American Enterprise Institute

April 10, 2006

[Edited transcript from audio tapes]

5:15 p.m.	Registration
5:30	Introduction:	Christopher DeMuth, AEI
	Presenters:	Jack Goldsmith III, AEI, Harvard Law School
		Tim Wu, Columbia Law School
6:00	Discussants:	Alan Davidson, Google David A. Gross, Department of State
		Sebastian Mallaby, Washington Post
7:00	Wine and Cheese reception

Proceedings:

Christopher DeMuth:  We are here to discuss an important new book titled, Who Controls the Internet? Illusions of a Borderless World, just published by Oxford University Press.  This is not another “gee whiz” technology book, or insider’s account of the rise of the Internet, although there’s a lot of “gee whiz” stuff in it and a lot of insider information on the personalities and events that led to the rise of what we know as the Internet and the World Wide Web today.  Its major subject is politics, and its conclusions are profound.  They go far beyond the particulars of the effects of the Internet. 

The title of the book could have been “The Empire Strikes Back,” for it describes how many of the more extravagant notions of how the Internet would affect global commerce and politics were overstated in substantial respects because they failed to anticipate how the real world of bordered states with their own peoples and cultures and languages would be able to affect the course of the growth of the Internet, often for bad but often for good.  Its larger lesson, as this reader takes it, is that our liberties are not something that exist out there in the ether.  They don’t exist in the abstract.  They exist in the context of political establishments and legal establishments. 

I’m delighted that the authors would be here at AEI today to discuss this extraordinarily important work that they have produced.  Jack Goldsmith, who is a visiting scholar at AEI and who before his recent service in government was active in the AEI Sovereignty Program, is currently a professor at Harvard Law School.  He was for several years in the current administration, serving as assistant attorney general at the Office of Legal Counsel.  Since leaving the administration and arriving back in the academic world, he has published two books.  Last year he published “The Limits of International Law,” with Eric Posner of the University of Chicago, which they discussed here on its release, and now he is here to discuss his second book.

His co-author, Tim Wu, is a professor at Columbia Law School.  His work is in telecommunications, international trade, and intellectual property rights.  He has previously taught at Virginia, Chicago and Stanford.  He, I think, alone of those on the panel has actually worked on these matters in none other than Silicon Valley.

We have three discussants.  The first, Ambassador David Gross from the State Department, is the U.S. Coordinator for International Communications and Information Policy in the Bureau of Economic and Business Affairs at State.  Before his work in the government he served in the private sector, in technology industries, such as working as Washington counsel for AirTouch Communications.

Sebastian Mallaby is a well-known columnist for the Washington Post, writing on globalization, trade and economy policy, and serving as a member of that paper’s editorial board.  He’s been at the Post for seven years.  Previously for many years he was with the Economist.  He published a book two years ago, The World’s Banker, published by Penguin in 2004, about the World Bank under James Wolfensohn.

We’re delighted that Alan Davidson, who is Washington policy counsel and head of the D.C. government affairs office of Google, would come and discuss this book that pertains directly to work where he is working directly on the front lines.  Mr. Davidson was previously director of the Center for Democracy and Technology.

This panel is shot through with conflicts of interest.  If you look at this book carefully, you’ll see that Sebastian was actually working with the authors in the initial conception of this book.  Even worse than that, Jack Goldsmith, one of the authors, is also moderating the panel.  So he will be able to control the course of the discussion in a direction that favors the book and its argument.

With that, I want to thank and congratulate Jack and Tim on this wonderful piece of work, and turn the proceedings over to Jack Goldsmith for an initial presentation and moderation.

Jack Goldsmith:  Thank you very much, Chris.  Thank you to AEI for sponsoring this event.  We’re very grateful for the opportunity to talk about the book and to talk about Internet governance issues more generally.  Before we get started, I want to thank Suzanne Gershowitz for all the extraordinary work she did in organizing this event and in everything else she does to help out at AEI.

I’m going to spend five or ten minutes just very briefly summarizing the claims in the book and then we’re going to have the guests, the non-authors, speak about Internet governance issues generally.  We thought it would be best to have this discussion be not just about the book but about the sort of state of play these days in control of the Internet.  What are the big issues?  How is Internet regulation working?  What are the limits of regulation?  In what ways does the Internet resist regulation - and the like?  Then Tim will have the last word on the panel.

So I’ll just get started by saying that the book is about – in some sense, our book is a history of the Internet in the last ten years.  It’s a story about how a decade ago, the conventional wisdom – and I would say this remains the conventional wisdom in many quarters, but it was more so ten years ago – the conventional wisdom was that the Internet was something new and different.  It was a means of communication that resisted regulation by governments, that defied territorial regulation, and that presented a significant challenge to the nation-state and that portended new and different kinds of communities and new and different kinds of governance that weren’t tied to traditional notions of territorial sovereignty.

Today, I think that when we hear stories about what China is doing with the Internet and how it’s conditioning American participation in China – conditioning American firms’ entrance into the Chinese markets on compliance with China’s very strict and rigorous content filtering; when we hear of the troubles Google is having all over the world in different countries – to take one pertinent example today, with different regulations in different states, with problems with one thing in the United States about copyright protection, different kinds of intellectual property difficulties in France – I think people are less surprised today that the state is being successful at controlling the Internet.  But we still think, and the thesis of this book is, it’s still underappreciated the extent to which the nation-state is in the process of successfully bringing the Internet to heel on a territorial basis.

One sort of anecdote from the first chapter of the book that I’ll give is the famous Yahoo case at the turn of the century, where Yahoo was sued in France.  It sold Nazi goods at auction on its server in California.  Someone accessed the page in France, where the sale of Nazi goods and the tendering of Nazi goods is illegal.  There was a lawsuit brought in France.  Yahoo did not take the lawsuit seriously and when Judge Gomez, the judge in France, ordered Yahoo at a preliminary matter to make unavailable Nazi goods in France on the Internet, Jerry Yang responded by saying, “We’re not going to change the content of our sites in the United States just because someone in France is asking us to do so.”  He said, “Asking us to filter access to our sites according to the nationality of web surfers is very naïve.” 

He thought this because the server was located in California, and he thought there was nothing a French judge could do to content, to information on a computer in California.  He had this conception of territorial sovereignty that made him think he was beyond the reach of California, and more generally he was in the midst of the libertarian high point of the Internet in the late 1990s, when it was thought that the Net was a new kind of beast that wasn’t subject to government regulation.

Well, Judge Gomez, after a trial, and after it was determined that in fact Yahoo could through various, what now seem antiquated means six years ago, filter out content with about 90 percent accuracy.  Judge Gomez enjoined Yahoo from allowing these goods to appear in France.  Yahoo started to take it seriously when they started imposing fines and threatened to collect the fines from Yahoo’s subsidiary in France.  Yahoo’s executives who traveled through France started to worry about the possibilities of perhaps being put in jail when they went through France.

To make a long story short, Yahoo capitulated and took these items off their servers in California, bowing down to the French law.  They said as a reason – they didn’t say they were abiding by the French law, they just said that Nazi goods were bad policy and they were going to take them off everywhere, it had nothing to do with the lawsuit.

About the same time as the lawsuit, however, Yahoo was also using technology in a completely different part of the business – using geographical screening technology so it could target advertising more intelligently to Internet users around the world and within countries on a geographically targeted basis.  The idea was that intelligent advertising required advertising that differed by geographical location because people’s tastes and preferences differ by geographical location.  So Yahoo started using the same kind of geographical filtering technology that they said was impossible a year earlier in the French Yahoo case. 

That was a little bit uncomfortable for them, but things got really uncomfortable when they decided they wanted to do business in China.  As a condition of doing business in China, they had to sign something called the public pledge on self-discipline for the Chinese Internet industry, in which Yahoo promised to inspect and monitor the information on domestic and foreign websites and refuse access to those sites that disseminate harmful information, to protect Internet users of China from the adverse influences of information. 

