FAQ, supra note ?, at § 2.9.
199. See supra text accompanying note ? (noting consensus that more than 20 copies are required to qualify as spam).
200. See Serdar FAQ, supra note ?, at § 7. Cancellation usually requires a forged posting purporting to be from the original sender.
201. http://www.stopspam.org/usenet/faqs/udp.html
202. Usenet Death Penalty FAQ §1, http://www.stopspam.org/usenet/faqs/udp.html .
203. Usenet Death Penalty FAQ, supra note ?, at § 7.
204. Usenet Death Penalty FAQ, supra note ?, at § 14..
205. Cancel Messages: Frequently Asked Questions, Part 3/4 (v1.75), http://www.landfield.com/faqs/usenet/cancel-faq/part3/ §VIII(D).
206. http://maps.vix.com/rbl/relay.html
207. MAPS RBL versus ORBS - 27 January, 1999, http://www.rts.com.au/spam/maps_versus_orbs_faq.html
"Since professional spammers
are widely blackholed, blockaded, and attacked, they tend not to try to
reach millions of mailboxes directly from their own servers. Reasons vary
from not wanting their connection to be shut down, to not having enough
computational or bandwidth resources to actually send mail to every victim
they want to spam. Their solution to this problem is called Relay Spam
whereby they use third party mail relays owned by innocent and unknowing
folks. Rather than opening 1,000,000 connections to 1,000,000 mail servers
to pollute 1,000,000 mailboxes one at a time, they instead open 1,000 connections
to 1,000 mail servers and pollute 1,000,000 mailboxes 1,000 at a time.
This saves them horsepower and bandwidth, and also allows them to reach
mailboxes on mail servers who would never accept a direct connection from
a spammer's network.
"Who are these third parties?
Unfortunately, almost all Sendmail sites (which means almost all e-mail
relays on the Internet) permit unlimited mail relay from any source to
any destination. This is a holdover from the good old days when one could
trust most Internet users not to intentionally annoy others and all Internet
host operators not to intentionally steal service from others. .... [T]here
are tens of thousands of mail relays on the Internet which will probably
never be upgraded.
"We blackhole relay sites, one host at a time, for 10 to 20 days at a time, as the only way we can think of to stop a relay spam in progress. Relay operators routinely contact us asking for help, and we routinely tell them exactly what they need to do. Our goals in doing this are to stop spam and educate relay operators. We almost always remove relays from the MAPS RBL as soon as we are contacted by an apparently-cooperative relay operator, and we spend a lot of our volunteer effort helping people upgrade their mailers to get them to stop relaying indiscriminately. http://mail-abuse.org/rbl/rationale.html#RelaySpam
208. the MAPS team is made up of people who have been on the net since before it was called "internet". we did NCP, we did UUCP, we owned and operated IMPs. to us, the collection of people who use parts of the IPv4 address pool are still a collective entity and we believe that (a) "they" ought to respect "our" privacy and (b) "we" ought to help "them" learn what they need to know to play in "our" sandbox. thus has it ever been, and thus we believe it must ever be -- or at least, until senders are paying for their own traffic at which point the collective dynamic can shift toward the every-man-for-himself model that spammers are already following
209. Mail Abuse Prevention System Realtime Blackhole List http://maps.vix.com/rbl/ .
210. MAPS RBL, http://mail-abuse.org/rbl/
211. http://maps.vix.com/rbl/rationale.html
212. http://www.wired.com/news/technology/0,1282,12957,00.html (MSN with more than 2 million customers, cut off for 3.5 days, June 1998; Dec 97 Netcom was on for a month)
Feb 98: 80 anti-spam network administrators around the world currently blank out the 400-odd sites on the RBL at their routers (Vixie does not yet charge a fee, he only requires legal indemnification), and thousands more use the list remotely, http://www.wired.com/news/news/technology/story/10086.html ;Hotmail uses controversial filter to fight spam By Paul Festa Staff Writer, CNET News.com November 9, 1999, http://news.cnet.com/news/0-1005-200-1433577.html?tag=st.ne.1002.
