Lessig and Zittrain – Pornography and Jurisdiction

(entry last updated: 2003-06-30 19:09:54)

Starting with a Zittrain-Lessig dialog. (Donna’s notes)

We posit a policy problem: how to solve the pornography problem? – step one, state the problem. Is it existence? No. It’s the accessibility of pornography that children can see. One solution might be to ban porn. [assume we know pornography when we see it]

Isn’t there a Constitutional argument? Doesn’t banning go to far – Michigan v. Butler. – so cannot get rid of all porn for all people, because some people can have access to porn

So, let’s just make sure that children cannot get porn – figure out how to card people in cyberspace – let’s employ identity. For example, says Z, let’s demand a credit card, which children won’t have

L: So I have to give my credit card to pornographers to get porn? I don’t want to give out my credit card – in fact, I don’t want to have any ID associated with my demand for porn.

Z: What about a digital ID? Something that associates some set of information with that ID, one piece of which is your age.

L: That seems to work. Should give me the anonymity the Constitution required. The CDA problem is avoided, I think. There’s still a burden of ID to access speech – doesn’t the First Amendment require that I have access to porn. After all, an average porn consumer is not carded, right? S/he looks old enough without a need for a card.

L: Given that there’s a compelling reason to avoid children getting porn, is this really the least egregious burden? After all, the pornographer also has the burden of ensuring a robust mechanism for checking these IDs. Isn’t there a solution that might avoid this burden? If so, then that’s the Constitutionally required approach.

L: How about requiring kids ID, rather than adult ID. How about a kid-enabled browser? Parents could set up children’s computers, so parents have the burden, instead of the porn consumer.

Z: So, we require the porn www site IDing itself, and the children’s browser will look for it and block it. For example, let’s look at the Content settings for the Internet Explorer – settings can be applied. OOPS – CNN.COM is blocked by a level 4 setting in violence. Looks like trouble.

L: So, sites will have to do their labeling – let’s pass a law. Wait – labeling is only required under the law for pornography – so detailed labeling is not necessary. Just a Porn Flag – or, as the goal posts move, "harmful to minors"

So we get a new burden – what does harmful to minors mean? Let’s skip this altogether and let the free market generate ratings by third parties. Once these ratings appear, browsers will arise that recognize the ratings. For example, the ADL Hate Filter; or Net Nanny. Filters – RSACI, which is now owned by the same site that does filtering for the ADL

Looks like the use of <meta …> tsg. Larry points out that labeling can characterize well beyond the porn/no porn axis. Is it possible that this is more burdensome?

Z: Why isn’t filtration along multiple axes not better, because parents can police more speech – it may be less free speech, but kids are protected. It’s digital babysitting.

L: What if you criticize NetNanny? Mightn’t they block you because of that? Say PeaceFire, which tells you how to evade filtering software?

Z: Zounds! Better block that site; it’s depriving parents of the right to manage their children’s online activity.

Is Cyberspace Burning? – the ACLU explanation that filters are going to eliminate free speech on the internet.

(Note: this is NOT an easy session to summarize – I’m looking forward to seeing how Donna does this!)

"Harmful to minors" – versus pornography. Larry raises the question, beyond the constitutional issues, of effectiveness – will this really work?

Terry tells us that Posner upholds the AIMSter block

Copyright law

and the principles of equitable relief are quite complicated

enough without the superimposition of First

Amendment case law on them; and we have been told

recently by the Supreme Court not only that “copyright

law contains built-in First Amendment accommodations”

but also that, in any event, the First Amendment “bears

less heavily when speakers assert the right to make

other people’s speeches.” Eldred v. Ashcroft, 123 S. Ct. 769, 788-89 (2003). Or, we add, to copy, or enable the copying of, other people’s music.

