Controlling the Uncontrollable:
Regulating the Internet

(1995) 4 M.C.L.R. 331 (updated)


Dov Wisebrod, March 1995


Outline

  1. The Internet
    1. Rate of Growth and History
    2. Anarchy and Open Access
    3. Usenet
  2. Tangling the Net
    1. The Homolka Fiasco
    2. The Clipper Chip
    3. Civil Litigation
  3. The Role of Regulation
    1. Individual Users
    2. The Gatekeepers
    3. The Government
  4. Canadian Information Highways
    1. "The Canadian Information Highway"
    2. "Driving the Information Highway"
    3. The Internet and Government


Controlling the Uncontrollable:
Regulating the Internet


Government leadership is required to develop
and implement a national strategy.


Industry Canada, "The Canadian Information Highway"2


Government: not the solution, but the problem.

Bumper sticker seen on the information superhighway3

To assert that government is the problem on the Infobahn is to invite reprisal, but it is correct, nonetheless. If the "government" to which the bumper sticker refers is the one democratically elected, reprisal must be expected. However, suppose that the statement refers not to a specific government, but rather to an abstract idea of government, and it becomes more meaningful and reasonable. It is this "government"--authority, hierarchy, control, and regulation--that truly threatens to be "the problem" on the electronic frontier. The Canadian government has failed to recognize this in Industry Canada's recent discussion paper. It is correct in concluding that it is "responsible for a number of important legislative and regulatory instruments that will influence the development of communications systems in Canada."4 However, there are crucial limits to this responsibility. In this paper, I argue against the indiscriminate extension of government to the Internet.

This issue is important, because, despite all the expectant media hype surrounding the overworked metaphor, an "information highway" is already here. Dr. Andrew Bjerring, president of the Canadian Network for the Advancement of Research, Industry and Education (CANARIE), asserts: "While the 500-channel universe is receiving a lot of attention, research suggests that the Internet has more of what consumers actually want."5 The Internet being the Infobahn of the present, it is imperative to define its position with respect to regulation, so that the first step on the path to its future incarnation may be in the right direction.

In Canada, especially, discussion of the ability or inability to regulate the information highway is important. The default reaction of Canadian government to a novelty is to regulate it. Indeed, in the discussion paper that is supposed to initiate assessment of the situation and to allow structured analysis toward answers to the questions posed, the government preemptively makes the statement with which this paper began, presuming itself to be the required leader. Unfortunately, it is wrong. Notwithstanding the government's desire to create a "uniquely Canadian" strategy "respecting our regulatory history,"6 King Canute had as much success commanding the tides to retreat as a national government will have regulating cyberspace.

My argument is that there are fundamental inconsistencies between government of any kind and the global computer network-of-networks known as the Internet. The very essence of the Internet is anarchy, a diametrical opposite of authority. To say that the two do not intermix well is to state the obvious, but what is perhaps not readily apparent is that the anarchy of the Internet is a powerful, co-operative, functional force that cannot be subjected to centralized control. Thus, while the existence of a normative basis for regulating the Internet would be an interesting subject for debate, the exercise has little practical application. Due to the nature of the Internet, including its history, culture, amorphousness, and universality, it is quite impossible to effectively regulate. As author Bruce Sterling put it: "The Internet is a rare example of a true, modern, functional, anarchy."7

This paper is divided into four parts. The first, "The Internet," introduces the subject by discussing its size and rates of growth, and by tracing its history, with particular emphasis on its anarchic evolution, open access structure, and primary component: the Usenet electronic bulletin board system. The second part, "Tangling the Net," discusses three areas in which difficulties are confronted when conventional notions of law and policy are applied to the Internet. These are the information ban in the Homolka manslaughter trial, the pursuit by the U.S. government of a new standard of data encryption, and private litigation of civil matters related to the Internet. The third part of the paper, "The Role of Regulation," ascends the levels of regulation of the Internet, beginning at the individual user and progressing through system administrators ("The Gatekeepers") to the government. I derive from this analysis a principle, designed to appropriately define the extent of regulation of the Internet by government, that addresses the difficulties involved. Finally, I assess two recently released discussion papers on Canadian information highways: one from the federal government and the other produced by New Brunswick, a province with a reputation for progressive telecommunications.8 Both documents demonstrate fundamental misunderstanding of the implications of the Internet for the efficacy of governmental regulation.


1. The Internet

...the trend towards a decentralized and anarchic model
of computer mediated communication networks.


Henry Edward Hardy, "The History of the Net"9


A. Rate of Growth and History

There is a peculiar, though understandable, tendency to use hyperbole when describing the Internet. Extreme language is, in fact, highly appropriate in this context. It is reasonable to assert that the "Internet is the fastest-growing communications medium in human history."10 In 1994, traffic (in bytes) over NSFNet (the American "backbone" of the Internet, run by the National Science Foundation) increased 115%.11 The best estimate of the increase in the number of Internet hosts (computer "nodes" of the network) worldwide between October 1993 and October 1994 is 88%, and by the end of January 1995 there were about 4,852,000 hosts.12 According to Tony Rutkowski, Executive Director of the Internet Society, a common method of estimating the number of Internet users is to multiply the number of host computers by ten. Thus, on February 1, 1995, there were approximately 48 million users of the Internet.13

These figures are the most precise available,14 but it is impossible to accurately quantify the size, use, and growth of the entire system. No one knows how many people use it. No one knows how many nodes are on it. No one knows how much information is transmitted through it. And that's precisely the point: If there were an "Internet Inc."15 to keep track, the network of networks not only wouldn't, but couldn't be as successful as it is. The phenomenal growth of the Internet has occurred not in spite of, but precisely because of its anarchic and open nature.

Throughout the history of the Internet, the related characteristics of anarchy and open access have been crucial to its success. The Internet can be traced back to 1964, when the RAND Corporation conceived of a solution to the problem of maintaining American military communications during a nuclear war. To avoid instant destruction of communications due to a single hit of a central station of authority, there would be no central authority. ARPANet, named after the Pentagon's Advanced Research Project Agency, was the first computer communications network to incorporate this revolutionary decentralized structure.16

ARPANet was set up in 1969 and run by the U.S. Department of Defense.17 Its use was not exclusively military or research, however. Most of the traffic over the network was news and personal messages. In fact, the first "mailing list," by which a message could be automatically sent to large numbers of recipients, was "SF-LOVERS"--devoted to science fiction.18 Even though system administrators discouraged discussion of science fiction over the network, in an evolutionary pattern that would repeat later in Internet history, the users of ARPANet had taken control of its use. In 1989, ARPANet died, but its function as the Internet backbone in the U.S. had by that time already been taken over by NSFNet for several years.19


B. Anarchy and Open Access

The decentralized structure of the Internet, spreading out from the ARPANet/NSFNet backbone, allowed easy expansion, as did the evolution of a communications standard that was widely compatible with different computer networking software. Called TCP/IP (Transmission Control Protocol and Internet Protocol), the basic form of the standard continues to this day to link computers into networks, and networks into the Internet. The TCP/IP software was public-domain, and decentralized and anarchic by its very nature, so "it was difficult to stop people from barging in and linking up...."20 Thus, the Internet was "hardly planned at all. Mostly, it just happened, as first scientists, then academics and finally the general public began taking advantage of its tremendous capacity for connectivity and communications...."21

While anarchy might causally explain the open access to the Internet, the two elements are best viewed as emerging simultaneously and bootstrapping each other. Alan Kay, an Apple Fellow, is of the opinion that open access was one of a set of principles vital to the success of the Internet.22 Open access would lead to increased anarchy, as the core backbone network lost not only control, but even knowledge of what was happening to the growing web of computers it had spawned. Anarchy would then encourage increasingly open access.

The historical record primarily accords with the above assessment, but the Internet sometimes complies with what is possibly a more intuitive result of anarchy than successful expansion: retardation of growth. In Japan, that is precisely what happened. However, this result is due only to the misguided attempt of the Japanese bureaucracy to control the Internet. One of the primary reasons for Japan's late launch into cyperspace is over-regulation. Japan's National Center for Science Information Systems (NCSIS) made a fateful decision when it officially adopted a communications standard other than the global standard TCP/IP.

The freewheeling, democratic style of the Internet has run smack into traditional Japan at its most authoritarian. On one side, you have the technology pioneers, young volunteers who built Japan's largest research network by their own efforts, without any support from the Japanese government. ...

On the other, you have the officials charged with providing network services to the Japanese research community. They have tried to ram unpopular standards and technology down users' throats--and failed.23

Almost a decade had passed before the decision was revoked in 1991, and the NCSIS began the conversion of its network. Among the conditions seen as essential for the healthy recovery of the country's global internetworking ability are better-educated bureaucrats, lower tariffs, and a greater number of free-access systems.24 That is, deregulation (increased anarchy) and the elimination of barriers (open access). The speed with which the Internet is being embraced in Japan, after legal barriers to commercial providers of Internet service were dismantled in September 1993, is a testament to the validity of these recommendations and to the nature of the Internet: The number of Japanese networks with Internet connection quintupled between June 1993 and July 1994.25

One hopes that other nations learn from Japan's mistake and carefully consider the application of regulatory control to the Internet. At least one group in the United States recently urged the dismantling of legal hurdles to the development of the information infrastructure. The report of the Council on Competitiveness, a private-sector group, states in part:

In some cases, the laws and regulations are inconsistent with new technologies. In other cases, conflicts exist between state and federal laws or between differing state laws. In still others, no laws or regulations exist, but concerns about liability in these untested waters are so great that they hamper both the development and use of new... applications. The uncertain regulatory environment coupled with immense liability concerns is stifling the entrepreneurial spirit and risk taking necessary to push forward.26

Early observation of the paths proposed by Congress and state legislatures does not provide optimism for those who adhere to the position of the Council.27 It remains to be seen whether regulatory action will be successful in its goals, but, as I argue below, it is already fairly clear that any such action is futile.


