Address by Lawrence Lessig at the National Press Club.
Re: government regulation of open access.
Date: February 23, 2000.
Source: Tech Law Journal created this page by transcribing from its audio recording.

So, I had forgotten that it was two months since we had been here talking about this issue. It is also two months since I have been back in Washington. It has been a glorious two months outside of Washington.

Because, I realize today, and yesterday, as I have been here talking about these issues, that there is a certain depression that I experience in talking about these issues here. And it is a depression about the same old debate being imposed on the questions about cyberspace. The same old left and right debate as if nothing has changed. And we can take the issues we have talked about in the eighties, and the issues we talked about in the seventies, and issues we talked about in the sixties, and the same actors get up and talk about them, as if we have the same right and left argument, and nothing new is on the stage.

And, I find that frustrating, because I spent the last six years trying to understand what cyberspace is about, and it strikes me THIS IS something different from the traditional left and right arguments. This is a new type of issue, that has raised in the context of cyberspace [?] of traditional left and right arguments. And what we need in this place -- Washington needs -- is step back from the Internet and look at the extraordinary paradox from the right and left perspective that defines the Internet.

Look. This is a space that was made possible by an extraordinary act of regulation -- by the breakup of AT&T and the FCC's continuing enforcement of essentially an open access requirement on telecommunications structures. That is what made it possible. It did not build it. Because Washington did not ____ [?]. But Washington made it possible. And on the other side -- a side that should be appealing to the right in this story -- this act of, regulation made possible the most extraordinary space of economic innovation and creativity that we have seen in the last century. This first move that cleared the space and established an open access -- I would call it "end to end platform" -- has subsequently produced this economic miracle that we are seeing right now.

You know, my argument has been that we understand the source of this extraordinary economic opportunity, of innovation, and creativity, to lie primarily in, as Barry said, architecture, of this space.

Now, when I come up to Washington -- again, I use the word "architecture" -- I am told, "You know, we do policy. We don't do tech here. We donít need to hear about, you know, tech."

The last time the FCC called me and asked me to come back to do a talk about open access, when I was in Germany, I couldn't come back, and I suggested that they bring the real architects of the Internet. And the architects of this principle that I am going to talk about, the principle of end to end. Men named Jerome Salzer, or David Week [?] or David Clark, to come down to the FCC hearing, and talk about why the principle of end to end has made the Internet possible. And the FCC representative said to me, "It is too technical. I am not interested in that. I want to talk about policy."

But the point is, as EFF has said from the very beginning of its existence, architecture is policy. The architecture of the Internet is its policy. And that architecture is what has produced this innovation. And the issue that we are talking about now is whether the government should stand back as that architecture is changed, because it is being changed. The original architectural principles of end to end are being compromised by these emerging structures that integrate, in particular, broadband.

Now, again, we were up on the Hill, talking to some young staffers. It is amazing to me, to refer to personal staffers as young, but, they struck me as extremely young. These staffers said to me "What you are arguing for is that we launch regulation of the Internet."

An extraordinary act of ignorance of the history of what has made the Internet possible. We start with a premise of regulating the Internet. That is what is the FCC has been doing in making sure that the telecommunications system remains open access. And the only issue we are talking about is whether that principle should carry over to the new laws of delivering Internet content. And I say that if you won't argue about what the change should be, justify deviating from the principle that has given us this extraordinary space of innovation. Justify the change the change. Justify the change from a regulation that has insisted on this principle of end to end.

But why does end to end work? This is what we should be asking. Why is this so extraordinary in what it produces? And the reason this principle of end to end works, let me summarize it, not in tech terms, I'll just give you the pure policy version of what end to end means. End to end means that the network is not in, does not have the ability, to discriminate. If you play by the rules, if you put something out there is TCP/IP format, sorry, a little bit of tech, little bit tech to see that putting on the Internet in the form that it demands, the network is not able to discriminate between one kind of content and another, or one kind of application and another.

This principle of nondiscrimination is a constitutional invitation to innovators. It says to innovators, "that if you come up with a new idea, a new way to use this Internet, a new way to take advantage of this communication architecture, architecture cannot act strategically against you. So these architects, Salzer, Reed, and Clark, wrote about the emergence of the Internet before the emergence of the world wide web in 1991.

There was talk about optimizing the Internet for telephony. But optimizing for telephony would have violated the principle of end to end. And as the said, "had we optimized the Internet before 1991 for telephony, the world wide web would have not have been possible. The architecture the world wide web gave birth to it, was only made possible because of this commitment to a design, which was designed to say that network not be able to discriminate.

Now the change of broadband, which AOL was fighting, and now AOL thinks the market should take care of, the change of broadband, is to enable someone to discriminate in how the net is used.

Now, we can get upset about that for First Amendment reasons. And I am all in favor of worrying about discrimination. But, I think the reason, the other reason, we emphasize, is there is discrimination with a tax on innovation. It is a chill on this process of guaranteeing innovators that they have a place where their new ideas will play. Now let's describe [?] them, by adopting a policy that says, no part of the Internet will be permitted to violate -- and I would call this principle of end to end -- but my describing by -- by saying this is what the FCC ought to adopt as a policy.

Here is what I believe will be a minimal regulatory strategy. Because if you don't adopt this policy now -- if we don't impose this minimal regulation on the emerging architecture of the Internet, there is no ____ [?] that down the road, just as we have seen with cable, Congress will have to revisit, whether certain bundling shall be permitted, whether certain content discrimination should be permitted, whether certain market concentration are too great. All sorts, all types, of questions that address in the context of cable, will have to address in the context of the Internet because the architecture permits that kind of concentration. If we don't permit the architecture to change, permit that kind of concentration, we don't have to ask those questions in the future. We don't have to raise those regulatory questions down the road.

This issue is about a minimal regulatory strategy now. From the right that is a great idea, because it will spur more innovation. From the left, that is a great idea, because it will preserve the diversity, and speech, and opportunity that the Internet has so far protected. From the right or the left, we should be defending the principles that have produced this space, and the innovation space. And that is not a political question. That is a question that we should be observing, by observing this extraordinary miracle that was given to us by some, somebody at the Justice Department, and a lot of really smart coders [?] at MIT and on the West Coast.