This put Yahoo in a bit of a tight spot.  It became a little bit tighter last year when Yahoo turned someone over who had sent an email on Yahoo’s service concerning some democracy issue.  This person sent an email to someone in the West using a Yahoo server.  Yahoo turned the person over for violating Chinese laws.  The person was put in jail, sentenced to ten years in prison for circulating information about some democracy movement in China.

A mere six years after Jerry Yang said it was naïve to think that France could tell Yahoo what to do, he said the following about why he was complying with the law in China.  “To be doing business in China or anywhere else in the world, we have to comply with local law.  I do not like the outcome of what happens with these things but we have to follow the law.”

This mere six-year difference between Jerry Yang’s two very different statements really encapsulates what the book is about.  The book is about why this is happening, why and how states are asserting their control on a geographical basis over the Internet.

The book has basically three themes.  The first one is that old-fashioned, territorial, government coercion is a lot more effective than people thought and that states are developing a variety of techniques within their borders to keep content out from abroad on the Internet that they don’t like.  Even though the server is located abroad, even though billions of bits pass over the borders every minute, states are still very effective at controlling the intermediary channels through which Internet communications travel within the territory, to control content when they want to.  It’s not perfect, but perfect regulation is not the goal – effective regulation is.  Different states have committed more resources to it than others, for various reasons.  China is the extreme case.

So the first theme is that old-fashioned, state territorial coercion has been very effective.

The second theme is that the Internet is in fact becoming bordered by geography in a real sense, for three reasons.  I’ll be very brief about this.

The first reason is that it turns out, as I was suggesting earlier, that different people in different places have different demands for what kind of content they want to see.  What language they want the Internet in – everyone thought ten years ago, the conventional wisdom was that the Internet was going to make English the – English was going to be the dominant language of the Internet and the Internet was going to be the means by which English just washed over the whole world.  The opposite has happened.  As the Internet has grown and spread, people in local communities demand content and information in their languages and they demand lots of other information – advertising, all sorts of other information that corresponds to geography.  This was the consumer demand that led to the rise of geographical filtering in the first place for advertising targeting purposes.  In a very real sense, the Internet you experience differs from country to country, for a lot of different reasons.  So that’s the first reason the Internet is becoming bordered.

The second reason it’s becoming bordered is related to my first point, which is that nation-states are getting better and better at coercing intermediaries – search engines and Internet portals and the like, the basic structure of the Internet through ICAN.  They’re becoming much better at controlling the intermediary channels of communication that allows them to basically control the content within their borders.  So the second reason is that law differs in different places and nations are more and more successfully enforcing their law within their borders.

The third reason that the Internet is becoming bordered is because – and this is related – Internet filtering technologies are becoming more and more sophisticated.  This is nowhere truer than it is in China, where China is basically changing the nature of the Internet within its territory.

So the second theme is that the Internet is becoming bordered by geography.

The third theme of the book is an assessment of the vices and virtues of the bordered Internet.  There were thought to be no virtues of a bordered Internet ten years ago.  The whole purpose of the Internet, it was thought, was to be free and not to be regulated.  We argue that there are vices and virtues of the bordered Internet.  They’re basically the vices and virtues of the government that underlies the Internet in particular countries.  So there’s not a whole lot to say on the virtue side – there’s something to say but not a whole lot to say on the virtue side about China’s control of the Internet. 

But we think in the Yahoo case, for example, there’s a lot to be said for France and the United States to have their different conceptions of free speech validated within their territories.  As a basic matter among democracies, the basic rationale for a decentralized Internet is the basic rationale for our federal system, which is that the lower level of governance, the more preferences can be satisfied.

So we basically do a tally of the vices and virtues.  One of the main virtues I’ll mention briefly – I think Tim is going to talk about this, and this is one of the hidden virtues that our story reveals I think, and it’s obvious once you see it – but it’s namely that the state, it turns out, provides all sorts of public goods to help Internet communities flourish and without which they could not flourish.  This is really the hidden success story of state control over the Internet, is that it makes Internet freedom possible.  This is what Chris was alluding to.

That in a nutshell is the basic theme of the book.  We flesh these ideas out in a variety of contexts – crime, intellectual property, speech and others.  But I’ll stop there and let our panelists talk about any issue they want about Internet regulation.  Then Tim will wrap up.  I think we’re going to start with David.

David Gross:  Thanks, Jack.  Good afternoon to everybody.

First, usually what I like to say is always on the record in every way, but seeing this audience I realize that of course there are a lot of friends here, so let me go off the record with all of you as friends, which is to tell you how really terrific this book is.  The reason I have to do that off the record is as a government official – I notice I’m the only government official up here with this restriction – is I’m not allowed to endorse.  So I’m not endorsing any sort of commercial enterprise here.  But it is an extraordinary book. 

I say that not because the authors are next to me, although that probably helps lower my credibility, but rather because the story that it tells is so important in its telling.  It is extraordinary that over the ten or so years that the book talks about so much has been forgotten so quickly.  So as I read the book, it isn’t so much for me.  And from where I sit, the punch line about the fact that the world is not without borders but in fact we live quite in a bordered world and the Internet is no exception, but rather all of the pieces of the puzzle, so many of which happened in the 1990s, that people have so quickly forgotten in the sort of bumper sticker remembrances that we often have.

Those include a whole host of things.  They include particularly the role of the U.S. government and what was and was not stated and what was and was not promised, and what representations were or were not made.  This is of importance not just because it’s always good to have a historically cleaner record than people’s memories sometimes will be, but also because as Jack talked about, these issues are extraordinarily alive and well today.  Perhaps in some respects no more so than they are today than they have ever been over the past ten, fifteen, twenty years.  We had a UN heads of state summit, not just one but two phases, the World Summit on the Information Society, both of which focused on these issues at the heads of state level – that’s really quite extraordinary. Particularly the one that we just had in Tunisia in November  focused very much on the question of Internet governance and the role of state actors, both in terms of particular states but also intergovernmental entities, including the United Nations and others – what role they should play, what role have they played, what role will they play.

The stakes are extraordinarily high.  Again, I think one of the great things about the book is that it focuses not just on the commercial piece, which I think so many people readily focus on – and it is extraordinarily important – but on the piece that as a government official I spend probably most of my time focusing on, which is the impact it has on the free flow of information. 

As Jack indicates, in many respects the Internet is no different than other things have been in the past, in terms of the interest that governments have to control access to information within their borders.  But, of course, the promise of the Internet heightens it; it focuses people’s attention in ways that I think are unprecedented because the access to information is now potentially so much less dependent upon geography.  So it puts into stark relief the tension that is created by on the one hand states that seek to restrict access to information versus the actual practical access to such information, that up until now and up until the Internet was really more theoretical in many cases than actual.

So the fact that people, regardless of where they are, now the restriction is more governmentally created than geographically created or even economically created is something that really focuses so many of our attentions on this issue, and why at the State Department one of the major reasons why we have focused so much attention on it and continue to focus so much attention on this issue.  We think it is extraordinarily important because – it will surprise nobody in this room – we see a very direct correlation between access to information and democratic principles and the growth of democracies around the world.  So we see this not just from the economic perspective, not just from the traditional perspectives, but also because we do see the tie between state control of the free flow of information or potential control of that information, as Jack talks about, and certain democratic, and very important democratic, principles.

As Jack points out, I think it is important at this stage for me to be clear: although we sometimes disagree with close allies about what is and is not appropriate within their borders in terms of that free flow of information, this is not a bone that we particularly pick with our colleagues in democracies around the world.  We think in fact democracies can and ought to make choices for their people and with their people because there is a process for those people to speak.  But when those countries where people don’t have the same ability to speak and have an impact on their governments, in countries such as China but also many others – often we focus on China for so many reasons but there are many others as well – we think it is important to shine a light on these issues and try to work constructively to seek change, particularly of course when such change happens over time.  We recognize that.

