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Law & Internet Cultures :: Kathy Bowrey

:: Chapter Three: Universal standards and the end of the universe. The IETF, global governance and patents

This chapter explores the governance structures of the IETF. This provides an opportunity to observe a little internet history and discuss the culture of openness and consensus, that developed in relation to setting universal standards.

The focus is primarily on two things.

Firstly to explore how responsibility for decision making is understood. What do these decision makers believe themselves responsible for?
Secondly, how decision making is structured. To whom are they responsible? How do they justify decisions?

DISCUSSION POINTS

From what we have discussed so far, we know that the primary focus of the IETF is technical in nature. It is a responsibility to keep communications moving and flowing efficiently and reliably. We have also discussed the significance of these communications flows to global trade.

However how does an organization like the IETF understand that connection?
How do they see their work in relation to:- other engineers, technicians and administrators?- global trade? - structuring economic opportunity?- empowering multinationals?- the role of nation states?- the role of law?- the public?

Can the technical be ‘just technical’?

There are various approaches that can be taken to the question of how to describe the sphere of “the technical”.

Many philosophers challenge the idea of technology as tool or as a means to an end. They reject the idea that the significance of technology is as a tool in the service of the various ends which we, as humans, envisage or have designs on. One of the more influential philosophers here is Martin Heidegger, whom in “The question concerning technology” argues that technology has become a fundamental way of Being in the world, which affects our ability to be free thinkers. The papers by O’Brien, Godzinski and Condella provide a useful overview.

Technological neutrality is also much debated as a general possibility. Here the idea is that technology brings with it expectations that affect the way we determine and value the ends “we” choose. This concepts are also explored in terms of media determinism, and technological determinism. Many writers accept that technology is not neutral, but they also reject determinism. This creates some difficulty in defining with precision the relationship between technology, human actors and social progress. There is an excellent Technology and culture site that helps focus some of these issues.

With technology, who, or what, serves whom? What are your intuitions here?

It is clear that, in terms of the academic literature that takes the “question of technology” seriously, there is no universally accepted way of addressing the connection between the sphere of the technical and the social world. Rather it is a complicated and difficult relationship.

Science Fiction

It is precisely this relation that is pondered in science fiction. This literature is described in Wikipedia as “a form of speculative fiction principally dealing with the impact of imagined science and technology upon society and persons as individuals. For a good discussion of the sub-genres of this literature see sfsite.

Whilst we may disagree on how we understand the technical and its relation to society, science fiction opens an accessible and safe space for reflection on these issues. I think the Arthur C Clarke story the “Nine Billion Names of God” most immediately and clearly brings this matter into focus. For more on the author see The Arthur C Clarke Foundation

The troubled nature between technology humanity, individual responsibility and morality is a recurring theme in science fiction and can be explored in a short sequence of clips from popular television and film dating from the 60s, 70s, 80s and 90s. Those we will look at in class are a bit dated as they were compiled for a Law & Literature conference paper Retrospective Futures? Law, technology and copyright control in cyberspace, I gave in 2000. What I was particularly interested in exploring then related to presumptions guiding digital copyright law reform that seemed to set the agenda-

law follows technological developments and has trouble predicting their implications. Law cannot be expected to pick winners;

new technologies create new market possibilities and a vigorous, forward looking economy cannot afford to be lag behind with outdated, technologically inappropriate laws;

new technologies were to be thought of as potentially dangerous because of their potential to disrupt existing distributions of private property rights.

It seemed that in reforming copyright, Law only wanted to acknowledge a retrospective future- only willing and able to take on aspects of what was going on after others had set the agenda. It merely reacted to the initiatives of the-

people and teams who invent the new technologies;
corporations who invest in these developments;
corporations who market them as desirable;
individuals who react to that mainstream and resist it by making alternative technologies or engage in culture jamming and hacking.

If it is true that law has lacked the confidence and ability to be a proactive player - if it merely responds mid stream to what has already developed- there is a need to take into account what these people and corporations are, doing in creating our futures and consider what obstacles are in their path, including law.

Some of these clips are also useful for exploring broader themes about the relationship between society and technology.

Science fiction became mainstream when it started appearing on prime time TV in the 60s. The first clip is from an Outer Limit's program from 1964, and as with much celluloid sci-fi, it is based on a short story.

The opening monologue expresses a central concern of science fiction- should we be worried about the technology, or is the problem really one of humanity:

RUN 1 I Robot opening monologue

It seems dated now, but it is really only in terms of cinematic style. It is the same story as that of the Kubrick/Spielberg version of AI.

A similar theme about humanity and technological desire was explored in Westworld, (1973) starring Yul Brenner as the out of control robot killer. This clip is from the opening of Westworld.

RUN 2 Westworld

Movie gossip sites report a director being appointed to a remake of Westworld, yet to be scripted, although it seems Arnold Schwarzenegger is not going to appear in it.