C. Usenet

The term "anarchy," used above to generally describe one of the key characteristics of the Internet, needs to be modified. "Co-operative anarchy"28 is more appropriate, since it best describes Usenet, which to many people actually is the Internet.29 Sterling colourfully likens Usenet to "an enormous billowing crowd of gossipy, news-hungry people, wandering in and through the Internet on their way to various private backyard barbecues."30 In less exciting but more meaningful terms, it is like a tree: "Usenet" is a trunk from which sprout seven main branches (or hierarchies--comp, misc, news, rec, sci, soc, and talk), one wayward limb ("alt"--see below), and many sub-branches and sub-sub-branches from those eight. Each leaf, so to speak, is a newsgroup, an electronic bulletin board containing articles which users post and/or read. There are currently over 10,000 newsgroups covering virtually every imaginable topic of interest to even the most minute segments of the online community.31

The remainder of this paper assumes the Internet is comprised primarily of Usenet. This assumption is justified for several reasons. First, the growth of Usenet has been crucial to "the emergence of the Net as a self-determinate and independent culture."32 Second, together with other Internet services designed for personal communication, such as electronic mail (e-mail), IRC (Internet Relay Chat), and TALK (a person-to-person form of the conference-style IRC), Usenet accounts for approximately 57% of Internet usage.33 When one includes binary file transfers (of which Usenet is capable) the number rises to 88%.34 Third, Usenet is sufficiently complex, yet interesting and comprehensible, to provide adequate material for fruitful discussion of the relationship between the Internet and regulation. Fourth, Usenet is in my experience among the simplest of Internet services to use (second only to e-mail), and is for this reason most often new users' first introduction to the cybersphere. Finally, the culture of the Internet is most apparent from Usenet, and it is this culture that drives the co-operative anarchy that has made Usenet, and the rest of the Internet, so successful. As Henry Hardy has noted:

Usenet may profitably be viewed as an emergent cult, or culture, or society. Usenet has many of the characteristics of an independent subculture, such as a particular grapholect, a special net etiquette, or "Netiquette," and customs and traditions different from the many external cultures in which it is embedded.

Several possible explanations for this may be expounded. Usenet is international in scope, reaching one way or another almost all areas of the developed world and much of the rest. Usenet as a medium has unique characteristics of immediacy, distributiveness, anonymity, and ideography. And it is a complicated and secretive fraternity (sorority) with its own ritual, customs, and acceptable norms of behavior. It may be described as an emergent, rather than a planned or teleological system.

... The lack of a central regulatory or governing body makes the Usenet a study in functional anarchy.35

The reason for Usenet's lack of central authority is one of the legends of the Internet. An authoritative group, known as the "Backbone Cabal," used to decree whether a newsgroup would be carried on the ARPANet backbone. When the Backbone Cabal declined to carry two proposed new newsgroups, dealing with recreational sex and drugs, that had passed the conventional vote by users, alt.sex and alt.drugs became the first newsgroups in the "alt" hierarchy. Alt was distributed through alternative channels known as "alternet" (vs. ARPANet),36 and a few months later the Backbone Cabal disbanded. "Following the abdication of the Backbone Cabal oligarchy, Usenet was proclaimed to be the world's foremost example of a working cooperative 'anarchy' and it has remained so ever since."37

Current practice for the creation of newsgroups leans heavily toward anarchy and open access. Anyone can create a newsgroup by convincing system operators ("sysops") to carry it on their networks linked into the Internet. Informative guidelines exist to advise people who wish to create groups, but they do not define rules; rather, they merely assimilate the experiences of others.38 This highly and evenly distributed "gatekeeping" power to control the carriage of newsgroups is essential to the operation of Usenet, because there is no central authority or accepted standard for what qualifies as a true newsgroup.39


2. Tangling the Net


A. The Homolka Fiasco

But technology halts for no one, not even the law.

Electronic Frontier Foundation40

The relative ease with which Usenet newsgroups are created, and with which articles are posted to different groups, were thorns in the side of Mr. Justice Kovacs' July 5, 1993, publication ban on information arising during the prosecution of Karla Homolka.41 In the highly publicized case, Karla Homolka was charged with two counts of manslaughter in the deaths of two teenage girls. Her estranged husband, Paul Teale, was charged with two counts of first degree murder and several other offences related to the same events. Due to the threat that media coverage of the Homolka case posed to Teale's right to be presumed innocent and to the integrity of the judicial process, Mr. Justice Kovacs issued the following order:

(1) The Canadian media on proof of accreditation to the Court Services Manager may be admitted to the trial.
(2) For reasons given, the public is excluded from the court room except,
(a) the families of the victims,
(b) the families of the accused,
(c) counsel for Paul Bernardo Teale who will not have standing,
(d) three police officers,
(e) the Court's law clerk, Ms. Padeanu.
(3) For reasons given the foreign media is excluded from the court room. (4) There will be no publication of the circumstances of the deaths of any persons referred to during the trial.

The following may be published,

(1) The contents of the indictment.
(2) Whether there was a joint submission as to sentence.
(3) Whether a conviction was registered but not the plea.
(4) The sentence imposed.
(5) That part of the Court's reasons under the following headings:

(a) The prosecutorial discretion (as referred to in the judge's reasons only).
(b) The principles of sentencing applied by the Court.
(c) The remarks of the Court in passing sentence on the issue of whether the accused is a danger to the public.42

This attempt to selectively ban the publication of information was a dismal failure. While traditional hard-copy Canadian news media deferred to the ban, American and British newspapers reported the case.43 These articles were banned in Canada, but became available in electronic form in a Usenet newsgroup, named alt.fan.karla-homolka, created by a pair of University of Waterloo students on July 13, 1993.44 On November 3, 1993, a message from a person at Environment Canada warned system administrators on CA*NET, the Canadian Internet backbone, about the newsgroup, and, suspecting less than desirable legal consequences of carrying the newsgroup, most administrators chose to shut down access to it. Another Usenet group was created on December 11, 1993 (alt.pub-ban.homolka), and later others were created (alt.pub-ban, alt.censorship.canada.dumb, and alt.fan.paul-bernardo), though many Canadian sites declined to carry them. The information survived, ultimately, by being re-posted to alt.true-crime, a group which somehow avoided being censored.45 Furthermore, instructions as to reading the information on the Internet were distributed to University of Toronto students in the student newspaper.46 Mr. Justice Kovacs' publication ban had by this time become a source of humour to Usenet users. One mockingly suggested the ultimate solution: "Take the discussion to rec.sport.hockey. You silly Canadians would never ban that group."47

Later events perpetuated this comedy of errors and ironies. The April 1994 issue of Wired magazine (an American publication) was confiscated from some Canadian news-stands because it contained an article discussing the information ban that also revealed the nature of Karla's plea.48 Publication of the plea is in direct contravention of Mr. Justice Kovacs' order (see the second (3), above). The first point of irony is that the complete text of every issue of Wired, including the article in question, is available electronically through the Internet. The only functional effect of the ban of Wired was that "Canada joins the only other country to ban Wired: Singapore."49 The second irony is that, on May 10, 1994, mere weeks after the Wired incident, a judgment rendered by Mr. Justice Lesage (currently Associate Chief Justice of the Ontario Court of Justice, General Division) revealed the same information that was contained in the Wired article.50 At issue in the judgment was whether Paul Bernardo/Teale could have access to information relating to plea negotiations between Karla Homolka and Crown prosecutors. In the course of his judgment, Mr. Justice Lesage made the following statements:

The accused in this case is charged with, amongst other things, two charges of first degree murder. From the material provided on this motion, I understand that a principal witness against the accused will be his former wife, Karla Homolka. Karla Homolka has pleaded guilty to manslaughter relating to the two persons whom the accused is charged with murdering. She is an important witness in the trial of the accused.

It appears from the information provided that Ms. Homolka entered her plea of guilty to the two counts of manslaughter and was sentenced to a term of imprisonment pursuant to plea discussions. The agreement arrived at, deals in part with her providing sworn testimony in any proceedings to which she is subpoenaed by the Crown.

To put it in its simplest terms, the proposed witness, Karla Homolka, entered a plea of guilty to manslaughter regarding her participation in the crimes for which the accused is charged with first degree murder and his agreed to be a witness for the Crown in the prosecution against the accused Bernardo. She is at very least an accomplice. [sic]51

Mr. Justice Lesage thus revealed information that Mr. Justice Kovacs banned from publication.

What may be learned from the Homolka fiasco is that, with respect to the Internet, debates must center not on whether a given policy initiative should be put into effect, but rather whether the initiative can have any effect at all. Normative concerns are subordinated to practical ones. The Homolka information ban was based upon the valid principle of protecting the rights of the accused, but when it came to the application of the ban to the Internet, the basis of the ban was irrelevant. Similar conclusions are seen in other areas where principles of public policy appear to be violated by the Internet. Issues often raised include the protection of children from abuse,52 the volume of freely available sexually explicit material,53 and the activity of racist groups.54 Howard Rheingold asserts that the inevitable crackdown in these areas is doomed to fail, since it has become technically impossible to censor the Net. "The Net interprets censorship as damage and routes around it."55 It cannot be overemphasized that it is impossible to censor the content of the Internet. The application of laws governing content in the non-electronic world to the content of the Internet is futile. The application of public interest law and regulation to the Internet is impossible, since censorship of the Internet is, at best, a Sisyphean task.

To repeat, it does not matter to an assessment of the information ban whether freedom of press rights are superior or subordinate to the rights of an accused person. This once legitimate and practical debate has been made obsolete by the ubiquity of the Internet.

