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Ten Things Lawyers Should Know About Internet Research

CAIDA orb logo, via their site.kc claffy, of the Cooperative Association for Internet Data Analysis (CAIDA) at the San Diego Supercomputer Center of the University of California, San Diego has a blog post (hat tip: David) under the above heading:

Last year kc claffy was invited to give a 15-minute vignette (at the Supernova 2007 conference) on the challenge of getting empirical data to inform telecom policy. Following the conference, she was invited to attend a meeting in March 2008 hosted by and Stanford Law School — Legal Futures — to convey the most important data points she knew about the Internet to lawyers thinking about how to update legal frameworks to best accommodate information technologies in the 21st century. With a couple months of more thought, kc has come up with a comprehensive list of the top ten most important things lawyers need to understand about the Internet.

It is fascinating to have the techie view on research relating to the internet written from that perspective but with an eye to a legal (and policy) readership. She has provided ten link-rich, punchy and informative posts which every lawyer and policy-maker should read. Under her first heading – Updating legal frameworks – she argues that legal frameworks need to be updated to be congruent with reality, and that we have first to understand reality. Leaving philosophical questions like “what is reality” to one side, I’m not convinced (as I said in my last post) that we always need to update the legal framework: most of the time, most of the applicable legal rules can and do apply online. But I entirely agree that we must understand the online reality: many of the issues raised by internet law are issues raised by lawyers (especially judges) not understanding the technology and/or techies not understanding the law. Greater understanding on both sides will clear away a great deal of cyberlegal fog.

Under her second heading – Obstacles to progress – she argues that the main obstacles to progress are primarily issues of economics, ownership, and trust, rather than technical. I agree, especially about trust. As the internet moves from its chaotic beginnings to a mature element of everyday life, we need to develop mechanisms to allow us to trust our online interactions.

Under her third heading – Available data: a dire picture – she argues that we don’t have a lot of data about the Internet, but what little we have is unequivocally cause for concern: technological solutions for impending scarcity in internet IP and other vulnerabilities in the most fundamental layers of the infrastructure have failed to gain traction for commercial reasons, while internet security is hugely compromised by botnets:

Although ICANN is trying to set policies to counter some of the malfeasance that arguably falls under its purview (domain names and IP addresses), ICANN lacks the architecture and legitimacy it needs to enforce any regulations, and continues to struggle more than succeed at its own mission.

Under her fourth heading – The problem is not so new – she argues that the data dearth is not a new problem in the field, many public and private sector efforts have tried and failed to solve it; whist under her fifth heading – An absurd situation – she argues that:

the research community is in the absurd situation of not being able to do the most basic network research even on the networks established explicily to support academic network research. …

As with many other questions about network architecture, behavior, and usage, there are valid (i.e., empirically validated) inferences to make regarding QoS [added link] versus the alternatives, which could immediately inform telecom and media policy, but researchers are not in a position to make them.

Under her sixth heading – How data is being used – she argues that a growing number of segments of society have network measurement access to, and use, private network information on individuals for purposes we might not approve of if we knew how the data was being used. I couldn’t agree more. But she is gloomy about possible solutions to this and other techno-legal problems. Under her seventh heading – Normal regulatory responses doomed – she argues that regulation is a “quixotic path”; whilst under her eighth heading – Problematic responses – she argues (in the most important post in the series):

The opaqueness of the infrastructure to empirical analysis has generated many problematic responses from rigidly circumscribed communities [such as IEFT, network operators, ICANN, media/legal/policy commentators, internet researchers and engineers, the FCC, software developers, and users] earnestly trying to get their jobs done. … All these communities have tremendous insights into pieces of the problem, all are filled with earnest people trying to do their job, constrained by their institutional context. But no one has oversight for coordination or even articulation of the global picture. While the best available data makes it obvious that legal repair and renewal is crucial to democracy — communications technology being no exception — we are currently pursuing enlightened policy in the dark.

But then, under her ninth heading – The news is not all bad – she argues that

… there is a reason everyone wants to be connected to all the world’s knowledge — as well as each other — besides its status as the most powerful complex system ever created by man. The Internet’s practical promise for individual freedom, democratic engagement, and economic empowerment, is also unparalleled. This promise is sufficient inspiration for an open, technically literate conversation about how to invest in technologies and policies to support articulated social objectives.

And she concludes, under the tenth heading – Solutions will cross boundaries – even in the dim light of the underattended interdiscplinary research into the network, the available data implies clear directions for solutions, all of which cross policy-technology boundaries.

They will also cross jurisdictional boundaries. Internet-based problems (even policy and legal ones) will need internet-based solutions. And legal regimes which respond to the issues being generate by current internet research will need to understand that technical reality and inter-operate across legal categories and real-world jurisdictions. These ten things are an important staging post in reaching that destination.

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2 Responses to “Ten Things Lawyers Should Know About Internet Research”

  1. […] the law. But that wave of demands for internent-specific legislation passed as the lawyers came to understand the technology and how existing legal doctrine could apply online; whilst the techies have largely accepted that […]

  2. […] them to prevent the users having access to data. Lawyers notoriously understand very little about internet reserach, and so have great difficulty in addressing the kinds of legal and regulatory issues that such […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

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