[9]     John Locke and the Privatization of the Internet
                                       by Jay Hauben
                                       jrh29@ais.org

For historical reasons, the U.S. government has overseen the technical
development of the Internet from its beginning in the early 1980s. 
At least since 1997, there has been an effort by the executive branch
of the U.S. federal government to privatize the essential, central
functions of the Internet.(1) I want to investigate the Internet and
its proposed privatization. I will be guided by the analysis of John
Locke (1632-1704). Locke analyzes the questions of property and
privatization in Chapter 5, "Of Property" of his The Second Treatise
of Government (c.1680-1683).(2)

Locke considers the original state of human society before the
creation of political institutions. He assumes that the earth and its
resources were available "to mankind in common". He wants to show
"how men might come to have a property in several parts of that which
God gave to mankind in common."(sec 25) This raises for me the
question, what is the original state of the Internet and what might
privatization mean and do to the Internet. By privatization of the
Internet I mean the ending of the governmental fostering and oversight
that have been in place from the beginning of the Internet(3) and
replacing them by control of the crucial functions by non
governmental, private entities.

The Internet is still young, less than 30 years old. There are
disputes over what the Internet actually is and over its history and
potential impact. It is considered by some to be wires and routers
and perhaps protocols and the domain name system. For others it is
the interconnection of all computers using a particular set of
communication agreements called the Transmission Control Protocol/
Internet Protocol suite (TCP/IP).

It is important for my investigation that I state my understanding of
what the Internet is. The Internet from its beginning and still today
is an interconnection of diverse, independent, packet switching
networks. A computer network is an interconnection of computers. 
The Internet is a meta network, something in addition or "above" its
component networks. There is a significant difference between
interconnecting computers, no matter how different they are and
interconnecting networks. Computers may differ in operating systems,
character sets, hardware, etc. These are all technical aspects. The
networks that interconnect to make up the Internet each have their own
purposes, system administrations and architectural principles. They
have been set up by different political and economic administrations
to serve different functions. The Internet was designed to solve the
problem of sharing resources and communicating among such diverse
networks while respecting their differences. Fundamental to the
Internet is its principle of open architecture which requires respect
for the autonomy, purpose and local sovereignty of the networks that
become part of the Internet.

The technology of the Internet is based on the successful development
of computer time-sharing and packet switching technologies. The
impetus behind the development of time-sharing and then packet
switching was for greater accessibility of computing. There was a
fear among some scientists and engineers that the power of
computer-aided decision making would otherwise be concentrated in too
few hands.(4) There was also the expectation that a great benefit
would arise when computer resources and user created content would be
sharable by a large community of users.

The guidance and investment that made the original networking and
internetworking research possible and lead to time-sharing, packet
switching, protocol development, the original hardware and software,
leasing of long telephone lines, was all public. It was leadership
from scientists under government contract and public money mostly U.S.
but also British, French, Norwegian and NATO public money, some
supplied via military budgets.

The original vision guiding these developments was to unite
communities of human beings via computer communications into an
Intergalactic Network as J.C.R. Licklider called it, a vast
human-computer symbiosis.(5) The developments that have made the
Internet possible were achieved by an international collaboration
among scientists fostered by a public administration of research
projects encouraging openness and resource sharing. Just as Locke
sees the original state of people as sharing the resources of the
earth in common, I take this public funding, original social purpose,
and cooperative origins to have created an electronic, public
commons.(6)

For Locke, things in common are only valuable if they can be used for
"the support and comfort" of people. And all such things should be
available for the needs of all people. But does not the use of some
of those things to satisfy the needs of one individual require the
making of common things into private things (i.e., privatization)?
Locke resolves this apparent difficulty by arguing that in the
original conditions of human society the things of the earth were
plentiful so that "he that leaves as much as another can make use of,
does as good as take nothing."(Sec 33) Personal use of things in this
stage still leaves the whole as a commons. "Nobody could think
himself injured by the drinking of another man, though he took a good
draught, who had a whole river of the same water left him to quench
his thirst."(sec 32) Such use leaves the commons intact. Use of the
Internet does not require a taking from it either. There is no less
of the Internet after I use it than before. That is because digital
resources are not diminished when they are copied. And the technology
of the Internet is such that no simple use of the Internet adds any
but an insignificant cost to anyone. Each network provides its
resources for its own users but at the same time those resources
become available to the whole Internet at no necessary new cost.

