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A Deference to Protocol: Fashioning a Three-Dimensional Public Policy Framework for the Internet Age

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A Deference to Protocol: Fashioning a Three-Dimensional Public Policy Framework for the Internet Age Whitt_Galley_7.11_FINAL (Do Not Delete) 7/12/2013 4:48 PM A DEFERENCE TO PROTOCOL: FASHIONING A THREE-DIMENSIONAL PUBLIC POLICY FRAMEWORK FOR THE INTERNET AGE RICHARD S. WHITT* Abstract This Article discusses how public policy grounded in the Internet’s architecture can best ensure that the Net fully enables tangible benefits such as innovation, economic growth, free expression, and user empowerment. In particular, recognizing that the Internet is rapidly becoming society’s chief operating system, this Article shows how an overarching public policy framework should be faithful to the multifaceted nature of the online world. As part of such a framework, this Article will explore one key aspect of the Internet: the “logical” Middle Layers functions, its inner workings derived from open software protocols and inclusive, decentralized processes. Adhering to the deferential principle of “respect the functional integrity of the Internet,” in combination with the appropriate institutional and organizational implements, can help ensure that any potential regulation of Internet- based activities enables, rather than hinders, tangible and intangible benefits for end users. In brief, optimal public policy solutions can come from fitting the correct Code (Net target) to the most effective Rules (institutions) and Players (organizations). I. INTRODUCTION .............................................................................. 691 A. No Nerds Allowed ............................................................ 691 B. Accepting Kingdon’s Challenge ....................................... 694 II. THE INTERNET’S FUNDAMENTAL DESIGN FEATURES .................... 697 A. The Net’s Framing Years ................................................. 697 Permission is hereby granted for noncommercial reproduction of this Article in whole or in part for education or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation, and this copyright notice and grant of permission be included in all copies. * Global Head of Public Policy & Government Relations at Motorola Mobility LLC, a wholly owned subsidiary of Google Inc. This Article reflects only my own views and not those of present or past employers. Special thanks to Max Senges in Google’s Berlin office for his unfailing enthusiasm and insights about polycentric governance and other pertinent matters. Thank you also to Vint Cerf, Brett Frischmann, and Marvin Ammori for providing considerable helpful feedback on an earlier version of this Article. © 2013 Richard S. Whitt. 689 Whitt_Galley_7.11_FINAL (Do Not Delete) 7/12/2013 4:48 PM 690 CARDOZO ARTS & ENTERTAINMENT [Vol. 31:689 1. From Top-Down Government Management to Bottom-Up Guidance ................................................ 698 2. From Government Roots to Market Reality ............ 700 3. Rough Consensus and Running Code ...................... 701 B. The Internet’s Designed Architecture ............................ 704 C. The Internet Design Model: Four Functional Attributes 706 1. The Law of Code: Modularity .................................. 708 2. Smart Edges: End-to-End ......................................... 709 3. A Network of Networks: Interconnection................. 711 4. Agnostic Protocols: IP .............................................. 714 C. The End Result: A Simple, General, and Open Feedback Network .......................................................................... 716 III. INTERNET DESIGN AS FOUNDATIONAL, DYNAMIC, AND COLLECTIVE ........................................................................... 717 A. The Internet as General Platform Technology .............. 718 B. The Internet as Complex Adaptive System .................... 719 C. The Internet as Common Pool Resource ........................ 721 IV.THE EMERGENCE OF NET EFFECTS: BENEFITS AND CHALLENGES 722 A. Engine of Innovation ...................................................... 723 B. Spur to Economic Growth .............................................. 725 C. Conduit for Free Flow of Information ............................ 726 D. Tool for User Empowerment and Human Flourishing ... 727 E. Net Challenges ............................................................... 729 V.DEFERENCE AHEAD: RESPECTING THE INTERNET’S FUNCTIONAL INTEGRITY .............................................................................. 732 A. Revisiting the Layers Model .......................................... 732 1. Matching functions to layers..................................... 732 2. The Middle Layers: Defining the logical layers functions ................................................................... 