3D Printing, Net Neutrality, and the Internet: Symposium Introduction

When this author first conceived of coordinating a symposium over a year ago relating to the most salient aspects of Internet and computer law and their societal ramifications, she intended to narrowly focus the scope of the symposium on the nexus between net neutrality and 3D printing.  Her intention was to highlight these issues as parallaxes that reflect the ways in which technological advancements pose as harbingers of both hope and challenge for society, while simultaneously addressing the legal quagmires that occur when laws relating to technology in many ways do not yet adequately correspond to these significant advances.

The confluence of 3D printing and net neutrality appeared to be ideally suited for discussion in a joint forum due to the similar legal themes that they evoke.  At the time that this symposium was first conceived, both 3D printing and net neutrality were at the cutting edge of Internet law, discussed seemingly ubiquitously by legal scholars, technological whizzes, and pundits alike with exclamatory declarations regarding the perils and advantages of both facets of technology and conjectures regarding their wide-sweeping effects.

However, one cannot merely focus on 3D printing and net neutrality law in a vacuum, but jurists must widely examine the many challenges that are pervasive among the advents in Internet and computer technology in order to broadly and appropriately ensure that legal systems protect individuals while simultaneously encouraging innovation.  It is precisely due to the legal and societal quagmires that 3D printing and net neutrality pose that ideally position them as springboards from which to delve into broader discussions regarding the array of issues that must be examined with regard to developments in technology law.

3D printing is an ideal example of the ways in which innovative technology is transforming our world and concurrently posing legal issues as such technology becomes more prevalent across society.  Once dubbed “the playground of the maker community,” 3D printing has formerly been associated with prototyping, but may soon “revolutionize the economy,”[1] and is even becoming mainstream enough that libraries are making them available for public use.[2]   As of 2014, a survey indicated that “11% of manufacturing companies had already switched to volume production of 3D printed parts or products.  As costs continue to drop and quality rises, it will be impossible to put this genie back in the bottle.”[3]  3D printing has been hailed for the technological promises that it offers, such as the rapidity in which products and designs can be replicated, the new opportunity for mass customization and virtual inventory, and the lowering of costs for mass production, which can spur innovation.[4]  3D printing has been compared to today’s version of “what email was to the Internet in 1994: an example of the incredible utility of a new technology, but also, merely a glimpse of the sweeping changes to come.”[5]  Even a cursory reading of Jasper Tran’s piece in this symposium depicting the promise of 3D printed living tissue lends a breathtaking insight into the future possibilities that can be achieved through 3D printing. [6]

As former Acting United States Solicitor General Neal Katyal writes regarding 3D printing:[7] since it was invented in the 1980s, 3D printing “has morphed from an area of research to the mainstream. We have 3D printed drones, prosthetic limbs, and blood vessels. 3D printing is becoming accessible, with printer models available for under $500.”[8]  Katyal expounds upon the reasons that 3D printing is a modern marvel, which range from the possibility of both decreasing pollution and reliance on business from overseas, to its ability to revolutionize medicine with the production of bones and organs printed to match an individual’s own cells.[9]

Yet, there is a darker side to this disruptive technology.  The perils of 3D printing will pose ramifications that “are sure to be felt in a number of industries, in ways we cannot yet imagine.”[10]  This includes the risk of lost jobs due to changes in manufacturing; intellectual property challenges; a chill to innovation if designs are easily replicable; as well as threats posed by printed weapons and other contraband or otherwise regulated items such as drugs.[11]  As legal scholars have widely queried, how can legal systems around the world meet the challenge of protecting society at large from the various risks posed by 3D printing without discouraging ingenuity?  What should be the most appropriate legal responses to massive leaps in the technological sector when the legal sector itself is notoriously risk-averse and largely more traditional than the technological sector that it needs to regulate?  Furthermore, in what ways can the challenges to legal frameworks that are highlighted when discussing the impacts of 3D printing be leveraged and contextualized to address Internet law in totality?

Net neutrality raises similar legal concerns, as both the topics of net neutrality and 3D printing are worthy of legal evaluation and discussion in conjunction with one another.  Both net neutrality and 3D printing raise similar issues with regard to the fact that they pose dangers that are not currently sufficiently addressed by existing legal frameworks; both have presented recent challenges to regulatory systems; both question the rights of consumers versus industry; and both serve as points of contention with regard to the concepts of freedom of expression and anonymity in the sphere of computer and Internet law.

