Around 1910, wireless communications came to a near standstill as many of the key vacuum tube patents were mired in interlocking infringement suits. That meant no company could use its own patent, because wireless technology had grown into a large interdependent system. If you own a patent on a shovel, you can't erect a building if your competitor has the patent on bricks.
But all this was put to rest when World War I broke out. The military took all the relevant patents and put them in a mandatory licensing pool. Anybody could use the patents, and the owners - pioneers such as Lee De Forest and Guglielmo Marconi - were amply rewarded from the proceeds of the pool. So was American society, with innovations ranging from mass production of the vacuum tube to national FM radio networks.
Today, we find ourselves in a situation very similar to that of 1910. This time, it's due to the basic set of technology patents that govern the use of public key cryptography.
Public key patents are a critical technology, not only for individual privacy but also for doing business on the Net. Unfortunately, the owners of the technology (corporations such as RSA Data Security, Stanford, and MIT) have pursued an élitist licensing strategy, making it readily available to our richest corporations, but failing to spread the technology as widely as possible.
This means if you want to use public key technology, you can buy a product such as Lotus Notes. What you can't do, however, is assume that everybody on the Internet has a public key certificate. Making the technology ubiquitous would have a tremendous enabling effect and would be fuel for an information economy.
By remembering the history of wireless technology, our Washington leaders have an opportunity to make up for the wrongheaded cryptography policies they have pushed in the past and to do something that helps transform our global village into a real city.
Right now, our village lacks certain public amenities. So the federal government should form a Global Village Park Commission. Our first park in the Global Village should be built on a beautiful location, and I can't think of a nicer place to start our park system off than the public key patents.
The legal mechanism for building a public park on private property is eminent domain. Eminent domain has a history as a tool of government. In the 1837* Charles River* case, US Chief Justice Taney, justifying the use of eminent domain, wrote that "the object and end of all government is to promote the happiness and prosperity of the community by which it is established." In 1912, in Cincinnati v. Louisville & N. R. Co., the Supreme Court extended the concept of eminent domain to intangibles, including "a charter, or any kind of contract."
Eminent domain is how we reshape our cities. From the boulevards of Paris built by Baron Haussmann to the US National Park System, eminent domain allows the broad public interest to prevail. In the case of the Global Village Park Commission, individuals and businesses would get free use of the basic public key technology. Using a certificate to authenticate yourself or protect communications would be a normal action in cyberspace, equivalent to a walk in the park.
However, corporations that build public key technology into a product to sell are essentially running a concession, equivalent to a hot dog stand in Central Park. For these businesses, the commission should charge a small usage fee. The proceeds can be used to pay off the patent holders, and any remainder can be put into an Information Highway Beautification Fund and used for Internet public works projects.
What would RSA think about this proposal? It could make the company very rich, richer than the run-of-the-mill Silicon Valley start-up it has become. If public key were ubiquitous, there would be a tremendous market for value-added solutions, ranging from private corporate security systems to fancy new software. And even a small "concession" tax would generate more than enough to amply reward RSA and leave a large pot for public works projects for the Internet.
The policy debate in Washington, DC, has been framed in extremely simplistic terms for the last two years: excessive government regulation versus our brave private sector. But government regulation doesn't have to be restrictive, and our private sector sometimes needs help to do the right thing. Government has many tools, including eminent domain, taxing, licensing, public works, antitrust laws, and codes of conduct. These tools can ensure that individuals get rights: parks to walk in, roads that are open to all, jobs that are available on a nondiscriminatory basis - and privacy in cyberspace.
