B. Theory Application
2. Fulfilling Policy Goals via Architecture Design
84 LESSIG,CODE VERSION 2.0, at 124.
85 Faris & Villeneuve, supra note 5, at 6, 13.
86 Qiang, supra note 6, at 209.
87 Id. Ling, supra note 7, at 184-85.
88 Ling, supra note 7, at 185.
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As a number of commentators have illustrated, the history of the Internet stands for freedom and openness.89 The original Internet architecture was designed as a distributed network without central control, and by its very design, the Internet is indeed quite difficult to control. The values underlying the original Internet design include interconnectivity, openness, flexibility, and the lack of a pervasive centralized authority.90
Similar to law in practice, where the government monopolizes enforcement virtually in all areas, the Chinese government has dominated the design and the making of the Internet architecture since its inception.
Nonetheless, such attributes do not perfectly exist in the Chinese Internet architecture as the Chinese government is weaving nationalist ideology into the Internet itself.
91 Therefore, the Chinese government was able to architecture its preferences into the Internet, which made it significantly different from its counterpart in the Western world.92 It seems that, in the case of Internet filtering, the Chinese government has understood that when code is law, it becomes “a crucial focus of political contest,”93
Another successful Internet filtering system, Saudi Arabia, also created its unique network where Internet traffic flows through three “choke points” overseen by the Communications and Internet Technology Commission.
and gotten ahead of every entity to win the contest.
94 Both China and Saudi Arabia had designed centralized controlling points in the international gateway of their Internet architecture when they were built in mid 1990. Therefore, the filtering systems have been implemented at the international gateway level regardless the cooperation from ISPs.95
89 LESSIG,CODE VERSION 2.0, at 146.
Such centralized controlling points have made government control over information not only viable but also effective. They also characterize both countries’ Internet filtering
90 JOHN NAUGHTON,ABRIEF HISTORY OF THE FUTURE 275-77 (2000).
91 Nawyn, supra note 18, at 509, 513; Stevenson, supra note 2, at 540.
92 See also YANG, supra note 9, at 44 (stating that “it is ultimately the government that has the power to decide what architecture to build and how regulatable the Internet remains” based on Lessig’s code-is-law theory).
93 DAVID G.POST,IN SEARCH OF JEFFERSON’S MOOSE:NOTES ON THE STATE OF CYBERSPACE 133 (2009).
94 See Content Filtering in Saudi Arabia, http:// www.internet.gov.sa/learn-the-web/guides/content-filtering-in-saudi-arabia (last visited Apr. 1, 2010).
95 Faris & Villeneuve, supra note 5, at 14.
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regimes. As Jonathan Zittrain explains the code-is-law theory, “[i]f regulators can induce certain alterations in the nature of Internet technologies that others could not undo or widely circumvent, then many of the regulatory limitations occasioned by the Internet would evaporate.”96
Australia provides a good comparison with China. The Australian government has attempted to build a filtering system into its existing Internet architecture.97 However, because the country’s Internet is as decentralized as its counterpart in other Western countries,98 the government can hardly find a controlling point to deploy an effective filtering system.99 The case of Australia explains that the cost and difficulty of implementing an Internet filtering system are quite high if the government did not take such system into consideration when structuring the Internet architecture in the beginning.
Other countries like Iran with decentralized filtering regimes had found it hard to maintain consistent result because filtering techniques differ from various ISPs.100 The difference between the Australian and the Chinese Internet filtering systems illustrates how a government can decide the regulablility of the subject architecture and how an open architecture can constrain government’s power. As Lessig points out:101
[w]hether [the Net] can be regulated depends on its architecture.
Some architectures would be regulable, others would not. I have then argue that government could take a role in deciding an architecture would be regulable or not.
Therefore, if the Internet architecture has been crafted as an open and decentralized one since its inception, government’s power to regulate the network would be reduced. In other words, an open architecture represents a constraint on the government power. This echoes Lessig’s suggestion that the Internet’s architecture checks government control over the Internet and the ideas carried on it (or the values embedded in it)102
96 JONATHAN ZITTRAIN,THE FUTURE OF THE INTERNET AND HOW TO STOP IT 105 (2008).
.
97 Bambauer, supra note 35, at 508.
98 See e.g. POST,supra note 93, at 86-87 (describing the decentralized nature of the Internet).
99 Bambauer, supra note 35, at 509.
100 Faris & Villeneuve, supra note 5, at 16.
101 LESSIG,CODE VERSION 2.0, at 151-52.
102 Id. at 7.
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Certainly, the Chinese government also attempts to create an Internet with positive externalities in business and economic development, education, and information exchange.103 Although such intention and the open nature of the Internet are somehow conflicting with state’s control over the network via Internet filtering and other regulations,104 the Chinese government seems to carefully maintain the balance of openness and control associated with its Internet policy. One commentator cited the 2005 People’s Daily editorial to illustrate this viewpoint105
As long as we use more ways of properly looking at the Internet, we can make use of the best parts, we go for the good and stay away from the bad and we use it for our purposes, and we can turn it around on them…we won’t be defeated in the huge Internet wars by the various intranational and international reactionary ideological trends in various areas.
:
According to the Chinese government, the purpose of filtering online information is to block “spiritual pollution” from the country.106 In sum, the Chinese government encourages taking advantage of digital technologies, but such usage cannot undermine the state control.107
103 Deibert, supra note
Maintaining such balance is a core goal of China’s Internet policy.
2, at 147; MacKinnon, supra note 59, at 31.
104 See e.g. Deibert, supra note 2, at 151 (describing “the long-term incompatibility of China’s restrictive Internet policies and its strong interest in promoting information and communications technologies through trade, foreign direct investment, and industrial policy”); Qiang, supra note 6, at 204 (stating that “[s]ince the introduction of the Internet in China, the Chinese Communist Party (CCP) and Chinese government have shoiwn ambivalence toward its effect as a new force in Chinese society.”)
105 MacKinnon, supra note 59, at 33.
106 Deibert, supra note 2, at 147.
107 See e.g. Shubo Li, The Online Public Space and Popular Ethos in China, 32 MEDIA,CULTURE &SOC'Y 63,71(2010)(reporting that “[s]ince 2003, the Hu Jin-tao administration has successfully dismantled the online political discussion space, while at the same time maintaining the stability of the online public mood); Shirk, supra note 30, at 13 (noting that the Chinese government embraces the Internet and invests more in controlling online content at the same time); Lokman Tsui, An Inadequate Metaphor: The Great Firewall and Chinese Censorship, 9 GLOBAL DIALOGUE 60, 62 (2007) (describing Beijing’s desire to simultaneously secure the economic advantage and limited the political disadvantage brought by the Internet); Wang & Hong, supra note 34, at 73 (stating that “[t]he Chinese government has found a
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This may probably explain why empirical evidence suggests that the Internet promotes both freedom and control in China.108