In his symposium piece regarding net neutrality, Professor Robert Frieden explains that the principle of “network neutrality regulation seeks to prevent ISPs [internet service providers] from creating artificial congestion as justification for network management that interferes with traffic streams to achieve anticompetitive goals.”[12]  Professor Frieden continues that the Federal Communications Commission “emphasized the need for narrowly crafted rules designed to prevent specific practices we know are harmful to Internet openness — blocking, throttling, and paid prioritization — as well as a strong standard of conduct designed to prevent the deployment of new [anticompetitive] practices that would harm Internet openness.” [13]

Professor Frieden’s piece lends an interesting overview of the role of regulation with regard to the dichotomy between business incentives and the interests of the consumers and the public at large in the face of technological innovation.  He explains the ISPs’ incentives and ability to skew accessibility in a way that is detrimental to the public at large, calling into question the balance between protecting the rights of innovators and those in the technological industry versus members of the public who rely upon that technology.

Professor Angela Daly’s symposium piece, on the other hand, examines net neutrality from another angle, analyzing the different ways in which European governments have addressed that increasingly important issue.[14]  As she explains, some states in the European Union have “proceeded with law and regulation on network management at the domestic level.”[15]  Professor Daly describes the proposals upon which three legislative institutions in the European Union have agreed — namely upon the right to access, distribute and use the Internet; equal treatment of all ISPs; non-discrimination with regard to content, applications, or services; and the possibility that certain services may only be offered when there is capacity for them and offering them will not affect other Internet services. [16]

Professor Daly’s piece is foreboding with regard to legal systems’ abilities across countries to reflect the needs of an interconnected technological society, stating that “for net neutrality proponents, the proposed regulation may also be seen as a step ‘too little, too late.’”  She posits that since the “net neutrality was first raised as a policy issue more than ten years ago, it has taken a long time for the EU to arrive at this point where ex ante regulation is being considered — meanwhile technology and business practices have moved on.”[17]

Readers may be troubled by the challenges Professor Daly poses regarding European legal systems’ need to establish law to reflect technological advancements.  Her article reminds us that as Americans, although our legal rubric and culture may differ markedly from those of other nations, in a world that is ever shrinking as a result of technological innovation, we face many of the same technological challenges as other countries.  As technology links nations, many different legal systems worldwide must confront corresponding challenges.  If, as U.S. Supreme Court Justice Antonin Scalia posited, American exceptionalism precludes the United States from relying upon the law from other legal systems,[18] how can we best unite with other countries against the dangers of technology, which are no longer as localized?  If the United States has certainly embraced globalization on a technological basis, then in reality, how markedly unique is, or will be, our legal system?

Further, the concept of net neutrality, as depicted by Professors’ Frieden and Daly’s pieces, calls into question the rights of users with regard to harnessing technological innovations, as well as the corresponding accessibility to the Internet.  In today's culture, many of our daily interactions depend on the Internet.  Indeed, “Internet connectivity empowers us to engage in commerce, contact faraway relatives, or even find a future spouse.”[19]  Evaluating the FCC’s decisions regarding net neutrality, as discussed by Professor Frieden, it is worth questioning what legal rights people, as consumers, should have with regard to the use of the Internet as consumers in a public sphere.  If the Internet can be theorized as a public forum that should be accessible to everyone at equal speeds and without barriers, then should denial of access to the Internet be considered a violation of consumer protection or a violation of civil rights? Taking that discussion one step further, could the denial to the right to express oneself on the Internet together with millions of others in a public manner arguably be considered a violation of the freedom of expression or even of (virtual) assembly?  Could denial of access to the Internet ever constitute a violation of universally accepted human rights in the future?[20]  If Internet access can be considered a consumer right, then in conjunction with Professor Frieden’s discussion of ISPs in the context of net neutrality, what should jurists in legal systems around the world hold to be an appropriate balance between the rights of consumers and commercial interests?