733 B. Introducing The Internet Policy Principle ...................... 735 1. From layers model to layers principle ...................... 735 2. Expanding the layers principle to other Internet functions ................................................................... 736 3. Sketching out the first dimension of an Internet policy framework ...................................................... 738 4. Meeting potential objections ..................................... 740 VI.TWO OTHER DIMENSIONS: MATCHING CODE TO RULES AND PLAYERS ................................................................................ 743 A. The Institutional Implements: Rules of the Game .......... 744 B. The Organizational Entities: Players of the Game ......... 744 C. The Basics of Multistakeholder Governance ................. 745 1. The Rise of Multistakeholder Models ...................... 745 2. A working definition of polycentric groups and practices .................................................................... 747 Whitt_Galley_7.11_FINAL (Do Not Delete) 7/12/2013 4:48 PM 2013] A DEFERENCE TO PROTOCOL 691 D. Polycentrism in the Internet Space ................................. 748 1. Harnessing Rules and Players for Middle Layers Functions ................................................................... 748 E. A Modest Proposal: Modular Governance ..................... 754 VII. PUTTING IT ALL TOGETHER: EXAMPLES OF INTERNET POLICY IN THREE DIMENSIONS ................................................................ 756 A. Copyright Protection over Rogue Websites: SOPA and PIPA ............................................................................... 757 B. Global Internet Governance(s) ....................................... 760 C. Broadband Network Management .................................. 763 CONCLUSION ..................................................................................... 766 Truth happens to an idea.1 — William James I. INTRODUCTION A. No Nerds Allowed In late 2011, the United States Congress was heavily involved in debating legislation aimed at stopping foreign websites from hosting content that violates U.S. copyright laws. The House bill, called the Stop Online Piracy Act (“SOPA”), and the Senate bill, known as the Protect Intellectual Property Act (“PIPA”), shared a common element: they sought to impose certain technical requirements on website owners, search engines, Internet Service Providers (“ISPs”), and other entities, in order to block the dissemination of unlawful content on the Internet.2 On November 16, 2011, the House Judiciary Committee held a public hearing on SOPA.3 Representatives from the affected content industries were on hand to testify in favor of the legislation. A lone voice in opposition was Google’s copyright counsel, Katie Oyama.4 1 WILLIAM JAMES, THE MEANING OF TRUTH x (Prometheus Books 1997) (1911). 2 See generally Stop Online Piracy Act, H.R. 3261, 112th Cong. (2011) (SOPA); Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, S. 968, 112th Cong. (2011) (PROTECT IP Act, also known as “PIPA”). 3 Stop Online Piracy Act: Hearing on H.R. 3261 Before the H. Comm. On the Judiciary, 112th Cong. (2011). 4 David S. Levine, Bring in the Nerds: Secrecy, National Security, and the Creation of International Intellectual Property Law, 30 CARDOZO ARTS & ENT. L.J. 105, 139 (2012) (“While there was one Congressional hearing on SOPA that was dominated by entities that were pro- SOPA, the dire need for expert ‘nerd’ input was expressed by members of Congress. Indeed, during the hearing, members of Congress stated that they were not ‘nerds,’ highlighting their lack of expertise to assess SOPA’s DNS provisions. From the perspective of the concerns raised by this Article, and in comparison to the closed processes involving ACTA and TPP . the opportunity to bring in the nerds to offer useful public input was absent.”). Whitt_Galley_7.11_FINAL (Do Not Delete) 7/12/2013 4:48 PM 692 CARDOZO ARTS & ENTERTAINMENT [Vol. 31:689 Notably there were no witnesses called to provide expert testimony about how the legislation would actually affect the Internet—including technical experts on the inner workings of the Net.5 No software engineers, no hardware engineers, no technologists, no scientists, no economists, no historians.6 This apparent oversight was particularly surprising in light of the fact that many prominent Internet engineers were actively speaking out against the legislation. For example, in May 2011, various network- engineering experts produced a straightforward technical assessment of the many infirmities of the legislation.7 The engineers took no issue with the goal of lawfully removing infringing content from Internet hosts with suitable due process.8 Instead, they pointed out
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