OK – can I get back on track – I doubt it, but let’s see …

We’re now on the subject of eBay and Nazi memorabilia; in France, nazi memorabilia is “pornography” as we have defined it – plus the law is written such that there is the opportunity for private action. Yahoo! France faced this, and went to the US courts asking to defend them against orders from French courts because this restriction on speech would be a violation of the US constitution.

Here we are, therefore, into jurisdiction – now we’re on iCrave TV – rebroadcasting of TV on the internet being legal in Canada, but illegal in the US. What happened in this case was that US courts said that iCrave was doing illegal activity, and they shutdown, even though they were in Canada (well, a small bit in Pittsburgh).

Bringing us to Sealand. And IP mapping (Quova) – as it turns out, Quova can be used to get 80% effectiveness to filter out the French from seeing nazi memorabilia. iCrave promised they would get 99% accuracy, but not acceptable to the US court (copyright v. other restrictions).

An example from Google, where a search on stormfront yields two different results depending on your location – in Germany, the white supremacist group doesn’t appear – no formal declarations of these filters exist at Google, so we find that the technical world is zoning the internet, because the suppliers of content are being asked to filter.

China is another example, except that the ISP, essentially, is blocking sites.

Leading to an internet that is locally defined by the local jurisdiction – "national soverignity is paramount" – Treaty of Westphalia. A technologically implemented mechanism to sustain local jurisdictions.


  1. Comment: what sort of strategies can be used to deal with the tradeoff between the kind of issue advocacy that looks like pornography to filters and truly harmful content. A terribly messy problem.

  2. How does Jonathan get his research results? The trick is dialup into AT&T Beijing and then try to access sites – expensive phone connections, but informative – although it’s truly 20 questions. Eventually, the dialup strategy didn’t work, so other tricks were used.

  3. A question of power emerges from this discussion: is it really bad that states don’t get to exercise their power? Larry argues that doing this co-opts the opportunity to carry out the debate about the values underlying these choices.

  4. A reiteration of the need for sovereignity of states. Jonathan argues that the thing he’s most worried about is the internet issues. Larry picks up on something Jonathan says, by saying that the effectiveness of the filtering/zoning combination allows lawyers to get out of the complications of jurisdictions. This easy out means that we won’t address the hard doctrinal questions that really need to be addressed.

  5. Why is child porn such a big deal? Compared with bomb making instructions, etc? Lots of dodging, ducking and weaving.

I think I made a mess of this. No wonder not many people do this…..

Postscript: I confirmed with Jonathan what I thought was going on at the end: there’s at least an open question in some minds here (and Jonathan in particular) on the subject of whether sovereignty on the internet is a bad thing or a good thing – i.e. should cyberspace mirror realspace in these sorts of questions. While on one hand, we tend to think that free speech is generally a good thing, we also have examples that show that it can be terribly harmful (threats, hate speech on up though a host of consequences of the conversion of speech into various forms of commerce).

ILaw – 2003 June 20 – Larry on code – updated as it goes along

(entry last updated: 2003-06-30 15:34:20)

A walk with Larry through the key concepts of Code and Other Laws of Cyberspace (warning, I’m new to trying this, and I’m unable to avoid injecting myself into this, so don’t expect a transcript.) (Donna’s notes)

A start on the Viadhynathan discussions of the ideology of anarchy, governed by the mind, embracing freedom – the internet as “unregulable”

A dichotomy – if, in fact, the internet is unregulable, why do we need an EFF, anyway? Because, in fact, the internet can be regulated, but you need to look at a new mechanism of control – Larry points to the list from Code; law, markets, norms (society), and architecture. Or, more specifically, implementation of technologies – the motives that underlie how we choose to deploy ways of doing things.

Smoking as a demonstration of the ways that governments employ mixed modes of control to change behavior – taxes, advertising to change mores, regulate packaging, etc.