213. MAPS DUL FAQ, http://maps.vix.com/dul/faq.htm#b_8
214. Internet technology is notably lacking in the kind of harsh, prescriptive, contractual, authorization based access controls which have been found in virtually all pre-Internet proprietary protocol suites. One assumption is that any host on the network should be allowed to send mail to any other host on the network, since mail will only be sent if it is expected to be of direct and equal benefit to the sender and recipient. Another assumption built into Internet's protocols is that mail should always be relayed if it is not on its final host, since this condition is not supposed to occur without the permission of the relay's operator. http://mail-abuse.org/rbl/rationale.html#Openness
215. http://mail-abuse.org/rbl/rationale.html#Rights
216. http://maps.vix.com/rbl/rationale.html
218. The fear seems to center on the "invasion" by AOL users, who are considered particularly clueless and numerous.
219. U.S. Dep't of Commerce, Management of Internet Names and Addresses (June 5, 1998), available online URL http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm.
220. This section is lightly adapted from the more detailed explanation in A. Michael Froomkin Semi-Private International Rulemaking: Lessons Learned from the WIPO Domain Name Process, http://www.law.miami.edu/~froomkin/articles/tprc99.pdf .
221. Domain naming conventions treat a domain name as having three parts: In the address www.miami.edu, for example, ".edu," the rightmost part, is the "top level domain" or TLD, while "miami"is the second-level domain (SLD) and any other parts are lumped together as third-or-higher-level domains. Domain names are just conventions, and a core part of the current dispute over them arises from the conflict over whether new TLDs should be added to the so-called "legacy root" - the most widely used, and thus most authoritative list, of which TLDs will actually map to IP numbers.
222. The description in the text describes the situation prior to the introduction of the "test-bed" registries. Currently there appears to be more than one database, or in any event more than one user query interface, which hardly fits the model of "stability". See Network Solutions, Shared Registation System Overview, http://www.nsiregistry.com/documents/SRS_Overview_02.pdf ; see also http://www.domainhandbook.com/registrars.html and http://cyber.law.harvard.edu/icann/whois/ for ongoing coverage of this issue.
223. Note that the system does not require that a domain name be associated with a single or consistent IP number. Rather it requires only that it map to an IP number that will produce the result desired by the registrant. For example, a busy web site might have several servers, each with its own IP number, that take turns serving requests directed to a single domain name.
224. See generally, Ellen Rony & Peter Rony, The Domain Name Handbook §3.4.2 (1998).
225. In addition to the "legacy root" TLDs discussed in this article, there are a large number of "alternate" TLDs that are not acknowledged by the majority of domain name servers. There is no technical bar to their existence and anyone who knows how to tell his software to use an alternate domain name server can access both the "legacy root" and whatever alternate TLDs are supported by that name server. Thus, for example, pointing your DNS at 205.189.73.102 and 24.226.37.241 makes it possible to resolve http://lighting.faq, where a legacy DNS would only return an error message. See generally, OSRC Root Zone, How To Use New Domain Names, http://support.open-rsc.org/How_To/ .
226.
"A name server is a network service that enables clients to name resources
or objects and share this information with other objects in the network.
This in effect is a distributed data base system for objects in a computer
network." Domains FAQ §2.3, <ftp://ftp.is.co.za/usenet/news.answers/internet/tcp-ip/domains-faq/part1>.
A list of the root name servers is at ftp://ftp.rs.internic.net/domain/named.root.
227. Tim Barkow, The Domain Name System, http://www.wired.com/wired/archive/4.09/geek.html
228. The most important is RFC 1591, http://www.cis.ohio-state.edu/htbin/rfc/rfc1591.html ; see also IANA TLD Delegation Practices Document (ICP-1), Posted 21 May, 1999, http://www.iana.org/tld-deleg-prac.html .