There are enough resources on the Internet and many people who use it,
far from taking, are actually contributing something by their use like
posting an opinion or answering a question.  For the moment the only
result of many other people using it at the same time as you, is that
you may experience a slightly longer delay than if the others were not
using it. But such delay is a result of the early stage of
technological development. There is every reason to believe that
significantly greater capacity and interconnection are technically
possible. So just use or increasing the universality of access to the
Internet does not diminish its common or public nature or utility to
those already using it.

Also, the Internet has the character of a common good. For Locke, in
the original state of human society the resources of the earth that
are needed for food, clothing or shelter are common goods. Already to
some extent but potentially to a much greater degree, the well being
of each person will also depend upon the quality of his or her access
to the Internet. What Licklider and Robert Taylor wrote in 1968 is
closer to reality now:

   ... Life will be happier for the on-line individual because the
   people with whom one interacts most strongly will be selected more
   by commonality of interests and goals than by accidents of
   proximity.
   ...For the society, the impact will be good or bad depending mainly
   on the question: Will 'to be on line' be a privilege or a right? If
   only a favored segment of the population gets a chance to enjoy the
   advantage of 'intelligence amplification,' the network may
   exaggerate the discontinuity in the spectrum of intellectual
   opportunity.(7)
   
Licklider and Taylor are arguing that to be online will be essential
to a full life. If something like the Internet is crucial to human
"support or comfort" it is a common good and in the view of Locke all
people have a common right to be included in its use.

As long as people gather from the commons what they need for their own
use, Locke says they have a right to what they gather. "Whatever is
beyond this, is more than his share, and belongs to others."(sec 30)
He argues that small populations and gathering for use gave rise to
"little room for quarrels or contentions about property so
established."(sec 31) Locke considers property not in the modern sense
of private property and ownership but in the sense of having the right
of use. Even improvement of a part of the commons through the
application of the labor of an industrious person leaves enough for
others. Therefore, as long as his product is for the use of his
family and not allowed to spoil, the industrious person has a right to
his cultivated area.

Likewise, the component networks of the Internet can be developed and
improved as much as their local owners and administrators want based
on whatever principles they choose without encroaching on the commons
of the Internet. What constitutes the commons of the Internet does
not get used up or diminished by such improvement but in most cases
gets augmented by it. The original goal of packet switching networks
was resource sharing. The Internet carries resource sharing beyond
the individual network to the whole community of Internet users. The
increase in resources on any one network is an increase in general of
the resources for all users.

The Internet has been designed and developed based on the principle of
open architecture. That means the Internet makes the most minimal
requirements possible on the networks that it interconnects. What is
required, i.e., what is in common, is the agreed upon protocols (the
TCP/IP protocol suite) that allow for the sharing of resources without
intruding on the local sovereignty of the component networks. The
Internet protocol (IP) creates a pool of unique numerical addresses,
currently 4.3 billion. Each network administration which adopts the
TCP/IP protocol suite and arranges for Internet connectivity needs to
receive a range of these unique addresses for use by computers within
its network. As long as a mechanism is in place that insures
equitable distribution of these numerical addresses the Internet can
continue to function and grow.

The TCP/IP protocol suite and these IP numerical addresses are the
main technical aspects of the Internet commons. But what makes the
Internet attractive and crucial in the lives of people are the other
people. The Internet makes more people than ever before in essence
shared resources for each other. And these people make available or
point to still other resources available via the Internet or off line. 
This communication and the transfer of files and information never
leaves anything less for other users.

The protocols and numbers and what they require are what the
Information Processing Techniques Office (IPTO 1962-1986) of the U.S. 
Advanced Research Projects Agency (ARPA) originally fostered and
funded. These protocols and numbers along with all the people and
other shared resources are the commons of the Internet. There are
also parameters known as port numbers that are common to users of the
Internet. And there is at present a domain name system that is a
common way to map names to the numerical IP addresses. From the
beginning, the U.S. government has overseen the distribution of the
pool of IP numbers and the protocol development process. These along
with the oversight of the Domain Name System (DNS) and its central
root server system are precisely what the executive branch of the U.S.
government is trying to privatize by creating the Internet Corporation
for Assigned Names and Numbers (ICANN, currently a so called
non-profit, private corporation registered in the U.S. state of
California).