To demonstrate that architecture is not uncommon, Larry goes into architecture as a regulator chosen by governments or their actors (my architecture lecture – 4 MB pdf). Baron Haussmann, Robert Moses (pictures in my slides), Americans with Disabilities Act

(Side note: Jonathan is "Z", at least when Larry’s picking on him)

Subtleties – the modalities may reinforce or conflict, but governments (and others) will employ these modalities to achieve their policy goals.

A questioner goes after Larry’s claim that “God” is the enforcer of architecture – no policeman is needed to maintain the modality of control that architecture represents. Granted, it can be challenged, and eventually changed, but it does make it hard to discuss, particularly if it’s subtle.

A questioner asks why the law seems to have primacy in Larry’s talk. Larry answers that discussion of modalities of control is somehow more natural in the legal domain, provided within a legitimated framework – e.g., democracy. It is, thus, more legitimated.

(Forgot to mention, Derek came up for at least the day)

Larry on libertarians – in the end, I think it reduces to unwillingness to see

So, getting back to regulability, the internet is, of course, regulable, because it can be (and in fact has been) architected. The first point – architecture has consequences. For example, on the internet, TCP/IP doesn’t let you know who sent a message – there is no identity to IP addresses. You can’t know what’s in a packed (well, you couldn’t originally). You can’t know the location of either the source or the recipient.

This arthitecture of anonymity led to the libertarian argument that the internet is not regulable, etc. Life pre-cookies, in other words. (Wow – Larry stuck his neck out and called http stateless.)

But, the conflict between what business wants to use the net for, what government wants to use the net for and what the designers put into the internet, leads to a tension that (unsurprisingly) motivates engineers to start acting to modify the architecture.

Larry’s point 1: the error of the libertarism argument is “is-sim” – the internet won’t change – and, as we’ve seen, architecture can be changed, because implementation of technology is mutable – that’s what engineers do. Government and commerce have reasons to motivate change – e.g., cookies (to get around the statelessness of http – Netscape to ease the life of commerce servers), packets sniffers (to see the content of traffic – Larry’s Morpheus server story), and IP mapping (Jonathan’s research into blocking).

(Hypothesis: Larry throws Jonathan’s name into the lectures as often as possible, because he’s used to Jonathan tuning out and he wants to make him jump – a classic lecturer’s trick. Empirical evidence shows, so far anyway, that it still works on Jonathan, too!)

These three changes, among many, many more, take away more and more of the anonymity of the internet – and the consequences of the architecture have now changed the internet into a more regulable space – so much for “is-ism.” And, therefore, we better start paying much more attention to the implications of changes in the architecture.

A question on cookies and the Hamadi case: rephrased as “is the cookie a violation of rules or laws?” And the answer is, generally, no. But, the unintended consequences of these changes may be unattractive (note to self – this is a key set of ideas around the ESD notions of engineering systems, something that I need to expand upon). DoubleClick has learned from the questions that their use of cookies raised, and the FTC & norms/reputation (as elements of other modalities of control) have influenced these changes.

Larry’s point 2: the modalities of control interact. With e-mail spam as an example – libertarians believe in free speech, so keep the law out of email. In the early days of the internet, the small homogeneous internet community flamed the first advertising e-mails. But, with the influx of the hoi-polloi into the internet, the norm against e-mail ads vanishes and spam emerges. Responses include white hat vigilantes (real-time black hole lists, other tech fixes) but all their actions really do is make things worse. And, it looks like censorship, an ideological violation – and it works to get you off (John Gilmore story – sp?)

What if a law could reduce the market value of spam? Wouldn’t that allow us to avoid using the arhitecture? Say, Larry’s spam labeling act? Although we aren’t going to talk about that for a while, it appears.

Larry’s summation:

  1. Code is law

  2. Code is plastic

  3. No law can beget bad code

  4. Good law can avoid bad code (maybe)


  1. The US is moving away from respect for public law, so why is the primacy of law asserted? Larry: I am a pessimist; you are right, the law is losing out and perverting many important and fundamental values. (Unspoken: the law is undermining itself because of this failure to reconcile what law does and what consequences emerge)

  2. An ex-network admin from a university describes caving in to Orbs, whose egos got away from the notions of cooperation – the damage of the vigilante groups. Spews (sp?) vs. Paul Vixie’s group are contrasted – leading to a notion that at least governments have to justify what they do, while vigilantes don’t have to.

