[ Watch on YouTube ]

With two Keynote Addresses focusing on the technical aspects of advanced networks, University of San Diego Professor of Law David McGowan provided a fresh and fascinating perspective on networks from a legal, policy, and cultural point of view, all of which have become increasingly important now that, as he stated to conference attendees, "the world decided to run itself on your back." McGowan treated three topics: net neutrality, security and privacy, and the traditional cultural influence exerted by universities over the network itself and where this culture is headed.

Professor McGowan led into his treatment of net neutrality with the statement that law is a "zero-sum game," where one party must walk away the loser. However, while lawyers all hope for a net positive effect from the lawmaking process, they recognize that any net positives will not become evident for some time since in McGowan's words, "the only real law is the law of unintended consequences." The example that he used to illustrate this was the US Department of Justice's statement in 1956 that AT&T was a monopoly.

The Justice Department dealt with this by stating that AT&T may not engage in any line of business other than the provision of communications. The unintended consequence of this decision did not become evident until Bell Labs developed UNIX; their lawyers stated that they could not sell it as they were not permitted to do business in that area. As a result, as the Bell Labs engineers traveled and gave presentations on this new operating system to various universities, they would on occasion leave it behind on tape where it would be put to use and developed further. The sentiment of the day was that software would never be sold apart from hardware; clearly the Justice Department did not foresee that this decision would "firewall" software from hardware and allow what McGowan called a "seedbed of innovation" to go forward, resulting in UNIX and its descendent OSs splintering and becoming so ubiquitous.

From this illustration of just how significant the unintended consequences of policy decisions could be on technology, McGowan then moved into the realm of net neutrality and its effect on network buildouts. Networks have historically been built to be, as he observed, intelligent at the periphery and unintelligent in the middle (a model sometimes referred to as "the stupid network"). Net neutrality is an instance of intelligence residing in the network itself, and the recent pending case of Verizon v the FCC is forcing a reconsideration of this. The FCC has passed regulation to constrain backbone-to-house providers from discriminating among packets, and Verizon has called into question its power to do that. At bottom, the case centers on the nature of the Internet as communications technology (and therefore within the purview of the FCC) or information technology (which is far less well-understood), and whether the FCC's raison d'être of encouraging the policy of network buildout should stand for or against net neutrality.

Figure 1: Director of the Center for Intellectual Property Law & Markets
and Keynote Speaker David McGowan, University of San Diego

On one hand, allowing companies to create fast and slow lanes on their networks could allow them to recoup the costs associated with building the network infrastructure and put this revenue into further buildouts. However, non-discriminatory treatment of packets allows competition to flourish robustly at the ends of the networks as start-up companies vie to create technology and applications, which then boosts demand as these innovations become more widely used. McGowan stated this as, "Disparity of demand drives buildout," and referred to the statement earlier in the day made by Carlos Casasús of CUDI, who put forth the idea that the creation of a digital divide in Mexico would ensure that at least some people are on the right side of it and could exert pressure to bring more of their fellow Mexicans to that side.

McGowan also mentioned ways in which these two philosophies are not simply separate but actually mutually antagonistic, as in the case where infrastructure buildouts make it easier for innovators at the networks' endpoints to innovate in problematic areas, such as innovations that facilitate illegal downloads of rich media.

The underlying complexity of the question and the guarantee of unintended consequences mean that there may be no one answer to the question of whether net neutrality or packet discrimination advances network buildout more. The FCC's tendency, according to McGowan, is to maximize competition where it is already most robust, and the network's "ends are competitive as all get out. [There is] not so much competition in the last mile." This is why he anticipates that net neutrality will be affirmed.

He did however add that net neutrality and the prevailing views on it are likely to change, as they crystallized when the Internet was still mostly an academic creation populated by the homogenous members of a common culture. "Goldman Sachs," as he put it, "was not on it." He does not anticipate, and cautioned the audience against assuming, that billions of dollars and billions of people joining the network will have no effect on net neutrality views. He also reminded attendees that universities themselves already discriminate among packets and "manage the living daylights" out of their traffic, although this takes place at the network's "smarter" endpoints.

McGowan's second topic was that of policy toward networks, and how it is likely to change. As a law professor, he once stated to his students that the single function that the Internet serves, as far as they were concerned, is to lower transaction costs -- that is, to make it easier for people to do things to and for people. As a result of this, when policy makers consider the likely cases on which they must base their policy, the worst case scenario instead of the average case often becomes the yardstick for legislation and punishment. (However, McGowan did note that there is a "huge misapprehension of what cops can already do," and that most people's ideas of the privacy that they enjoy can already be invalidated with one warrant.)

However, the frequent reaction of the technical community is one of security in that they can always remain one step ahead of legislation. This comprised a pivotal part of McGowan's third topic area, that of the historical power that universities and the university culture has had over networks and how this is likely to change in the future. Historically, the Internet and such networks have had what he called a "culture of openness," and yet as funding becomes more and more difficult to find and more universities solve this problem with alliances between their researchers and corporations or government contractors, this notion of openness is likely to give way as neither corporations nor governments share it. And as McGowan sagely observed, "whenever you collide with a big amount of money, the big amount of money wins."

A second reason why this notion of openness is likely to recede is related to the previous statement on the tech culture's confidence that they can remain effectively ahead of legislation. The law, according to McGowan, not only lags but is aware that it lags. Thus, to compensate for this relative disadvantage, it is forced to bring decisive power to bear when those on the cutting edge of technology use it for purposes that bring about or even hint at harm. Thus, with both for-profit corporations with deeply held notions of proprietary knowledge and the Justice Department's concerns for security in the balance against the traditional university preference for openness, the network culture is likely to undergo a change in the future. Universities will be forced to consider what tradeoffs are worth being made to reassure corporate and government partners, many with significant funding to offer, that their information is secure and that they can offer a safe environment where the law, that knows itself to lag and hence can only rely on overwhelming force, need not be brought to bear.

About CENIC and How to Change Your Subscription:

California's education and research communities leverage their networking resources under CENIC, the Corporation for Education Network Initiatives in California, in order to obtain cost-effective, high-bandwidth networking to support their missions and answer the needs of their faculty, staff, and students. CENIC designs, implements, and operates CalREN, the California Research and Education Network, a high-bandwidth, high-capacity Internet network specially designed to meet the unique requirements of these communities, and to which the vast majority of the state's K-20 educational institutions are connected. In order to facilitate collaboration in education and research, CENIC also provides connectivity to non-California institutions and industry research organizations with which CENIC's Associate researchers and educators are engaged.

CENIC is governed by its member institutions. Representatives from these institutions also donate expertise through their participation in various committees designed to ensure that CENIC is managed effectively and efficiently, and to support the continued evolution of the network as technology advances.

For more information, visit www.cenic.org.

Subscription Information: You can subscribe and unsubscribe to CENIC Updates at http://lists.cenic.org/mailman/listinfo/cenic-announce.