Last December, Vincent Falco, a 28-year-old game programmer in West Palm Beach, FL, released version 1.0 of a pet project he called BearShare. BearShare is decentralized file-sharing software-that is, it allows thousands of Internet users to search each other’s hard drives for files and exchange them without any supervision or monitoring. Released free of charge, downloaded millions of times, BearShare is a raspberry in the face of the music, film and publishing industries: six months after the release of version 1.0, tens of thousands of songs, movies, videos and texts were coursing through the network every day. Because the software links together a constantly changing, ad hoc collection of users, Falco says, “there’s no central point for the industries to attack.” BearShare, in other words, is unstoppable.
Which, to Falco’s way of thinking, is entirely unsurprising-almost a matter of course. BearShare is just one more example, in his view, of the way that digital technology inevitably sweeps aside any attempt to regulate information. “You can’t stop people from putting stuff on the Net,” Falco says. “And once something is on the Net you can’t stop it from spreading everywhere.”
The Internet is unstoppable! The flow of data can never be blocked! These libertarian claims, exemplified by software like BearShare, have become dogma to a surprisingly large number of Internet users. Governments and corporations may try to rein in digital technology, these people say, but it simply will never happen becauseinformation wants to be free. Because, in a phrase attributed to Internet activist John Gilmore, the Net treats censorship as damage and routes around it. Laws, police, governments and corporations-all are helpless before the continually changing, endlessly branching, infinitely long river of data that is the Net.
To the generations nurtured on 1984, Cointelpro and The Matrix, the image of a global free-thought zone where people will always be able to say and do what they like has obvious emotional appeal. Little wonder that the notion of the Net’s inherent uncontrollability has migrated to the mainstream media from the cyberpunk novels and technoanarchist screeds where it was first articulated in the late 1980s. A leitmotif in the discussion of the Napster case, for example, was the claim that it was futile for the recording industry to sue the file-swapping company because an even more troublesome file-swapping system would inevitably emerge. And the rapid appearance of BearShare-along with LimeWire, Audiogalaxy, Aimster and a plethora of other file-swapping programs-seemed to bear this out.
Nonetheless, the claim that the Internet is ungovernable by its nature is more of a hope than a fact. It rests on three widely accepted beliefs, each of which has become dogma to webheads. First, the Net is said to be too international to oversee: there will always be some place where people can set up a server and distribute whatever they want. Second, the Net is too interconnected to fence in: if a single person has something, he or she can instantly make it available to millions of others. Third, the Net is too full of hackers: any effort at control will invariably be circumvented by the world’s army of amateur tinkerers, who will then spread the workaround everywhere.
Unfortunately, current evidence suggests that two of the three arguments for the Net’s uncontrollability are simply wrong; the third, though likely to be correct, is likely to be irrelevant. In consequence, the world may well be on the path to a more orderly electronic future-one in which the Internet can and will be controlled. If so, the important question is not whether the Net can be regulated and monitored, but how and by whom.
The potential consequences are enormous. Soon, it is widely believed, the Internet will become a universal library/movie theater/voting booth/shopping mall/newspaper/museum/concert hall-a 21st-century version of the ancient Greek agora, the commons where all the commercial, political and cultural functions of a democratic society took place. By insisting that digital technology is ineluctably beyond the reach of authority, Falco and others like him are inadvertently making it far more likely that the rules of operation of the worldwide intellectual commons that is the Internet will be established not through the messy but open processes of democracy but by private negotiations among large corporations. To think this prospect dismaying, one doesn’t need to be a fan of BearShare.
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.
Myth #2: The Net Is Too Interconnected To Control
Before BearShare came Gnutella, a program written by Justin Frankel and Tom Pepper. Frankel and Pepper were the two lead figures in Nullsoft, a tiny software firm that America Online purchased in June 1999 for stock then worth about $80 million. Rather than resting on their laurels after the buyout, Frankel and Pepper became intrigued by the possibilities of file swapping that arose in the wake of Napster. When college network administrators tried to block Napster use on their campuses, Frankel and Pepper spent two weeks throwing together Gnutella, file-swapping software that they thought would be impossible to block. They released an experimental, unfinished version on March 14, 2000. To their surprise, demand was so immediate and explosive that it forced the unprepared Pepper to shut down the Web site almost as soon as it was launched. Within hours of Gnutella’s release, an embarrassed AOL pulled the plug on what it characterized as an “unauthorized freelance project.”