  3. Another example of (il)legitimacy – the influence of US politics upon the global internet is discussed. Larry points out that the internet is the most efficient mechanism to export the US vision of free speech. Should we homogenize the network protocols, or should we allow jurisdictions to dictate the architecture? An open question.

  4. The expansion of the vigilantiism to the level of international jurisdiction issues. This leads us into a further discussion of jurisdiction – why isn’t it just like the Atlantic ocean (doesn’t the US Law of the Sea still obtain?) Larry points out that location is tied to many of the notions of jurisdiction, and thus many of the natural analogies don’t work when you consider the internet, because the metaphors of location don’t really work seamlessly with these problems.

2003 June 30 – ILaw

(entry last updated: 2003-06-30 13:10:57)

Woo-hoo! Wireless access working! But it seems like there are lots of people anxiously awaiting updating of the DHCP server – Donna, for example, who’s going to be real-time blogging again, but can’t get in yet.

ILaw starting (9:00 PT with Larry hosting).

  • Cory Doctorow points to an interesting LATimes editorial: Labels May Face Risk in Piracy Suits [pdf]

    Labels and artists are widely viewed on Capitol Hill as victims of rampant piracy by millions of users of file-sharing networks. And anonymous file sharers are easy to demonize.

    But the real people sued this fall by the Recording Industry Assn. of America may have sympathetic stories to tell. That could turn sentiment on Capitol Hill at a time when some lawmakers are eager to narrow the reach of copyright law and expand consumer rights.

  • Yikes! Check out this idea from Boinb-Boing: Japanese mags take on “digital shoplifters” – essentially people are using their cellphone cameras to take pictures of something they see in a magazine, rather than buying it – and the Japanese a cracking down – Japan’s ‘digital shoplifting’ plague – "Together with Japan’s phone companies, they are issuing stern posters which warn shoppers to be careful of their ‘magazine manners’."

  • I see that Ed already made the point I was raising about the endless spy v. spy game the RIAA is playing – based on this Washington Post article: Piracy Dragnet

  • Things that new technologies give: Coming Soon: A Horror Show for TV Ads [pdf]

    Yet the world of TV advertising is about to become a lot more scientific. On June 2, personal-video-recorder outfit TiVo (TIVO ) unveiled an analytical tool that can tell advertisers, agencies, and networks not only how many people tune in for a show but whether they’re watching the ads. Unlike a Nielsen rating, which relies on surveys filled out by viewers, TiVo’s system tracks what a viewer records and tunes into, even when the channel is changed — although, thankfully, it still doesn’t know if you head for the kitchen for something to eat.

  • Salon has a very funny opinion piece today: Why the U.S. must invade Canada — now

    It didn’t support the war, it’s soft on pot and gays, its economy is rolling and U.S. troops are bored. Anyway, reasons to invade countries are no longer needed!

  • Salon has an interview with John Cougar Mellancamp on the state of music: Ain’t that America?

    So I go in there and they ask me a few questions about the record. Then all of a sudden the guy says to me, “You wrote a song that took some potshots at the president.” I said, “Whoa, motherfucker! I didn’t take any potshots at anybody, that’s not my style. I’m not yelling from the back of the crowd or giving somebody the finger. That’s not what I do.” I said, “Listen, I wrote a song and got the lyrics out of any newspaper in the country.” He said, “Well, you saw what happened to the Dixie Chicks.” I said, “Listen, people have died in World War I, World War II, the Korean War, Vietnam and a bunch of little wars in between so that people will have the freedom to speak out, and then the administration gets on the news and says there’s a price for freedom. Yeah, and these dead guys have already paid for it. For people to drive by those women’s houses [the Dixie Chicks] and call them on the phone and threaten them is criminal. What the Dixie Chicks did was legal.”

