Code 2.0

See Richard Field, '1996: Survey of the Year's Developments in Electronic Cash Law and the Laws Affecting Electronic Banking in the United States,' 46 American University Law Review (1997): 967, 993, n.192.

21.

See A. Michael Froomkin, 'It Came from Planet Clipper: The Battle over Crypto graphic Key `Escrow,'' University of Chicago Legal Forum 1996 (1996): 15, 32.

22.

Anick Jesdanun, 'Attacks Renew Debate Over Encryption Software,' Chicago Trib- une, September 28, 2001, available at http://www.chicagotribune.com/technology/local/profiles/sns-worldtrade-encryptionsoftware,0,4953744.story? coll=chi-news-hed (cached: http://www.webcitation.org/5IwsvCPpc).

23.

Jay P. Kesan and Rajiv C. Shah, Shaping Code, 18 Harvard Journal of Law and Tech- nology 319, 326–27 (2005).

24.

Former Attorney General Richard Thornburgh, for example, has called a national ID card 'an infringement on rights of Americans'; see Ann Devroy, 'Thornburgh Rules Out Two Gun Control Options; Attorney General Objects to Registration Card for Gun Owners, National Identification Card,' Washington Post, June 29, 1989, A41. The Immigration Reform and Control Act of 1986 (Public Law 99–603, 100 Stat 3359 [1986], 8 USC 1324a[c] [1988]) eschews it: 'Nothing in this section shall be construed to authorize directly or indirectly, the issuance or use of national identification cards or the establishment of national identification cards.' Given the power of the network to link data, however, this seems to me an empty protection. See also Real ID Act, Pub. L. No. 109–13, Title II –202 (2005). The Real ID Act requires citizens to go to the DMV in person, bringing with them several pieces of identification to the DMV, including birth certificates, and face consumers with higher fees and tougher background check. Supporters feel the act targets the link between terrorists, illegal immigrants, and identification standards.

25.

Jack Goldsmith and Timothy Wu, 'Digital Borders,' Legal Affairs, Jan./Feb. 2006, 44.

26.

Notice that this would be an effective end-run around the protections that the Court recognized in Reno v. American Civil Liberties Union, 117 SCt 2329 (1997). There are many 'activities' on the Net that Congress could easily regulate (such as gambling). Regulation of these activities could require IDs before access to these activities would be permitted. To the extent that such regulation increases the incidence of IDs on the Net, other speech-related access conditions would become easier to justify.

27.

Arthur Cordell and T. Ran Ide have proposed the consideration of a bit tax; see Arthur J. Cordell et al., The New Wealth of Nations: Taxing Cyberspace (Toronto: Between the Lines, 1997). Their arguments are compelling from the perspective of social justice and economics, but what they do not account for is the architecture that such a taxing system would require. A Net architected to meter a bit tax could be architected to meter just about anything.

28.

Countries with such a requirement have included Argentina, Australia, Belgium, Greece, Italy, and Switzerland; see Richard L. Hasen, 'Symposium: Law, Economics, and Norms: Voting Without Law?' University of Pennsylvania Law Review 144 (1996): 2135.

29.

See the description in Scott Bradner, 'The Internet Engineering Task Force,' in Open Sources: Voices from the Open Source Revolution, edited by Chris DiBona et al. (Sebastopol, Cal.: O'Reilly and Associates, 1999).

30.

Michael Froomkin makes a similar point: 'Export control rules have had an effect on the domestic market for products with cryptographic capabilities such as e-mail, operating systems, and word processors. Largely because of the ban on export of strong cryptography, there is today no strong mass-market standard cryptographic product within the U.S. even though a considerable mathematical and programming base is fully capable of creating one'; 'It Came from Planet Clipper,' 19.

31.

See 'Network Associates and Key Recovery,' available at http://web.archive.org/web/19981207010043/http://www.nai.com/products/security/key.asp (cached: http://www.webcitation.org/5KytMd1L8).

32.

Cisco has developed products that incorporate the use of network-layer encryption through the IP Security (IPSec) protocol. For a brief discussion of IPSec, see Cisco Systems, Inc., 'IP Security–IPSec Overview,' available at http://web.archive.org/web/19991012165050/http://cisco.com/warp/public/cc/cisco/mkt/ios/tech/security/prodlit/i