229. "The United States government, as a custodian of the work started by the Defense Advanced Research Projects Agency and now supported by National Science Foundation funding that created the Internet and IANA, is providing guidelines for an organization to carry out this work." http://www.iana.org/faqs.html
230. But not, it should be noted, SLD management issues-these were the province of the relevant registration authorities. Thus, for example, NSI set the dispute policy for trademark-based complaints about registrations in .com, not IANA.
231. A much fuller account of these issues can be found in Craig Simon, Overview of the DNS Controversy, http://www.flywheel.com/ircw/overview.html , the links from that page, and Craig Simon, Bandwidth Rules (unpubl. doctoral dissertation draft, 1997).
232. For more details see Froomkin, supra note ?..
233. White Paper on Management of Internet Names and Numbers - a Statement of Policy (June 10, 1998), 63 Fed. Reg. 31,741, 31,750 (1998), http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm (hereinafter cited as White Paper)
234.
See Cooperative Agreement, Amendment 11,
http://www.networksolutions.com/nsf/agreement/amendment11.html
:
"NSI agrees to continue to function as the administrator
for the primary root server for the root server system and as a root zone
administrator until such time as the USG instructs NSI in writing to transfer
either or both of these functions to NewCo or a specified alternate entity.
"While NSI continues to operate the primary root server, it shall request written direction from an authorized USG official before making or rejecting any modifications, additions or deletions to the root zone file. Such direction will be provided within ten (10) working days and it may instruct NSI to process any such changes directed by NewCo when submitted to NSI in conformity with written procedures established by NewCo and recognized by the USG."
235. The unofficial ICANN Organizational Chart at http://www.wia.org/icann/after_icann-gac.htm displays the complexity in all its Byzantine glory.
236. Exactly what that consists of is a subject of spirited debate. Officially, ICANN's charter limits it to the technical coordination of domain names and IP numbers, and ICANN has argued strenuously that it has and will hold to this narrow mission.. In the eyes of its critics, however, ICANN has already strayed into non-technical issues such as setting up both substantive and procedural arbitration rules for some domain name/trademark disputes.
237. ICANN Articles of Incorporation ¶ 4, http://www.icann.org/general/articles.htm .
238. The ostensible reason was that making individuals statutory members would give them a legal right to initiate costly shareholder derivative actions. See ICANN staff report, http://www.icann.org/santiago/membership-analysis.htm . The actual Board resolution, http://www.icann.org/santiago/santiago-resolutions.htm does not give much in the way of reasons. However, ICANN counsel Joe Sims, who is the primary drafter of the key corporate documents, stated his personal opinion that individual members would be destabilizing. See Joe Sims, Response to Froomkin, http://www.icann.org/comments-mail/comment-bylaws/msg00025.html ; Joe Sims, Re: [names] From Michael Froomkin, http://www.law.miami.edu/~amf/sims2.htm .
239. See, e.g. A. Michael Froomkin, A Catalog of Critical Process Failures; Progress on Substance; More Work Needed, http://personal.law.miami.edu/~amf/icann-udp.htm .
240. The Office of Advocacy at the U.S. Small Business Administration has been the leading critic of ICANN's procedural flaws and proposed a number of reforms. See, e.g. Letter to Esther Dyson, http://www.sba.gov/advo/laws/comments/icann99_1027.html; see also David Post, Michael Froomkin & David Farber, Elusive Consensus, http://www.icannwatch.org/archives/essays/932565188.shtml (July 21, 1999). ("this notion that ICANN 'is nothing more than the reflection of community consensus' continues to defy common sense. How ICANN interprets 'consensus,' and how it thinks such a consensus is uncovered, is deeply mysterious"); see generally ICANNWatch.org, http://www.icannwatch.org .
241. Rosenfeld, supra note ?, at 885, 898.
242. Cronin, supra note ?, at xxv; Bernard Williams, Ethics 18, 27-38, 100-01, 174 ().
244. Habermas rejects the critique, arguing that there would be no other way to go about discussing just norms of social interaction. Cronin, supra note ?, at xxvi.
245. A particularly elegant critique of Habermas's reliance on "counterfactual" assertions, including some about the nature of discourse is Michael K. Power, supra note ?, at 1013.