Locke has taken us as far as to see that, in his analysis, all people
at the origins of human society had a right not to be excluded from
the things of life. The use by one person of the things in common did
not exclude another's use of as many things as he or she needed. The
right of use was not a right of abuse or alienation. When one's labor
improved something, that for Locke gave the laborer the right to a
property in what was improved, as long as there remained in the
commons other resources for other people's use. That is, the person
who added his labor to something had a right to exclude others from
taking or using it. For Locke the question of privatization is the
question of the right to exclude. But privatization is not unlimited. 
It is only permissible if there remains enough of the things of life
that no one is without what is needed.

At a first glance it is not clear that the privatization of the
Internet's essential or common functions is also a question of
exclusion and loss to some people. But putting these functions in
private hands means that the oversight and administration of the IP
number distribution and protocol development process can no longer be
at public expense. So who will pay for these and the other added
costs that come with the payment of, e.g., a private board of
directors? The costs in private situations always get passed onto the
end users. Thus use of the privatized Internet will inevitably have a
higher economic barrier to scale than if the commons of the Internet
remained publicly overseen and administered. Also, by its very
nature, private control of the development of the Internet will be
focused on different objectives than has been the public direction. 
That can be seen already where the private sector sees e-commerce as
more attractive as a goal than universal access to a global
communication system. Both higher cost and different purpose will
tend to exclude many people from Internet usage or so change the
content that the universal value of the Internet will be lost.

Locke argues that, "there is land enough in the world to suffice
double the inhabitants, had not the invention of money, and the tacit
agreement of men to put a value on it, introduced (by consent) larger
possessions and a right to them."(sec 36) After the introduction of
money there was eventually no longer the same plenty for all, and then
exclusion led to quarrels and contentions. The gathering into cities
and the introduction of money made efforts to exclude more attractive
to some and required a response by society. That response was the
introduction of political institutions or civil society in replacement
of the natural state of society. "The several communities settled the
bounds of their distinct territories, and, by laws, within themselves,
regulated the properties of the private men of their society, and so,
by compact and agreement, settled the property which labour and
industry began."(sec 45) What is the fate of the commons in political
society? Locke points out that "in England or any other country, where
there are plenty of people under government who have money and
commerce, no one can enclose or appropriate any part [of the commons]
without the consent of all his fellow-commoners; because this is left
common by compact- i.e., by the law of the land, which is not to be
violated." The consent of all the commoners is necessary because
"after such enclosure, [what is left] would not be as good to the rest
of the commoners as the whole was, when they could all make use of the
whole."(sec 35) And political society and laws are necessary so as to
enforce the receipt of that consent before, not after, the proposed
enclosure that will deny many some previous benefit.

Of course the Internet has developed in an era long after political
society has taken deep roots but also especially at a time when money
and commercial considerations play a dominant role. That is why the
need for a public role in the Internet is so great. As with the
English Commons, if the general public interest is not protected, the
particular private interests will significantly diminish what is
available to the rest of society. The tension between common purpose
and private exclusion exists and will cause contentions and quarrels
which require procedures in accordance with law for their resolution.

By Locke's reasoning, for the common aspects of the Internet to be
privatized the consent of all the Internet commoners is necessary. 
But who are the Internet commoners? It would seem that the Internet
users should be considered the Internet commoners. The development
and expansion of the Internet to all parts of the world originally had
been for public use and not for private profit. The Internet is
composed of diverse, independent and sovereign networks each embedded
in a political society determined by geographic location. The
question of whose consent is needed to make decisions like whether or
not to privatize the essential functions of the Internet needs to be
studied, debated and acknowledged as important. But at a minimum, the
system administrators, political representatives and the users
themselves seem to require central roles in such decisions. And the
Internet itself seems to be giving rise to a new political and social
phenomenon, the netizens, those Internet users who take a
responsibility to spread and safeguard the development of the
Internet.