So we have a number of initiatives, many of which are born of many of the things that are discussed in this terrific book.  We have a Global Internet Governance Task Force at the State Department.  We are continuing to work bilaterally with governments around the world.  In fact, I have reason to – I hope it wasn’t a problem, I made reference to it in a meeting with the vice-minister from China about a month ago.  I say hopefully that wasn’t a problem because the book wasn’t out at that point, but hopefully I didn’t screw up your credibility by indicating that I had some advance read about it.

Jack Goldsmith:  You’re going to get us arrested.

David Gross:  That’s one of the advantages I have with diplomatic immunity.  Anyhow, we have those discussions with colleagues, those allies that see the world – and there are many – the way we do, and those who obviously see things differently.

Then in addition I would say, in terms of the sharp focus that comes, it’s not just the free flow of information which is so important for us, but it’s also, as Jack indicated a moment ago, it does put into stark relief a whole host of other very important issues for us.  For example, one of the issues that we are now able to articulate in ways we were not able to a few years ago is the importance of an enabling environment.  By enabling environment, we talk about that whole group of rules, regulations and statutes and so forth, and also on ways in which people act within a country, that promote the construction of infrastructure – whether it’s telephony or Internet infrastructure – and access to information. 

The reason for that – although again, these have been issues of long standing – is that one of the wonderful things that has come out of the rhetoric of the Internet over the past decade or so is the universal desire expressed by all governments that at least I talk to – since I don’t talk to the North Koreans – that they want more Internet.  They want more Internet for their people.  They want more access.

So what that does is it sharpens the focus as to what it is that it takes to get that.  Sometimes of course that rhetoric is in part directed at us, that we ought to – the United States government ought to do more to help others.  We do an awful lot and we use this as an opportunity to do a lot bilaterally.  Capacity-building – USAID does a lot.  We do a whole host of things. 

But it gives us an opportunity to have a conversation that I think is extraordinarily important.  That conversation is the whole set of issues that governments themselves are responsible, that no outside government is responsible for.  It’s the flip side of the control of the Internet.  Control also means there is responsibility that each government has.  When those governments say that they want more, there are in fact tools that they have to give their people more.  So it’s rule of law.  It is in fact having a productive and sort of progressive regulatory environment that allows for infrastructure to be built, allows the private sector to lead, allows for access to information.  It’s narrowing to the narrowest amount possible filtering technologies to allow people in those countries to have access to information.  It’s a whole host of things.

So the issue as we see it becomes one in which it’s crystallized how much opportunity the Internet and the laws associated with the Internet and the policies associated with the Internet, that are so highlighted in the book, give to us as a government to be able to have conversations that we have long wanted to have -- conversations with other governments, in ways that we think are very productive. Not only because of the economic benefits, which are very clear that people have from access to the Internet, but also for these other incredibly important benefits that come from the free flow of information, that come from access to political discourse and the like.  Which, to bring it sort of full circle, explains why we think the discussions that we have both with allies and with others about the importance of allowing people to have access to information, and why we spend so much time on that issue at the State Department and elsewhere in the government, is so very important.  It’s highlighted by the book, and it’s a terrific tool for us to have.

Sebastian Mallaby:  Thanks, Jack.  Since I’m a journalist, I always go for the “man bites dog” angle.  Because I’m a journalist, half the time these things don’t really work.  I’m going to try it anyway.

It seems to me here we are at AEI – it’s not Cato, I concede it’s not Cato, but it would be perfect if it were Cato.  But we’re here at AEI.  We have a book which is actually saying regulation is not only on the Net, a fact about the Net, but it’s actually good for the Net, and it’s a normative point as well as just a descriptive one.  I think it just underlines what a kind of broad, unpredictable and interesting church we have here at this think tank.

The ideas of the book – I’ve been outed already as somebody who was involved in discussing some of the ideas early on.  I regard this not as a compromising factor in the endorsement I’m about to deliver but as a validating one, you see, because I wouldn’t have been in these discussions if I hadn’t thought the ideas were great.  I didn’t have the ideas myself.  But the concept it seemed to me back then, and it still seems to me now, of combining a big statement about how conventional wisdom about cyberspace was not just slightly wrong but kind of 180 degrees off.  Which is basically the contention - with all the color and flavor and anecdotes that come from telling the story of the personalities who created this Internet, who created the sort of early mythology around the idea that it would be borderless, that it would not be regulated – this combination of kind of amusing and engrossing and sort of charismatic personalities with a thesis that was really truly arresting is what nearly persuaded me to get even more involved in this.  So I think that validates my endorsement, not the other way around.

I think if you take the kind of core ideas which Jack has already laid out – first of all that the Internet is not just a World Wide Web, which erases borders, the Internet is becoming a bunch of splinter-nets where national borders do actually function in an important way.  That’s the first one.  The second one, that governments are less powerless than one might suppose.  They can assert themselves.  These basic insights can be applied to some of the debates which come up even today or even especially today in Internet governance and more broadly in the thinking about globalization.  I want to just quickly highlight a couple of these.

One is the debate, which has some currency right now about Net neutrality.  This is the debate about whether the providers of pipes – I’m raising this partly as a provocation to Tim Wu, because I think despite the fact he’s responsible for the ideas I’m going to use to make this point, I think he disagrees with the point.  But it seems to me this is a debate about whether the providers of the pipes that get you into the Internet – the broadband pipes – should be neutral with respect to the content that you access once you’re on them.  So a broadband cable provider shouldn’t be delivering a bunch of websites at one speed very quickly and another bunch at a slower speed.  This is something in which Google has a strong interest too, so I’m deliberately stirring it up on this panel.

It seems to me that the parties, including Google actually, which argue against the idea of allowing companies to charge a premium to deliver some Internet sites faster than others are essentially suffering from a sort of Eden illusion.  We suppose in our minds that the Internet is so vastly different from the retail high street or from the shopping mall that when you go to the Internet you expect all players on the Internet to be there on a sort of level playing field.  That there will be massive corporations competing with people running little stores out of their garage, and there will be a level playing field.  They’ll all be competing for eyeballs on an equal basis.  This is the democratic vision of the Internet’s founders, which is really the subject of the book.  The book explains why this is fallacious.

The book’s point, which is that whenever you’re in doubt about what to think about cyberspace, think about real space and how life operates in real space and you’ll probably understand how cyberspace is really going to work – not in this sort of mythologized utopian world of completely free and level playing fields.  The same is obviously true of the Internet.  When you go to cyberspace, there are some entities on cyberspace which have spent vast amounts of money advertising to get you to go to their website; which have spent vast amounts of money providing such a huge package of content that you will go to their website; which have maybe spent money on caching their content on a server near your home so it will be faster to access their website. 

The idea that the Net is neutral in the first place, it seems to me, is a huge exaggeration.  Therefore when you come to this Net neutrality debate and you’re arguing basically about whether a broadband provider should be allowed to recoup some of the investment of putting in new cable by charging some Internet sites a premium to be delivered quickly, one shouldn’t sort of fall for this Eden illusion.  There are complicated debates around this and it’s not a simple issue to make a judgment on.

But one thing I think the book illustrates is a clear mistake is to believe that somehow cyberspace is over here and has a whole different set of rules to the ones that one would think of as applying to real space.

The other sort of contemporary argument I want to bring up, on which I think the book sheds a lot of light, is how to think about engagement with China.  It seems to me here the arrival of the Internet fostered this idea that the more the Internet can be spread to authoritarian societies, the more by its nature it will democratize them, partly because information will be whizzing across borders in a way that governments cannot control and partly because government can’t even regulate the information within its borders. 

As Jack has already previewed, this isn’t true.  The Chinese Internet, which is by now well known, is walled off.  It’s a splinter-net, not a World Wide Web.  It’s walled off from the rest of the world and the Chinese government exercises stringent control on what kind of activities go on on that Internet.

