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cyberlaw:networks [2019/01/17 12:36]
cyberlaw:networks [2019/02/13 11:37]
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-## Different Ways of Understanding the Layers of the Internet 
-**Video Overview by Nic Suzor[Layers ​of the Internet](https://​www.youtube.com/​watch?​v=mqhXMmQOOXU)**+# The Dawn of the Internet: ​A Declaration of the Independence of Cyberspace
-In order to understand how the internet operatesand how regulation can operate in this context, it is important to understand ​the different layers ​of the internet. ​Network engineers generally conceptualise up to seven layers of the internet and distinguish between the physical pipes, network infrastructure and many other components of the networkHoweverfor the purposes of this unit, we will conceptualise the internet in terms of three main layersinfrastructure,​ code and content.  ​+In 1996John Perry Barlow released a famous provocation about the limits ​of state power in regulating ​the internet. ​The Declaration,​ which we encourage you to **[read](https://​projects.eff.org/​~barlow/​Declaration-Final.html)** or **[watch](https://​www.youtube.com/​watch?​v=3WS9DhSIWR0)** in fullbegins:
-The first layer of the internet is the '​infrastructure'​ layer (network cablesroutersand protocols). This layer of the Internet is designed around the principle ​of a '​neutral'​ network (['​end-to-end'​ principle](https://​en.wikipedia.org/​wiki/​End-to-end_principle)):​ the responsibility for determining the content ​of communications rests with smart servers and users at the ends of the network, and the intermediaries are just responsible for passing messages along the chainIntermediaries ​are expected ​not to examine or intefere with content, in any substantive way, as it passes through their networksThe design principle that intermediaries are merely conduits for passing messages enables innovation at the infrastructure levelAs the network itself is open, there is a real separation between ​the infrastructure (the pipes) and content (the data that flows over those pipes), which means that anyone is free to '​plug-in' ​to the internet and start providing services over the IP protocol and the hardware that connects all users together. Service providers can design new systems that can operate on top of standardised protocols.+>​Governments ​of the Industrial World, you weary giants of flesh and steelI come from Cyberspace, the new home of MindOn behalf ​of the future, I ask you of the past to leave us aloneYou are not welcome among us. You have no sovereignty where we gather. 
 +>... I declare ​the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods ​of enforcement we have true reason to fear.
-The second layer  can be thought of as the 'code' layer - that isthe software that operates at the ends of the network to interact with users. The webserver ​that sends users the webpages they requested, customised and tailored for that particular user, is a software program running on a server or farm of servers. The applications ('​apps'​) ​that connect people to others, that allow users to chat, like, comment on and swipe content created by others, are pieces ​of software running on mobile devices and personal computers that communicate with software running on the servers somewhere in 'the cloud'​. These programs, including their design, the input they accept, the algorithms they use to respond to requests, are responsible for determining who we can communicate with and how.+Barlow's Declaration has played an pivotal role in shaping how we think about online regulation. In this extracthe makes two main claims about online regulation, which we will examine in more detail below. The first is that the internet ​is inherently unregulable by territorial governments. The second is that state regulation ​of the internet is illegitimateor governments should defer to the self-rule of cyberspace.
-The third layer of the internet is content, or the material that is transmitted over the network infrastructure,​ selected and presented by code. The information that users express and receive over the internet and the visible components of its networks are largely what we envision when we think of 'the internet'​. This content layer is where most regulatory concerns arise because governments and private actors often have reasons to want to limit the flow of certain information over the internet. ​+##​Barlow'​s First Claim: ​The Internet ​is Unregulable
-The history of internet regulation is mostly a history of attempts ​by various parties to regulate content, including offensive communications and pornography,​ private and confidential information,​ defamatory statements and copyright content. Increasingly,​ however, attempts to regulate content involve struggles at the code and infrastructure layers as pressure mounts on those who provide network infrastrucutre or services to build certain rules into their systemsThe most prominent struggles over internet governance are principally concerned with who gets to decide how networks are structured and how code operates.+**Overview ​by Nic Suzor:​[Governing ​the Internet](https://​www.youtube.com/​watch?​v=ybNGDquKVTc)**
-## Infrastructure (The Internet Is a Series ​of Tubes)+>"​You have no moral right to rule us nor do you possess any methods ​of enforcement we have true reason to fear."
