Architecture of consent: Internet protocols and their legal implications.

• Author: Feigin, Eric J.

INTRODUCTION I. A PROPERTY-BASED VIEW OF THE INTERNET A. A Brief Introduction to the Internet B. Articulating Our Intuitions: Notions of Property on the Internet C. Applying Our Intuitions: Governing the Internet as Property 1. Internet common law: Trespass on the web 2. The Internet and intellectual property D. Critiquing Our Intuitions: The War over Internet Property Rights 1. Defending Internet property rights 2. Attacking Internet property rights II. A CONSENT-BASED VIEW OF THE INTERNET A. An Introduction to Consent B. Architecting Consent Through Code C. Implied Consent: The Low-level Protocols 1. The link layer 2. Internet protocol D. Express Consent: TCP Connections 1. Transmission control protocol 2. Legal implications E. Defining Expectations: The Application Layer 1. HyperText transfer protocol and beyond 2. Legal implications III. COMBINING PROPERTY AND CONSENT: THE INTERNET AS A COMMUNICATIONS NETWORK A. Debunking the Real Property Metaphor B. Consent as a Defense to Trespass to Chattels 1. The server owner expressly notifies the crawler operator not to crawl the site 2. The website contains human-readable terms expressing a crawler exclusion policy 3. The website contains machine-readable terms expressing a crawler exclusion policy 4. The crawler operator obfuscates the source IP address of its datagrams 5. The crawler "exceeded the scope of any such consent'" it has been granted C. Consent and Copyright D. Boundaries of Consent CONCLUSION INTRODUCTION

As more of our societal interactions, both personal and professional, take place on the Internet, the pressure to apply a cogent legal scheme to govern this maturing technology grows increasingly urgent. Faced with a fundamentally new creation, courts have been struggling to formulate a comprehensive view of the Internet that will guide them towards the proper application of existing legal doctrines.

Recent decisions indicate that the courts are just now beginning to approach such a view. Influenced by popular intuitions of Internet architecture, they are starting to see the Internet from the perspective of property rights. They envision the Internet as a massive interconnection of individually owned chattels or plots of land, each containing the intellectual property of its owner. They therefore apply existing property law doctrines, both statutory and common law, to manage and protect these varied property interests.

But in adopting this view, courts make the crucial mistake of ignoring the fundamental purpose underlying the Internet's design: communication. An examination of the Internet's design principles reveals a network based on a norm of consent, not one of strong property rights. Manifestations of this consent occur both implicitly and expressly. The very lowest-level Internet protocols are built to operate via cooperation, and compliance with them should therefore imply consent to certain behaviors that would be prohibited under a purely property-based scheme. Higher-level protocols, such as those utilized in most web interactions, involve exchanges that should be considered express consent: the formation of a legally binding contract.

Current jurisprudence is unjustified in protecting Internet property rights so broadly. Although the property-based intuitions articulated by the courts aren't wrong, they only tell part of the story. Modern legal thought has retreated from the notion of complete and inviolable property interests; (1) the Internet should be no exception. By acknowledging the nature of the Internet as a communications network, we can properly identify the ways in which Internet property owners voluntarily circumscribe their property rights. We can apply the correct legal doctrines only by understanding the technology they govern.

This Note undertakes to examine Internet technology in some detail and discuss how its communicative nature creates a norm of consent that is fundamental to its legal framework. Part I discusses the current, property-based view of the Internet, focusing on how courts have applied it in recent cases. Part II introduces the technological underpinnings of the Internet and argues for a legally enforceable norm of both implicit and express consent based upon the protocols by which Internet-connected computers communicate. Part III then applies the ideas of Part II to the doctrines and cases from Part I, arguing that the Internet norms of implicit consent and express contract formation function to undermine the property-based arguments on which the courts currently rely. I conclude by arguing for a technically accurate version of Internet law that accounts for the freedom built into the Internet's protocols.