But it seems to me one could take a further step on this and say, well, what does that mean for our assumptions about engaging with China?  Is it the case that simply by investing in China, doing business in China, interacting with China, having Internet in China, you will automatically move towards a more liberal society?  It seems to me that the truth is rather more subtle than that.  You will move towards a more liberal society if on top of this platform of interaction with China and engagement you actually push the Chinese government affirmatively to allow certain types of speech on the Internet they don’t want to allow.  You actually take risks.  After all, within China there are Internet freedom activists who take rather severe risks.  They get locked up sometimes. 

So for external players who suffer far fewer risks, it seems to me not unreasonable to encourage them not simply to engage and say, look, just by the mere fact of my engagement and my investing in this country I’m ipso facto on the right side in terms of China’s political future – no, that’s not true.  It’s only true if on top of that basic involvement in the country you do try to push a little bit in favor of free speech.

I think this gets to a sort of way of tying the book into a sort of big shift that’s gone on in the world since 9/11.  This Internet illusion that borders were fading away is a subset of a broader kind of globalization illusion that politics, the state and so forth aren’t going to matter.  What we discovered with 9/11, in a way that many people have pointed out before but I think really came home in a sort of mass-market way afterwards, is that politics, the state, coercion, all the rules of the international system still do actually govern it.  So whereas in the 1990s discussion of the Internet was full of sort of starry-eyed questing for what was the new, new thing, really now what we’ve discovered is that just as important is the old, old thing of politics and law and coercion.

Alan Davidson:  Thank you very much.  I very much appreciate the opportunity to be here and talk about this excellent book.  I should say before I start that the views I express are not necessarily those of my employer.  I’m glad to be here but I am not speaking on behalf of Google, about Google’s opinion of this book - although I’ll try my best to channel it.

Jack Goldsmith:  We took out the Google chapter.

Alan Davidson:  I know.  It’s on the cover though, on the blurb.  I also want to join the congratulations to our authors for a very valuable contribution.  I say that as somebody who has for at least the last six or eight years fundamentally disagreed with many of the things that it says and with Professor Goldsmith in particular on some of his views on it, so I appreciate the chance to be here.

I think the book does make a very valuable contribution.  I teach this class on Internet policy at Georgetown University.  We spend the first couple weeks of the class talking about the things that make the Internet special, and particularly in some ways hard to regulate – its open character, based on open standards, its decentralized nature.  There are no gatekeepers.  We look at technologies like encryption, which make it extremely difficult to regulate or control certain kinds of speech or even monitor certain kinds of speech.  Then we spend the rest of the semester sort of tearing that apart and looking at all the different ways that governments do regulate the Internet.  I should say, by the way, that the students always feel a particular sense of betrayal when they get to the section about ICAN and the domain name system.  This wonderful network we’ve created, this decentralized network, actually does have some lynchpins of central control.

But it’s important to recognize that it’s neither one way nor the other.  The conventional wisdom that said – the bumper sticker that said the Internet can’t be and shouldn’t ever be regulated is wrong, and the bumper sticker that says there’s nothing really new here and we shouldn’t worry about regulation of the Internet, I think, is wrong also.  I sort of read the book as somewhere in between, but maybe I’m wrong after listening to Sebastian talk.  But I certainly don’t think it’s that there’s nothing to worry about or that there is nothing new here, because there are some new things here.

So to me the central question raised by the book is how do we retain the best influences of the Internet in the midst of what is really a regulatory backlash against this early bumper sticker – don’t regulate the Internet, you can’t regulate the Internet.  How do we make those of us who care about promoting an open and decentralized Internet, because we believe that it actually has benefits, how do we promote that belief and make sure that the Internet continues to have a revolutionary impact, as some of us think it has?  I’ll make three general points.

One is descriptive, which is to say it is absolutely true that the Internet can be regulated.  Many years ago I kept a running list of every bill introduced in Congress that mentioned the word Internet.  It was actually very easy for a while.  So in 1995 there were less than a handful, really only one that mattered – the Communications Decency Act.  By the time I stopped counting in 2000, there were over 500 bills introduced that year that had the word Internet in them.  That’s only anecdotal.  The book does a great job of explaining the new regulatory impulse.

But I don’t think the descriptive issue is really one of can the Internet be regulated or not.  Of course it can be, in lots of different ways.  But the important thing is to recognize in a descriptive way that the impacts of that regulation are different because of the nature of the network.  We talk about these jurisdictional issues.  The impact of regulating Dow Jones when they ship newspapers to Australia, when they advertise for those papers, when they know that the newspapers are going there, when they have a substantial presence there, is quite different than imposing that same rule on a small publisher of a website in the United States, who may or may not have any idea that their content is being accessed in Australia or in France or what the rules are there.  So we have to think about how the impact of a particular legal regime might change because of the global nature of this network and because of the fact that, for better or worse, this bordered possibility is not fully there yet.  As much as there is a rise in location awareness, it’s not something that most publishers on the Internet, for example, have access to.

There are lots of other examples.  A rule about 9/11 here in the United States that says everybody must report their location when they use a voiceover IP device might make a lot of sense when you’re talking about a telephone network.  It has very broad implications when you start talking about requiring everybody – if you were to issue a requirement that everybody on the Internet had to somehow register their location.  That’s certainly not the way the Internet works today.

So the point is just to say that there are lots of ways that regardless of whether we think these are good moves or bad moves, from a normative point of view, we should recognize that the impact of regulation is different because the Internet is a different medium in many ways.

The second argument I’d like to make is more of a normative argument, which is to say that as a starting point many people believe – I believe – that the world is a better place when people have more access to ideas and information.  I should say I think Google believes that too.  There’s a strong argument that the Internet has actually been a revolutionary force for promoting more access to information, the exchange of ideas, and economic growth and opportunity that’s come along with that, new opportunities for social discourse that have come along with that.

We have a great example today.  There’s this giant march here in Washington, D.C. – a great example of the old world of regulation being important. I’ve been reading stories about even among this group of immigrants and those who care about immigration reform, information technology has been an important organizing tool.  There are websites about the march, there are email signup sheets.  People are using text messaging to be able to organize.  Information technology has had and the Internet has had a big impact on those kinds of possibilities.

The open, decentralized nature of the Internet has been a big part of that success.  There’s been a lot that’s been written about that.  But the point is to say, from a normative point of view, we should be a little concerned about moves to over-regulate the Internet.  We should be concerned about the impact of imposing borders on the Internet where they may not exist.  I mentioned the jurisdiction debate a few moments ago.  More than just describing the impact, I think many people would argue that it is bad for openness, speech and the exchange of ideas if the rules for speech of one country can be applied to every publisher in any other country whose content might be reached. 

I don’t think anybody thinks those are the only two options here – everything must be unregulated or everything must be regulated at the lowest common denominator of speech restrictions.  But we should recognize that simply saying let’s import the old rules may not be enough and actually might do some harm.  There are lots of great examples of how the open Internet has been something that is worth preserving and has actually had a very good effect on certain values like openness and democratic speech. 

I think that one thing that certainly, being at a company like Google, we worry about is the increasing focus on intermediaries as the nexus for regulation.  I can certainly tell you that anytime a congressman in this town sees something on the Internet that they don’t like now, I can tell you who their staff calls.  They call Google.  Hopefully they call some of our brethren.  But I know they call us because they think that’s the best way to stop it.  That has a lot of problems, starting with the fact that removing something from a search engine doesn’t remove it from the Web.  It’s a very imperfect tool and people ask us all the time to block certain search queries and things like that.

But this notion of targeting the intermediary, whether it’s Google or whether it’s an ISP, a DSL provider or cable provider, other search engines – it’s troubling in part because it’s a change in the way we regulate.  There’s a lack of what the lawyers would call privity between an ISP and the person who might be regulated.  We saw this. For example, there’s a Pennsylvania law that tried to tell ISPs they had to block speech that the Pennsylvania attorney general said was child pornography, without any sort of lawful process, just a designation by the attorney general.  Terrible rule, not because we like child pornography – we certainly don’t – but a terrible rule because who are ISPs to know whether any particular content is pornographic or not?  By regulating the intermediary instead of the end point, we risk removing these due process possibilities that used to exist.

