When Anarchy Is King, Who Can Put the Brakes on the Internet?

While it is now possible that the Napster lawsuit will lead to a landmark decision at the U.S. Supreme Court level, the specific legal issues raised by the widespread sharing of MP3 music files are only the beginning. The Napster controversy has made the front pages of major newspapers not just because it is a high-profile intellectual property lawsuit, but because it exemplifies the larger debate over whether our legal system is up to the task of controlling cyberspace.

The resistance to control embodied in a technology of unprecedented speed, scale and anonymity has been well-documented. In addition, file-sharing that occurs simultaneously cannot easily be halted. Napster-like software takes advantage of the same decentralized, anarchic Internet architecture that facilitated the February 2000 attacks against major Web sites, and it is this architecture that is at the heart of the software code that defines the Internet.

In the eyes of many, the law is on a major losing streak here. Attempts by Congress to protect children from online obscenity have been invalidated by the courts. Efforts to increase privacy protection have been unsuccessful. The perpetrators of the February attacks have not been caught. And now Napster is being allowed to keep operating even though many view it as nothing more than a vehicle for widespread lawless activity.

The limits of our legal system have long been recognized. Many scholars have noted, for example, that the system is often based on an implicit social contract, that it works better in some areas than in others, and that it is less effective in complex territory with many variables. In addition, there are obvious practical limits inherent in any effort to bring everything and everyone under control.

While all these principles are applicable in cyberspace, none is more important than the implicit social contract. If enough people decide--as they apparently have in the case of MP3 file-sharing--that an existing law can be ignored or defied, then that law quickly becomes irrelevant. And things may get worse in the future as wireless technology improves and Internet-enabled gadgets become smaller, faster and more efficient.

Some have argued that given the limits of our legal system, changes in software code are the only answer. But computer software that filters out content or restricts certain online activity can be countered by other software programs and technical protection systems. It is well-known in cyber-security circles, for example, that the latest in protective software is often countered by the creation of other software that can break through the new code.

Outside of widespread draconian changes in the nature of cyberspace itself, technology-based approaches alone are not likely to solve the problem. Some believe, therefore, that it may come down to a trade-off: Either change the current architecture and give up the Internet as we currently know it, or keep the current architecture and put up with some level of decentralized anarchic activity in the spirit of the greater good.

But the impact of traditional legal systems should not be dismissed out of hand. Over the past five years, the law has helped address certain key Internet-related problems, particularly when the rules are clear and the activity is similar to analogous offline behavior. The Federal Trade Commission, for example, has been quite effective at policing online consumer fraud, and international law enforcement cooperation has helped limit online child pornography.

Thinking outside the box will require creative combinations of “regulatory models,” such as pairing a traditional legal approach with technology-based adjustments and at the same time increasing the level of international cooperation. Indeed, such creativity will be necessary if we are to successfully address many of these issues. But if we are committed to maintaining the present-day version of the Internet, then consensus will be an essential component of any effective problem-solving approach.

As long as there are a host of ways to get around certain restrictions, a buy-in will inevitably be necessary from all those who have the ability to resist any new regulation. And some form of centralized leadership may in fact be the only way to foster such a consensus. The current decentralized approach to Internet governance may prove to be a luxury that we cannot ultimately afford.