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notes to chapter eight

3. Ann Harrison, Government Error Exposes Carnivore Investigators; ACLU Blasts Team
for Close Ties to Administration, Computerworld, October 5, 2000, available at link #53. This
concern was strongly criticized. See Center for Democracy and Technology, Cryptography,
available at link #54.
4. The Mitre Corporation did examine a related question for the military. See Carolyn A.
Kenwood, A Business Case Study of Open Source Software (Mitre Corporation: 2001).
5. See Bush v. Gore, 531 U.S. 98, 126 (2000) (Stevens, J., dissenting).
6. Di Franco et al., Small Vote Manipulations Can Swing Elections, Communications of
the ACM, Volume 47, Number 10 (2004), 4345, available at link #55.
7. For an extraordinarily troubling account that raises much more than suspicion, see
Robert F. Kennedy, Jr., Was the 2004 Election Stolen?, Rolling Stone (June 2006).
8. David E. Ross, PGP: Backdoors and Key Escrow, 2003, available at link #56.
9. Craig Hunt, TCP/IP: Network Administration (Sebastopol, Calif.: OReilly and Associates, 1997), 122, 6, 8; Loshin, TCP/IP: Clearly Explained, 1317.
10. There is no standard reference model for the TCP/IP layers. Hunt refers to the four layers as the network access, internet, host-to-host transport, and application layers;
TCP/IP: Network Administration, 9. Loshin uses the terminology I follow in the text; TCP/IP:
Clearly Explained, 1317. Despite the different moniker, the functions performed in each of
these layers are consistent. As with any protocol stack model, data are passed down the stack
when it is being sent to the network, and up the stack when it is being received from the network. Each layer has its own independent data structures, with one layer unaware of the
data structures used by other layers; Hunt, TCP/IP: Network Administration, 9.
11. Hunt, TCP/IP: Network Administration, 9; Loshin, TCP/IP: Clearly Explained, 1317.
12. As Hafner and Lyon explain: The general view was that any protocol was a potential
building block, and so the best approach was to define simple protocols, each limited in scope,
with the expectation that any of them might someday be joined or modified in various unanticipated ways. The protocol design philosophy adopted by the NWG [network working group]
broke ground for what came to be widely accepted as the layered approach to protocols;
Where Wizards Stay Up Late, 147.
13. The fights over encryption at the link level, for example, are fights over the TCP/IP
protocols. Some within the network industry have proposed that encryption be done at the
gateways, with a method for dumping plain text at the gateways if there were proper legal
authoritya kind of private doorbell for resolving the encryption controversy; see Elizabeth
Kaufman and Roszel Thomsen II, The Export of Certain Networking Encryption Products
Under ELAs, available at link #57. This has been opposed by the Internet Architectural Board
(IAB) as inconsistent with the end-to-end architecture of the Internet; see IAB statement on
private doorbell encryption, available at link #58.
Since Code v1, there has been an explosion of excellent work extending layer theory.
Perhaps the best academic work in this has been Lawrence B. Solum and Minn Chung, The
Layers Principle: Internet Architecture and the Law, University of San Diego Public Law
Research Paper No. 55, available at link #59. Solum and Chung have used the idea of Internet
layers to guide regulatory policy, locating appropriate and inappropriate targets for regulatory
intervention. This is an example of some of the best work integrating technology and legal
policy, drawing interesting and important implications from the particular, often counter
intuitive, interaction between the two. I introduce layers in my own work in The Future of
Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001),
2325. See also Yochai Benkler, The Wealth of Networks: How Social Production Transforms
Markets and Freedom (New Haven: Yale University Press, 2006), 39197. For other very useful
work extending this analysis, see Craig McTaggart, A Layered Approach to Internet Legal
Analysis, McGill Law Journal 48 (2003): 571; Thomas A. Lane, Of Hammers and Saws: The