All of this is a long way of saying there are a lot of reasons why we ought to like a relatively borderless, relatively unregulated, open and decentralized Internet.  It has great value in a lot of contexts.

The last point I want to make is just that we should see what we can learn from the Internet.  One of the great quotes from Internet history, and it’s mentioned in the book, is David Clark’s quote about the governance of the Internet at the IETF.  How did these engineers come up with this great set of protocols?  He talks about – I think the quote is, We reject kings, presidents and voting; we believe in rough consensus and running code.  One of the great hopes from the early days of the Internet regulation debate was that the Internet would actually prove to provide a different possibility for regulation.  It wouldn’t be this either/or, either no regulation or the government regulation that we’re used to, that there might be other ways to regulate where communities came together and figured out how to regulate themselves within their self-defined community. 

That sounds like kind of wishy-washy, hopeful, liberal hoo-hah or something, but in some ways ICAN – and I hate to hold it up; I look at Ambassador Gross and he’s – no, I know.  But you look at ICAN in some ways as this experiment that hasn’t come to be all the things that some of us hoped it would be, but the idea was that maybe we could find new ways to order our society.  Because one of the great challenges we certainly face today is how to deal with nation-based governance in a global society.  We face that in a lot of different issues, not just online.  There is hopefully some glimmer that the Internet might be able to provide some new models just because of the ways it lets people organize themselves, and set up new kinds of networks – social networks, governance networks – that cut across borders.  That is a hopeful thing we should look towards and maybe we can learn something from the Internet, and how the protocols of the Internet continue to be developed largely by rough consensus and running code.

The only thing I would also say is we should be – I just want to make a comment about one last point that was in the very end of the book.  The technologies of the Internet, the openness of the network, is contingent.  One of the most important things it is contingent on is governmental coercion that demands a unique architecture.  Larry Lessig, who’s written about the importance of code, has created this thought that is now kind of ubiquitous among many people, that the architecture matters.  If that’s true, we should be very careful to be thinking about how we design an architecture that promotes these values that we care about, and how we should resist architectures and other iterations of the Internet that are susceptible to regulation that we don’t think empowers end users or promotes this kind of openness, if we believe that’s important.

That’s something I know we think about a lot at Google as we build products, trying to think about how to build them in a way that are going to promote those values.  I think it’s something we should all be thinking about.  Certainly the Internet is regulatable.  Let’s try to make sure that as we do this – and this is the great contribution of this book – we can get past the two extremes in the debate and start talking really about how we allow the Internet to be regulated, how we design the Internet to work in the context of a system where there actually is going to be some regulation.

Tim Wu: What I thought I’d do is talk a little bit about the future, with all the dangers inherent in that kind of discussion, and even a little bit about U.S. foreign policy, which David has touched on already.

If you believe what we’ve said in our book, and by now you’ve gotten the message that there’s been this unusual enduring nature to geography, to physical force, to people, then what happens in the future?  That’s the question.  What we’ve seen, and let me just specify that one thing I’ve found very interesting about writing this book is how, even though things get very closed and in very complicated language, how the fact that everybody is vulnerable to physical coercion ends up having a huge effect on the ordering of human affairs. 

So the fact that everybody has a body and doesn’t want to be put in jail -- whether you care about your rating on Craig’s List or eBay is one thing, whether you’re off Google or on Google is another thing –- but nobody doesn’t care about being put in jail.  Nobody doesn’t care about being arrested.  The question is, where does that take the future?

What we depict in this book is a future of a more Balkanized Internet, an Internet which is slowly and in the midst of this conversation being pulled apart by different preferences, by the applications of different laws, and – as we talk over and over again – by the bossing around of intermediaries.  Google is already starting to look different in different countries.  It’s challenging for Google to keep its core mission together even, given the fact that it’s being asked to accommodate what it is in different countries.  You can see through the story of Google, you can see through the story of language, you can see through the story of platforms – I spent the last summer in Japan and you have a network, which is mostly accessed through cell phones.  You have a network, which is more and more affected by the gravitational power of nation-states to resemble them.

At the same time and complicating things is something, which we talk about in our book, although sometimes could have talked in more depth, about the kind of conduct that seems to continually run away from efforts at government control.  Things like gambling, which goes back and forth.  Government successfully cracks down and then it kinds of seeps back.  Government cracks down, kind of comes back.  Government cracks down and maybe in the end government will have the advantage.  Things like leaked documents.  If you look back at the Pentagon Papers and old cases, it almost seems absurd that the government could control leaked documents back then when it seemed so hard to control leaked documents today.

So there are these areas where we’d be lying if we weren’t telling you people really do want to get at stuff like gambling sites or pornography or other things.  So government has to really want to stop those people from reaching that kind of content.

So what our prediction for the future is – or maybe my prediction, Jack may not share all these views – is that a lot of things will stay normal but in a lot of areas it will depend – a lot of these particularly hard to regulate areas depends on the political will and the obsessions of the governments in power.  Governments tend to be obsessed with three or four issues.  In China the government, the party, is obsessed with one thing and that’s its own power.  So things that are periphery – can people do online dating?  They don’t care.  Can people write emails about their companies?  They don’t care.  Can people criticize the party, talk about the Falun Gong?  They care a lot.  So the Internet warps to that particular obsession and they will spend any amount of resources or any amount of effort to prevent themselves from being disposed from power.  So the Internet warps around that fact and it’s the physical force which lies behind that fact.

Then you come to a country like the United States where the obsessions are different.  There’s occasionally an obsession with stopping vice and crime, but on the other hand there’s so much interest in trying to get that stuff that it all comes down to a battle of political will.  How much are people really obsessed with seeing porn or getting to gambling sites – which is a lot – and how much do public officials, how much fame and fortune and prestige do they get out of trying to crack down on this stuff?  That’s what it all comes down to. 

In other words, by understanding what people politically stand to gain by cracking down and what people individually are obsessed with, that is the new calculus for what is in the future – and this is not just Internet policy.  This is everything policy.  Because Internet policy is education policy, Internet policy is social policy, vice policy, commercial policy.  With these particularized obsessions, government will get its way, and where people don’t care about anything government will get its way, but where people are obsessed it’s a running battle, an arms race that we’re just in the middle of trying to understand.

I hope that makes some sense.  I’ll say one last thing, which is about U.S. foreign policy.  There’s a real sense, I think, that as these countries pull in different directions, China is trying to imbue the Internet with a different type of ideology.  I hesitate to say it, but it’s roughly akin to what fascist governments think an infrastructure is for.  That is, the infrastructure is built because it serves state power. 

Why did Mussolini build trains?  Why did all these countries – World War II Japan – build public infrastructure - because they wanted to increase the economic, military and social power of the state?  So China is trying to build something that is serving the party, the interests of power, and what the future holds is an effort of China to try to export that vision of the Internet to other countries.  That is, you can see emerging slowly something like a Cold War of the Internet where people like David and Alan are trying to export one view of what the Internet is supposed to enable in a country, and other countries may be tempted or lured by China’s vision.  That is, go in, spend a lot of money, your country will become richer, you’ll become more powerful, and you can control your citizens better.  China really thinks, I believe, that they actually get better control over their citizens by being able to see what people are talking about and what they’re getting upset about, single out dissidents and figure out what the challenges are to the party, and do something about it.

So you have a future perhaps, where – two things I’ve said.  First of all, where obsessions drive everything, and second of all, where countries begin to export their network ideologies.  So you have basically a long, almost war of network ideas or network ideologies between power, control, and between some degree of openness and economic development.  At the risk of being wrong about the future, that’s where I think things are going.

Jack Goldsmith:  Excellent.  We’ve got about twenty minutes left, I think, for questions.  The only thing I ask is that you wait for the microphone and you identify yourself and your affiliation, please.