Enclosure of the commons according to Locke begins the process that
leads to the need to establish national borders. How does this apply
to the proposed privatization of the Internet? Locke reminds U.S. that
questions that effect people across national borders are solved by
"leagues that have been made between several states and kingdoms,
either expressly or tacitly disowning all claim and right to the land
in the other's possession, ... and so have, by positive agreement,
settled a property amongst themselves, in distinct parts of the
world."(sec 45). The Internet is a commons that reaches across
national boundaries. Its spread too was facilitated by agreements but
these took the form of Acceptable Use Policies (AUP). For example,
the U.S. National Science Foundation prohibited commercial use of the
NSFNET and only allowed interconnection with other networks that had a
similar policy. It seems likely, following the analysis of Locke,
that the continuation of the growth (scaling) of the Internet will
require agreements or treaties among leagues of the nations involved. 
Such agreements are the opposite of privatization. They are in a
sense a public internation alization in recognition of the global
reach and importance of the Internet.

When Locke analyzes why privatization is a problem for society, he
envisions an isolated island where there is nothing "fit to supply the
place of money..." He asks "what reason could anyone [there] have to
enlarge his possessions beyond the use of his family ...?"(sec 48).
Unless there were hopes of commerce with other parts of the world to
draw money to the enclosure by the sale of products, it would not be
worth the enclosing.

The Internet is a wonderful global electronic commons. For its own
sake it does not appear that anyone or any organization would want it
as a private possession. So the questions need to be raised: To whom
or to what will the benefit of privatizing the Internet accrue? And
what role are such forces playing in bringing about for example the
creation of the Internet Corporation for Names and Numbers (ICANN)? 
This private corporation, under a board chosen in secret, has been
working since November, 1998 to take over the functions of the
Internet still under the oversight and management of the U.S.
government or its contractors. In over two years of ICANN activity
the secret of how this board was chosen, by whom and for what purpose
is still impenetrable. Secrecy is a clue that these are important
questions. The other clue is that the supporters of privatization
have never been willing to discuss or debate the question of why or
how privatization might serve the general welfare. They say
commercialization will spread the Internet but they are not willing to
allow debate over this question in the media they control.

Guided by Locke's theory of property, my conclusion about the
privatization of the essential functions of the Internet now being
attempted is that the commons of the Internet should be protected not
privatized. Locke suggests that this protection is the responsibility
and obligations of governments in league with each other. He writes,
"For in government the laws regulate the right of property, and the
protection of the land is determined by positive constitution."(sec
50) The history so far of the Internet suggests that acceptable use
policies and voluntary gatherings of network administrators with
online forums might also play a crucial role. However at present it
is especially the U.S. government that has the obligation and
responsibility to protect the Internet commons since the central
functions of the Internet are for historical reasons under its supervi
sion.

The U.S. Constitution has in the Preamble six purposes for which the
U.S. government is established: 1) to form a more perfect union, 2) to
establish justice, 3) to insure domestic tranquility, 4) to provide
for the common defense, 5) to promote the general welfare, and 6) to
secure the blessings of liberty to ourselves and our posterity. The
development of the Internet falls under at least 1 and 5. The
privatization does not seem to fit any of these six purposes allowed
to the U.S. government by its own constitution. The fundamental
purpose of the U.S. government would appear to be to promote the
general welfare. Locke agrees that all that governments do must be
"only for the public good."(sec 3) My analysis indicates that the
privatization of a commons is in general not for the public good. So
that the efforts of the U.S. government executive branch to privatize
the essential functions of the Internet are inappropriate. The U.S.
General Accounting Office has also warned that if privatizing the
crucial functions of the Internet involved the transfer of any public
property it would be contrary to the U.S. Constitution. For Locke,
the legislative is the supreme power (sec 132) not the executive. In
the U.S. there is a law, the Government Corporation Control Act of
1945, which prohibits the transfer of government functions to
corporate entities like ICANN without specific authorizing
legislation. Presently there is no such legislation and there have
been questions from the U.S. Congress concerning the privatization and
the lack of appropriate authorization to do it. Locke points out that
should ICANN get "into the exercise of any part of the power, by other
ways, than what the laws of the community have prescribed, [it would
have] ... no right to be obeyed"(sec 198). That is because it would
not then be the body the laws have appointed, and consequently not the
body the people have consented to. In such a case, even if some
network administrations obey ICANN, there will be others for local
reasons that will not. Then fragmentation of the Internet is a likely
result.