It was too late. In an example of the seeming impossibility of stuffing the Internet cat back into the bag, thousands of people had already downloaded Gnutella. Amateur programmers promptly reverse-engineered the code and posted non-AOL versions of Gnutella on dozens of new Gnutella Web sites. Unlike Napster or Swaptor, Gnutella lets every user directly search every other user’s hard drive in real time. With member computers connecting directly to each other, rather than linking through powerful central servers, these “peer-to-peer” networks have no main hub, at least in theory. As a result, there is no focal point, no single point of failure, no Gnutella world headquarters to sue or unplug. “Gnutella can withstand a band of hungry lawyers,” crows the Gnutella News Web site. “It is absolutely unstoppable.”
Peer-to-peer networks have a number of important advantages, such as the ability to search for documents in real time, as opposed to looking for them in the slowly compiled indexes of search engines such as Google and HotBot. Excited by these possibilities, such mainstream firms as Intel and Sun Microsystems have embraced peer-to-peer network technology. But the focus of interest, among both the proponents and critics of peer-to-peer networks, has been the purported impossibility of blocking them. “The only way to stop [Gnutella],” declared Thomas Hale, former CEO of the Web-music firm WiredPlanet, “is to turn off the Internet.”
Such arguments have been repeated thousands of times in Internet mailing lists, Web logs and the press. But the claims for peer-to-peer’s uncontrollability don’t take into consideration how computers interact in the real world; a network that is absolutely decentralized is also absolutely dysfunctional. In consequence, the way today’s Gnutella networks actually work is quite different from the way they have been presented in theory.
To begin, each Gnutella user isn’t literally connected to every other user-that would place impossibly high demands on home computers. Instead, Gnutellites are directly connected to a few other machines on the network, each of which in turn is connected to several more machines, and so on. In this way, the whole network consists of hundreds or thousands of overlapping local clusters. When users look for a file, whether it is a copy of the Bible, a bootleg of A.I. or smuggled documents on the Tiananmen massacre, they pass the request to their neighbors, who search through the portion of their hard drives that they have made available for sharing. If the neighbors find what is being looked for, they send the good news back to the first machine. At the same time, they pass on the search request to the next computer clusters in the Gnutella network, which repeat the process.
Hopping through the network, the search is repeated on thousands of machines-which leads to big problems. According to a report in December by Kelly Truelove of Clip2, a Palo Alto, CA-based consulting group that specializes in network-performance analysis, a typical Gnutella search query is 70 bytes long, equivalent to a very small computer file. But there are a great many of them-as many as 10 per second from each machine to which the user is connected. In addition, there is a constant flow of “ping” messages: the digital equivalent of “are you there?” Inundated by these short messages, the 56 kilobit-per-second modems through which most people connect to the Net are quickly overwhelmed by Gnutella. Broadband connections help surprisingly little; the speed with which the network processes requests is governed by the rate at which its slowest members can pass data through.
With BearShare, Vinnie Falco developed one potential fix. BearShare, like other new Gnutella software, automatically groups users by their ability to respond to queries, ensuring that most network traffic is routed through faster, more responsive machines. These big servers are linked into “backbone” chains that speed along most Gnutella search requests. Further unclogging the network, Clip2 has developed “reflectors”-large servers, constantly plugged into the Gnutella network, that maintain indexes of the files stored on adjacent machines. When reflectors receive search queries, they don’t pass them on to their neighbors. Instead they simply answer from their own memories-“yes, computer X has this file.” Finally, to speed the process of connecting to Gnutella, several groups have created “host caches,” servers that maintain lists of the computers that are on the Gnutella network at a given time. When users want to log on, they simply connect with these host caches and select from the list of connected machines, thus avoiding the slow, frustrating process of trying to determine who else is online.
As their capacity improved, Gnutella-like networks soared in popularity. Napster, buffeted by legal problems, saw traffic decline 87 percent between January and May, according to the consulting firm Webnoize. Meanwhile, LimeWire, another Gnutella company, reported that the number of Gnutella users increased by a factor of 10 in the same period. “The networks are unclogging, and as a result they’re growing,” Truelove says. “And the content industries should be concerned about that.”