As the infosphere grows to encompass the planet, the question is no longer whether certain information is too sensitive to be made public. The real question becomes whether it is even possible to keep certain information out of cyberspace. In the Teale-Homolka case, the ban was not so much broken as rendered irrelevant by the voracious online community: It is estimated that one in four Canadians knows the banned facts.56

The voracity of Internet users may be explained in economic terms. John Perry Barlow, co-founder and Vice-Chairman of the Electronic Frontier Foundation (EFF), a cyber-rights lobby group, explains the seemingly volunteer work conducted by Internet users who answer fellow users' queries, archive answers to FAQ (Frequently Asked Questions) files, and contribute to the growth and organization of databases. His explanation is that "they are getting paid in something besides money. It is an economy which consists almost entirely of information,"57 and its currency is attention.58 This intriguing notion is refined by Professor Chris Dornan, who uses the publication ban to "illustrate the futility of a state that clings to outmoded means of exerting control in an age of satellite communications and computer networks. Like consumers of smuggled cigarettes, hundreds of thousands of information junkies have opted to participate in this 'underground information economy.'"59


B. The Clipper Chip

...it's a mistake to underestimate
the technical sophistication of people
who might want to commit high-tech crime.


Stafford Travers, encryption specialist60

The underground information economy not only enables contempt of court by the easy violation of a publication ban; it also allows freedom to conspire and commit other crimes. The availability of data encryption makes law enforcement harder by enabling criminals to protect their Internet communication from lawful, justified interception.61 Professor Dorothy Denning, among the most vocal and informed activists in this area, argues that judicially authorized interception of communications is crucial to preventing and solving crimes.

Electronic surveillance not only provides information that often cannot be obtained by other means, but it yields evidence that is considerably more reliable and probative than that obtained by most other methods of investigation. No other investigative technique can take its place.

... Because encryption can make communications immune from lawful interception, it threatens a key law enforcement tool. The proliferation of high quality, portable, easy-to-use, and affordable encryption could be harmful to society if law enforcement does not have the means to decrypt lawfully intercepted communications.62

In response, the American government framed the Escrowed Encryption Standard (EES),63 which would enable law enforcement agencies to monitor digital communication, while allowing the public automatic privacy protection.64 The physical component of the EES is the Clipper chip, a computer microchip containing a secret encryption algorithm, code-named Skipjack, that was developed by the National Security Agency (NSA) for the National Institute of Standards and Technology (NIST). Each chip is to be assigned a key consisting of two key-halves, held separately in escrow by the NIST and the Department of the Treasury. By court order, the two pieces could be acquired and united by law enforcement officials in order to decode and monitor Skipjack-encrypted communications. The U.S. government announced on February 4, 1994, that it plans to make the EES a national encryption standard by encouraging installation of the Clipper chip in communications hardware (e.g. telephones, fax machines, modems), and "to discourage the development and sale of alternative powerful encryption technologies."65 The idea is that the chips will automatically encrypt data sent through the Internet, and protect them from any access other than by the intended recipient and lawful interception.66

There is tremendous opposition to the EES on the Internet. The primary argument relies on the small benefit of the Clipper chip relative to the great loss of privacy due to the potential for governmental abuse of the key-escrow system.67 Quite simply, the question is: "Can we protect our privacy in an age of computers--without also protecting the dark forces in society?"68 Barlow asserts that "trusting the government with your privacy is like having a Peeping Tom install your window blinds."69 A petition against the Clipper chip addressed to President Clinton by Computer Professionals for Social Responsibility (CPSR) attracted 47,000 signatures within four months.70 The crystallization of the argument occurred as early as 1991, when Philip Zimmermann, developer of the public domain encryption program Pretty Good Privacy (PGP), composed the pithy epigram: "If privacy is outlawed, only outlaws will have privacy."71 To the argument that freedom to encrypt communication entails freedom to commit crime, the opponents of Clipper generally adhere to Ithiel de Sola Pool: "It is not computers but policy that threatens freedom."72

While there are good reasons to support the opposition in the Clipper privacy debate, it is likely that Bob Metcalfe is correct when he explains that "privacy protection is the wrong reason to oppose Clipper."73 The best reason to oppose it is that it simply will not work. The success or failure of the EES is contingent on (a) the secrecy and security of the Skipjack algorithm, and (b) the acceptance of the Clipper chip by industry and the online community.

The first condition is unlikely to be fulfilled. Like Metcalfe, "I'm willing to bet someone will figure out Skipjack eventually."74 In recent months, two reportedly unbreakable encryption methods have been cracked. Last year, Michael Wiener, a Canadian cryptoanalyst at Bell-Northern Research (BNR), announced the design of a relatively cheap method of breaking Data Encryption Standard (DES) algorithm. DES was endorsed by the U.S. government and used by banks and governments to protect the communication of sensitive data. The government was informed by a cryptography specialist soon after Wiener's announcement that "DES is effectively dead" for such purposes.75 Recently, RSA 129, a version of the RSA encryption algorithm named after cryptographers Ron Rivest, Adi Shamir, and Leonard Adleman, also was cracked. Mathematicians had estimated that it would take 40 quadrillion years to break RSA 129, but it took a mere 17 years.76 One cannot predict the future with certainty, but it is probable that Skipjack will eventually be cracked, as well.

In the meantime, while the algorithm remains secret and uncracked, it can be easily circumvented. Matthew Blaze, of AT&T Bell Laboratories, has described a fundamental flaw in the Clipper chip that renders it vulnerable to tampering which will prevent holders of the two key-halves from eavesdropping.77 Through a process that takes about half an hour,78 a false Law Enforcement Access Field (LEAF) can be transmitted by any Clipper chip. The LEAF is a unique identifier given to each individual chip--an electronic serial number--that is intended to direct law enforcement authorities to the correct key-halves held in escrow. Without the correct LEAF, the right key will never be constructed.79

It is hoped that the identification of a flaw will convince the U.S. government to slow down implementation of the EES. While it is standard practice among software manufacturers to "beta-test"80 their programs before releasing them to large numbers of consumers, in order to identify areas of inadequacy or incorrectness, the NSA has not done so. However justifiable this may be in terms of national security, it could prove fatal to the Clipper chip. The computer community argues that "[i]t is vitally important that privacy protections for our communications networks be developed openly and with full public participation."81 The debate has largely focussed on these policy issues, but the outcome of the contest will likely be decided not by debate but on the basis of the practical (in)effectiveness of the government's proposed activity. While the strength of the Skipjack algorithm is not yet known, after learning of Blaze's finding, IBM's Mark Holcomb wonders "[w]hat else might we find if we were allowed to examine" the algorithm.82 Zimmermann is also skeptical of the level of security that can be achieved by an algorithm that must remain secret to be effective. He argues that "any cryptographer can tell you that a well-designed encryption algorithm does not have to be classified to remain secure. Only the keys should need protection. How does anyone else really know if NSA's classified algorithm is secure?"83 Indeed, with PGP, Zimmermann's own public-domain encryption program, one receives complete instructions, a description of its operation, a list of known vulnerabilities, moral justification for its creation, and even the source code so that any interested programmer can examine the algorithm. The secrecy surrounding Skipjack attracts suspicion as to the security it provides.

Yet, the NSA appears to be perturbed neither by Blaze's finding, nor by the risk of future discoveries enabling the circumvention of Clipper. Michael Smith, the NSA's planning director, asserts that "[a]nyone interested in circumventing law enforcement access would most likely choose simpler alternatives. More difficult and time-consuming efforts, like those discussed in the Blaze paper, are very unlikely to be employed."84 This is an intriguing statement, since "simpler alternatives" are readily available, as evidenced by the events of October 12, 1993. On that day, there was a hearing before the U.S. House Foreign Affairs Committee's Subcommittee on Economic Policy, Trade, and the Environment about mass market cryptography and export controls. Among the main points raised by witnesses was that DES "is in the public domain and available on the global market from foreign software manufacturers."85 At the hearing, one witness demonstrated this fact by using a laptop computer equipped with a modem to download DES implementation software from an Internet host computer located in Germany, and Zimmermann testified that PGP was designed from publicly available information.86 Simple alternative means of encryption are indeed readily available worldwide.

That is the reason the second condition for the success of the Clipper chip, that it be accepted by the online community, will never be fulfilled. Even its supporters admit that the EES must become the standard and sole method of encryption in order to have much effect. Denning hopes that, "[a]lthough some criminals may seek to use other forms of encryption, the escrowed encryption standard may succeed and become ubiquitous as the chief form of encryption, making it much harder for criminals to evade interceptions by using the non-standard, non-interoperable encryption."87 However, one skeptic asks, "What if I want to encrypt a message with a really secure algorithm before it is encrypted by a Clipper chip? That would be a simple and obvious way to get around the Clipper chip."88 Even if installation of the chip in all hardware is required by law, smart criminals can easily circumvent it by using supplementary encryption. "Stupid criminals will continue to do stupid things and get caught."89

Indeed, Stewart A. Baker, general counsel to the NSA, has clearly indicated that the agency is relying on criminals' incompetence. As he put it: "Never underestimate the stupidity of criminals."90 Further, Baker has questioned whether criminals possess the resources, sophistication, and discipline required for use of encryption systems.91 The quotation with which this section began warns against Baker's attitude. In my view, use of PGP to encrypt electronic communication requires knowledge that is easily acquired, and equipment that is readily available. Furthermore, if it is in fact true that criminals are as incompetent as the NSA seems to believe, why does the agency need the Clipper chip at all to catch them? It remains difficult to accept the claims of the NSA at face value when it has proceeded secretly and with little regard for the overwhelming opposition of the people who will be affected by its decisions. Sterling has expressed astonishment that the U.S. government apparently missed the fact that Clipper is "violently detested by every element in this community...."92

Some people think that the government has, however, made efforts to amend its extreme position. A public letter by Vice President Al Gore to Rep. Maria Cantwell (D-WA)93 is subject to varying interpretations, but at least one major cyber-rights lobby organization takes it to represent a rethinking of policy in light of criticism and technical realities. The primary shift possibly reflected in the letter is one that limits the EES to voice communication. The Electronic Frontier Foundation heralded the letter as demonstrating the government's acknowledgement that "Clipper is a dead end" and that "it has no future in the digital world."94 Other parties are more skeptical. Senator Patrick Leahy asserted that "[t]he letter makes clear... that the Administration continues to embrace key escrow encryption technology, and stands behind the Clipper Chip as a federal standard for telephone communications."95 Similar sentiments were voiced by RSA President Jim Bidzos, who suspects that "[t]he White House is buying time by giving us another year of studies."96 Even the EFF itself devotes much of its analysis of the letter to call to arms online activists, because "the fight for privacy and security in digital media is by no means over."

