Braman, S., Department of Communication, University of Wisconsin-Milwaukee
Those responsible for making decisions about the design and architecture of what we now refer to as the Internet, beginning with the ARPAnet development process in 1969, have been well aware of the types of social issues that are the subject of law and policy. Analysis of the document series that records the design discussion, the Internet Requests for Comments (RFCs) -- a series of over 5,700 documents by the fall of 2009 and still going -- provides an opportunity to study how technical decision-makers dealt and deal with legal and policy issues. The policy functions of the RFCs include explicit policy-making, explicit policy analysis, and implicit policy analysis (insights into policy issues that are not expressly discussed but that can be elicited from the texts through a secondary reading of the technical conversation). The RFC document series also records the evolution of more formal policy-making processes, including the establishment of additional decision-making processes for the Internet, programs for implementing Internet protocols, and the provision of a venue for both conflict and conflict resolution.
Technical decision-making for the Internet has been at times reactive when it comes to the law, and at times proactive. There are instances in which technical decision-making deliberately complements or supports the law, and there are instances in which technical and legal decisions come into conflict with each other. While the US government is a presence from the start, other governments made their desires and goals clear within this document series within the first couple of years, and awareness that multiple jurisdictions would be involved was present almost from the beginning as well.
This paper reports on the ways in which technical decision-makers for the Internet dealt with legal and policy issues during the first decade of the design process (late 1969 through 1979). Issues such as privacy, the need for authentication, and security matters were of course there from the start. Perhaps surprisingly, though, the inevitability of commercialization, environmental and energy problems, the problematics of access in rural areas, and what we now refer to as spam and viruses were also among the at least two dozen policy issues addressed within the first decade. After introducing the range of types of interactions between legal and technical decision-makers revealed through analysis of the RFCs document series (Braman, in press), the paper will map the legal and policy issues that received attention from the computer scientists and other individuals involved with Internet design during its first decade and provide in-depth analyses of a few exemplars. These case studies will include a discussion of the processes through which the legal or policy problem became evident, the kinds of concerns expressed by technical decision-makers as they grappled with the issue, diverse ways in which the issue was conceptualized, differences in conceptualization and approach as distinguished by category of stakeholder (eg, government preference vs. vendor input vs. academic researcher), technical decisions made during the decade that incorporated sensitivity to the policy problem, effects of those decisions on the kinds of affordances made possible by the Internet as they evidenced themselves during that decade, and examination of the convergence and divergence between technical and legal approaches to the issue.
The research reported upon in this paper is supported by the US National Science Foundation.