Michael Froomkin: "Winners and Losers: The Internet changes Everything or Nothing?"

by James McClary

Michael Froomkin, a professor at the University of Miami School of Law,  delivered the 2003 Grafstein Annual Lecture in Communications on February  13th. Professor Froomkin specializes in the law of the Internet and has  published numerous papers on Internet governance, ICANN, e-commerce,  cryptography and piracy. Even more notable is the fact that he was a student  of Ernest Weinrib’s Torts class at Yale Law School in 1984.

Froomkin’s lecture explored two apparently contradictory stories of the  development of the Internet, ‘The Cypherpunk Dream’ and ‘Data’s Empire’. The  Cypherpunk Dream is a free world built on the core technologies of TCP/IP  (Transmission Control Protocol/Internet Protocol) and strong cryptography. It  is a world of user empowerment and weakening government. The Cypherpunk Dream  sees a correlation between the ‘net and democracy. It is anti-censorship and  pro-communication. Ideas, information and innovation can be created and shared  within diasporic communities all over the globe. Users can rely on  cryptography to protect anonymity.

In contrast, Data’s Empire refers to the control that governments are now  beginning to exercise over the Internet. In addition to the core technologies  of TCP/IP and cryptography, Data’s Empire relies on the fact that all users  are based somewhere and can be tracked and monitored through centralizing  traffic areas such as Internet Service Providers (ISPs). This world, far from  the anonymity of Cypherpunk, is a world of sensors, where information about  users can be stored indefinitely. In contrast to the globalizing tendencies of  Cypherpunk, Data’s Empire is a renaissance of the state, with the potential  for perfect taxation and perfect law enforcement.

Froomkin believes that these stories are not mutually exclusive, but they do  indicate two opposing forces that are already affecting the development of  law. There are interesting questions that should be asked. Does technology  force outcomes? Is there a ‘one-way’ effect on this technology, or can it be  constrained? What role should there be for ‘standards’ bodies, such as ICANN?

Although the law is already changing, Froomkin urges us to look at whether  legal responses to technology are really necessary. Are these actually new  problems? Are legal changes appropriate?

In sum, Froomkin message is that even though it seems that the internet  changes everything, to the extent that democracy remains strong and alive, the  internet changes nothing. We can make sure we are heading in a good direction  by remaining interested in how we get there.