The last question is one that additionally resonates in the context of 3D printing.  If people worldwide should arguably have relative freedom under their legal systems to buy or produce the products that they desire, what ramifications would that have on commercial interests with the increasing availability of 3D printing?  What additional protections should commercial entities be accorded in order to encourage them to invest in product development, and how will intellectual property rights be affected?  If businesses would be significantly adversely impacted by 3D printing, and consumers’ buying patterns would consequently change, how would these factors affect employees’ rights?  If traditional employers could no longer afford to compete with 3D printed competition, would labor laws change if business owners could not afford to hire workers for the same wage rate or benefits?

The overarching question remains with respect to Internet computer law as a whole: in what ways can legal systems encourage innovation, technological entrepreneurship, and commercial exploration while protecting the rights of consumers and the general public?

Mr. Matthew Ponsford similarly explores the burden of regulation in the wake of creative innovation in the context of Bitcoin, prompting the reader to question what role a government should take (in addition to officially recognizing currency) in enacting laws that protect consumers, as well as safeguard the ability to innovate.  As Mr. Ponsford expounds, the “challenge is striking a balance between developing comprehensive and effective criminal and financial regulatory regimes and policies, while limiting impediments to technological innovation and growth.”[21] If the key to success in the United States is to focus on fostering creativity,[22] then how can the American legal system best serve the interests of its citizenry by protecting them from the dangers that are expounded upon in Mr. Ponsford’s paper, while encouraging such technological exploration and development? How can a country responsibly adapt laws in a timely manner that will embrace technological creativity and will not stifle ingenuity?

Another issue that is discussed in Mr. Ponsford’s piece that looms large in the context of Internet and computer law is that of the importance of protecting privacy, which that author raises with regard to the anonymous nature of Bitcoin.  The concern regarding privacy in the technological sphere may be proverbially described as “nothing new under the sun.”[23] As former Acting Solicitor General Katyal notes, even in 1890, Louis Brandeis and Samuel Warren wrote that: “technologies ‘have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’” But the sentiment, and the argument in favor of a legal right to privacy, applies equally today.”[24]

If one of the trade-offs of living in an increasingly virtual society is a lack of privacy and the creation of enduring digital records, at what price should legal systems value privacy in the face of the convenience of the Internet?  The invasions of privacy through the medium of the Internet are not limited to public figures.   An example of the brutality that can be inflicted through the desecration of privacy on the Internet is highlighted by the actions taken by the Attorney General of California with regard to so-called “revenge porn,” in which people are humiliated on a global stage when images of their bodies are cruelly exposed on the Internet.[25]

Although cases of “revenge porn” are clear examples of the perils of the invasion of privacy on the Internet, the issue of privacy may be more opaque.  Where should courts draw the line with regard to the gray areas, when technological innovations may be beneficial but also could risk the negative externalities of troubling privacy implications?    As Ariella Michal Medows’ piece regarding the storage of electronic medical records and the corresponding legal and policy concerns of such technological innovations in the health care sector, poignantly causes the reader to question, if innovation can greatly improve society, at what level should privacy be risked to encourage development; or at what level should technological advancement be sacrificed to protect privacy and dignity?  Further, what kinds of technological safeguards, as creatively suggested by Ms. Medows, can be used to protect that privacy to best reap the rewards of such innovation?[26]   Is there a benefit to sacrificing some privacy for the modern marvels of today’s society, and what is the appropriate equilibrium in that kind of social cost/benefit analysis?

Other facets that complicate the jurisprudence relating to privacy are the additional factors of commercial interests and jurisdictional questions.   As explored by Professor Kate Westmoreland with regard to ISPs, privacy concerns present legal issues in relation to criminal investigations and prosecutions, as these issues can raise privacy concerns that may be transnational in scope.   As Professor Westmoreland explains, “unfortunately, the legal framework that guides these decisions is out of date and unable adequately to cope with rapidly evolving technologies, cross-border interactions, and exponential growth in data collection.  This means that internet providers[27] are making important decisions about whether or not to hand over user data to law enforcement from all over the world without clear legal guidance.”[28]