Whatever the Vice President's letter may really mean, the brunt of the matter is that any part of the EES that applies to the Internet will likely fail to be effective. It is too simple a task to circumvent the Clipper chip by using supplementary encryption, or to fool it by using LEAF modification. The EES is yet another example of the difficulty of regulating the electronic frontier.


C. Civil Litigation

We're seeing law from the real world
come into this realm of communications.
It's a real awakening.


Shari Steele, Electronic Frontier Foundation97

The first interaction between the Internet and law has arisen out of necessity, not by choice. There has been no opportunity to meticulously construct a legal regime to provide solutions, or at least guidelines, for the difficulties that have been encountered. In this section I explain why it is difficult to apply accepted "real-world" legal norms to activity on the Internet. I also examine civil litigation in which law has come, or is coming, very close to the Internet.

A common mode of legal analysis of network communications and data transfer systems involves attempts to define rights and duties of participants "by mapping the systems against existing relationships in order to try to pick the 'right' metaphor."98 One commentator has found that the problem is simplified by applying existing law, governing non-electronic activity, on a "function-specific basis" to the issues involved in the operation of an electronic bulletin board system (BBS).99 This strategy seeks to dissect the BBS into component functions, map each function to a real-world category of activity, and apply the law applicable to that activity to the function. A degree of success may encourage one to advance the same strategy to the Internet. This would be a mistake.

It may at first seem that to extrapolate from a BBS to the Internet is to deal with a question of mere scale, but the situation is much more complex. The Internet has emergent complexities that make it more than the sum of its parts. Independent BBSs, however large, normally have easily identifiable central control structures upon which legal responsibilities may be imposed.100 The Internet erases any semblance of centrality, order, and independence that they may have possessed. It is a seamless unit without a leader or rules. While identifiable individuals exert some control in a limited area, no person or group has anything even remotely approaching complete control. Thus, the Internet cannot be treated as one big BBS. Further, it would be a mistake to disect the Internet into its components for the purposes of regulation because it is futile to regulate part of it when that part can easily be circumvented by the unregulated remainder. The futility of the Homolka publication ban demonstrates this only too well.

Upon whom, then, are legal responsibilities to be imposed? The general difficulty of answering this question is involved in the specific situation of Brock N. Meeks and Suarez Corporation Industries.101 Meeks, a sort of Internet consumer advocate, has independently exposed hoaxes in the past. Most recently, he has become involved in a libel suit102 brought against him by Suarez, whom he accused in his electronic publication, CyberWire Dispatch, of an Internet-based "direct mailing scam." Meeks' reaction to the suit was to assert that nothing he said was untrue, thus treating it as any other real-world libel suit. While he may be content to deal with it in that way, there are broader concerns at stake. "The real point, of course, is whether or not this case is going to set a precedent in what is a largely untapped legal maze in dealing with electronic newsletters and electronic mail in general."103 The unanswered question is whether the unique anarchic culture of the Internet will be granted weight in the course of legal analysis: Is Netiquette, a system defined and enforced by users, sufficient to govern the Internet, or do legal principles of libel remain operative? In other words, will the functional anarchy of the Internet receive legal endorsement as a capable means of self-control?

Another recent case that prompted discussion of similar issues is that of the "green card lawyers."104 On April 12, 1994, Lawrence Canter and Martha Siegel, married Arizona lawyers, spammed nearly 6,000 Usenet newsgroups with an advertisement for their service of assisting non-Americans wishing to enter the work-permit raffle.105 Besides being a spam, the message breached Netiquette by being both off-topic and an unsolicited commercial advertisement. The reaction was a flood of 36,000 messages which forced the lawyers' Internet service provider, Internet Direct, to terminate their access. All but 600 of the messages were "flames" (nasty responses to particularly offensive postings). The lawyers' response was to threaten to sue Internet Direct for $250,000.106 They also negotiated an agreement with Performance Systems International (PSI) for a new Internet account. PSI agreed to provide Canter and Siegel with access on condition that they "refrain from mass electronic postings of any unsolicited, non-contextual, non-topic advertisements" using e-mail, Usenet, or other TCP/IP applications.107 However, they again spammed the Internet, and as a result PSI terminated their account on February 10, 1995. The lawyers' reaction is as yet unknown.108

Consider the action against Internet Direct. It will place the court in the difficult position of having to determine whether the termination of account by Internet Direct was reasonable. It would thus have to consider the actions of the thousands of Internet users who flamed Canter and Siegel.109 The alternative is to accept the unwritten principles of Internet use, which generally correspond to the conditions of the agreement with PSI. Canter and Siegel broke the "law" of the electronic frontier. As Johnson and Marks argue,

the best way to determine the rights and duties of participants in electronic networking communities is not to pick a particular metaphor to be our "map," but rather, to apply basic principles of fairness and justice and to use the existing "legal metaphors" only for what they are worth as illuminators of a principled discussion.

...the application of well-established legal principles, and the determination of what principles will be applied in particular situations, will itself be determined by customs and capabilities that arise, and may only exist in the online environment.11

Even if the existing legal regime has application in a civil conflict, the customs of the Internet must be applied to achieve a just result. Otherwise real-world law will serve only to create uncertainty as to the legal implications of Internet activity, which will cause the anarchic new realm of communications to route itself around law. A better result may be achieved by identifying the limited role of law, and restricting its applicaton to that role.


3. The Role of Regulation

If we are to make good decisions as a society,
about a powerful new communication medium,
we must not fail to look at the human element.


Howard Rheingold111

Similarly, the appropriate role of regulation must be carefully identified. Studies of regulation in Canada, specifically of the telecommunications industry, have recognized that its role is limited. In 1981, the Economic Council of Canada presented the following question and answer with respect to the role of regulation in Canada.

[H]ow can we offset the tendency in the policy-making process to adopt new regulations uncritically and to maintain existing ones long after they have outlived their usefulness? ... What is required are policies to offset the attraction of regulation or, alternatively, to make regulation a much more difficult instrument to employ....112

More recently, Professors Schultz and Janisch proposed that the first principle of the telecommunications regulatory system should be maximum reliance on market forces, so that regulation is "employed within strictly defined limits and for narrowly constrained purposes."113 This echoes Ithiel de Sola Pool's fourth principle for an electronic era: "regulation is a last recourse. In a free society, the burden of proof is for the least possible regulation of communication."114

The Economic Council's call for policies to make regulation difficult has now been overtaken by events, since the Internet itself does a very good job of making regulation difficult. Further analysis is necessary to determine whether the Schultz-Janisch principle is satisfied. There may be limited and constrained purposes that regulation can serve, but first "market forces" must be assessed. In the context of the Internet, these forces are reflected in "the human element" which Rheingold rightly warns decision-makers to examine. In the following section, the hierarchy of self-regulation mechanisms is examined for the purpose of identifying holes in the matrix which government regulation may fill.


A. Individual Users

Anarchic open access to the Internet allows anyone easily and cheaply to link up.115 Michael Strangelove has noted that in the past communication "to mass audiences has been the privilege of the elite--now it is within the grasp of the person on the street."116 These people then become providers of information to each other. There is no central source of information, though there are databases of user-produced information. The role of the sysop, as John Coate explains, is limited to the equivalent of "operators of a picnic ground. We provide the tables and the people bring the food."117 The system works through the co-operation of a peer group of users who participate in a level playing field of communication. The "great equalizing factor," besides the ease of linking up, is that users cannot see each other and be swayed by appearance, speech patterns, and other factors irrelevant to the content of their communication.118

But is there truly equality of all concerned? Power disparity on the Internet is conceivable in many ways. First, there is a clear difference between the power of sysops and that of regular users. Yet, while sysops are able to restrict users' access, users may express their disapproval by subscribing119 to a different system, and so are not at all powerless.120 This ability has been suggested as a possible outcome of a service provider's insistence on contractual restrictions regarding commercial advertising, as PSI did in the Canter-Siegel affair.121 Second, there may be disparity of knowledge between established users and new users. There is reason for concern about the potential of an individual, or a small group, to acquire a "megaphone," a technique or strategy by which to drown out the voices of other users.

One rather simple type of megaphone is the prolific writer, or group of writers. For example, suppose that, in a newsgroup in which one participates, a discussion is started about an issue in which one is not the least interested. One may still want to participate in other discussions in the newsgroup, and so will be reluctant to abandon it. However, on Usenet, discussions can easily last for months. Here, the user has been confronted with a megaphone. Another example is the user who harrasses another user with e-mail. The receiver may be offended by the content of the messages, or simply not interested in it.

There are ready-made earplugs for these kinds of megaphones. They are called "kill files" and "twit filters." A Usenet user can place words, phrases, or names of other users in a kill file and be assured that the system will block any articles or messages containing them from reaching that user.122 The twit filter is similar, but is limited to names of offensive users ("twits"). Rheingold calls this strategy one of "tools, not rules."123 On the Internet, rules are roadblocks that can be easily avoided, or nastily charged through. Their purpose, however, may be achieved quite well by giving users the power to accomplish the task.124 The result is that computer programs fill the role of laws in cyberspace.

