Building in Cyberspace

The intrepid crew of the Berkman Center for Internet and Society

Even if mp3, perl, xml, portals, crypto, metatags, and Linux mean nothing to you, even if e-mail and Amazon.com constitute your online experiences – the Internet demands more of your attention every day. Consider these Net topics in the news of late: the unfolding Microsoft antitrust case, the debate over how to protect children from electronic pornography, the Oregon Web site posting “Nuremberg Files” on abortion providers, the “Melissa” virus, disputes over workplace e-mail privacy, online war reports from Kosovo, even the electronic auction of heavy-hitter Mark McGwire’s historic 70th homerun ball.

In the fast-changing realm of cyberspace, the Berkman Center for Internet & Society at Harvard Law School is a launch pad for exploration and development. The center’s faculty, students, fellows, and affiliates work like a think tank, analyzing Internet issues from electronic commerce to intellectual property, and offering up visions for the future. They are also a construction crew of sorts, actively designing and “building out into cyberspace” as they produce new online resources, collaborations, and meeting places.

A New Public Commons

We are building a commons in cyberspace” is the rallying cry of Professor Charles Nesson ’63, the center’s founder, director, and its “visionary,” to quote numerous Berkman denizens. Explaining the philosophy that unites the far-flung Berkman Center agenda, he says: “Our interest is in openness and how it is applied on the Internet. We investigate the real and possible boundaries between open and closed systems of architecture, commerce, government, education, and their relationship to law. Our mission is to claim a balanced part of cyberspace for the public interest, to create a common space so people can have access to free and open resources.”

A donation from the estate of Jack Berkman ’29 and his wife, Lillian Berkman, and his son Myles Berkman ’61 established the Berkman Center in 1998 and endowed the professorship held by cyberlaw expert Lawrence Lessig. Along with Nesson, other faculty leading the center are Professor Lessig and Jonathan Zittrain ’95, HLS lecturer and executive director of the center. Professors Arthur Miller ’58 and Charles Ogletree, Jr. ’78 are codirectors. Many other HLS faculty are involved in center projects, along with students and Berkman Fellows hailing from business, practice, journalism, and Internet-related pursuits.

The center also seeks to involve HLS alumni. Nesson and Zittrain recently traveled to California with Dean Robert Clark ’72 to meet with graduates working in Silicon Valley-area law firms – many of whom are high-tech and cyberlaw experts – and give them a multimedia introduction to the Law School’s newest research program. This was the first of what the Berkman team hopes will be many such roadshows, to update graduates on the center’s efforts and solicit their insights.

For Alex Macgillivray, 2L, a Berkman Center research associate, the center is the magnet that drew him to HLS: “The only places that can compete with Harvard are Berkeley and Stanford, with their proximity to Silicon Valley.” At the center “you can easily work 90 hours a week and never do the same thing. It opens horizons. I have lots of contact with professors, and lots of awareness of what is going on in industry.”

And the center represents the School very well, Macgillivray says. “The Berkman Center breaks down Harvard stereotypes; it is very accessible. And it’s not just about learning highfalutin theory, but also about doing things, getting down and dirty.”

The center’s physical home is classic academe: crowded offices on Pound’s fifth floor, full of the usual drab computer equipment, only more of it, with software packages far outnumbering law books. The flow of students is nonstop. The phones ring incessantly, often with calls from reporters seeking expert opinions on the latest Internet to-do. While Berkman experts are often quoted in the media on hot Internet issues, the center’s primary telescope is directed elsewhere. “We try to think hard about what’s new and different about cyberspace,” says Zittrain. “We take five long paces away from traditional issues in cyberspace, into new territory.” And if that sounds a bit like Star Trek’s imperative to “boldly go where no one has gone before,” that’s okay with the center.

Furthermore, Zittrain adds, “in all our explorations we’re interested in the society part as much as we are the Internet part” of the center’s mission. This includes, for example, the different personalities people adopt when they go on line, such as Nesson’s playful online persona of “eon.”

The best introduction to the Berkman Center is its Web site, cyber.law.harvard.edu, which posts a deluge of multimedia information about Copyright’s Commons, Eldred v. Reno, ICANN, The Judicial Gatekeeping Project, and other Berkman ventures. Pay a visit and read the latest edition of the Filter, the center’s newsletter, or works-in-progress on “Lawyering the Internet” by contributors to the spring Harvard Law Review. Watch the Webcast of Boston-area high school students deliberating the pros and cons of school rules. Offer input for a legal brief that is being drafted on line. Review the center’s multimedia archive from the Second International Harvard Conference on Internet & Society chaired by Nesson and Ogletree. Skim the profiles – often colorful and certainly unconventional – of the current Berkman Fellows.