Every year, law students across the United States begin their instruction with the seminal case of Matthews v. Eldridge. [29] In that case, the Supreme Court expounded upon the notion of a balancing test—weighing various countervailing rights in order to arrive at a legally appropriate solution.  Much as in the case of Eldridge, legislators and legal scholars worldwide must consider the implications of weighing various rights in the face of technological developments.  Many competing values, which form the backbone of our country (and even arguably civilization) are at stake and at times can conflict with one another.  How can jurists protect the general populace from national security threats without policing the Internet and curtailing free speech? As individuals in a greater society, how much freedom and privacy should we be willing to surrender in the Digital Age in order to be part of a nation-state that possesses the enforcement power necessary to protect us, if even from our own actions? If governments do heavily monitor the Internet to protect against national security threats and other harm to their residents, how do we, in turn, protect citizens from the government?  Let us never forget the genocidal role that IBM played in perpetuating the Holocaust by supplying technology that aided the democratically elected Nazi government in Germany in organizing the mass murder of Jews and other victims in what was the worst atrocity in the modern “civilized” world only a few decades ago. [30]

Further, as technological developments continue to shrink our world, it is arguable that nations will become more reliant on cooperating with one another in terms of enforcement of crimes and commercial concerns.  How would the need for legal systems and governments to interact with one another change our modern concept of the role of a nation-state?  If, to paraphrase President Barack Obama, we can consider ourselves to be citizens of the world,[31] would that viewpoint which emphasizes globalization change or even decentralize the powers and roles of national governments?  How might the functions of governments evolve as they must address the global issues posed nearly universally by disruptive technology?  Where should legislators and jurists draw the line between crafting and interpreting laws that protect national security without being unduly restrictive, as well as safeguarding governmental interests such as collecting taxation from products sold online and the role of regulating currency, factor into those equations?  If the Treaty of Westphalia is credited with the birth of the modern nation-state, could our reshaping of the world through technological interdependence mark a change in modern geopolitical dynamics that diminishes the role of nation-states? If states cannot communicate with one another with regard to global issues, could sprawling technological advancements result in a modern-day version of the metaphoric Tower of Babel, as people from across the globe become united by a platform supplied by wide-reaching infrastructure, only to wreak devastation in the absence of a united front?

It is indisputable that innovations such as 3D printing will change the world as we know it.  Just as when Zhou Enlai, first Premier of the People's Republic of China, upon being asked about the repercussions of the French Revolution almost two centuries before, famously responded that it was “too early to say,”[32] so too we can only begin to imagine the legal ramifications of an increasingly technological world.

Technological innovations are tools, and like vehicles, can be used for dangerous or redemptive purposes depending on how they are harnessed.  As the cleric and television personality Fred Rogers eloquently posited:

What matters isn't how a person's inner life finally puts together the alphabet and numbers of his outer life. What really matters is whether he uses the alphabet for the declaration of a war or the description of a sunrise — his numbers for the final count at Buchenwald or the specifics of a brand-new bridge.[33]

It is far too simplistic to ask if such innovations are or will be beneficial or detrimental to society; rather such innovations must be contextualized as conduits of change and channeled to best protect society while affording the ability to explore technological possibilities.  It is the duty of jurists and legislators to keep the legal system current to meet the challenges posed by developments across the technological spectrum. Technological developments both reflect our world and shape it, causing nation-states to be porous, cultures to be fluid, and opening ourselves up to vulnerabilities and adventures that would be fantastical only a generation before.

As Katyal expounds, disruptive technologies “will become inseparable parts of modern life because they service important social needs.”  He explains, “3D printing quenches our thirst for innovation and self-sufficient production…  But we cannot forget the potential harms, such as the invasion of privacy, violation of intellectual property rights, and liability concerns surrounding this technology. The law must fill this gap. That is, after all, what the law is about: Providing human values in an age where technology causes both profound wonderment and profound disruption.”[34]