Question:  My name is Irene Wu.  Thank you very much for all the presentations.  If we accept that national sovereignty will rise on the Internet and we also believe, as Ambassador Gross said, that the free flow of information is very important for the expression of human dignity, et cetera, do we have now in place the necessary international instruments to encourage that free flow of information?  Are the international organizations that we have today sufficient to support that belief or is something more needed?

David Gross:  I don’t really know if the answer to the question is, are the international institutions sufficient, if their jurisdiction is sufficient.  At the risk of stating something probably very unhelpful, time will tell.  But we do have some tools.  We have more tools today than we did just a couple years ago.  Again, at the World Summit on the Information Society, one of the truly, for my mind, remarkable things that came out of that – and I’m still bewildered as to how we pulled it off – is an explicit agreement by what in essence is all of the world’s countries and governments to recognize the importance of free flow of information, regardless of media. 

This was never before done in the United Nations.  We’ve had a Universal Declaration of Human Rights back in 1947 or so.  But we have now an additional tool.  Of course it’s a UN summit, it’s not a legally binding document in the way that lawyers in this town would think about such things.  I can’t go sue somebody for not complying.  But it does give me a tool that I didn’t have before.  When I have discussions with other governments about asking how they’re doing, what are they doing, it gives me a standard by which I can help measure these things.  It gives everybody.  Most importantly, it gives perhaps a tool to people within those countries.

Since I subscribe very strongly to the thesis of the book, which is it isn’t about the outside so much as it’s about what’s inside a country, influenced we hope at least at the margins by the international views – at least the productive ones – it really hopefully gives tools to people within those countries to ask their governments – to the extent in some of these governments you can ask these questions – I do have rights, you have recognized those rights, where are those rights in this area?  Hopefully that will be more than at the margin helpful going forward.

Tim Wu:  The institution I think is relevant, although its full relevance I don’t think has been realized, is the World Trade Organization.  The reason is that a lot of stuff that happens on the Internet also happens to be trade, trade in services.  I don’t know if Google ever thought about this completely, but when people in China access Google’s website in the United States, that’s Google exporting a service to China.  When, as China did in 2002, China hijacks and blocks a site, that’s what trade calls a barrier in trade to services, which could be illegal depending on the commitments China has made.

The United States itself has already gotten in a little bit of trouble with this kind of issue.  When the United States cracked down on gambling, they faced a WTO lawsuit from Antigua claiming that this crackdown in online gambling was a discriminatory barrier to trade because you’ve still got the casinos at home.  You’ve got Vegas, you’ve got Atlantic City – what do you mean you can’t have an online casino?  You’re just trying to block our stuff because you don’t like it.  You don’t really care about gambling, you just care about our gambling.  They got pretty far in the WTO with those arguments.  In the end the WTO squeezed out of it with some kind of public morals issue.

But I would predict that in the next ten years, a lot of the issues we talk about in this book become, first of all, issues of international relations and also are increasingly talked about in the language of trade.

Jack Goldsmith:  I’ll just briefly say that I agree with what Tim just said.  I think the other international organization is ICAN, and it’s a different kind of international organization that’s going to have a big effect on Internet governance.

But I just wanted to say that one of the themes of the book is to challenge the idea that the free flow of information is an unambiguous good.  That’s a metaphor.  While everyone, including China, can embrace that metaphor to some degree, China has exceptions for political speech, the United States has exceptions for certain free flows of information that violate intellectual property laws that they’re obsessed with, Europe has exceptions for the sale of Nazi goods, other types of hate speech, privacy regulations that – their conception of privacy that they don’t think the free flow of information should trump their sense of privacy.

One of the claims in the book is the dominant mode of governance is not going to be an international organization but decentralized.  Every country has its own list of exceptions to the free flow of information.

Christopher DeMuth:  In listening to the presentations, it seems to me that the important question ahead of how to ensure that state regulations are liberal, moderate, reasonable – it’s not so much the architecture, although it may influence this, I think that three things will be important.  One is the margin of unregulatable activity.  You say many times in the book that national regulation does not have to be complete to be adequate, to be effective. 

But the margin of incompleteness is very important.  That’s the elasticity of response to whatever the government does.  In these areas of activity, the amount that the government – it may be able to control Yahoo or the Wall Street Journal, but there’s a lot of peripheral activity that as a practical matter the government cannot get a grip on.  That margin is very important for determining how far the government’s going to go and in restraining the government’s natural tendency to over-regulate, to benefit certain groups at the expense of others.  So maintaining a big margin is very important.

Secondly is the pace of technological change.  When things are moving quickly, government has difficulty keeping up.  There are a lot of examples going all the way back to the FCC’s computer inquiries in the 1970s, where the government started to huff and puff and get ready to take control of something but the something it was going to control had metamorphasized into something else and it couldn’t get control.  So maintaining a rapid pace – it’s when something gets big and successful and slows down like Google and Microsoft that the government says, a-ha!

Alan Davidson:  You say that in the same breath.  That hurts us.

Christopher DeMuth:  No, I’m thinking about the intermediary question, of taking a large firm that can suddenly understand what the firm does and can sort of impress it into service on their behalf.

The other is competition among jurisdictions.  Don’t get too carried away with the idea of a race to the bottom because there’s also in the competition of different jurisdictions, we get into this restraint of the ungovernable margin.  I happen to like Australia’s libel laws better than the United States’.  That would be something I would think would be a better regime. 

Whether you like it or not, Australia’s enforcement of its libel laws in the context of this example you gave is naturally restricted by the fact that other jurisdictions such as the United States have different laws.  The ability of the Australian government to provide a remedy is restricted by the fact of a more liberal regime elsewhere.  At the same time, in the United States, the fact that people can get partial remedies someplace else will affect the positions that people take and the kinds of regulations they advocate in this country.  So there are many examples where competition among different regimes in the Internet context will actually lead to more liberal, moderate laws all around.

Jack Goldsmith:  Outstanding comments.

Question:  I’m Nick Rosencrantz, Georgetown Law School.  Jack, I wanted to bring you back to the story that you started with.  You suggested that the censorship of China was maybe bad but the censorship in France was perhaps good.  Ambassador Gross suggested that maybe the difference is democracy.  Because the French censorship is a product of a democratic process maybe it’s all right.  My question though is – so there’s a tension maybe between our commitment to democracy and our commitment to free speech.  In fact, U.S. commitment to free speech is fundamentally counter-majoritarian.  It’s not that we’ve all quite agreed on it, it’s that it’s embedded in the First Amendment.  In fact a majority of U.S. citizens might sign on to the French law, might sign on to banning Nazi speech, but they don’t get to have that.  We can’t have that because the First Amendment says they can’t have it.

So the question is, what really is the relationship between our commitment to free speech on the one hand and our commitment to democracy on the other hand?  If democracy were really doing the work, you’d say that the United States should be able to have that law.  On the other hand, if democracy is not doing the work, then why can’t China say just like you don’t allow your people to have the level of speech that they’d like there, we too don’t allow our people to choose the level of speech.  We know better the level of speech that we should have in China than our people do, just as your Constitution knows better than your people.

Question:  A very simple question.  Why isn’t the Google Library Project a violation not just of U.S. copyright but of copyright laws elsewhere?

Question:  Ying Ma, the American Enterprise Institute.  I have a question for Ambassador Gross.  At the height of the whole controversy surrounding Google, Yahoo, Microsoft and Cisco about their operations in China, Secretary Rice announced a task force on the Internet.  At that time one of the people who said that the task force was most likely not going to be particularly useful was Robert Reich, who said on NPR that one way to talk an issue to death is to create a task force and that’s really a sign of the U.S. administration not taking this issue very seriously.  Could you please give us some concrete examples of how the U.S. government might be taking the Internet issue seriously, specifically the Internet censorship issue in China seriously, through this task force?  How there might be more than just talk, or cheap talk, associated with this task force?