At the Berkman Center, “all of us are leveraged as much as possible,” says Andrew McLaughlin ’94, a resident fellow of the center. “Our challenge is staying focused because the Internet presents infinite possibilities, and we get flooded with great ideas for projects. We have had to trim our sails and say, ‘What we’re about is the project of building an open foundation on which new institutions of cyberspace will be constructed.’”

The Great Open-Code v. Closed Code Debate

What one can do and say in cyberspace is shaped not only by traditional law and social norms, but also by technical architecture, or “code.” Put as simply as possible, code is the system of characters and functions programmed into the software that runs on the hardware, which together constitute the architecture that shapes and defines cyberspace. Code regulates entry into cyberspace, and, once you’re in, monitors your whereabouts, determines your access to information, and allows or constrains your interactions with fellow “Netizens.”

Author of the forthcoming Code, and Other Laws of Cyberspace, Professor Lawrence Lessig has been the leading articulator – sounding a wakeup call to many – of code’s power to impose far-reaching regulation. Open-code software, which is generally free or inexpensive, is published with its source code – the instructions written in programming language that tell the software, and in turn the hardware, what to do and how. Closed, or proprietary, code is published without its source code. To illustrate the value of open code, Lessig offers the analogy of scientific research. “Scientists publish their findings and conclusions. Anyone can look at these findings, the logic, the conclusions, and apply them to their own use.” The code used to write for the World Wide Web – currently HTML, or Hypertext Markup Language – is open-source software, he explains, which means anyone can examine the code that goes into creating a Web page, to see how it’s built and improve upon it.

At the Berkman Center, Lessig says, “we’re trying to talk about the value of commons, and how open code contributes to the commons of software.” The center promotes open code through its own software platform and programming, and in May held a conference on open platforms for teaching and discussion, attended by academics, software mavens, industry leaders, and foundation leaders.

While code talk makes many glaze over, the open/closed debate recently has captured the attention of the general public because of the Microsoft antitrust case. Jonathan Zittrain likens the case to a horse race, in which observers in the stands are waiting to see whether closed-code systems like Microsoft’s will predominate, or be toppled by open-code operating systems parallel to the open network – the Internet – that links them all together. “This horse race could really matter,” he says. “It’s an error to think that whenever we turn on our computers, the code will simply be there, and that it’s all fungible.”

New Models of Online Education

Charles Nesson was an early proponent of bringing legal education into cyberspace, and his groundbreaking Evidence course continues to be a laboratory for testing how the Internet and multimedia can enrich students’ experience of law and justice. Nesson has several education projects running at the center, including “A Civil Action,” a project to develop multimedia online teaching tools about the famous Woburn toxic tort case for which Nesson was an adviser.

In 1998 Professor Arthur Miller launched his pioneering Privacy in Cyberspace, the center’s first interactive lecture and discussion series, free and open to the public, from syllabus to Socratic exchanges. Professor William Fisher’s (’82) Intellectual Property in Cyberspace also went on line in 1998; the two projects drew 1,500 participants from all over the world, from high school students to retirees, and were offered again this spring. In another inventive online offering this year, Jury Trial in Cyberspace, Professor Charles Ogletree, Jr. presided as judge in an online trial deliberating the evidentiary issues of President Clinton’s impeachment trial. And in the Digital China/Harvard project, Professor Howell Jackson ’82 offered multimedia lectures on financial systems to graduate law students at the University of Beijing.

“The whole idea of a commons environment on the Net is to make content accessible,” Nesson says. “A lot of us at the Berkman Center are coding [programming], and putting our content out there for everyone to use” – including other academic institutions and educators, policy makers, and public interest groups. By sharing its open platform, the center encourages the educational community to see how open-source software can benefit them.

With this aim in mind, the center is launching H2O (Harvard 2.0), a “virtual university space” in which HLS students and members of the Internet community can access, contribute, and share open-code software tools for distance learning, collaborative work, and other online communications. The center recently released its proposal for this new nonprofit organization and is examining how to establish it on the Net, how to make the tools contributed to H2O accessible to all, and how to incorporate and govern H2O.

