Myth #1: The Internet Is Too International To Be Controlled
At first glance, Swaptor seems like something out of a cyberpunk novel. A secretive music-swapping service much like Napster, it seems specifically designed to avoid attacks from the record labels. The company is headquartered in the Caribbean island nation of St. Kitts and Nevis. Its founders are deliberately anonymous to the public; its sole address is a post-office box in the small town of Charlestown, Nevis. Swaptor’s creators seem confident that the company can survive beyond national laws-after all, the Internet is too spread across the world to control, right?
Indeed, Swaptor does seem protected. Nevis, according to company representative John Simpson, “has excellent corporate laws for conducting international business.” He is apparently referring to the happy fact that Nevis has not ratified either the World Intellectual Property Organization Copyright Treaty or the WIPO Performances and Phonograms Treaty, both of which extend international copyright rules to the Internet. As a result, Swaptor appears not to be breaking local or international law.
The founders of Swaptor “wish to remain anonymous at this time,” according to Simpson. They won’t need to reveal themselves to raise money: the company is headquartered in an offshore bank called the Nevis International Trust. Affiliated with the bank is a successful online gambling concern, Online Wagering Systems. Supported by advertising, Simpson claims, Swaptor has been profitable since its launch in February.
In the imagination of Net enthusiasts, offshore havens like Nevis are fervid greenhouses in which this kind of suspect operation can flower. But can it? Napster at its peak had a million and a half simultaneous users, generating a huge amount of data traffic; the company established itself in Silicon Valley, where it could gain access to the infrastructure it needed to handle this barrage of connections. Swaptor, in contrast, is headquartered in Nevis. The sole high-capacity Net pipeline to Nevis is provided by the Eastern Caribbean Fibre-Optic System, which snakes through 14 island nations between Trinidad, off the Venezuelan coast, and Tortola, near Puerto Rico. Yet this recently installed system, though it is being upgraded, has a limited capacity-not enough to push through the wash of zeroes and ones generated by a large file-swapping service. Which, one assumes, is why the “offshore” service of Swaptor is actually situated in…Virginia.
Should the recording industry decide to sue Swaptor, it wouldn’t need to rely on the company or on Technology Review to get this information; widely available software can trace Swaptor traffic and discover that Swaptor’s central index of available files is located on five servers that sit just a few miles from the Washington, DC, headquarters of the Recording Industry Association of America. (Two common monitoring programs, Traceroute and Sniffer, can be downloaded gratis from thousands of Web sites.) Not only that, Swaptor’s Web site-the site from which users download the program-is hosted by a Malaysian company with an explicit policy against encouraging copyright infringement.
As Swaptor shows, the Net can be accessed from anywhere in theory, but as a practical matter, most out-of-the-way places don’t have the requisite equipment. And even if people do actually locate their services in a remote land, they can be easily discovered. “I don’t think most people realize how findable things are on the Net,” says David Weekly, the software engineer and Net-music veteran who tracked down Swaptor’s servers for this magazine in a few minutes. “With simple software…you can find out huge amounts of information about what people are doing in almost no time.”
Once international miscreants are discovered, companies and governments already have a variety of weapons against them-and soon will have more. According to Ian Ballon of the Silicon Valley law firm Manatt, Phelps and Phillips, who serves on the American Bar Association committee on cyberspace law, even if offshore firms are legal in their home bases, their owners “have to be willing to not come back to the United States.” Not only do they risk losing any assets in this country, but U.S. businesses that deal with them will also be at risk. “Any revenue the offshore business sends to them could be subject to attachment,” says Ballon.
In the future, moreover, the reach of national law will increase. The Hague Conference on Private International Law is developing an international treaty explicitly intended to make outfits like Swaptor more vulnerable to legal pressure-“a bold set of rules that will profoundly change the Internet,” in the phrase of James Love, director of the activist Consumer Project on Technology. (The draft treaty will be discussed at a diplomatic meeting next year.) By making it possible to apply the laws of any one country to any Internet site available in that country, the draft treaty will, Love warns, “lead to a great reduction in freedom, shrink the public domain, and diminish national sovereignty.”
Rather than being a guarantee of liberty, in other words, the global nature of the Net is just as likely to lead to more governmental and corporate control.