Private property in the analysis of Locke is not a natural right but a
conventional right based on civil law. A commons necessary for the
well being of a people needs to be protected from becoming private
property. Locke has an answer if the U.S. Congress and executive
branch and the other governments of the world allow the privatization
of the Internet commons. "Whenever the legislators endeavor to take
away, and destroy the property of the people, ... they put themselves
into a state of war with the people, who are thereupon absolved from
any further obedience." (sec 222) So at least in Locke's analysis, the
result of privatizing the Internet on which people's lives are coming
more and more to depend will be a greater instability in society. We
may not have come that far yet but my reading of Locke puts the
privatization of the Internet commons in line with the other
violations of the public purpose of government that more and more
characterize our time today at the beginning of the 21st Century.

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Notes

1. See for example, "Management Of Internet Names and Addresses," (63
Fed. Reg. 3, 741-42, 1998), the White Paper issued by the U.S.
Department of Commerce, June 5, 1998. To achieve its privatization the
U.S. Executive Branch set up in Fall, 1998 a private corporation, the
Internet Corporation for Assigned Names and Numbers (ICANN). But as of
2001 the central functions of the Internet are still under the
oversight of the U.S. Department of Commerce. ICANN is acting in a way
as IANA before it as a government contractor.

2. My quotes from Locke are from the Everyman edition of Two Treatises
of Government, edited by Mark Goldie reprinted in 1998. I indicate
after each quote the section in "The Second Treatise of Government: An
Essay Concerning the True Origin, Extent, and End of Civil Government"
from which it is taken.

My analysis has benefitted from a reading of A Discourse On Property:
John Locke and His Adversaries by James Tully, Cambridge University
Press, Cambridge, 1980. I take from this reading the understanding
that Locke used the unqualified word 'property' to mean the right to
use of, not ownership in the modern sense of property. Then the things
of the commons can be the property of someone in the sense that he or
she has the right to use them to the exclusion of other people's use
as long as there are still in the commons resources to meet the needs
of the other people.

3. The role of the U.S. government in the chain of events that lead to
the Internet started with J. C. R. Licklider's vision and his creation
of the IPTO in 1962. Some of Licklider's vision can be understood from
the papers noted below in notes 5 and 7. See also Ronda Hauben's work
on IPTO, the Advanced Research Project Agency office created by
Licklider (work in progress).

4. For the documentation of these concerns among the scientific and
engineering community see Computers and the World of the Future,
edited by Martin Greenberger, MIT Press, Cambridge Ma., 1962. This
book of lectures and discussions from MIT's Centennial Celebration in
1961 contains the keynote address by C.P. Snow and contributions from
many of those who went on to play significant roles in the development
of time-sharing, packet switching and networking. For an analysis of
the impetus for these developments see Chapter 6, "Cybernetics,
Time-sharing, Human-Computer Symbiosis and Online Communities:
Creating a Supercommunity of Online Communities," in Netizens: On the
History and Impact of Usenet and the Internet by Michael Hauben and
Ronda Hauben, Los Alamitos, Ca. IEEE Computer Society Press, May 1997.
Also this theme was explored in "The Internet: History, Technical,
Principles, Social Impact", an Horizons mini-course, Columbia
University, Spring 1999 and Spring 2000.

5. See, "Man-Computer Symbiosis", in IRE Transactions on Human Factors
in Electronics HFE-1, March, 1960, pages 4 to 11. Also reprinted in In
Memoriam: J. C. R. Licklider 1915-1990, Aug. 7, 1990, p. 40, Digital
Research Center.

6. See Michael Hauben, "Preface", in Netizens: On the History and
Impact of Usenet and the Internet by Michael Hauben and Ronda Hauben,
Los Alamitos, Ca. IEEE Computer Society Press, May 1997 .

7. In Memoriam: J. C. R. Licklider 1915-1990, Aug. 7, 1990, p. 40,
reprinted by Digital Research Center; originally published as "The
Computer as a Communication Device," in Science and Technology, April,
1968.

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Reprinted from the Amateur Computerist Vol 10 No 2 Spring 2001.
The whole issue or a subscription is available for free via email.
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