Student Coders and Courseware
The hls student as software programmer is an unlikely image, but in fact students are among the busiest Berkman coders. For example, last fall Jonathan Zittrain’s Internet & Society course showcased innovative courseware developed by Alex Macgillivray ’00 and Wendy Seltzer ’99, who is writing her 3L paper on regulation through code.

Seltzer and Macgillivray’s courseware package consists of integrated programs that structure and display the professor’s materials for a particular course – from syllabus to class calendar to assignments – and make the lesson plan interactive. Their innovations include online polling and pro v. con questioning. For Zittrain’s course, they added something new at his behest: the “question rotisserie.”

Here’s an example of the courseware in action. To start students thinking about weekly assignments, Zittrain drafted questions for the Bot to send out to the class. The Bot, an e-mail “bug-me” function, invited students to return to the class Web site to respond to such questions as: “A Boston mayoral candidate has voiced concern that computers in school libraries are used to view pornography. Take a stand.” Zittrain would get a round of answers shortly before class, and often asked students in the seminar to explain their positions. In “rotisserie mode,” the Bot didn’t stop there; it also delivered each answer to another student for further discussion. On the library question, it asked students to oppose the candidate whose platform they received. All responses went into an online archive, where a class scribe summarized the discussion and points of contention.

The latest version of the courseware is now in use. Macgillivray adds that the server running nearly all Berkman Center courseware, as well as the database engine and operating system, “is open-source from the ground up.”

Head teaching fellow for Miller’s Privacy in Cyberspace, Seltzer notes that the courseware offers new ways to interact with students. “As we teach about privacy, we’re also learning how to teach in an online environment. We build up the structure, try to see how it works, and learn along with class participants.”

Litigating On Line

In keeping with its “open content” credo, the Berkman Center has formed a public coalition called Copyright’s Commons, to mount a legal challenge to the Sonny Bono Copyright Term Extension Act of 1998.

Lawrence Lessig is leading work on the lawsuit, Eric Eldred and Eldritch Press v. Janet Reno. “It’s an open-code law campaign,” he says. “We’re writing the brief on line, inviting criticisms as we develop it. Anyone can participate, and see exactly what we’re doing” – and that means the suit’s adversaries too. Lessig’s cocounsels are Charles Nesson, Jonathan Zittrain, and Hale and Dorr attorney Geoffrey Stewart ’76, with a number of HLS students helping to manage the case. The coalition is open to all interested parties.

The original plaintiff, Eric Eldred, runs a nonprofit press that posts public-domain literary works on the Internet. Ten other plaintiffs have since joined the suit, including a choir director and film archivists, who represent a wide range of interests in public domain works.

The Sonny Bono Act extending copyright for 20 years is the latest of several extensions since the ’60s. “Congress keeps pumping up the terms of copyright,” says Lessig. “Our basic claim is that Congress’ power under the copyright clause is quite restrictive. It is to use the power to create an incentive to produce. Incentives are prospective; Congress can’t create a retroactive incentive. [American composer] George Gershwin, for example, is dead. He will not be writing anything more.”

The Supreme Court, he says, has hinted that the goal of creating incentives to produce works should be balanced with the goal of protecting the public’s interest in commonly held works. The Copyright’s Commons group plans to move for summary judgment this summer. “We’ll see if litigating in the open makes for a better case,” Lessig says.

“We really are interested in a clinical exploration of these issues, and it doesn’t mean having to be ideological about it,” Zittrain adds. He points out that the center’s “big tent” includes codirector Arthur Miller, “who is very much in favor of the copyright term extension.”

Governing the Internet

At first, the Internet was described in Wild West terms: a new frontier, untamed and unregulated, open to all. But as cyberspace, like the old West, becomes more densely settled, competing interests and disputes increase.

The story of ICANN demonstrates how technology affects governance in cyberspace. Many Berkman people are involved in studying and helping shape this little-known global entity. The Internet Corporation for Assigned Names and Numbers, a.k.a. ICANN, is the new nonprofit corporation charged with managing central pillars of Internet architecture: the Internet Protocol (IP) number system and the Domain Name System (DNS).

“The Net is a vast network of networks all over the world, and individual computers need a way to find each other,” explains Molly Shaffer Van Houweling ’98, a Berkman Fellow and ICANN senior adviser. Through the IP number system, networked computers are assigned unique numbers. DNS maps domain names like www.harvard.edu to these numbers to make navigating from computer to computer easier. Originally, the U.S. government coordinated these systems, subcontracting for key functions. But as the Internet went global, “the U.S. decided it was time for government to get out of the way, and for the private sector to lead,” Van Houweling says. After contentious debate, in which the center took part, the government signaled in late 1998 that it would pass oversight of these systems over to ICANN.

