3. Ann Harrison,“Government Error Exposes Carnivore Investigators; ACLU Blasts Teamfor Close Ties to Administration,”Computerworld, October 5, 2000, available at link #53. Thisconcern was strongly criticized. See Center for Democracy and Technology, “Cryptography,”available at link #54.

4. The Mitre Corporation did examine a related question for the military. See Carolyn A.Kenwood, A Business Case Study of Open Source Software (Mitre Corporation: 2001).

5. See Bush v. Gore, 531 U.S. 98, 126 (2000) (Stevens, J., dissenting).6. Di Franco et al., “Small Vote Manipulations Can Swing Elections,”Communications of

the ACM,Volume 47, Number 10 (2004), 43–45, available at link #55.7. For an extraordinarily troubling account that raises much more than suspicion, see

Robert F. Kennedy, Jr., “Was the 2004 Election Stolen?,”Rolling Stone (June 2006).8. David E. Ross, PGP: Backdoors and Key Escrow, 2003, available at link #56.9. Craig Hunt, TCP/IP: Network Administration (Sebastopol, Calif.: O’Reilly and Associ-

ates, 1997), 1–22, 6, 8; Loshin, TCP/IP: Clearly Explained, 13–17.10. There is no standard reference model for the TCP/IP layers. Hunt refers to the four lay-

ers as the “network access,” “internet,” “host-to-host transport,” and “application” layers;TCP/IP: Network Administration, 9. Loshin uses the terminology I follow in the text; TCP/IP:Clearly Explained, 13–17. Despite the different moniker, the functions performed in each ofthese layers are consistent. As with any protocol stack model, data are “passed down the stackwhen it is being sent to the network, and up the stack when it is being received from the net-work.” Each layer “has its own independent data structures,” with one layer “unaware of thedata structures used by” other layers; Hunt, TCP/IP: Network Administration, 9.

11. Hunt, TCP/IP: Network Administration, 9; Loshin, TCP/IP: Clearly Explained, 13–17.12. As Hafner and Lyon explain: “The general view was that any protocol was a potential

building block, and so the best approach was to define simple protocols, each limited in scope,with the expectation that any of them might someday be joined or modified in various unan-ticipated ways. The protocol design philosophy adopted by the NWG [network working group]broke ground for what came to be widely accepted as the ‘layered’ approach to protocols”;Where Wizards Stay Up Late, 147.

13. The fights over encryption at the link level, for example, are fights over the TCP/IPprotocols. Some within the network industry have proposed that encryption be done at thegateways, with a method for dumping plain text at the gateways if there were proper legalauthority—a kind of “private doorbell” for resolving the encryption controversy; see ElizabethKaufman and Roszel Thomsen II, “The Export of Certain Networking Encryption ProductsUnder ELAs,” available at link #57. This has been opposed by the Internet Architectural Board(IAB) as inconsistent with the “end-to-end” architecture of the Internet; see IAB statement on“private doorbell” encryption, available at link #58.

Since Code v1, there has been an explosion of excellent work extending “layer theory.”Perhaps the best academic work in this has been Lawrence B. Solum and Minn Chung, “TheLayers Principle: Internet Architecture and the Law,” University of San Diego Public LawResearch Paper No. 55, available at link #59. Solum and Chung have used the idea of Internetlayers to guide regulatory policy, locating appropriate and inappropriate targets for regulatoryintervention. This is an example of some of the best work integrating technology and legalpolicy, drawing interesting and important implications from the particular, often counterintuitive, interaction between the two. I introduce “layers” in my own work in The Future ofIdeas: The Fate of the Commons in a Connected World (New York: Random House, 2001),23–25. See also Yochai Benkler, The Wealth of Networks: How Social Production TransformsMarkets and Freedom (New Haven: Yale University Press, 2006), 391–97. For other very usefulwork extending this analysis, see Craig McTaggart, “A Layered Approach to Internet LegalAnalysis,”McGill Law Journal 48 (2003): 571; Thomas A. Lane, “Of Hammers and Saws: The

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