  • KaZaA 2.5 Released, with incentives for sharing licensed content: Sharman Networks Launches Kazaa V2.5

  • Somehow, I wouldn’t be crowing about getting the BSA’s support, but then again, I’m not as clueless as the RIAA tries to be: IT Industry Execs Support RIAA Efforts To Protect Music On-Line

  • Although it’s not grounds to ignore the EU “right of reply” rules, a small reprieve for bloggers is described in this Wired News article: Bloggers Gain Libel Protectio (Speaking of which, I heard Declan on NPR’s ON the Media yesterday on this subject.)

  • Declan’s arguing that Microsoft is abandoning their laissez-faire attitude in private in order to expand their hegemony to set-top boxes: Microsoft’s new push in Washington

  • Looks like the EU is at least pausing their headlong rush to emulate US software patenting: Software patent vote delayed

  • Via Slashdot: a federal circuit court of appeals decision has apparently upsheld a shrinkwrap EULA the prohibited reverse engineering!

    A U.S. Supreme Court decision could call into question a common practice among software companies: studying competitors’ products to improve their own offerings.

    The legality of this practice, called reverse engineering, is in question after a lower court found that a software company had violated a shrink-wrapped license contract when it reverse-engineered a competitor’s piece of software.

    Last week, the Supreme Court decided not to hear the accused software company’s appeal.

    The opinion from the DC court: Bowers v. Baystate – TechLawJournal on the denial of cert.

2003 June 30

(entry last updated: 2003-06-30 02:08:42)

Cheating on time, I guess, since it’s still yesterday here in California…

  • The NYTimes discusses the conflicts around "trusted computing:" A Safer System for Home PC’s Feels Like Jail to Some Critics [pdf]

    The most interesting suggestion of this article is that Apple may be electing to use its choice to echew DRM hardware (in favor of software) may end up being used as a competitive threat to the Wintel platform – a very clever move, if true, since I know that I will definitely vote with my wallet on this issue.

    But by entwining PC software and data in an impenetrable layer of encryption, critics argue, the companies may be destroying the very openness that has been at the heart of computing in the three decades since the PC was introduced. There are simpler, less intrusive ways to prevent illicit file swapping over the Internet, they say, than girding software in so much armor that new types of programs from upstart companies may have trouble working with it.

    […] “Microsoft’s use of the term `trusted computing’ is a great piece of doublespeak,” said Dan Sokol, a computer engineer based in San Jose, Calif., who was one of the original members of the Homebrew Computing Club, the pioneering PC group. “What they’re really saying is, `We don’t trust you, the user of this computer.’ ”

    […] How consumers will react to the new technology is a thorny question for PC makers because the new industry design stands in striking contrast to the approach being taken by Apple Computer.

    Apple has developed the popular iTunes digital music store relying exclusively on software to restrict the sharing of digital songs over the Internet.

    […] Apple only has a tiny share of the personal computer market. But it continues to tweak the industry leaders with its innovations; last week, Apple’s chief executive, Steven P. Jobs, demonstrated a feature of the company’s newest version of its OS X operating system called FileVault, designed to protect a user’s documents without the need for modifying computer hardware.

    Mr. Jobs argued that elaborate hardware-software schemes like the one being pursued by the Trusted Computing Group will not achieve their purpose.

    Even the Darknet paper is cited.

  • Patents in the news: Protecting Ideas in the Insurance Business [pdf]

    In 1998, after hearing a legal challenge to a patent for a way of pooling mutual fund assets, the United States Court of Appeals for the Federal Circuit ruled that methods of doing business could be patented. Since that ruling, known as the State Street Bank decision, applications for business-method patents have begun transforming the way products are created and marketed.