While the domain names game sounds dull, it leads to heated competition and new legal dilemmas. For example, because short and sweet names work best in cyberspace, companies vie for the right to use the same key word from their trademarked names in the physical world. Furthermore, corporations and major institutions can afford to scoop up names, making it harder for small entities, nonprofits, and individuals to be seen and heard on-line. Van Houweling cites examples including “the father who registered veronica.org for his young daughter, and was threatened by the publishers of Archie Comics; and the child nicknamed Pokey, who was threatened by the creators of Gumby and Pokey for using the domain name pokey.org.” Then there are the “cybersquatters,” who arguably tie up the system by snapping up domain names to sell to the highest bidder.

How ICANN performs its governance tasks will have enormous impact, and changes are already afoot, such as opening up some DNS functions to new competition. Jonathan Zittrain is leading a Berkman initiative to propose possible models for ICANN membership; the draft report was presented this spring in Singapore. Berkman Fellows Andrew McLaughlin (ICANN’s senior legal adviser) and James Fishkin (chair of the Department of Government at the University of Texas) are at work on the design of an international deliberative poll, to help shape ICANN policies and proposals.

Representing the diverse interests of its global constituency is one of ICANN’s greatest challenges. Says Van Houweling: “Some think ICANN should be a streamlined technical organization, while others think it’s a global Internet government for which we need a constitutional convention.”

Buying and Selling on the Net

Nowadays, no net activity garners as much attention as e-commerce. With 3L Timothy Ehrlich, Berkman Fellow Andrew McLaughlin is at work on a project tackling the “nexus of e-commerce and law,” under the auspices of the Berkman Center and the World Wide Web Consortium (W3C), the international industry organization, located at MIT, that promotes Internet standards.

“Big players in the corporate world have set out to initiate the new Article 2B [of the Uniform Commercial Code], which was proposed to govern online commerce,” McLaughlin explains. “But a number of us think A2B would tilt the playing field to commercial interests, content providers, and goods sellers.” As of this writing, it appears that A2B backers have backed off and are considering alternative legal approaches.

As an alternative to any such legal regime, McLaughlin and project colleagues want to develop a technology-based approach to contracting over the Net “that will facilitate more efficient e-commerce by equalizing the bargaining position between the two parties and making transparent what the user is contracting for.”

Their plan is based on an existing privacy protocol called P3P, developed by W3C. McLaughlin explains how P3P works: as you surf on the Net, P3P allows your Internet browser to talk with each Web site you click on, comparing the site’s privacy practices with your stated preferences, and warning you of any conflicts.

“Perhaps this kind of automatic online negotiation can happen for contracts,” he says. “Our goal is to distill the key contract terms when downloading everyday content and applications so that you, the user, can express your contracting preferences by clicking ‘yes’ or ‘no’ on a list of basic contract terms. If the contract offered and the terms you’re willing to accept are inconsistent, a box with a warning clicks on. If the two are consistent, the transaction will take place without the need for any conscious intervention by the user.”

Portrait of an Internet Activist

For a glimpse of Wyoming’s wide-open spaces, check out Berkman Fellow John Perry Barlow’s profile at the Berkman site. In 1990, the former cattle rancher and songwriter for the Grateful Dead, and Internet activist co-founded the Electronic Frontier Foundation, a free-expression, civil-liberties advocacy site on the Internet. Barlow is well known for his outspoken views and writings, and for his manifesto, “A Declaration of Independence in Cyberspace.”

His work with the Berkman Center focuses on supporting open code. “If the technological underpinnings” of the Net are “open and malleable, then the political and social systems that will develop there will be open and malleable as well,” he says. But if any corporate or government entity is in the position to control code, “then the promise of lasting liberty in cyberspace is less assured.”

To protect freedom of expression and privacy on line, Barlow contends that the U.S. government must release its controls on the use of cryptography (encryption of online content), and that other governments likewise must be prevented from implementing crypto restrictions. He is also dedicated to “fighting the forces of copyright” in cyberspace. He gives the example of MP3, an open system for reproducing and distributing music on line, and notes that use of the popular MP3 is drawing harsh legal responses from record and publishing companies “to preserve by force of law what is no longer supported by popular will or practical necessity.”