246. Michel Rosenfeld, Can Rights, Democracy, and Justice Be Reconciled through Discourse Theory? Reflections on Habermas's Proceduralist Paradigm of Law, 17 Cardozo law review 791, 805 (1996).
247. "Those norms for action are valid, to which all potentially affected persons could agree as participants in a rational discourse."
248. See supra text accompanying note ?.
249. Simple Public Key Infrasatructure, cf. RFC 2692, FRC 2693.
250. Process for Organization of Internet Standards Ong (poisson) http://www.ietf.org/html.charters/poisson-charter.html ("The tricky part of describing the IETF process, certainly in the fast changing world of the Internet, is that when you describe the process in too much detail, the IETF loses its flexibility, when you describe to little it becomes unmanageable. This is therefore a slippery subject, hence the name POISSON, which is French for fish. The French word also serves to indicate the international aspect of the WG. Furthermore the IETF operates by consensus, which sometimes seems to have a POISSON distribution.")
251. Discussion of IETF position on developing protocols that "support mechanisms whose primary purpose is to support wiretapping or other law enforcement activities". See http://www.ietf.org/mail-archive/working-groups/raven/current/msg00000.html
253. See supra text accompanying note ?.
254. The role of theWG chair is described in RFC 2418, ftp://ftp.isi.edu/in-notes/rfc2418.txt at § 6.1.
255. Or, sometimes, verbal intimidation.
256. See generally Raymond Geuss, The Idea of a Critical Theory (1981). It could be argued that Kant too outlined a theory possessing this characteristic, at least if one were to combine the essays, An Answer to the Question: 'What is Enlightenment?' and Perpetual Peace: A Philosophic Sketch, both reprinted in H. Reiss, Kant's Political Writings (1970).
257. RFC 2282, http://www.cis.ohio-state.edu/htbin/rfc/rfc2282.html
258. For example, my email address is froomkin@law.tm but I do not live in Turkmenistan.
259. Rehg, supra note ?, at 62 (citing Alexy, Legal Argumentation 130).
260. Rehg, supra note ?, at 64.
264. Facts and Norms, supra note ?, at 17-18.
265. There is of course some technical commentary in the trade press and on relevant mailing lists and newsgroups. But to call a series of commercial reviews discourse, much less to suggest it resembles the best practical discourse would be to cheapen the term to almost no meaning.
266. See Habermas, supra note ?, at 41.
267. See supra text accompanying note ?.
268. See Between Facts and Norms, supra note ?, at 459-60. As one might expect, this is a controversial assertion, if only because the sanctioning of strategic behavior runs the risk of favoring some perspectives over others, even if those favored are not the ones that would be selected after the best practical discourse.
269. See [], Katie Hawfield and Emily Lyons, Conventional Wisdoms About Women and Internet Use: Refuting Traditional Perceptions, http://ecommerce.vanderbilt.edu/Student.Projects/Women/conventional_wisdom.html
270. In Facticity and Validity (1994), Habermas "corrects for his earlier 'gender blindness'". Jean L. Cohen, Critical Social Theory and Gender Critiques in Meehan, supra note ?, at 57, 87 n.1.
271. Joan B. Landes, The Public and the Private Sphere: A Feminist Reconsideration, in Meehan, supra note ?, at 91, 97.
272. See Nancy Fraser, What's Critical About Critical Theory, in Meehan, supra note ?, at 21, 24.
273. Fraser, supra note ?, at 24.
274. See e.g. Joan B. Landes, The Public and the Private Sphere: A Feminist Reconsideration, Feminists Read Habermas 91, 97-98 (Johanna Meehan, ed. 1995). The classic example is the "reasonable man" standard. See, e.g., Fraser, supra note ?, at 35.
275. For a different view, perhaps dated, arguing that computer discourse "tend to be used by a technically sophisticated elite and .... there are both obvious and subtle controls over the interaction that can have a substantial effect upon the quality of the discourse" see Elizabeth Lane Lawley, Discourse and Distortion in Computer-Mediated Communication (Dec. 1992), http://www.itcs.com/elawley/discourse.htm .