A type of megaphone with more sinister potential is the mailing-list, by which a single message is sent to a large number of users automatically. The mailing-list is the intermediate form of communication between person-to-person e-mail and Usenet newsgroups. Like the former, it is sent directly to the receiver's personal e-mailbox, but like the latter, it targets a specific group of users with a well-defined interest, and each member of the group must subscribe to the list just as each would have to join a newsgroup. Mailing-lists are message re-sending relays--a message sent to the relay is re-sent to every subscriber to the list. The sinister aspect of the mailing-list exists in anyone's ability to abusively send anything to all members of the list. This is directly against the rules of Netiquette, the table manners of cyberspace which, among other things, demand that users post only on-topic information to mailing-lists and newsgroups. Serious breaches of Netiquette provoke instant response from fellow users.125

Commercial users of the Internet are well-aware of its potential for business,126 particularly the use of mailing-lists to inform consumers of their products. Yet, they are often ignorant of the Internet's cultural predisposition against exploitive commercial usage. One leading publisher of computer books, who uses the Internet in a culturally acceptable manner to solicit orders, "worries about businesses running into trouble by treating the Internet like an enormous, free billboard or junk-mail service, an approach that has already caused Internauts to severely flame several businesses."127 For example, an advertisement for thigh-thinning cream was recently posted to 2,397 newsgroups and 850 mailing lists. Two million protests were received in response, disabling the system of the original writer's service provider.128 Strangelove, publisher of The Internet Business Journal, advises business to take care to comply with the cultural rules of the Internet. "Sensitivity to the Internet culture will define success for any business entering into this global matrix."129

Professor Anne Branscomb, a Harvard researcher on information issues, has predicted that the Internet will subdivide into a matrix of small communities, each with a unique Netiquette. "In one place, junk mail might be accepted; in others it would be banned."130 Strangelove observes that the Internet has already advanced to Branscomb's prediction: "There are no mass markets on the Internet--only micro communities with distinct histories, rules, and concerns. The challenge for the Internet-facilitated business is to find a way to reach these communities on their terms, respecting their local customs."131

The individual user on the Internet is part of an empowering, self-regulating, self-defending, co-operative community, and may choose to become an even stronger member of a smaller sub-community. Users of the Internet yield significant power within the bounds of cyberspace, and it is business that must conform to their needs and desires, not they who must conform to a corporate strategy. A similar view is necessary with respect to regulation of the Internet. Barlow argues that "[w]henever there is profound divergence between law and social practice, it is not society that adapts."132 The Internet will not conform to regulation; regulation must therefore conform to the Internet.


B. The Gatekeepers

The above account, while valid so far as it goes, must not be read to imply that the self-defence of individual users completely serves to protect the Internet from abuse. There are some problems that individual users cannot deal with alone. For instance, consider the implications of the existence of a variety of Netiquettes. As explained, Netiquette is not uniform throughout the Internet, but rather it changes in accordance with the nature of the community it is designed to serve. For example, the Netiquette of the alt.tasteless branch of newsgroups would obviously be very different from that of the rec.pets.cats newsgroup. There exists the potential for conflict when Usenet posters subject to one Netiquette engage in communication with those of another. The best example of this problem is known as "the war between alt.tasteless and rec.pets.cats," a series of events that occurred in the summer of 1993.133

When the denizens of alt.tasteless decided to entertain themselves at the expense of cat lovers, the "gatekeeping" regulatory function of sysops came into play. First, one of the Internet-wise participants of rec.pets.cats taught her fellow users how to write kill files. Then, when the tasteless people began lending potentially dangerous advice that might be taken literally by naive cat owners, she decided that kill files were insufficient and contacted the sysops providing Internet access to the instigators. The basic role of a sysop is to determine which newsgroups will be provided to users of the system,134 but an associated function is to control users' access to the Internet. One member of alt.tasteless admitted that the message "Knock it off, or else" from his sysop was "a very effective tool" to control him.135

Though the leader of the rec.pets.cats participants found it necessary to appeal to the gatekeeping authority of sysops, this was not required. Education of individual users would have been sufficient. The safeguards inherent in the power possessed by individual users are highly effective. Users need only be educated in employing this power. The primary reason that this method of dealing with the "war" is superior is that even the regulatory power of sysops can be circumvented by Internet users. As discussed in the previous section, users hold the trump right to leave one service provider and subscribe to another. In fact, just prior to the newsgroup war, its prime instigator had switched providers.136 It is a simple task to acquire a new account, or multiple accounts, from one or many service providers. It is not only governmental regulation that is incompatible with the Internet; it is any form of regulation.


C. The Government

Of growing concern internationally on the Internet is unauthorized access to systems in order to steal users' passwords. The Computer Emergency Response Team (CERT) funded by the U.S. government and helped by volunteers, was created by the Defense Department to protect Internet security. It responds to calls from sysops who suspect their system is vulnerable to unauthorized access, or has actually had its integrity breached. In 1993, CERT responded to almost 1,500 calls, 75% more than in 1992.137

At this level of sophisticated abuse of the Internet, "market forces"--Rheingold's "human element"--are impotent. Interference by government, however, must necessarily still be severely limited. The power of CERT, for example, is limited to using its computers to assess the vulnerability of different systems. Its goal is the discovery of "holes," such as those that allowed the infamous Internet worm to burrow its way through the networks, wreaking havoc and landing its creator in court.138 CERT has no legal powers, such as to arrest or prosecute.139 This is an ideal solution, since it complies with the Schultz-Janisch principle that regulation be strictly limited to a constrained purpose. CERT's job is a very narrow one, and its power is limited to exactly the required level.

CERT serves the interest of the U.S. government in protecting the security of Internet users. It acts only to compensate for the inability of users to do the same, and it does not interfere in the Internet in order to advance some unrelated policy interest. Attempting to do so will not work, as the Homolka fiasco and the Clipper contest demonstrate. No matter how important the policy in question, be it protecting the accused's right to be presumed innocent, or protecting freedom of the press, or protecting the public's right to privacy, or preventing crime and enforcing criminal law, the Internet cannot be used to forward it. In conclusion, it is suggested that the appropriate limit to interference by government into the operation of the Internet may be defined as follows:

Government may interfere in the co-operative anarchy of the Internet only to protect the security of its users, only to the extent such interference compensates for the inability of users to do so on their own, and it must not act solely to advance its extraneous policy interests.140

4. Canadian Information Highways

If it ain't broke yet,
let me have a shot at it.


Tagline seen around the Nets141

Unfortunately, Canadian governments have demonstrated a misunderstanding of the lessons of the Internet, as reflected in the above principle. Two discussion papers have been produced, one by the government of New Brunswick and the other by Industry Canada, a federal government body. Both deal with the "information highway," but neither reflects an understanding of Internet regulation which ensures the respective governments do not make the mistake of attempting to control it.


A. "The Canadian Information Highway"

Industry Canada's paper outlines the Canadian vision, objectives, and guidelines for the development and implementation of "The Canadian Information Highway."142 The paper is clearly intended as a tentative first step toward more concrete proposals. It serves this purpose well by identifying a large number of issues that must be dealt with to facilitate the formation of a coherent and complete plan for the Canadian backbone of the next incarnation of the Internet.

Since much of the paper concerns issues closely related to the Internet, it is surprising that there is only little explicit mention of it. At one point there is a long paragraph describing Canada's "hierarchy of research, education and community networks," into which is awkwardly inserted the fact that the system "also provides access to the Internet."143 I suspect the success of Canada's current electronic information infrastructure is much more a result of connection to the Internet than this implies. That is, however, a mere sidebar to the greater concern that the paper fails to recognize the inherent nature of the Internet and its implications for Canada's future in an increasingly internetworked world.

The Canadian government begins by proposing to use cyberspace to advance "Canada's goals and objectives."144 The first of the three objectives, to "create jobs through innovation and investment," may render the opulence of the vision contained in the paper more palatable to many currently unemployed Canadians, but it is largely irrelevant to the development of an Infobahn. The last objective, to "ensure universal access at reasonable cost," is admirable and is of universal concern in the coming electronic information age.145 It is thus too common to warrant comment. It is the second objective, to "reinforce Canadian sovereignty and cultural identity," that is most interesting, since it at once ignores the ubiquity of the Internet, and implies an isolationist policy in an age of increasing interconnection among global participants in an economy of electronic information. This is not to say that the goal is illegitimate, only that, regardless of its legitimacy, achieving it is impossible. The normative basis of the policy is rendered irrelevant by the nature of the Internet.

Further, the government makes its proposals with an air of freedom of decision that it does not in fact possess. I assume that the Canadian government does not plan to follow the Japanese example of standards regulation. Yet, the paper asserts that "Canadian standards must be internationally compatible, but not simply through the passive acceptance of standards formulated elsewhere. ... Both the Canadian government and Canadian businesses need to take a more active stance in the development and exploitation of international standards."146 If Canada does not accept a standard formulated elsewhere, when that standard is accepted by others, it risks isolating itself just as Japan did. It is advantageous to swallow national pride in favour of international connectivity.

Finally, it seems as though Industry Canada is unaware of even the existence of the Internet. The third of its "Implementation Principles" states: "An open network architecture, open access policies and common technical standards will permit the entry of all firms (or individuals) who wish to supply equipment, products or services. This will encourage new ideas, new technologies and new partners."147 That is a good description of the Internet. For that reason, it must necessarily be what the Canadian network will be, if it at all desires the benefits of international connectivity. The choice has already been made.


B. "Driving the Information Highway"

The last two recommendations in New Brunswick's paper are similarly incompatible with the Internet:

10. The Task Force recommends that the government proactively intervene in support of industry to create a more streamlined and appropriate regulatory environment.

11. The Task Force recommends that the necessary structures be put in place to influence and monitor the development of the information highway.148

With respect to the tenth recommendation, the revision of regulatory frameworks to conform to the Internet is an admirable goal, but if the statement intends the design of the information highway through regulation, it will not succeed. The eleventh recommendation not only opposes the nature of the Internet, which will resist any governmental influence, but also will raise the ire of the privacy-conscious online community with its suggestion to monitor the development of the highway.

Notwithstanding these concerns, it must be noted that while New Brunswick's discussion paper may be subject to criticism, the province's telecommunications infrastructure is better than most, and the government proceeded relatively early to promote its development and to discuss its policy. A more refined policy foundation, coupled with Premier McKenna's well-known interest in the information highway, will prove advantageous to the province.