But the problem with these fixes is that they reintroduce hierarchy. Gnutella, once decentralized, now has an essential backbone of important computers, Napster-like central indexes and permanent entryway servers. “We’ve put back almost everything that people think we’ve left out,” says Gene Kan, a programmer who is leading a peer-to-peer project at Sun. “Ease of use always comes at some expense, and in this case the expense is that you do have a few points of failure that critically affect the ability to use the network.”
Rather than being composed of an uncontrollable, shapeless mass of individual rebels, Gnutella-type networks have identifiable, centralized targets that can easily be challenged, shut down or sued. Obvious targets are the large backbone machines, which, according to peer-to-peer developers, can be identified by sending out multiple searches and requests. By tracking the answers and the number of hops they take between computers, it is possible not only to identify the Internet addresses of important sites but also to pinpoint their locations within the network.
Once central machines have been identified, companies and governments have a potent legal weapon against them: their Internet service providers. “Internet service providers enjoy limitations on liability for their users’ actions if they do certain things specified by law,” says Jule Sigall, an Arnold and Porter lawyer who represents copyright owners. “If you tell them that their users are doing something illegal, they can limit their exposure to money damages if they do something about it when they are notified.” Internet service providers, he says, do not want to threaten their customers, “but they like not being sued even more, so they’ve been cooperating pretty wholeheartedly” with content owners.
As Ballon of Manatt, Phelps and Phillips notes, Gnutella traffic has a distinctive digital “signature.” (More technically, the packets of Gnutella data are identified in their headers.) Content companies are also learning how to “tag” digital files. The result, in Ballon’s view, is easy to foresee: “At a certain point, the studios and labels and publishers will send over lists of things to block to America Online, and 40 percent of the country’s Net users will no longer be able to participate in Gnutella. Do the same thing for EarthLink and MSN, and you’re drastically shrinking the pool of available users.”
Perhaps sensing that Gnutella cannot escape the eye of authority, bleeding-edge hackers have searched for still better solutions. Determined to create a free-speech haven, a Scottish activist/programmer named Ian Clarke in 1999 began work on a Gnutella-like network called Freenet that would be even more difficult to control, because it would encrypt all files and distribute them in chunks that constantly shifted location. Unsurprisingly, it has attracted enormous media attention. But the system is so incomplete-searchability is an issue-that one cannot judge whether it will ever be widely used. (A small number of people are already using Freenet. Most of them are pornography fans, but a few, according to Clarke, are Chinese dissidents who employ Freenet to escape official scrutiny.) Even if Freenet does not end up in the crowded graveyard of vaporware, Internet service providers can always pull the plug-treating Freenet, in essence, as an unsupported feature, in the way that many providers today do not support telnet, Usenet and other less popular services.
Myth #3: The Net Is Too Filled With Hackers To Control
It was a classic act of hubris. The Secure Digital Music Initiative, a consortium of nearly 200 technology firms and record labels, thought the software it had developed to block illegal copying of music was so good that last September it issued an “open letter to the digital community” daring hackers to try their best to break it. The result was a fiasco. Within three weeks, at least four teams broke the code, and hacks were soon distributed widely across the Internet. In the folklore of the Net, the initiative’s challenge became one more example of a general truth: any method of controlling digital information will fail, because someone will always find a way around it-and spread the hack around the Internet.
“There are no technical fixes,” says Bruce Schneier, cofounder of Counterpane Internet Security. “People have tried to lock up digital information for as long as computer networks have existed, and they have never succeeded. Sooner or later, somebody has always figured out how to pick the locks.”
But software is not the only means of controlling digital information: it’s also possible to build such controls into hardware itself, and there are technical means available today to make hardware controls so difficult to crack that it will not be practical to even try. “I can write a program that lets you break the copy protection on a music file,” says Dan Farmer, an independent computer security consultant in San Francisco. “But I can’t write a program that solders new connections onto a chip for you.”
In other words, those who claim that the Net cannot be controlled because the world’s hackers will inevitably break any protection scheme are not taking into account that the Internet runs on hardware-and that this hardware is, in large part, the product of marketing decisions, not technological givens. Take, for example, Content Protection for Recordable Media, a proposal issued late last year by IBM, Intel, Toshiba and Matsushita Electric (see “The End of Free Music?” TR April 2001). The four companies developed a way to extend an identification system already used in DVDs and DVD players to memory chips, portable storage devices and, conceivably, computer hard drives. Under this identification scheme, people who downloaded music, videos, or other copyrighted material would be able to play it only on devices with the proper identification codes.