This clip is from a 1997 episode of Star Trek Voyager. Captain Janeway and her crew are under attack from an extremely hostile alien: species 4782. They are losing the fight, and see the only way of surviving as forging an alliance with a traditional enemy the BORG. The Borg are the epitome of a technological species, they are a collective, wet wired with biological implants to enhance collective efficiency. The one aim of the BORG collective is to rove the galaxy and acquire new and better technologies and add that distinctiveness to their own. This clip is of Janeway's resistance to BORG efficiency.

RUN 3 BORG

It is worth considering why these clips seem dated just a few years later. Is it that we have begun to think about technology differently, and so the themes are less relevant. What has changed?

The sci-fi world is often contrasted with the earlier, innocent age, of secure individual identities, linear history, personal memory, Nature and Nurture.

This clip is from the 1995 film Johnny Mnemonic based on William Gibson short stories. Johnny has a wet wired implant that allows him to courier information in the form of digital files, around the globe, with the information undetectable to regular forms of surveillance. The catch is that in order to make space for the implant, he has had to sacrifice his natural memory. One of his primary motivations is to get that back. In this clip he is experiencing information seepage from an overloaded implant, and it has caused him to experience a memory fragment.

RUN 4 Johnny mnemonic.

Similar calls of memory and home in The Net & Robocop, The Matrix in contrast to the spiritual alienation and corruption of the tech world. At the end of the 20th century it seems we were very worried about the technology and the world it built. These are all popular release films, not fringe films. We were interested enough in the stories at the time.

Then, in sci-fi there is was a respect for technological innovation. But that respect was usually coupled with living in a highly ordered and regulated world. And "collective" gain was often also accompanied by corporate and personal greed and corruption on a global or gallactic scale.

In this clip from Robocop, (1988) Police Officer Murphy has been fatally wounded, and his body is claimed by the privatised police force as the foundation for the technological future of policing. He is Robocop, bigger, stronger, and programmed to follow orders. Robo also experiences wistful reminders of wife, kid and the suburban cul-de sac in the form of flashbacks. In this clip as Robo is being constructed, we see Murphy being robbed of his identity and humanity.

RUN 5 Robocop

The notion of the hacker and hacker communities world was originally represented in contrast to the technologically, enhanced, but corrupt corporate world. Hackers were those who were physically and culturally excluded from its precincts. These are ethically grounded survivors living on the outskirts of “civilised” society. They are always tech gifted, but making do, battling the bad guys and helping the good guys. This is a clip from Johnny Mnemonic. The neon overkill and noise and flashes of colour of the city are very absent in the outer worlds.

Johnny needs help with removing the files from his leaking implant. The Yakuza, who are working for a powerful, global pharmaceutical company is after him, and he can't go to mainstream sources of medical assistance.

RUN 6 Johnny mnemonic.

In sci fi- law is mostly absent in the modern democratic sense. There is no law outside of here, and in here all there is, is a highly regulated bureaucracy with militaristic overtones. Think - Brazil, 1984, Gattaca, Robocop, Starfleet, Dark Angel.

If industry is running society- creating the technological future- what will that mean for law and for democratic society?
Is there a relationship between sci -fiction and scientific reality? Is what we are going to get- the landscape of Dark Angel, AI? Minority Report?
There are a number of sites that allow for a more extensive look at the genre of science fiction films: Filmsite ; Wikipedia: science-fiction film ; Wikipedia: science-fiction television.
What do these clips suggest about humanity? About the danger of technology?
What do they suggest about the culture of regulation?
What do they suggest about private power and regulation?

Codes of Ethics

Let’s return now to the matter of technical decision making by computer engineers, and how responsibility for decision making is understood. One of the first things I want to note is the formalisation of ethics by scientists and computing engineers. Note there are also organizations like the Scientists for Global Responsibility and the Centre for Computing and Social Responsibility. There is also an Australian Institute of Computing Ethics.

There are codes on computing ethics:

Note the examples here of ethical topics. The Association for Computing Machinery (ACM) and the Institute of Electrical and Electronics Engineers (IEEE) are sponsors of an International Standard for Professional Software Development and Ethical Responsibility. See the terms of the Code

Why do you think there are codes of ethics?
How would you describe the values reflected in these codes?
How would engineers learn of them?
What force would they have? Should they have?
Do ethical codes prefigure questions of responsibility?

The IETF

A good place to begin to study the ethical practices of the IETF is with

RFC 1087: Ethics and the Internet. This memo is a statement of policy by the Internet Activities Board (IAB) concerning the proper use of the resources of the Internet. It characterises the internet as a “Common” infrastructure, that in 1989 was understood as a national infrastructure supporting national infrastructure supporting an increasingly widespread, multi-disciplinary community of researchers ranging, inter alia, from computer scientists and electrical engineers to mathematicians, physicists, medical researchers, chemists, astronomers and space scientists. It emphasises the importance of the reliable operation of the Internet and the responsible use of its resources. Unethical uses are identified as any activity which purposely:

(a) seeks to gain unauthorized access to the resources of the Internet,
(b) disrupts the intended use of the Internet,
(c) wastes resources (people, capacity, computer) through such actions,
(d) destroys the integrity of computer-based information, and/or
(e) compromises the privacy of users.