C. The Internet and Government

The Internet is truly unique, and if its special characteristics are not fully understood by government, attempts to regulate it will fail. It must be remembered, as Ithiel de Sola Pool reminded us, that "freedom is also a policy."149 Just as there is a choice to be made in regulating the telecommunications industry between policies of competition and regulation,150 there exists a choice with respect to the Internet between policies of freedom and regulation. A policy of freedom will allow the Internet to evolve naturally and beneficially, becoming the paradoxical sum of its users' involvement: a self-controlling, yet uncontrollable, functional anarchy.



Notes

1 I am grateful to Professor Hudson Janisch for extensive discussion and helpful suggestions, and would also like to thank Ian Kyer for his thoughtful comments on an earlier draft.

This paper is an updated and expanded version of an article appearing in Media & Communications Law Review, v. 4, no. 3. Please note that many sources were obtained in electronic form via the Internet, and full bibliographical information, particularly pagination, was not universally available.

The title is taken from the opening statement of U.S. Rep. Sam Gejdenson (D-Conn.), in "Notes from House Hearing on Cryptography Export Control," October 19/93 EFFector Online v. 6 no. 3. [Hereinafter, "Notes."] He said: "This hearing is about the well intentioned attempts of the National Security Agency to try to control the uncontrollable." The issue was the viability of restricting the exportation of cryptographic software, considered impossible due to the existence of the Internet.

2 Canada, Industry Canada, "The Canadian Information Highway: Building Canada's Information and Communications Infrastructure," Spectrum, Information Technologies and Telecommunications Sector, April 1994 at Introduction. [Hereinafter, "The Canadian Information Highway."]

3 "Bumper Stickers Seen On The Information Superhighway," April 1994 Random Access Humor (1.3) 17.

4 "The Canadian Information Highway," supra note 2 at section 5.

5 W. Cukier, "Internet pioneers worry that hawkers are taking over," March 22/94 The Globe and Mail C4.

6 "The Canadian Information Highway," supra note 2 at 2.3.

7 B. Sterling, "Internet," February 1993 The Magazine of Fantasy and Science Fiction Science Column #5 (available in electronic form as "A short history of the Internet").

8 "The Canadian Information Highway," supra note 2; and, New Brunswick, "Driving the Information Highway," Department of Economic Development and Tourism, Information Highway Secretariat, Summary of Recommendations, March 1/94. [Hereinafter "Driving the Information Highway."]

9 H.E. Hardy, "The History of the Net," version 8.5, September 28/93.

10 C. Jennings, "An Oregon Strategy for Broadband Digital Services, Full Service Networks and other Milestones on the Information Highway," draft treatment of Oregon Multimedia Initiative, February 15/94 at 11.

11 ftp NIC.MERIT.EDU, /nsfnet/statistics/HISTORY.BYTES. The file is regularly updated and is available to be downloaded via file transfer protocol (FTP) from Merit Network Information Center Services at this site and directory. As explained in the file, "[in] December 1994, numbers begin decreasing as traffic migrates to the new NSF architecture, for which no comparable statistics are available." For this reason, the peak in November 1994 is used in the calculation. In billions of bytes, the figures leapt from 8,283 at the end of December 1993, to 17,781 at the end of November, 1994.

12 Ibid. /nsfnet/statistics/HISTORY.HOSTS.

13 Ibid. See also D.S. Jackson and S. Ratan, "Battle for the Soul of the Internet" July 25/94 Time 40, who estimate that 40 million people have access to e-mail, while 25 million have access to other Internet services. J. Carroll and R. Broadhead, Canadian Internet Handbook (Scarborough: Prentice Hall, 1994) at 3, provide an estimate of 15 million, rather than 25, but considering the rate at which the figure is growing--doubling annually according to the Internet Society (Jackson and Ratan at 40)--both may in fact have been correct at the time of their respective publications.

14 One must be wary of such quantitative data, due to the amorphousness of the subject being quantified and the impossibility of thorough investigation. The methods used to arrive at them preclude overestimation, but it is highly probable that the figures underestimate their subject. "The statistics include only that portion of the... backbone that receives direct NSFNET sponsorship. ... Only traffic that involves an NSFNET-sponsored network is included in this report." (ftp NIC.MERIT.EDU, /nsfnet/statistics/ INDEX.STATISTICS, December 14/93) The Internet is growing at least at these rates, and probably at greater rates.

15 The corporate metaphor is employed by Sterling, supra note 7.

16 Ibid. See also B. Kantrowitz and A. Rogers, "The Birth of the Internet," August 8/94 Newsweek 56.

17 Carroll and Broadhead, supra note 13 at 38.

18 Sterling, supra note 7.

19 W.A. Tolhurst, et al, Using the Internet, Special Edition (Indianapolis: Que, 1994) at 33-34.

20 Sterling, supra note 7.

21 Jennings, supra note 10 at 11.

22 Ibid.

23 B. Johnstone, "Wiring Japan," February 1994 Wired (2.02) 38.

24 Ibid. at 40.

25 E. Terry, "Japan finally falls to E-mail revolution," August 1/94 Globe and Mail B5. In June 1993 there were 257 Japanese networks linked to the Internet, and in July 1994 there were 1,353. Amazingly, this explosion in Internet connection is a manifestation of an only tentative reaction of Japanese industry to the Internet. It is anticipated that most companies will join after a cautious evaluation period currently underway. (A. Aikawa, AIR Co. Ltd., quoted by Terry.)

26 Excerpts from the Council on Competitiveness, "Breaking the Barriers to the National Information Infrastructure," as reported by K. Maize, NewsBytes article posted to Clarinet, January 31/95.

27 P. De Groot, NewsBytes article posted on Clarinet, February 17/95, in which is reported the Communications Decency Act of 1995 proposed by Senator J.J. Exon (D-Nebraska), the Electronic Anti-Stalking Act of 1995 proposed by Rep. Kweisi Mfume (D-Maryland), and proposed amendments to Oklahoma law which would prohibit the distribution by computer of material deemed "obscene, filthy, indecent, lascivious, lewd, or unfit." See also infra notes 63-66 and accompanying text regarding the Clipper chip.

28 H.E. Hardy, "The Usenet System," version 3.0.1, May 18/93.

29 EFF, Big Dummy's Guide to the Internet, version 2.0, 1994 at 3.1. [Hereinafter, Dummy's Guide.]

30 Sterling, supra note 7.

31 "You Are Here," July 1994 Internex Online promotional booklet. IO is an Internet service provider based in Toronto. My own observation upon using IO's online newsreader is that there are well over 11,000 (February 24/95). J. Quittner, "The war between alt.tasteless and rec.pets.cats," May 1994 Wired (2.05) 46 at 48, writes: "Whole communities are crystallizing around marginal interests."

32 Hardy, supra note 9.

33 ftp NIC.MERIT.EDU, /nsfnet/statistics/HISTORY.PORTS. 57% of both bytes and data packets in January 1995.

34 Ibid. 88% of bytes, and 78% of data packets, in January 1995.

35 Hardy, supra note 28.

36 Ibid.

37 G.W. Woodbury, "Re: Famous flame wars, examples please?" posted in Usenet newsgroups alt.folklore.computers, alt.culture.usenet, and news.admin.misc, November 30/92. Quoted and cited in Hardy, supra note 9.

38 See, for example, "Alt-creation-guide," version 1.4, November 30/93.

39 Hardy, supra note 28.

40 EFF, "Announcement: EFF Statement on Cryptography & Privacy," December 8/93.

41 R. v. Bernardo, [1993] O.J. No. 2047 (QL) (Ont. Ct. Just. Gen. Div.).

42 Ibid. at paragraphs 140-141.

43 K. Schengili-Roberts, "Homolka Trial on BBS Raises Information Access Issues," January 1994 Computer Paper: Ontario Edition at 12. Interested readers with access to a graphical browser for the World Wide Web are directed to the URL at "http://www.cs.indiana.edu/canada/karla.html", where the "Paul Teale/Karla Homolka Information Site" resides. This site provides links to many articles discussing the case and the ban, as well as a link to the full text of Mr. Justice Kovacs' judgment itself. Those with lesser Net access may be interested in perusing the FAQ, infra note 44.

44 "The Paul Bernardo Teale/Karla Homolka Frequently Asked Question List (FAQ)," Version 4.0, January 12/95. "FAQ" is an Internet acronym of "Frequently Asked Questions." See also McGill University, "Banning of a USENET newsgroup," November 15/93, Memorandum from M.R. Mercille, legal advisor.

45 Ibid. See also Schengili-Roberts, supra note 43; Mark Nichols, "Wired World," January 17/94 Maclean's 41; A.S. Brenner and B. Metson, "Paul and Karla Hit the Net," April 1994 Wired (2.04) 28.

46 S. Lee, "Digging up the dirt on Homolka," January 10/94 Varsity News 3. The article contains directions to route an Internet search, using tool called "Gopher" (a menuing system for searching information), through non-Canadian universities to Internet computer nodes not under the jurisdiction of, and not complying with, the ban.

47 Brenner and Metson, supra note 45.

48 Ibid.

49 "Rants & Raves," July 1994 Wired (2.07) 20 at 24. The comment was the editor's response to a reader's inquiry as to whether the Canadian ban was the first for the magazine.

50 R. v. Bernardo, [1994] O.J. No. 1718 (QL) (Ont. Ct. Jus. Gen. Div.). See also D. Wisebrod, "The Administration of Justice in the Internet Age," posted at the University of Waterloo Symposium for Free Speech and Privacy in the Information Age, November 26/94.

51 Ibid. at paragraphs 3-5.

52 See, for example, B. Kantrowitz, "Child Abuse in Cyberspace: Police target on-line pedophiles," April 18/94 Newsweek 40; CuD Moderators, "Child Abuse in Cyberspace," May 1/94 Computer Underground Digest v. 6 no. 39, in response to the Newsweek article; D. Batterson, "Young Gay Chat Rooms on America Online," May 15/94 Computer Underground Digest v. 6 no. 41, and J. Pugh, "Child Abuse in Cyberspace," in the same issue; S. Bates, "The First Amendment in Cyberspace," June 1/94 Wall Street Journal A19; R. Kadrey, "alt.sex.bondage," June 1994 Wired (2.06) 40; S. Chernos, "New laws needed to police cyberspace," July 1994 Toronto Computes! 13.

