Technology Is Politics By Other Means, Says Wu

Internet technology may emerge as a viable alternative to political lobbying for changing governmental regulation, said associate professor Timothy Wu at the semester's last Student Scholarly Lunch on April 22.

"We are in the early, trial-and-error period of the use of the Internet to control and evade regulation," Wu said, "and results are mixed. Peer networks, such as those designed to evade copyright law, have proved a serious challenge." He also cited the U.S. Supreme Court's recent decision allowing virtual pornography and the growth in online gambling as other examples of how technology had influenced existing regulation regimes.

Wu described peer networks as one form of "anti-regulation," conduct undertaken to control or evade government regulation. Peer networking uses every participating computer as both a server and a client. In an ordinary network, clients' computers are connected to a main server like spokes to a hub, but not necessarily to each other. In their purest form, peer networks have no central servers at all, offering no one point to monitor.

Wu said that the efforts to understand technology as a form of anti-regulation have been "a failure."

"It's just not as simple as saying that this is the telephone or saying that cyberspace is sovereign. Rather, we're seeing a new installment in the ancient practice of anti-regulation." Individuals will try to evade laws if they can do it with impunity and it is cheaper than complying with them, he said.

However, Wu pointed out that for peer networking to be a viable anti-regulation strategy it must overcome "scaling" problems. The larger a network gets the more centralization is needed to control it. "This centralization dynamic is something every network has a problem getting away from," Wu said. Ultimately, the potential of peer networks to evade regulation gets down to the question of "last mile bandwidth," the communication speed of connections from main lines into homes and other places where users are. The higher the bandwidth, the less the need for centralization and the greater potential to resist regulation.

Wu identified two ways in which technology can exploit blind spots in U.S. regulation. One is to "hide behind the Constitution; to recast conduct into a form that receives constitutional protection—usually the First Amendment. You see this to an extent with the virtual child pornography case, and also the end-run around zoning laws in Reno v. ACLU," he said.

"The other method, disintermediation, is an advanced form of hiding," he said. "You make the conduct intermixed with so much legitimate conduct that in order to regulate it the government would have to burden a lot of legitimate transactions to reach a little bit of illegitimate conduct. That's the basic strategy behind peer networks. To stop a 'pure' peer network the government may have to impose a heavy burden on legitimate transactions. It's not impossible to target all end users-all data packets do go through the public parts of the Internet-but it would be prohibitively expensive to do."

In questions, Wu clarified that he intentionally was not addressing "the other half of this story."

"[Stanford University law professor Lawrence] Lessig shows us how technology can regulate. I'm studying the technology for anti-regulation. Naturally, when the two meet, things get complicated."

"Up until now these methods have been used mainly by pirates," Wu said in closing. "The question is: will we see these methods come into the mainstream, to achieve regulatory goals where lobbying failed? For example, might we see peer networks used to evade campaign finance laws? Candidates could set up web sites outside the U.S. to accept payments. Issue ads could be placed on similar sites. That strategy and software called Triangle Boy are being used now to evade Net filters installed by the Chinese government to control speech." Beyond copyright infringement, tax avoidance and pornography distribution, peer networks might also be used to evade drug laws or to perpetrate terrorist acts, Wu said.