-**Video Overview ​by Nic Suzor[Internet Infrastructure](https://www.youtube.com/watch?​v=kwLTm1kJh3w)**+Barlow'​s first claim that territorial states do not have the power to regulate the internet is largely descriptive. This claim is based on a number of factors, including the decentralised nature of the internet, which is a network of networks that spans the globe without any real concern for jurisdictional boundaries. The internet enables billions of people to communicate largely anonymously across the globe, and the sheer quantity of content that is transmitted over the network each day is almost incomprehensibly large. All of these factors mean that, for the most part, any explicit interventions ​by governments can be trivially circumvented. If a website is shut down in one jurisdiction,​ it can be back up the next day somewhere else in the world. If a document is removed from one site, it will often quickly be reposted on a dozen more (see, for example, the '[streisand effect](https://en.wikipedia.org/wiki/​Streisand_effect)'​). ​
-The resilience of the internet ​is often framed in John Gilmore's famous words:​((Philip Elmer-Dewitt‘First Nation ​in Cyberspace’ (1994) 49 TIME International http://www.chemie.fu-berlin.de/​outerspace/​internet-article.html.))+However, it turns out that regulating ​the internet ​isn't quite impossible, just often very difficult. Fundamentally,​ the internet is not a separate place because the people who use it are real people, in real locations, subject to the very real power of their jurisdictionsThe pipes that people use to communicate are cables and wireless links which also have physical presenceWhere a Government can target the speakers, recipients or intermediaries involved in a communication,​ it can have a real effect on what information is transmitted via the internetFigure 1 below, for example, illustrates the network traffic in Egypt over the period of the January 2011 revolution. You can clearly see the point at which the Egyptian Government had shut down the five major Egyptian ​internet ​service providersThe Egyptian Government'​s intervention epitomises the idea that _those who controls the pipes, controls the universe.
->"The Net interprets censorship as damage ​and routes around it." ​+The challenge of regulating the internet is finding an effective way to either identify ​and regulate the potentially anonymous creators of information,​ the billions of potential recipients, or finding a way to regulate the networks along the chain of communication
-To understand this claimwe have to understand some principles about how the internet works. The Internet is often defined as a '​network of networks'​. Wikipedia has [a good definition](https://​en.wikipedia.org/​wiki/​Internet):​+**Figure 1: Who Controls the PipesControls ​the Universe - Traffic to and from Egypt on 27-28 January 2011, from Arbor Networks**
->The Internet is a global system ​of interconnected computer networks that use the standard Internet protocol suite (TCP/IPto link several billion devices worldwideIt is a network of networks that consists of millions of private, public, academic, business, and government networks of local to global scope, linked by a broad array of electronic, wireless, and optical networking technologies+![Graph ​of traffic to and from Egypt on January 27-28 2011, from Arbor Networks - Who Controls the Pipes, Controls ​the Universe](http://​www.wired.com/​images_blogs/​threatlevel/​2011/​01/​arbor_egypt-660x359.jpg) 
 +(Image (c) Arbor Networks via [Wired](http://​www.wired.com/​2011/​01/​egypt-isp-shutdown/​))
-The Internet as we know it is built on [technologies funded by the US Department of Defence](https://​en.wikipedia.org/​wiki/​DARPA),​ large public investments in infrastructure by academic and other institutions,​ and, from the 1990s, massive private investments in the deployment of new commercial and private connections around the world. ​+###A Case StudyNewzbin
-From its very beginnings, the internet was designed to be _resilient_. One of its key features is that it relies on an inter-connected web of computers to route information from any point to any other point on the internetIt is designed to be resilient to control or failure on any of these hardware links. If there are problems with one part of the network, it can adapt automatically to route around broken links+**[Overview ​of Newzbin by Nic Suzor](https://​www.youtube.com/​watch?​v=z8Ph8eO26q4)**
-Sofor example, when a user in Australia requests a webpage from Facebook.com, a typical message might start here on a home computerbe transmitted along iiNet or Telstra's network a few times before hitting a major backbone or undersea cable, and then be passed along the chain by several other networked routers before finally reaching its destination at a webserver in the US. This could take anywhere from 10 to 20 different '​hops'​ along that chain - and maybe 200ms on a fast linkFacebook'​s webserver ​in the US will receive that request, and send back the content to the user along a similar ​(but not necessarily the samepath.+While the internet is not unregulablethere are unique challenges facing regulatorsThe case of Newzbinwhich was popular Usenet indexing siteis one example from the fight against copyright infringement. Dubbed ​'​the ​Google of usenet' ​by the Motion Picture Association of America (MPAA), copyright owner groups sought ​to shut down the service ​that allowed others to easily find copyright films and other worksIn a 2010 Decision, the High Court in the United Kingdom (UK) found Newzbin liable for copyright infringement, and the company was wound up and their website shut down.(([Twentieth Century Fox Film Corporation v Newzbin Limited [2010] EWHC 608 (Ch)](http://​www.bailii.org/​ew/​cases/​EWHC/​Ch/​2010/​608.html)))
-So one of the reasons ​the internet is so hard to regulate is that messages can take any path between the two end points that works. In factindividual messages are broken down into much smaller '​packets',​ and the '​Internet Protocol'​ (IP) provides the standard for communication ​that enables all connected systems ​to talk to each other and pass data along the chain if requiredIf any link in this chain is brokenthe Internet Protocol allows computers on the Internet ​to find other routes to get the message to its destinationThis is where we get to Gilmore'​s quote: if a particular path is blocked or censored, it is often possible to pass a message along different paths to its destination+Two weeks later, Newzbin2 rose from the ashes. Someone had copied the entire codebase ​of the old site and brought it back online on a server in the Seychelles, an archipelago of islands outside of UK jurisdiction. The MPAA went back to courtthis time seeking an injunction ​that would require UK-based ISPs to block access ​to the websiteThe Court granted ​this ordermarking an expansion of laws that were originally designed ​to block websites that hosted child sexual abuse material: [Twentieth Century Fox Film Corporation v British Telecommunications PLC](http://​www.bailii.org/​ew/​cases/​EWHC/​Ch/​2011/​1981.html) [2011] EWHC 1981 (Ch).