1. A PROPERTY-BASED VIEW OF THE INTERNET

   1. A Brief Introduction to the Internet

      Although Part II will go into much greater detail about the Internet's technical underpinnings, a brief overview here will help to ground the discussion and introduce some useful terminology. Although sometimes used to refer only to the World Wide Web, the term "Internet" broadly encompasses a global array of interconnected computers that communicate with one another. (2) This communication usually happens in one of two ways: "peer-to-peer architectures," in which computers communicate as coequals, (3) and "client/server architectures," in which one computer functions as the "server" and processes the requests of the other computer, the "client." (4)

      One of the most popular forms of client/server architecture on the Internet is the "World Wide Web," a system of Internet servers that "serve" files to clients in a special format. (5) This format, called "HyperText Markup Language" (HTML), allows "links" to other HTML documents, as well as links to different types of files such as media content (graphics, audio, and video). (6) Using a computer program called a "browser," (7) a user can utilize her client machine to locate and display HTML "websites" (8) and the other files to which they link.

      Conceptually, legal analysts have found it useful to view networks such as the Internet as having three distinct layers. (9) The top layer is the "content" layer, comprising the human-usable information that is exchanged, such as webpages and media content. This content layer utilizes a "code" layer of software that is designed to send and receive content as a distinctly non-human-readable sequence of bits and bytes. These bits and bytes, in turn, are transported along the "physical" layer, comprised of the machines themselves and the various direct connections such as phone lines, cables, and wireless connections.

   2. Articulating Our Intuitions: Notions of Property on the Internet

      In attempting to discern what law, if any, might govern the architecture of the Internet, both courts and commentators have thus far focused on applying a regime based upon property law. (10) The idea of applying property law to the Internet is an intuitively pleasing one, for three main reasons. First of all, the physical machines that together comprise the network are each individually the property of some entity. Although most computers spend some, if not all, of their lives as part of a larger network, (11) there are clearly significant personal property interests at stake in each node of this network. Secondly, the colloquial language of the Internet prompts us to think of the virtual world as a physical space and want to regulate it as such. (12) When I speak metaphorically of "visiting" a web-"site," it's almost as though I am physically traveling to someone else's land. (13) Finally, the growth of the Internet as one of the main media for the dissemination of ideas gives rise to significant interest in protecting the intellectual property it contains. (14) In this conception, a website is less like a location and more like a book(15)--a publicly available font of knowledge whose expression of various ideas needs to be protected.

      Each of these three intuitions points towards a different scheme for Internet property governance. The physical makeup of the network suggests that the law of chattels ought to apply, with each node treated as an inviolable piece of tangible personal property. (16) The place metaphor provides compelling rhetorical support for a real property scheme where websites are treated like plots of land onto which end-user clients might enter. (17) Finally, the informational content of the Internet argues for the application of intellectual property law such as statutory copyright and trademark law, as well as common law unfair competition and misappropriation. (18)

   3. Applying Our Intuitions: Governing the Internet as Property

      1. Internet common law: Trespass on the web.

         These conceptions of property on the Internet, and courts' views of them, become more concrete if we focus, as an example, on the paradigmatic case of a "crawler"--an automated program that serially visits, or "crawls," websites and keeps a log of what it finds. (19) Crawlers are useful for, among other things, indexing websites to create the databases used by search engines. (20)

         What cause of action might a website proprietor have when an unwanted crawler combs its website? This was exactly the case before the court in eBay, Inc. v. Bidder's Edge, Inc. (21) Plaintiff eBay, a prominent online auction site, sued defendant Bidder's Edge, an auction aggregator whose business model was to crawl many auction sites, aggregate data about their auctions, and offer users an interface by which they might search this aggregate data without having to individually visit every site. (22) eBay sought a preliminary injunction to stop the Bidder's Edge crawler from visiting its site. (23)

         eBay proffered a number of alternative legal bases to support its request, (24) highlighting each of the three property views discussed in Part I.B. As might be expected, eBay's pleadings exhausted the supply of intellectual property theories, arguing copyright infringement, (25)...