Person:

Lessig III, Lester

In order to preserve the rapid rate of innovation generated by the Internet, Congress must act to maintain the Internet’s network neutrality and its “end-to-end” design. To accomplish this goal, Congress should adopt the “Internet Freedoms”— access to content, use of applications, attachment of personal devices, and obtainment of service plan information — proposed by Federal Communications Commission (“FCC”) Chairman Michael Powell. In addition to adopting these freedoms, Congress should further act to prevent access-tiering — whereby providing content or service on a network is contingent upon the payment of a fee. Adopting an access-tiering policy would inhibit the fair competition of newly emerging Internet services and thereby delay further Internet developments at a time when the Internet is critical for the U.S. economy. Instead of adopting an access-tiering policy, Congress should preserve the current end-to-end design because it facilitates competition and creates innovative Internet uses at the margins of the network.

There is a public domain, but it is small, relative to its history, and it is shrinking. Digital technology will only speed its decline. And because most are oblivious to the particular threat that digital technology poses for the public domain, the prospects for reversing this trend are not promising. On the present path, the idea of the public domain will be as familiar to our children as the intergovernmental tax immunity doctrine is to our students.

This loss of the public domain, properly understood, will be a profound loss for freedom and culture, or more precisely, free culture. It will also be persistent. For the mechanisms that will effect the elimination of this domain are not merely legal doctrines. The mechanisms are machines protected by the most powerful (if delicate) technologies of control that man has devised.

My aim in this essay is to frame a way of talking about this public domain, and to map a strategy for its defense. The defense will come both from rebuilding the public domain, properly understood, and from crafting an "effective" public domain-meaning a free space that functions as a public domain, even though the resources that constitute it are not properly within the public domain.

This Reply follows the responses of Professor Bruce Cain and Professor Guy-Uriel Charles to Professor Lessig’s essay "What an Originalist Would Understand 'Corruption' to Mean," 102 Calif. L. Rev. 1 (2014).

As important as "that" is "how." It is commonplace to say of the United States Congress that it is "corrupt." But it is critical, if we are to reform that corrupt institution, to say how it is corrupt. In what sense? According to what meaning? For what reasons?

For the United States Congress is not corrupt in any traditional (albeit modern) sense of the term. Congress is not filled with criminals. Its members are not seeking bribes or using their official influence for private gain. In this sense, as Dennis Thompson offers, our Congress is likely the least corrupt Congress in the history of that institution.1 These are not bad souls bending the public weal to private ends. The institution is not corrupt because it is filled with a bunch of corrupt individuals. Instead Congress is corrupt at the level of the institution. We can presume the individuals within the institution are innocent; the economy of influence that they have allowed to evolve is not. Members of Congress, of course, are ultimately responsible for the influence they have allowed to evolve. But there is a distinction between being responsible and being corrupt: the bartender may well be responsible for the alcoholic's accident; that doesn't make her a drunk.

And that is the objective of this short Essay: to see how an institution can be corrupt even if its members are not. I base the argument on the Brennan Center's Jorde Symposium lecture that I had the honor of presenting at Berkeley Law in January of 2013. But lectures are not (or should not be) essays. So while this Essay draws from that lecture, it reaches beyond it. In particular, it is enriched by the generous and careful criticism of election law maven Rick Hasen. I take the opportunity in this Essay to also reply to him more carefully.

It is my claim that this "corruption"-what I call "dependence corruption"-should be easy for an originalist to see. Indeed, as this Essay will insist, only a non-originalist could reject it. That fact, if correct, makes the views of the originalists on the Supreme Court about the scope of the term "corruption" all the more puzzling, even as it also makes traditional reformers uncomfortable.