Aug 112008

Last Wednesday I attended “State of the Net West” at the High Tech Law Institute at Santa Clara University. I’m always running off to Internet law symposia and such whenever I can, but this one was different than others in that it included Congressional representatives. That kind of thing may be normal for DC-based events, but it’s a rare occurrence in places like the Bay Area. Most of the events I’ve gone to have various experts wringing their hands over law and policy, but here we had people who helped make it in the first place.

As is typical at these events there were panels on Internet copyright, but there was also another topic of growing popularity: Internet reputation. The confluence of social networking sites and search engines has increasingly resulted in instances of damaged personal reputations, sometimes through the imprudence of their own holders but often through defamatory conduct by others. All this raises the question of how the law bears on this problem, or how it should, as any efforts to clamp down on the collateral problems endemic to Internet communication such as these will also necessarily result in clamping down on the freedom to communicate entirely.

In fact that’s what all Internet law boils down to, the question of how to achieve regulation without strangulation, to minimize the problems without minimizing the potential.

It’s a tricky endeavor and one that regulators often get extremely wrong. Sometimes they get it wrong by tying the regulatory language too closely to whatever specific technology is state of the art at the time of the drafting. One example of such unfortunate drafting is the Electronic Communications Privacy Act, a 1986 update to the Wiretap Act that was supposed to expand the latter to apply to all the new-fangled electronic communication technologies emerging around that time, technologies hardly even imagined way back in 1968 when the original Wiretap Act was drafted. But while ECPA’s statutory language may have made perfect sense for mid-80s technology, it makes no sense when applied to the modern Internet, itself a technology hardly imagined twenty years ago.

But sometimes it’s just the very idea that regulation is required that causes the problems. When we look at some of the revolutionary Internet tools that didn’t exist even just a few years ago (e.g., search engines, YouTube, blogs) we need to recognize that the reason they are able to exist at all today is they were free to develop. So even if we were to temper any new regulation in such a way that these incumbent technologies could continue unfettered, by introducing regulation at all we might still inadvertently foreclose the next big idea. Just as the ones we have today were able to grow from a glimmer in an innovator’s eye to the world-changing tools we now know them to be, we must allow future ideas to be able to grow freely as well. Consequently, no matter how onerous the problem regulation is intended to solve, it needs to be recognized that imposing it may likely cause bigger ones.

 Posted by at 10:00 pm

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