Ten Things Lawyers should Know about Internet Research

Abstract

Updating legal frameworks to accomodate technological advancement of communications capabilities requires first updating other legal frameworks to accommodate empirically grounded research into what we have built, how it is used, and what it costs to sustain. Unfortunately for - and due to - well-intentioned policymakers, our scientific knowledge about the Internet is weak because researchers are typically not allowed access to any data on operational network infrastructure for privacy reasons. This data access problem was recognized long ago for its detrimental impact on infrastructure protection capabilities; many public and private sector efforts have failed to solve it. Public policy intended to protect individual user privacy places the research community in the absurd situation of not being able to do the most basic network research even on the networks established explicitly to support academic network research. Despite the methodological limitations of Internet science today, the few data points available suggest a dire picture of the future. But while the situation overwhelmingly indicates the need for a closer objective look, the only people with measurement capability on publically accessible network infrastructure today are tasked with inferring as much private information on individual users as possible - whether its to target terrorists or ads. The traditional mode of getting data from public infrastructures to inform policymaking - regulating its collection - is a quixotic path, since the government regulatory agencies have as much reason to be reluctant as providers regarding disclosure of how the Internet is engineered, used, and financed. Less surprising with hindsight, the opaqueness of the infrastructure to empirical analysis has generated many problematic responses from rigidly circumscribed communities trying to get their jobs done. As dismal as it sounds though, the news is not all bad - there is a reason everyone wants to be connected to all the world's knowledge, as well as each other, besides its status as the most powerful complex system ever created by man. The Internet's practical promise for individual freedom, democratic engagement, and economic empowerment, is also unparalleled. Moreover, even in the dim light of the profoundly needed but under attended interdisciplinary research into the network, we can ascertain some concrete constraints on the possible range of policy solutions, which all involve increasing the congruity between what we legislate and what we know.