[1] Rick Smith, 7 Ways 3D Printing Is Already Disrupting Global Manufacturing, Forbes (July 12, 2015, 7:55 AM), http://www.forbes.com/sites/ricksmith/2015/06/29/7-ways-3d-printing-is-already-disrupting-global-manufacturing/.
[2] Albany Library Bringing 3D Printing to the Masses, WNYT.com (July 25, 2015, 10:54 PM), http://wnyt.com/article/stories/s3734653.shtml.
[3] Smith, supra note 1.
[4] Id.
[5] Id.
[6] Jasper Tran, Patenting Bioprinting, Harv. J.L. & Tech Dig. (2015).
[7] Neal Katyal, Introduction: Disruptive Technologies and the Law, 102 Geo. L. J. 1685, available at http://georgetownlawjournal.org/articles/introduction-disruptive-technologies-and-the-law/.
[8] Id. at 1687.
[9] Id.
[10] Id.
[11] Id.
[12] Robert Frieden, The Evolution of Internet Service Providers from Partners to Adversaries: Tracking Shifts in Interconnection Goals and Strategies in the Internet’s Fifth Generation, Harv. J.L. & Tech Dig. (2015).
[13] Id. at ¶ 4 (citing the 2015 Open Internet Order).
[14] Angela Daly, Net Neutrality Developments in the European Union, Harv. J.L. & Tech Dig. (2015).
[15] Id.
[16] Id.
[17] Id.
[18] Moshe Cohen-Eliya & Iddo Porat, The Hidden Foreign Law Debate in Heller: the Proportionality Approach in American Constitutional Law, 46 San Diego L. Rev. 367, 385-386 (2009).
[19] Deborah Beth Medows, The Sound of Silence: the Legality of the American “Kill Switch Bill,” 4 Case W. Res. J. L. Tech. & Internet 1, 1 (2012).
[20] See generally David Rothkopf, Is Unrestricted Internet Access a Modern Human Right?, Foreign Policy (July 25, 2015, 11:13 PM), http://foreignpolicy.com/2015/02/02/unrestricted-internet-access-human-rights-technology-constitution/ (stating that “countries, including Costa Rica, Estonia, Finland, France, Greece, and Spain, have asserted some right of access in their constitutions or legal codes, or via judicial rulings”). N.B., this author realizes that more critical priorities — such as increasing political freedom, reducing infant mortality rates, and providing access to running water — make a claim that the denial of Internet access would be a human rights violation seem trite and almost farcical by comparison, and would appear to insufficiently contextualize the unfortunate realities of those living in oppressive regimes worldwide.  However, as Internet access expands across the globe, its use has become more necessary to access services and advance professionally and subsequently remain competitive in much of today’s global economy.
[21] Matthew Ponsford, A Comparative Analysis of Bitcoin and other Decentralized Virtual Currencies: Legal Regulation in the People’s Republic of China, Canada, and the United States, Harv. J.L. & Tech Dig. (2015).
[22] For a broader discussion on this, see the overall general premise of Thomas Friedman, The World is Flat: A Brief History of the Twenty-First Century (Farrar, Straus & Giroux 1st ed., 2005).
[23] Ecclesiastes 1:9.
[24] Katyal, supra note 7, at 1685 (quoting Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890)).
[25] Attorney General Kamala D. Harris Announces Arrest of Revenge Porn Operator in Oklahoma (July 25, 2015, 11:19 PM), https://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-announces-arrest-revenge-porn-operator-oklahoma.
[26] Ariella Michal Medows, Legal and Policy Aspects of the Intersection Between Cloud Computing and the U.S. Healthcare Industry, Harv. J.L. & Tech Dig. (2015).
[27] Kate Westmoreland, The Global Corporate Citizen: Responding to International Law Enforcement Requests for Online User Data, Harv. J.L. & Tech Dig. (2015).
[28] Id.
[29] Matthews v. Eldridge, 424 U.S. 319 (1976).
[30] Edwin Black, IBM's Role in the Holocaust — What the New Documents Reveal, Huffington Post (July 25, 2015, 11:35 AM), http://www.huffingtonpost.com/edwin-black/ibm-holocaust_b_1301691.html.
[31] Obama’s Speech in Berlin, N.Y. Times (July 25, 2015), http://www.nytimes.com/2008/07/24/us/politics/24text-obama.html?pagewanted=all&_r=0 (stating that “I come to Berlin as so many of my countrymen have come before. Tonight, I speak to you not as a candidate for President, but as a citizen — a proud citizen of the United States, and a fellow citizen of the world.”).
[32] Dean Nichas, Zhou Enlai's Famous Saying Debunked, History Today (July 25, 2015, 11:57 PM), http://www.historytoday.com/blog/news-blog/dean-nicholas/zhou-enlais-famous-saying-debunked  (N.B. that this anecdote is arguably apocryphal and instead corresponds to an alleged error in translation.  Nevertheless, this story is famous for its underlying premise and illustrates for the reader the uncertainty of world events.)
[33] Fred Rogers, The World According to Mister Rogers: Important Things to Remember, at 180 (Hyperion 1st ed., 2003).
[34] Katyal, supra note 7, at 1689.