Along those lines, I guess to zero in on China some more, I have a question for Professor Wu as well.  What evidence do you have that the Chinese government actually believes that they control their citizens better through the Internet?  While I don’t disagree with you that they see it as a vehicle for promoting comprehensive national strength, but why do you conclude that they believe that they’re controlling people better given all these instances where the Chinese government has been pressured to act due to the uncontrollable nature of commentary on the Internet through blogs and whatnot?

Jack Goldsmith:  Okay, I think we should try to be as brief as possible.  I just want to say that I associate myself with all of Chris’ comments and I agree with what he said basically. 

The only question for me with regard to his three factors – the margin of unregulatable activity, the pace of technological change and competition among jurisdictions – those are all factors that have applied to other technological and communications revolutions in the past.  The interesting and hard question is whether and how this particular communication technology changes the balance of power between the state and individuals, I think.  It’s a very hard question.

With regard to the question here, the basic point is that it’s not just simple, voting democracy, but the idea is that different communities, different constitutional democracies, can decide for themselves to have different conceptions of free speech.  For kind of obvious reasons, we think that – maybe you don’t think it’s obvious, but we think that different communities where there is in some sense the community is deciding for itself, either through the legislature or through its constitutional courts, subject to some kind of amendment process, what conception of speech it wants to embrace – that seems okay.  There’s an obvious difference in China, in which the people aren’t deciding for themselves in any remote sense what kind of speech they can have.

I’ll just add, in partial response to what Alan said, the most parochial speech law in the world is the United States First Amendment.  This was the early idea of the Internet – the Internet should be unregulatable and we should basically have a First Amendment conception of the Internet for the whole world – is a really parochial idea.  Most people don’t embrace our libertarian conception of free speech.  Most democracies don’t.  Our basic argument is that the world is better off if each constitutional democracy can choose for itself, based on its own history and traditions, what conception of free speech it wants to have.

Alan Davidson:  Let me just say, just before I lose that thread, the way you stated at the end, I personally would support quite a bit the notion that countries should, for example, be able to choose for themselves.  So the question becomes, if we choose a regulatory approach, what impact does it have on countries to be able to choose for itself?  I think the outcry that a company – the Yahoo case or the Gutnik case – was concern about a rule that actually wouldn’t let countries choose, that could very well mean that we couldn’t have a First Amendment in the United States effectively because small speakers particularly, those who didn’t have the ability to understand the full panoply of national law they might be regulated by, would be forced to censor themselves in a way that was otherwise – speech that was otherwise lawful here wouldn’t be permitted. 

So I think that’s the theme here, which is yes, there’s going to be national regulation, but how does it impact the otherwise very beneficial things that might come from the Internet?

A couple of points to some of the questions.  I guess there was one that seemed directed at me about Google Book Search.  I think it’s a very long conversation but I think it’s a short answer from us about why we think that Google Book Search is completely lawful here in the United States, which is the concept of fair use.  Those who spent time looking at Google Book Search, which is a project where we’re, in conjunction with several libraries, digitizing collections and making very small portions of those works available when people search for them – we believe that fair use permits that. 

Just as when we create a search engine we crawl lots of websites – not just us, Yahoo and Microsoft do this, Ask Jeeves does this – and we copy those works and provide very small snippets and then link people to those works.  We believe that’s lawful under copyright law as well.  It’s a long conversation but we feel very strongly that we’ve taken a very conservative approach on Book Search.

Just on the notion of China generally because it’s come up quite a bit, not to sound naïve about it, but I think Google has spent a lot of time thinking about this issue.  Took many years for Google to choose to offer its services in a limited way in China.  That was based on a belief that the provision of those services was actually going to help openness in China.  It’s also based on, of course, an economic interest.  We don’t deny that.  But it is largely based on a feeling that technology and services can help openness and there are a lot of people out there who are China experts who believe that’s true.  We have a lot of debate to go through about how people offer those services but we think it’s very beneficial for people to be there.

David Gross:  In answer to the question about the First Amendment piece, I think it is an extraordinarily important part.  In fact, as I read the book, it’s actually sort of fundamental to the book, which is basically we are in a terrific place.  As a U.S. government official, I couldn’t ask to be in a sweeter spot.  That is, I get to argue for the least amount of restrictions, recognizing it’s not a perfect world and there in fact are restrictions here in the United States, some of which are the things that Tim has referred to.  But it doesn’t get any better than I’ve got.

The issue about democracy is not so much that we think the rest of the world needs to look like us.  In fact, in a strange sort of way, it is to our advantage – our economic advantage – if everybody doesn’t immediately join with us, because part of the economic prosperity that we’ve had is our ability to innovate through the free flow of information, limited as it sometimes is.  That is, our ability of people around the country to have access to so many great ideas gives us a comparative advantage. 

When you ask why are we doing so well where other large industrialized economies are not making the transition as well, I think part of the reason – and there are many – but part of the reason is in fact the way in which we treat the Internet and the information that flows upon it.  So it’s actually sort of to our advantage, where we’re coming from.

The democracy piece is important for me, because again we’re not trying to make the whole world look just like us, for many reasons.  We couldn’t even if we wanted to but we don’t have that desire.  But we do believe that democracy is where everyone ought to end up.  Different democracies mean different things to different places.  It reflects local cultures, local ideas and the like. 

So as I look at the line drawing that all countries engage in, that Tim referred to before, what I don’t want to do is I want to make sure that we are able to draw a very stark distinction between the line-drawing done by democracies trying to serve its people in whatever imperfect way it does and those, as Tim points out, that seek to have laws and restrictions that serve the state’s purposes but not the people’s purposes.  That’s a very sharp distinction.  So when ministers from various countries, including China, say this is the way it is, it gives me a talking point I don’t otherwise have.  That is, it’s not just a matter of line-drawing.  It’s a matter of who’s drawing the line, a democratic government versus a totalitarian or authoritarian one.  A fundamental difference.

Then on the GIF piece, we had this question on the Global Internet Task Force and Robert Reich’s view – the sort of simple answer I think is really twofold.  One is, don’t believe anything I say, watch what we do, because that’s really what matters.  The second is that we’re already doing a lot.  As Under Secretary Shiner and Under Secretary Dobriansky, who have the lead within the State Department on these things, have pointed out, we’re already doing a lot.  Whether it’s the human rights reports that were just recently issued that name names in terms of countries and their relationship to the Internet and our continuing interest in trying to tighten that up.  Whether it’s in bilateral discussions – we’ve had recent ones at very senior levels in Beijing, we’ve had them in other places as well.

 We are already putting a lot of meat on those bones.  But they’re important bones, because the Internet Task Force is not one of these big overarching government-wide task forces that perhaps sometimes are more illusory than actual.  In this case it really reflects what the secretary’s strongly held views are, which is that this is a serious, extraordinarily important issue.  As a result, the task force is an internal State Department task force that is to use all the resources of our very vast department that has a lot of moving parts that often to be coordinated in some fashion.  This is the coordinating mechanism so that we can find out exactly what all our tools are, identify what if any additional tools we need in order to advance those issues.

Sebastian Mallaby:  Just very quickly, Chris raised a point which I think cropped up also before, which is to say that if you’ve got a website in this regulated Internet world which is going to be available around the world, you’re going to have to submit to these multifarious different regulatory regimes.  If you’re writing something you could sued for libel in Australia and so forth.  As a matter of fact, I wrote something, which I was worried was libelous recently. 

I checked in with the Washington Post lawyers.  The Post policy, for what it’s worth, is that we write stuff in a way that is supposed to stay on the right side of U.S. libel law.  Although some of the people I was attacking were French and other foreign countries, the notion that we would be sued in France was just a risk that they were willing to run and in practice they weren’t going to tell me to change what I wrote.

So as a matter of fact, the Post I’m sure is read – I’m sure this particular article was especially read in France, since it went after some French officials – it’s not in fact constraining.  If I understood the book right in fact, nor would it have to, because there are ways that Internet sites can if they want to screen out viewers from certain jurisdictions where what they’re writing is libelous.  If you’re worried that you will be sued for libel in Country X which has particularly ridiculous rules, you can I think screen them out to a large degree.