 +The system for blocking websites is not wholly effective. It turned out to be easy to bypass if users encrypted their connections or used a virtual private network to avoid the block. Shortly after the injunction, Newzbin2 released a user-friendly application to '​utterly defeat'​ the filter, [explaining that its app](http://​torrentfreak.com/​newzbin2-release-encrypted-client-to-defeat-website-blocking-110914/​) could "break any updated web censorship methods or anti-freedom countermeasures"​. Ultimately, however, Newzbin2 closed down in 2012. It had lost the trust of its users, who were not sufficiently willing to pay to support the new service. Importantly,​ copyright owners had also started to target the payment intermediaries that channeled funds to the organisation - intermediaries like Mastercard, Visa, Paypal, and smaller payment processors that use these networks. ​
-Kyung Hong explains peer-to-peer networking +The Newzbin case study illustrates how regulating online content and behaviour can be an extremely difficult task. By cutting off the flow of money, the rightsholder groups were eventually successful in shutting down Newzbin. However, this took a lot of time and effort, and there is a good chance that many users of the service simply moved to newer, better hidden infringement networks. Overall, the copyright industry has had some succes in tackling large copyright infringers, but this is an ongoing arms race, as infringers continue to find ways around the regulations. ​
 +##​Barlow'​s Second Claim: State Regulation of the Internet is Illegitimate
-Some networks are more easy to regulate than others. When networks are organised as '​client/server'​ networks, targeting the server can be very effectiveWhen they are more decentralised,​ as in '​peer-to-peer'​ (P2P) networks, this becomes much more difficult.+**Overview by Nic Suzor[The Legitimacy of Online Regulation](https:​//www.youtube.com/​watch?​v=A0m_GZC4x2w)**
 +The second claim that Barlow makes in his Declaration is that state governments _should_ defer to cyberspace self-rule, or what we call '​private ordering'​. Barlow explains that:
 +>"​We believe that from ethics, enlightened self-interest,​ and the commonweal, our governance will emerge."​
-Tom Armstrong ​and Mitch Hughes each explain how this works in relation ​to Australians accessing Netflixbypassing industry agreements ​that require geographic market segmentation ​of content:+Barlow'​s argument is that the rules and social norms created by online communities to govern themselves will be better than anything imposed by territorial states. This was expressed by Johnson and Post in a famous 1995 article as a general principle that there is “no geographically localized set of constituents with a strong and more legitimate claim to regulate [online activities]” than the members of the communities themselves.((David Johnson and David Post‘Law and Borders--The Rise of Law in Cyberspace’ (1995) 48 Stanford Law Review 1367, 1375)) In addition to arguing ​that online communities should be able to govern for themselves, Barlow and Johnson and Post asserted that if territorial governments try to impose their own laws on a borderless internet, users will never be able to work out what set of rules they are subject to. The consequence of governments attempting to prevent online communities from regulating themselves, according to Post, would be:((Post, '​Governing Cyberspace: Law' (2008) http://​www.academia.edu/​2720975/​Governing_Cyberspace_Law)) ​
-{{youtube>prhQKAJG8nA?​small}} {{youtube>​rk0aeKMCRFs?​small}}+“... the chaotic nonsense of Jurisdictional Whack-a-Mole"​.
- +As we will see in the [[jurisdiction|Jurisdiction chapter]], the legitimacy ​of any one nation claiming jurisdiction over transnational communications is still vexed issueAs the Australian High Court noted in the _Dow Jones v Gutnick_((_Dow Jones and Company Inc v Gutnick_ [2002] HCA 56 http://​www.austlii.edu.au/​cgi-bin/​sinodisp/​au/​cases/​cth/​HCA/​2002/​56.html?​stem=0&​synonyms=0&​query=title(dow%20jones%20and%20gutnick%20)&​nocontext=1)) casenation states purport ​to have responsibility ​to protect their citizens'​ interests online, and certainly a desire ​to regulate online content ​and behaviour
-One way of avoiding regulation online is through ​the use of a Virtual Private Network (VPN)A VPN can create an encrypted '​tunnel'​ from an entry point in one jurisdiction, to an exit point in another. By using VPN, a user can appear ​to be located in another jurisdiction. This means the user can avoid any jurisdiction-based filtering or blocking, and also make it much more difficult ​to track down his or her real location ​and other identifying information.+
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