Law in the Internet Society

Factions in a Digital Age

-- By AndreiVoinigescu

Table of Contents


In The Federalist No. 10, James Madison warned of the threat posed by factions--groups of citizens with shared interests adverse to the rights of other citizens and the interest of the community as a whole. While Madison understood the need to keep factions from usurping the power of the state, the march of technology has made it evident that misuse of the state's coercive power is not the only threat to individual rights. Just as the American Constitution seeks to limit the power of factions within the political process by incorporating principles of federalism, separation of powers and bicameralism into the architecture of the state, so too must we now look to the architecture of the internet as a means of diffusing the power technology grants to factions. We can--and should--phase in a new network where ownership and control over the switches is maximally dispersed.

How Technological Change Threatens Civil Rights and Self Governance

While laws passed and enforced by the state are the most obvious mechanism for regulating human behavior, Lawrence Lessig has identified three others: social norms, market forces, and physical architecture. Of the four, physical architecture often is the most potent tool, because it works by creating self-enforcing ex-anti constraints, while the rest rely on the threat of ex-post punishment imperfectly administered by the community or the state. Speed bumps and ignition interlock devices can outperform harsher legal penalties.

For activities conducted over networks, the code than controls the switches defines the physical architecture of the network. It prescribes what network users can do, and how they are monitored. Modify the code on enough switches to block certain websites, and you get China's Golden Shield Project. Write code to identify subversive or unflattering text in transit, and Twitter posts by political dissidents and whistle-blowers become toothless endorsements of the regime. Add code to log a user's network traffic, and you can build a complete profile of his online activities, ready for sale to any interested third party. Is it any wonder that switch manufacturers are competing to create 'intelligent' switches with enhanced monitoring and security functionality?

Our ability to modify the physical architecture of the real world is still, fortunately, rather limited. But in a networked world, code is easy to modify. The owner of the switch has almost unlimited control over what is and isn't possible on the network. And, in the Internet as it exists now, ownership of the switches is concentrated among a relatively small number of Internet Service Providers (ISPs), most of whom are commercial entities. This creates an environment where a single ISP (or a few acting in concert) can regulate human behavior much more completely than the most determined police states of the Cold War era ever could. Comcast's unilateral decision to throttle BitTorrent traffic across its network is a pale hint of what we can expect to see as switching hardware develops to allow real-time deep packet inspection of all network traffic and the owners of the switches become increasingly savvy about the power they control.

Network Architecture as a Check on the Power of Code

End to end encryption of networked communications and government regulation offer only partial solutions to the dangerous concentration of power in the hands of the switch owners. Encryption does not disguise the parties to a communication or their pattern of interaction. Regulating the switch owners, meanwhile, only transfers control of the switches to political incumbents who would undoubtedly be tempted to employ it to consolidate their own power. And regulation is reactive, not preemptive; some switch owners will be willing to risk the consequences of the law if the immediate rewards are large enough.

To stop factions from abusing the unprecedented regulatory power of code in ways, we need a network where ownership and control of the switches is dispersed as widely as possible. In such a network, the power of code can only be employed through substantial populist consensus.

Building a Commonly-Owned Internet

The current Internet architecture is very hierarchical. The communication between many end-point devices is routed through a much smaller number of centralized switches. This architecture is largely a relic of wired links and limited computational power. Other, flatter network architectures are now possible which would eliminate the distinction between end-points and switches.

In a wireless mesh network, devices (computers, cell-phones, smart appliances, networked cars, etc.) can act as both end-points and switches. Devices within range of each other communicate directly, while those further apart take advantage of the forwarding capacities of the devices in the middle. No third party is need to construct, own and maintain centralized network infrastructure; the cost is spread out among the individual device owners. The technology required is cheap, and getting cheaper--it has been incorporated in sub-$200 laptops meant to be deployed in areas with limited Internet infrastructure.