In addition to restricting unauthorized copies, it was widely reported that the technology also had the potential to interfere with other, less controversial practices, such as backing up files from one hard drive onto another. In part because of controversy surrounding the technology, the companies withdrew the plan from consideration as an industrywide standard in February. But the point is clear: the technology has been tabled because its promoters believed it wasn’t profitable, not because it would not work. This and other hardware schemes have the potential to radically limit what people can do with networking technology.
Some hardware protection methods already exist. Stephen King released his e-book Riding the Bullet in March 2000, in what were effectively two different versions: a file that could be read only on specialized electronic devices-electronic books-and a file that could be read on computer monitors. Even though the text was available for free at Amazon.com, some people went to the trouble of breaking the encryption on the computer file anyway; distributed from Switzerland, it was available on the Internet within three days. But the electronic-book version was never cracked, because e-books, unlike computers, cannot do two things at once. “On a computer, you can always run one program to circumvent another,” says Martin Eberhard, former head of NuvoMedia, the developer of the Rocket eBook. “If a book is on a computer screen, it exists in video memory somewhere, and someone will always be able to figure out how to get at it.”
Eberhard’s e-books, by contrast, were deliberately designed to make multitasking impossible. True, future e-books could, like computers, perform two tasks simultaneously, but publishers could refuse to license electronic books to their manufacturers, in much the same way that film studios refuse to allow their content to be used on DVD machines that don’t follow certain rules. And even computers themselves, in Eberhard’s view, could be “rearchitected,” with added hardware that performs specific, controlling tasks. “If people have to rip up their motherboards to send around free music,” he says, “there will be a lot less free music on the Net.It would be an ugly solution, but it would work.”
Of course, consumers will avoid products that are inconvenient. A leading example is digital audio tape recorders, which by law are burdened with so many copy protection features that consumers generally have rejected them. But to assume that companies involved with digital media cannot come up with an acceptable and effective means of control is to commit, in reverse, the same act of hubris that the Secure Music Digital Initiative did, when it assumed that clever people couldn’t break its software. And if the hardware industry resists making copy-protected devices, says Justin Hughes, an Internet-law specialist at the University of California, Los Angeles, an appeal to Congress may be “just a matter of time.” If the Internet proves difficult to control, he says, “you will see legislation mandating that hardware adhere to certain standard rules, just like we insist that cars have certain antipollution methods.”
“To say that a particular technology guarantees a kind of anarchic utopia is just technological determinism,” he says. “This argument should be ignored, because the real question is not whether the Net will be tamed, but why and how we tame it.”
We are in the beginning stages of the transfer of most of society’s functions-working, socializing, shopping, acting politically-from what Internet denizens jokingly call “meatspace” into the virtual domain. In the real world, these functions are wrapped in a thicket of regulations and cultural norms that are, for the most part, accepted. Some free-speech absolutists dislike libel laws, but it is generally believed that the chilling effect on discourse they exert is balanced by their ability to punish gratuitous false attacks on private individuals. Regulations on the Net need not be any more obnoxious. “If the whole neighborhood’s online, it’s okay to have a cop on the beat,” says Schneier.
The risk, of course, is overreaching-of using law and technology to make the Internet a locus of near absolute control, rather than near absolute freedom. Paradoxically, the myth of unfettered online liberty may help bring this undesirable prospect closer to reality. “Governments are going to set down rules,” says Hughes, “and if you spend all your time fighting the existence of rules you won’t have much chance to make sure the rules are good ones.”
In other words, hackers may be their own worst enemies. By claiming that the Net is inherently uncontrollable, they are absenting themselves from the inevitable process of creating the system that will control it. Having given up any attempt to set the rules, they are unavoidably allowing the rules to be set for them, largely by business. Corporations are by no means intrinsically malign, but it is folly to think that their interests will always dovetail with those of the public. The best way to counterbalance Big Money’s inevitable, even understandable, efforts to shape the Net into an environment of its liking is through the untidy, squabbling process of democratic governance-the exact process rejected by those who place their faith in the endless ability of anonymous hackers to circumvent any controls. An important step toward creating the kind of online future we want is to abandon the persistent myth that information wants to be free.