Barlow first went on line in 1985, when he became intrigued by the Grateful Dead’s famously itinerant fans, the Deadheads. “I come from a small town [Pinedale, Wyoming], and community of that sort is nearly dead in America.” He learned that many Deadheads interacted through the Arpanet, a precursor to the Internet, and through The Well, The Whole Earth ’Lectronic Link, founded in 1985. “When I got to The Well I had the sense that I was looking at a new [non-geographic] form of community, with its own characteristics and interests.”

Eventually, through his involvement with the Deadhead online groups, the famous Hackers’ Conference, and “the Bohemian end of computer wizardry,” Barlow witnessed Secret Service crackdowns and confiscation of Web sites and FBI investigations into corporate complaints against hackers, accompanied “by violations of the First Amendment and other disproportionate responses.” He saw trouble ahead, as the Dead song says, and that led to his forming the Electronic Frontier Foundation with Mitch Kapor.

While his personal preference is “to keep lawyers out of cyberspace,” Barl0w joined up with the Berkman Center because of its leading edge in cyberlaw. “Few traditional institutions are being thoughtful about the future, trying instead to preserve the past. Harvard Law School ought to be about governance and how society will regulate itself,” he says. “We [the Berkman Center] are a skunkworks creating new models for how to do that in cyberspace.”

A Portal to Public Information

The internet public Media Project (IPMP), devised by Berkman Fellow Brooke Shelby Biggs, fits right into the Center’s “public commons.” The idea is to create an alternative network of schools, arts organizations, libraries, and other nonprofits. The goal of IPMP is not only to make public information easier to find, she says, but also to help public groups trade resources and “make our collective voices count.”

Biggs wants to build a portal that is public and free, with no “filtering” by commercial interests. A portal is an online entry point into a collection of Web sites, organized into categories for easy reference, which makes it possible in one stop to set one’s course through a particular “region” of the Web.

Says Biggs, “What exists on the Internet of public media is fragmented and hard to find.” The rapid commercialism of Web sites “has dominated and drowned out independent, individual voices.” For example, because big companies buy up “key words,” search engines deluge Net users with commercial content before they can reach any real information. “There is no public space per se on the Internet.” IPMP is an entrepreneurial research project, and the goal is to ultimately establish it as a financially self-sustaining not-for-profit.

Biggs writes for Mojo Wire, the online publication of Mother Jones, and for the San Francisco Bay Guardian. Signing on as a Berkman Fellow in 1998, Biggs became founding editor of the Filter, the center’s monthly e-mail newsletter covering Internet law and policy worldwide. (To subscribe for free, sign up at: www.cyber.law.harvard.edu/filter/subscribe.html.)

“We are at the center of the storm,” Biggs says of the Berkman crowd, “and our ability to analyze and filter what goes on is essential.” She adds, “A lot of knowledgeable people are on the Filter mailing list,” including Washington, D.C. policy makers and a number of political leaders around the world. “Many of them e-mail me and say, ‘Here’s an interesting topic; I’d like to know what the Berkman Center thinks about this.’”

Building Bridges

Another Charles Nesson brainchild, CyberJam is a joint venture with the Jamaican government that aims to develop a nonprofit, open-code e-commerce platform, to enable Jamaican Blue Mountain coffee growers to sell their beans over the Net.

But a global pipeline for coffee beans isn’t all Nesson has in mind: he wants CyberJam to explore the gap between fully wired and underconnected parts of the world. The center has offered to cohost a conference this fall with Jamaica, to discuss the potential of emerging markets to build public as well as commercial outlets on the Internet. Ultimately, the goal is for the CyberJam platform to also support online educational projects created by Jamaican schoolchildren and teachers.

CyberJam was inspired, Nesson says, by a vacation in Jamaica, when he met the precocious 13-year-old adviser to the Jamaican minister of technology, and by the panel he led at the 1998 Harvard Internet & Society conference. At the latter, “we discussed whether small entrepreneurs would be snuffed out once the great powers got interested in the Internet.” His conclusion: by bringing together key players, and adding technology, computer training, and outreach, “it is possible to create a cooperative commercial venture on the Net that will help bridge the gap between rich and poor.”

This project, like all other Berkman initiatives, aims to draw the public into shaping the future of cyberspace. For those who don’t fully understand this realm, Zittrain has this message: “The Berkman Center is building a bridge wide enough to include the uninitiated. We’re trying to prevent ‘is-ism’: that just because this is how things are on the Net, this is how they have to be. We need to come to a collective understanding about what we want the Internet to be. It’s at the maturing stage, and the track laid down now we all may have to live with for a while.”