So as a matter of fact, it seems that this bordered world, this bordered Internet, doesn’t have quite that downside which people sometimes assume it does.

Jack Goldsmith:  If I could just quickly follow up on that and then turn it over to Tim, in response to something Alan said twice – Alan worried in the Yahoo case about the idea that France could somehow shut down what people in the United States can see by controlling what Yahoo does in the United States.  The book basically has two responses to that.  The first one is that if France can’t do that, then in effect the United States is imposing its regime on France. 

But the second response is that even if France can through the coercion or the threats against Yahoo’s subsidiaries in France force Yahoo, the parent company, to take something off its website in the United States, that doesn’t affect the millions, thousands, hundreds of thousands of other potential sources for that same information within the United States.  Because the fact is, only the big boys are regulatable in a direct way.  My webpage, if I libel someone in France through my webpage, there’s no reasonable likelihood that I’m going to be sued for that.  That’s why it doesn’t matter that I don’t have to worry about that. 

Moreover, we’ve seen some very high-profile libel cases, speech cases in France and Australia.  There was “the sky is falling” rhetoric, said the Internet is going to be ground to a halt, there’s going to be a race to the bottom and so forth and so on.  It just hasn’t happened.  So I think the threat of that is significantly overstated.

Alan Davidson:  Can I just say really quickly – I would just respond to say I think we’re absolutely right that we don’t know the end of this story yet.  Of course nobody has chosen to sue the little guys yet.  They’ve only chosen to sue the big deep pockets and have only been a few of these so far.

Jack Goldsmith:  But they can’t.

Alan Davidson:  But one of the things that was totally overlooked in the Yahoo case was the criminal case against Tim Kugel, which has a tremendous chilling effect.  So not just for monetary damages where somebody has to come to the United States to recover those damages, but the possibility of criminal penalties where you may be – Tim Kugel, for example, I’m under the understanding was quite concerned about travel to France because of that for a period of time.  I think the rule has not yet played itself out and we should be very concerned about where that takes us, where there could actually be quite a chilling effect on a lot of different speakers even if you don’t have a presence in a foreign country.  That’s our concern.

Tim Wu:  First I’m going to answer Sebastian’s question about Net neutrality, and you’ll see how it’s relevant.  We’ve already had this long discussion with David Gross and all of us about how tech policy is foreign policy.  The United States is expressing a lot of its foreign policy by how it approaches these questions of Internet filtering and so on and control, and by exporting technologies, exporting ways of thinking about the Internet, David and others are trying to use their tech policy – and I think have to – to be a major part of U.S. policy.

I think that’s also true of trade policy.  Why does that connect to network neutrality?  The reason I say that is that the basic underlying theory of trade is that countries get rich by specialization, that they focus on their comparative advantage and that’s how the world gets wealthier.  So countries, by choosing what kind of networks they have or what kind of network policies they have or infrastructure buildups they want to do, can decide or try to favor their particular advantage of their economies.  This is a country full of entrepreneurs and innovators for some reason.  Maybe because Americans are just like that.  It’s a country that has made all of its money through innovation and very little of it through mass distribution. 

So part of when America’s debating tech policy and things like network neutrality, it’s partially also debating what is the national economic policy.  How does this country get rich in competition with other countries?  That’s why I’ve supported network neutrality, because I see it as national economic policy favoring entrepreneurship.

To answer this final question about China, which is a great question, anyone who confidently tells you that they know exactly what’s going on in China is usually lying to you, whatever side they’re on.  There’s a lot of hesitation in what we’ve tried to do.  But let me tell you where I ground these instincts from.

Mostly it’s from interviews with Chinese people and officials and particularly a project I’m working on right now, which is studying the effect of Internet usage on the Chinese judiciary.  The Chinese judiciary are big consumers of the Internet, particularly judicial chat rooms.  One of the things that the party has done or has used the Internet for is to gauge the public reaction to judicial decisions. 

So a decision comes down one way or another, and then party officials watch the chat rooms, and sometimes – whether this means more control or less control – sometimes if the outrage seems to be getting too great, they’ll just reverse the decision and say it’s over.  Turn around and say, okay, you ran over a peasant with your BMW, we know it wasn’t your fault, but you’re in jail anyway.  That’s an actual case, where the party steps in, reverses judicial decisions based on reaction in an Internet chat room discussion.

So is that – you could either call it one of two things, better control of the people, better management of where they think problems are coming from.  But my best opinion, based on what I know from studying judicial and also from having worked – I spent time trying to sell products in China – is that the Chinese government is confident that even though they’re kind of losing control, they have a better idea of where the threats are coming from and what they have to take care of, and they can nip them in the bud.  That’s my instinct, but I could be wrong.

Question:  My name’s Christina Speck, I work at the Commerce Department at NCIA.  I’m here with a few of my colleagues.  Just taking advantage of Alan Davidson’s presence, could you tell us a little bit, bring this back to the United States – municipal wi-fi networks, such as that Google is building out in San Francisco, where you have basically access for everybody but if they want to get better service and a differentiated product offering they have to pay more money.  What are the implications for access and net neutrality for a system like that?  It would be interesting to hear that from you.

Alan Davidson:  Thanks.  We’re not actually providing that service yet in San Francisco.  We were just chosen as a finalist with Earthlink, which has been publicly announced.  This is not a move by Google to try to provide this service nationwide or anything.  We’ve indicated that we’re doing it in a very few number of spots as an experiment in some ways.

One of the things that I think is misunderstood is that we intend – if we provide that network, if we’re chosen to provide that network – we intend to provide it in a way that is completely consistent with all the net neutrality principles that people have been talking about promoting, that we’ve been promoting in town.  We believe we can offer that service without having to discriminate against any particular content or source of content.  We do expect to impose – I don’t know actually if we expect to impose, but there has been a discussion of people talking about bandwidth limitations. 

So for example you pay X or you get for free X amount of bandwidth, pay more and you get more bandwidth.  I don’t think any of the advocates for network neutrality, for example here in the debate that’s going on in Washington, think that’s a problem.  Certainly think that if somebody wants to charge X for a certain amount of DSL and 2X for twice as much bandwidth that that will absolutely be how the market evolves.  That doesn’t create the kinds of concerns that have been raised about carriers with market power interfering.

Just to tie that back to the earlier discussion, I would just say from our point of view, the Eden illusion is actually not necessarily an illusion – this is the notion that there actually is fairness on the network.  We think it’s not actually an illusion.  In fact, we think there is in fact a great deal of innovation without permission that happens right now.  Google’s founders did not have to go out and get permission or cut deals with anybody to be carried on their networks and we think that’s very important to try to maintain. 

The second piece of that is that we also think the Eden illusion is really important for the Internet, that it’s actually inspired us.  This notion of a borderless global network has actually inspired us to build more interesting stuff, to break down walls for communication, and to try to create a different kind of communications network than we’ve had before.  We think that’s actually a pretty good thing.

Tim Wu:  Is the Google toolbar an instrument for neutrality on the Net, if the toolbar installs your search engine permanently on my word processor?

Alan Davidson:  First of all, I don’t think it does that, and second of all – but the point is, yeah, I think it is because there’s a big difference between the application space, where for example I have many choices among search engines, many choices among email clients, many choices among toolbars.  I can easily install or uninstall.  They’re a very different world than the broadband carriage world, where most Americans face at best two choices and many have only one choice of how to get broadband.  That’s a very big difference and that’s of course the concern about network neutrality.

But just to say, we live in this world where it’s not unregulated, it’s shouldn’t be totally regulated.  We just need to move cautiously into that space.  I think that’s been the theme I want to say and I congratulate the authors again on giving us a work that helps us get there.

Jack Goldsmith:  Okay, we’re out of time.  I want to thank the panelists and the audience for coming and we appreciate it very much.

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