The identification of problem activity can be contrasted with the more positive goals of standard setting as described in 1996 in

RFC 2026.

The goals of the Internet Standards Process are:

- technical excellence;
- prior implementation and testing;
- clear, concise, and easily understood documentation;
- openness and fairness; and
- timeliness.

To what extent do you think the institutional environment, the research activity centred largely in the university, frames these values?

I am interested in this factor, because I find the emphasis on the BIG NAMES of internet history, and their presumed West Coast values, a bit tedious and thin as the entire source of communications common sense. For example, in the Geert Lovink, “Interview with Milton Mueller” Nettime 25 Nov 2003, there is a strong focus on the culture of the early protagonists, where the culture is not credited as a research based or university one, but as a construct of personalities, maleness and the engineering discipline. This is not an unusual characterisation. There are many homage to the pioneers that reinforce this view.

See

The point is not to diminish the contribution any of these particular individuals have made, and continue to make, to the internet, but to think more carefully about attributing the values of any network at any point in time to individual histories alone. Put bluntly it seems to simplistically adopt a “technology as a tool, adapted to human ends” line of explanation for internet values like consensus and openness. There are cultural explanations given for the communications ends chosen, such as “hippie” backgrounds, “Californian” references but here the cultural explanation is ascribed to values that come from outside the network, drawn from the coincidence of the lifestyle and experience of protagonists.

What I would like to emphasise is a consideration of the structural pressures and conditions that make adoption of particular approaches to decision-making “common sense” ones. For a useful discussion of common -sense and the power of intellectuals see

Antonio Gramsci and informal education.

Did the internet pioneers see themselves, in Gramsican terms, as traditional intellectuals? That is, “those who do regard themselves as autonomous and independent of the dominant social group and are regarded as such by the population at large. They seem autonomous and independent.”

Or are they better understood as organic intellectuals “produced by the educational system to perform a function for the dominant social group in society”?

What is driving their attitude to questions of responsibility?

There are of course the more formal tale of origins, such as those found in the institutional histories to consider:

The historical accounts of these bodies paint a picture of problems of evolving scale, co-ordination and unremarkable crisis management that leads to formalisations in administration and the development of new integrated organisations and authorities. Here there is both an emphasis on the prgamatics that drove the restructuring and evocations of continuity with the earlier, more casual, less defined forms of organization.

To what extent would internet history be relevant to decision-making in the IETF today?
What creates an institutional culture?
How does an institutional culture affect the question of responsibility?

My own view is that the history matters in terms of understanding what these decision makers believe themselves responsible for. Historically they have tended to align themselves with the expectations of the “rulers”. They assume responsibility for managing the communications asset, on behalf of government, the research community, and society at large.

But in terms of how the actors and organisations structure decision making and justify individual communications rules, they exercise power as if they were autonomous and independent.

Is this a fair analysis?
What other information would you want before jumping to conclusions here?

IETF Intellectual Property Policies

A brief detour into IETF Intellectual Property Policy is useful here. New RFCs update the discussion in the text of Chapter Three.

The new RFC3978 beings with reference to the Berne Convention for the Protection of Literary and Artistic Work. Compared with the earlier drafts, it is more defensively toned in the way it details the rights “that the IETF requires”. Both RFCs affirms that the in all matters of Intellectual Property Rights, the intent is “to benefit the Internet community and the public at large, while respecting the legitimate rights of others”. RFC3739 notes “8. In general, IETF working groups prefer technologies with no known IPR claims or, for technologies with claims against them, an offer of royalty-free licensing.” Emphasis is placed on licensing conditions and detailing the right of disclosure.

How would you characterise the IETF IP Policy, in particular the characterisation of the “legitimate right of others”?
What does “legitimate” refer to here?
Are IETF policies corrosive of IP rights as a global phenomenon?
Are IP rights corrosive of the autonomy of the IETF as decision-makers? (You may like to consider the differences between copyright, confidentiality, patents and trade marks here).
What are the implications of this for the ethics of responsibility?
So far we have mainly been focussed on technical decision making and alluding to its broader ramifications.
Can the decision making of the IETF affect the social body?
Are they a political body?

You may find Foucault’s notion of biopolitics useful here. See also the discussion of global politics in Patricia Owen, “Hannah Arendt and the Public Sphere: Model for a Global Public?” Conference Paper, 2002

These particular questions of global power and organisation matter in terms of understanding what is presumed to be at stake for us all, in disputes over the role of ICANN.

See

The Klein and Mueller article What to do about ICANN: A Proposal for Structural Reform(April 2005) notes that “ICANN exercises quasi-governmental powers. However, it lacks corresponding mechanisms for accountability, oversight, and representation”.

Why are there not similar criticisms made about the IETF?
Is “oversight” of internet power always going to be by self-appointed guardians?