A wireless mesh network disperses control over the switches and the code that they run. So long as networked devices remain untethered, each owner can program his device to regulate in a fashion he finds ethical, or install third-party firmware embodying acceptable regulation. The power of each device owner is minor, however, because alternative paths between any two nodes in the network almost always exist. Two parties communicating in a mesh network can chose a path that avoids untrusted switches. Thus, effective code-based regulation on the network only arises only if there is substantial--probably supermajoritarian--consensus among all network users.

The electromagnetic spectrum required to implement a robust wireless mesh network is becoming available. By February 17, 2009, all television stations in the United States must complete the mandatory transition from analog to digital broadcasting. Because digital transmissions are much less sensitive to to interference, there is no longer any need for large bands of 'white space'--unused electromagnetic frequencies--between digital TV channels. The FCC has already indicated its intention to leave the white space frequencies in the public domain to be used by new consumer wireless devices. As television broadcasting gives way to webcasting, more and more spectrum will be freed from its traditional use.


Detailing all the salutary (and problematic) effects of distributed ownership and control over Internet switches is beyond the scope of this paper. But an internet structured to give every user an ownership stake is now technologically feasible. It is an option we should consider if we are serious about preventing factions from unilaterally determining the public good and the scope of our rights.


Interesting paper - It provoked two thoughts...

1. How best could an mesh network be achieved. There are likely many different ways to do this - focus on wireless routers, or PCs? Ideally you want to build a process that creates its own momentum - How could this be done? Does FON figure into this or is it just an unnecessary interim step?

2. What does the state have to do beyond mandating public use of white spaces? In the physical world the state still plays a role after architecture is built. Is there a similar role in the wireless world?

-- TomGlaisyer - 23 Dec 2008

Would a mesh network really solve the problem you are addressing? Even if a mesh would work in urban areas, you are still going to need backbones in order to move the data cross country/ocean. You would likely end up with small open nets linked through the same infrastructure we have today. It would seem likely to actually make the problem worse: If you have backbones, you have access points that are controlled by someone- either private parties or government. In a mesh, you only would have a few access points, versus the current accesspoint-per-house ISP model. Although the local mesh would be robust, there would seem to be far more risk of communications control having just a few access points to the backbones. I would think that having a wide selection of carriers to act as ISPs would be far preferable to solve the problem you are talking about (noting of course that the current duopoly ISP model is terrible)

-- TheodoreSmith - 05 Jan 2009

Tom -- I don't have much insight into how engineer wide scale mesh network adoption. A necessary first step would be to integrate the technology into routers and WLAN chips alongside the commonly used 802.11 standards. so that the physical capability is there. As the cost of the technology continues to decrease, this should become increasingly viable.

The real problem is a first-mover one: most people are content with the current state of the network, and there is little perceived need for radical change.

I don't think FON's business model is particularly helpful, since interconnection between the public FON routers is still handled through the existing ISP network infrastructure.

Do you perceive a need for state regulation apart from non-interference in spectrum allocation? What role does the state play with regard to network infrastructure today (in the US)?

Ted -- The concentration at internet backbones, while a problem currently, might become less so as the range of each individual node in the network improves. In any case, that concentration exists in the current network architecture too--except instead of having multiple paths from each endpoint to the backbone provider, you now have only one with the cable/dsl/dial-up ISP acting as an intermediary. Strong competition in the last mile doesn't address the backbone bottleneck either.

-- AndreiVoinigescu - 06 Jan 2009

  • Previous commenters asked useful questions about the technical realities. It seems to me that the other side of the presentation--the relation to political theories of the late 18th century--also needs to be inquired into. Why is Federalist 10 relevant? Is "faction" enough of a definition of a common problem? Does the rather hard-eyed realism of Madison's attempt to explain how the sum of private vices can be public virtues neatly map onto your rather less realistic and more romantic judgment about the nearness of free networks?



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r14 - 02 Feb 2009 - 19:46:01 - EbenMoglen
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