53 "Wired Top 10," August 1994 Wired (2.08) 36, reported a list of the most popular Usenet newsgroups, as of April 1994. Demonstrating the popularity of sexual content on the Internet, the second, third, fourth, and seventh of the top ten newsgroups have primarily explicitly sexual content. They are alt.sex.stories (2), alt.binaries.pictures.erotica (3), alt.sex (4), and rec.arts.erotica (7). See also P. Moon, "Computers graphic when it comes to porn," July 20/92 Globe and Mail A1..6; M. Gooderham, "College drives sex titles off info highway," February 5/94 Globe and Mail A1..2; "Jury finds man guilty in computer porn case," May 15/94 Computer Underground Digest v. 6 no. 41.

54 See, for example, M. Friedman, "Skinhead hackers recruiting by race on infobahn," July 28/94 NOW Magazine 25: "...there is a danger that overreaction to the presence of racist users on the Net may provide a pretext for outside regulation." Also of note is a newsgroup entitled alt.revisionism, which is the site of discussion regarding the reality of the Holocaust. My own reading of the newsgroup indicates that a clear majority of the messages and posters oppose revisionist tactics and positions, the promulgation of which the newsgroup was created to support.

55 H. Rheingold, "Why Censoring Cyberspace is Futile" May 1/94 Computer Underground Digest v. 6 no. 39. The quotation is of John Gilmore, cited by Rheingold.

56 Brenner and Metson, supra note 45.

57 J.P. Barlow, "The Economy of Ideas: A framework for rethinking patents and copyrights in the Digital Age," March 1994 Wired (2.03) 85.

58 J. Coate, "Cyberspace Innkeeping: Building the Online Community," (1992) in the section entitled "Principles of Cyberspace Innkeeping." Coate was marketing director and conference manager of the WELL, a popular network based in California, for six years. The same suggestion is made by H. Rheingold, "The Net Strikes Back" May 25/94 Computer Underground Digest v. 6 no. 45.

59 E. Greenspon, "Why we've taken the law into our own hands," February 26/94 The Globe and Mail D1.

60 Travers is an engineering professor at Queen's University quoted by P. Hum, "Canadian code-breaker rocks world," April 3/94 Toronto Star F8.

61 L. Detweiler, Identity, Privacy, and Anonymity on the Internet, (1993) section 5; "FAQs about Clipper," February 16/94 Computer Underground Digest v. 6 no. 16; W.M. Lloyd, "Clipper Questions and Answers in a Nutshell," February 17/94 Computer Underground Digest v. 6 no. 17; P.H. Lewis, "Of Privacy and Security: The Clipper Chip Debate," April 24/94 New York Times F5.

62 D.E. Denning, "Encryption and Law Enforcement," March 2/94 Computer Underground Digest v. 6 no. 20. See also the same author's editorial, "The Clipper Chip Will Block Crime," February 27/94 Computer Underground Digest v. 6 no. 19.

63 White House Announcement on Clipper encryption chip, April 16/93. ftp CSRC.NCS1.NIST.GOV, in /pub/nistnews (the National Institute of Standards & Technology's Internet site).

64 The EES has been the subject of much criticism. The discussion below sets this out and argues that the EES exemplifies the difficulties involved in regulating the Internet. However, it must be briefly noted at the outset that some observers think that the government has retreated considerably from its initial highly controversial stance. For several reasons the proposal still serves well as an example of the potential for regulating cyberspace. First, it is due to the lack of this potential that the proposal was narrowed. Second, even the remaining parts of the proposal may be felled by the factors discussed below. Third, many observers disagree that the government has in fact retreated. These comments are expanded below.

65 J. Berman, "EFF Wants You (to add your voice to the crypto fight!)," February 7/94. Berman is the executive director of the Electronic Frontier Foundation (EFF).

66 B. Metcalfe, "The Clipper chip won't stop Internet pirates," March 22/94 Wall Street Journal A14 (reprinted March 29/94 Globe and Mail A21).

67 R. Rivest, "Re: Clipper Chip Will Block Crime (#1)," February 27/94 Computer Underground Digest v. 6 no. 19; and J. Thomas, "Re: Clipper Chip Will Block Crime (#2)," in the same issue.

68 S. Levy, "Battle of the Clipper Chip" June 12/94 New York Times Magazine 44 at 47.

69 J.P. Barlow, "Jackboots on the Infobahn," April 1994 Wired (2.04) 40 at 44.

70 CPSR, "'Clipper' Petition Delivered to White House" May 1/94 Computer Underground Digest v. 6 no. 39. See also "Electric Word" July 1994 Wired (2.07) 29 at 30. At one point, 1,000 names were being added to the petition daily ("Electric Word," May 1994 Wired (2.05) 25 at 30). Dated January 24, 1994, the petition states in part as follows (A. Whaley, "Leading Cryptologists Oppose Clipper," January 30/94 Computer Underground Digest v. 6 no. 11):

Dear Mr. President:

... The Clipper proposal should not be adopted. We believe that if this proposal and the associated standards go forward, even on a voluntary basis, privacy protection will be diminished, innovation will be slowed, government accountability will be lessesed, and the openness necessary to ensure the successful development of the nation's communications infrastructure will be threatened.

We respectfully ask the White House to withdraw the Clipper proposal.

See also D. Smith, "Electronic Privacy Petition (Texas)," June 7/94 Computer Underground Digest v. 6 no. 50 at file 3, which requested signatures supporting the submission of seven resolutions concerning encryption and privacy to the Resolutions Committee of the Texas Republican Convention. The successful result is apparent from "Republican Party Texas Denounces Clipper, DigTel, and ITAR Regs," June 27/94, EFFector Online v. 7 no. 11.

Another method of advising government of the difficulties inherent in its policy is the submission of evidence to hearings on the subject: J. Berman, "Testimony of Jerry J. Berman, Executive Director, Electronic Frontier Foundation, before the Committee on Science, Space and Technology; Subcommittee on Technology, Environment and Aviation; U.S. House of Representatives; Hearing on Communications and Computer Surveillance, Privacy and Security," May 3/94, appearing in May 22/94 Computer Underground Digest v. 6 no. 44; and, W. Diffie, "Testimony of Dr. Whitfield Diffie, Distinguished Engineer, Sun Microsystems, Inc., Before the Subcommittee on Technology and the Law of the Senate Judiciary Committee," May 3/94, appearing in the same issue.

71 P. Zimmermann, "PGP User's Guide," version 1.0, Phil's Pretty Good Software, June 5/91. To understand the vehemence with which privacy on the Internet is protected, consider the use of "anonymous remailers." A user can "launder" an electronic message by routing it through a remailer that eliminates all evidence of the source of the message before relaying it forward to its ultimate destination. Users are often victims of sexual abuse and employees of major companies in the computer industry who wish to remain anonymous. The popularity of remailers, and hence the attraction of absolute privacy, is reflected in the fact that there are currently about 20 up and running, and one of them handles about 4,000 messages daily. See S. Levy, "How to Launder Your E-mail," July 1994 Wired (2.07) 50, and J. Quittner, "Anonymously Yours," at the same source.

72 I. de Sola Pool, Technologies of Freedom (Cambridge, Mass.: Harvard University, 1983) at 226.

73 Metcalfe, supra note 66. Yet another rationale for the EES, to enable American industry to dominate the electronic information economy, may also fail to withstand scrutiny (T.J. Duesterberg, "Don't 'Protect' Telecommunications," March 17/94 Wall Street Journal A16).

74 Ibid.

75 Hum, supra note 60.

76 "Number code cracked eons early," April 27/94 The Globe and Mail A1. As a matter of clarification, I have been advised by Professor Jeffrey Shallit (e-mail, December 7/94) that the cracking of RSA 129 does not imply that RSA itself has been broken. RSA 129 is merely one example of an algorithm which may easily be applied in ways that are more difficult to crack.

77 J. Markoff, "Scientist Insists U.S. Computer Chip has Big Flaw" June 5/94 Computer Underground Digest v. 6 no. 49 (extracted from New York Times June 2/94); "Spoofing the spooks' chip" June 11/94 Economist 83; S. Begley, "Foiling the Clipper Chip" June 13/94 Newsweek 60..62; B. Meeks, "Jacking in from the SNAFU Port" June 5/94 Computer Underground Digest v. 6 no. 49, and "Jacking in from the ''We Knew It All Along' Port," by the same author, in the same issue.

78 Begley, ibid.

79 Blaze's paper describing the procedure is entitled "Protocol Failure in the Escrowed Encryption Standard" (Meeks, supra note 77).

80 A procedure by which pre-release versions of software are given limited distribution to users whose task it is to use and abuse it in order to identify flaws and failings to be corrected prior to wide distribution.

81 Press Release of USACM (United States Association for Computing Machinery), June 30/94. The ACM urged the reconsideration of the Clipper proposal after a study entitled "Codes, Keys and Conflicts: Issues in U.S. Crypto Policy" was prepared. The ACM is the oldest and largest international computing society.

82 Begley, supra note 77.

83 Zimmermann, supra note 71.

84 Meeks, supra note 77.

85 "Notes," supra note 1.

86 Ibid. In yet another example of misunderstanding by government of the reality of the Internet, Zimmermann is under investigation by a federal grand jury for violation of export restrictions on encryption software through the Internet. The maximum penalty is 51 months in prison. See W.M. Bulkeley, "Cipher Probe: Popularity Overseas of Encryption Code Has the U.S. Worried," April 28/94 Wall Street Journal A1..A7.