276. Susan Herring, Posting in a different voice: Gender and ethics in Philosophical Perspectives on Computer-Mediated Communication 115. (C. Ess. Ed. 1996)
277. Charles Ess, A Plea for Understanding--Beyond False Dilemmas on the Net, CMC Magazine, http://www.december.com/cmc/mag/1996/jan/ess3a.html .
278. See supra page 10.
279. It would be tempting to respond that for some participants in the Internet standards process, computers are the lifeworld.
280. See Jürgen Habermas, Technology and Science as 'Ideology'," in Toward a Rational Society 70 (J. Shapiro, trans. 1970).
281. See Andrew Feenberg, Marcuse or Habermas: Two Critiques of Technology, 39 Inquiry 45 (1996), http://www-rohan.sdsu.edu/faculty/feenberg/marhab.html . (" Habermas's theory could accommodate a critique of technology in principle, but the index of The Theory of Communicative Action does not even contain the word").
282. Discussion of IETF position on developing protocols that "support mechanisms whose primary purpose is to support wiretapping or other law enforcement activities". See http://www.ietf.org/mail-archive/working-groups/raven/current/msg00000.html
283. C. Edwin Baker, the Media That Citizens Need, 147 U. Pa. L. Rev. 317, 340 (1998).
284. Hirschliefer, Exit, Voice Loyalty
285. This phenomenon deserves an article of its own.
A similar effect can be observed in the Open Source community, where although licenses permit "forks" in code there are in fact very few of them. A code fork occurs when someone decides to develop a deviant version of an exiting piece of code, an act specifically permitted by the Open Source license. Under the Open Source license, the forked code must also be released as Open Source. Generally, one of two things then happens. Either the forked code is either ignored as uninteresting and development proceeds on the "main" branch of the code base. Or, if the deviant code has interesting new features or improved methods of achieving old ends, those improvements are plagiarized by programmers of the dominant code - a use specifically permitted by the Open Source license. See Fear of Forking, LinuxCare,http://www.linuxcare.com/news_columns/articles/index.epl .
286. See supra page 3.
287. See, e.g., L. Masinter, Hyper Text Coffee Pot Control Protocol (HTCPCP/1.0)http://www.cis.ohio-state.edu/htbin/rfc/rfc2324.html (discussing Internet Toaster).
288. My personal favorite is the slashdot model, which can be sampled at http://www.slashdot.org . Key components of that model are the provision of "moderation" and "meta-moderation" by users.
Randomly chosen users who have visited the site sufficient times over a given period are given five moderation points to apply to the comments of others. Each point can be used to raise or lower the status of a comment by point. Meanwhile, all users of the site can set their browsing tool to view only comments with a certain number of points. No comments are deleted for low status, so there is no actual censorship, only collaborative filtering.
A poster gains "karma" by having her comments moderated up. High karma, acquired by a history of posting comments appreciated by moderators, allows one to post a comment with a higher initial status.
"Meta-moderation" prevents abuse by moderators. Every user of the site is offered a daily set of ten randomly chosen moderation decisions made by others and asked if they are correct or abusive. Moderators whose decisions are ranked as abusive lose their chance to moderate in the future.
The slashdot implementation tends to run ahead of the documentation, but a partial description is in Slashdot Moderation, http://slashdot.org/moderation.shtml .
289. Further Reflections, supra note ?, at 450.
290. William E. Forbath, Short-Circuit: A Critique of Habermas's Understanding of Law, Politics, and Economic Life, 17 Cardozo L. Rev. 1441, 1445 (1996).
291. There, it must be said, powerful forces in what Habermas would call the systems of the economy and administration that seek to leach the Internet in various forms. For a brief discussion of some counter-revolutionary activity see A. Michael Froomkin, The Empire Strikes Back, 73 Chi-Kent L. Rev. 1101 (1998), http://www.law.miami.edu/~froomkin/articles/empire.htm