87 Denning, "Encryption and Law Enforcement," supra note 62.

88 Lloyd, supra note 61.

89 Metcalfe, supra note 66.

90 Lewis, supra note 61. It is interesting to note that the reclusive NSA is emerging from the shadows of counterintelligence to face the opposition to its progeny. NSA has, in effect, "broken cover" ("Spoofing the spooks' chip," supra note 77).

91 S.A. Baker, "Don't Worry, Be Happy: Why Clipper is Good for You" July 1994 Wired (2.07) 100.

92 B. Sterling, "So, people, we have a fight on our hands." July 1994 Wired (2.07) 71. See also B. Martin, "Nonviolent action against Clipper," July 6/94 Computer Underground Digest v. 6 no. 61, which advocates precisely that.

93 ftp FTP.EFF.ORG, /pub/EFF/Policy/Crypto/Clipper/ GORE_CLIPPER_RETREAT _CANTWELL_072094.LETTER, "White House retreats on Clipper," July 20/94. The letter is prefaced by a brief analysis of the letter's impact by a member of EFF.

94 Ibid. /pub/EFF/Policy/Crypto/Clipper/GORE_CLIPPER_RETREAT_EFF. ANALYSIS, "EFF Analysis of Vice-President Gore's Letter on Cryptography Policy," July 22/94.

95 Ibid. /pub/EFF/Policy/Crypto/Clipper/GORE_CLIPPER_RETREAT_LEAHY. STATEMENT, P. Leahy, "Statement of Patrick Leahy on Vice President Gore's Clipper Chip Letter," July 21/94.

96 Ibid. /pub/EFF/Policy/Crypto/Clipper/GORE_CLIPPER_RETREAT.ARTICLE, E. Corcoran and J. Mintz, "Administration Steps Back on Computer Surveillance: 'Clipper Chip' Use to be Limited to Phones," undated Washington Post excerpts.

97 J. Sandberg, "Newsletter Faces Libel Suit For 'Flaming' on Internet," April 22/94 Wall Street Journal B1.

98 D.R. Johnson and K.A. Marks, "Mapping Electronic Data Communications Onto Existing Legal Metaphors: Should We Let Our Conscience (and Our Contracts) Be Our Guide?" (1993) 38 Vill. L.R. 487.

99 E. Schlachter, "Cyberspace, the Free Market and the Free Marketplace of Ideas: Recognizing Legal Differences in Computer Bulletin Board Functions" (1993) 16 Hast. Comm/Ent L.J. 87 at 133-147.

100 Ibid. at 148-150.

101 Sandberg, supra note 97; Claire Hoy, "Taking libel high-tech" May 2/94 Law Times 19; Meeks Defense Fund, "Details on Brock Meeks Case," May 17/94 Computer Underground Digest v. 6 no. 43; Jackson and Ratan, supra note 13 at 45.

102 Sandberg, ibid. The lawsuit is pending in Cuyahoga County court in Ohio.

103 Hoy, supra note 101.

104 Also see the discussion of the difficulty commercial enterprise is experiencing when attempting to interact with the Internet, its users, and its culture, infra notes 126-129 and accompanying text.

105 As defined in J. Furr, "Advertising on Usenet (draft FAQ)," posted to news.misc, January 10/95: "Spamming is defined as posting identical or nearly-identical ads to a lot of newsgroups, one right after the other. ... *Nothing* is as hated on Usenet as spamming." The insidious nature of a spammed message stems from its circumvention of standard newsreader software's ability to delete a message 'cross-posted' (i.e. copied) to several newsgroups. A spam registers as a unique message in each newsgroup to which it is posted, thus greatly increasing the difficulty of deletion.

See K.K. Campbell, "A Net.Conspiracy so Immense...: Chatting with Martha Siegel of the Internet's infamous Canter & Siegel," October 12/94 Computer Underground Digest v. 6 no. 89; George, Donaldson & Ford, Attorneys at Law, "Lawyer Advertising on the Internet???" Spring 1994 Legal Bytes v. 2 no. 1 [hereinafter "Legal Bytes"]; Rheingold, supra note 58; and Jackson and Ratan, supra note 13 at 40-41. The raffle is free to enter, yet Canter & Siegel offered to assist individuals for $95, and couples for $145.

106 M. White, "Advertisers, regulators set to invade the Internet?" July 1994 Toronto Computes! 20. See also the letter by John Whalen, President of NETCOM On-Line Communication Services, a service provider which also cancelled an account of Canter and Siegel, explaining NETCOM's position (Stanton McCandlish, "Netcom cancels Canter's account," May 25/94 Computer Underground Digest v. 6 no. 45). Campbell, supra note 105, reports that the flood of angry messages caused Internet Direct's computers to crash over 15 times.

107 M. L. Schoffstall, "PSI and Canter & Siegel Negotiate Agreement on Future Internet Access" June 27/94 EFFector Online 7.11.

108 M. Williams, NewsBytes article posted to Clarinet, February 16, 1995.

109 See Johnson and Marks, supra note 98 at 489. "In general, the duties participants owe to potential third-party victims will turn on what kinds of actions are 'reasonable' under all the circumstances."

110 Ibid. at 488..489. Their suggested solution to this dilemma is that "until the application of these principles to cyberspace is well understood, contracts should govern the relationships evolving in the field of electronic data communications."

111 Howard Rheingold, "Cold Knowledge and Social Warmth," September 6/93 Newsweek 49.

112 Economic Council of Canada, Reforming Regulation (1981) at 5.

113 R.J. Schultz and H.N. Janisch, Freedom to Compete: Reforming the Canadian Telecommunications Regulatory System (Bell Canada, March 1993) at 7.

114 de Sola Pool, supra note 72 at 246.

115 Sterling, supra note 7. "The headless, anarchic, million-limbed Internet is spreading like bread-mold. Any computer of sufficient power is a potential spore for the Internet, and today such computers sell for less than $2,000 and are in the hands of people all over the world."

116 M. Strangelove, "The Rise of Virtual Culture and the Emergence of Electric Gaia," November 1993 The Internet Business Journal v. 1 no. 5.

117 Coate, supra note 58.

118 Ibid.

119 To "subscribe" means to acquire access to the Internet by opening an "account" with a service provider.

120 Johnson and Marks, supra note 98 at 489.

121 Legal Bytes, supra note 105 at section 4: "Users who want to post commercial advertisements simply have to go elsewhere." Yet, the power of individual users, apparent in the market pressure of the "human element" to which Rheingold refers, can prevent commercial advertisement from becoming common. It is anticipated that a service provider who is reputed to allow commercial advertisement to be posted from its site "may become a Net anathema" as a result of the volume of flames it will attract.

122 Dummy's Guide, supra note 29 at 4.2.

123 Rheingold, supra note 58.

124 For example, Friedman, supra note 54, suggests that "the ephemeral nature of the medium, where e-mail can be consigned to a kill file..., may make Net racists far less threatening than they first appear." See also M. Smith, "Computer power to the people," August 23/93 Toronto Star A15.

125 J. Burgess, "Policing the Internet frontier," March 6/94 The Toronto Star B1, where the response received by posters of a chain letter to a mailing list is discussed.

126 Cukier, supra note 5; Peter H. Lewis, "A Growing Internet Is Trying to Take Care of Business," December 12/93 New York Times F7; "Superhighway to information heaven," advertising supplement to Friday May 13/94 Globe and Mail Section C; P.H. Lewis, "Getting Down to Business on the Net," June 19/94 New York Times F1; J. Middlemiss, "Internet the express lane of choice on information superhighway," June 20-26/94 Law Times 10; S.N. Mehta, "Small Fish Seek the Big as Internet Industry Consolidates," June 24/94 Wall Street Journal B2.

127 K.M. Savetz, "Industry Profile: O'Reilly & Associates," November 1993 The Internet Business Journal v. 1 no. 5.

128 White, supra note 106. See also Burgess, supra note 125: One user who was sent an e-mail solicitation for long-distance telephone service wrote a program that returned the message to the sender 200 times.

129 M. Strangelove, "Advertising on the Internet," November 1993 The Internet Business Journal v. 1 no. 5. See also G. Rowan, "Internet baffles business," January 24/94 Globe and Mail B1..7.

130 Burgess, supra note 125.

131 Strangelove, supra note 129.

132 Barlow, supra note 57.

133 J. Quittner, "The war between alt.tasteless and rec.pets.cats," May 1994 Wired (2.05) 46.

134 Hardy, supra note 28.

135 Quittner, supra note 133 at 53.

136 Ibid. at 52.

137 J.C. Ramo, "A SWAT Team in Cyberspace," February 21/94 Newsweek 73; and L. Kehoe, "Internet issues intruder alert," February 5/94 Financial Post 14.

138 U.S. v. Morris, 928 F.2d 504 (2nd Cir. 1991). At 505: "The goal of this program was to demonstrate the inadequacies of current security measures on computer networks by exploiting the security defects that Morris had discovered."

139 Ramo, supra note 137.

140 A recent development which may indicate in which direction Canadian regulators are headed is that of investment fraud and abuse on the Internet. See D. Gram, "Hucksters committing I-way robbery," July 1/94 Globe and Mail B1..14.

141 "Taglines Seen Around the Nets," January 1994 Random Access Humour (1.0) 18. A "tagline" is an often humorous comment tagged onto the end of a message posted on Usenet.

142 "The Canadian Information Highway," supra note 2. See also J. Bronskill, "Info highway council set up," March 17/94 Globe and Mail B2.

143 "The Canadian Information Highway," supra note 2 at 3.1.

144 Ibid. at 2.3.

145 See, for example, D. Pearl, "Debate Over Universal Access Rights Will Shape Rules Governing the Future of Communications," January 14/94 Wall Street Journal A12.

146 "The Canadian Information Highway," supra note 2 at 4.1, Issue 4. Emphasis added.

147 Ibid. at 2.5(c).

148 "Driving the Information Highway," supra note 8.

149 de Sola Pool, supra note 72 at 8.

150 See, for example, H.N. Janisch, "From Monopoly Towards Competition in Telecommunications: What Role for Competition Law?" (April 1994) 23 C.B.L.J. 239.


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