Can The Government Really Walk The Line Of Regulating The Internet Without Screwing It Up?

from the questions-to-ask dept

Recently, when I wrote about new moves by the federal government to gain more regulatory control over the internet, I mentioned our discussion from a couple months ago of a presentation by Lawrence Strickling, the head of the National Telecommunications and Information Agency (a division of the Department of Commerce), who tried to make the case that the government has a role in regulating the internet. As I noted at the time, if you read his full speech (and not just some of the hysterical coverage about it), it sounded as if he was really noting that the US already regulates many aspects of the internet, and the government needs to figure out the proper policies for handling those aspects.

It appears that he's now building on that earlier speech. He recently gave another speech on the same topic, which he refers to as "Internet Policy 3.0." And, once again, I understand the fine line that he's trying to thread, but I worry about what it means in practice. He points out that the role of the government shouldn't be heavy-handed, but as a way of making sure that people continue to trust the internet. He points to Section 230 of the CDA as an example of "good legislation" that has been very important to the success of the internet, and talks about using that as a model of the type of legislation that the feds should have.

All of that sounds good -- and I'm sure his heart (and his mind) are in the right place on this... but the details still scare me to death. As in his earlier speech, he lists out areas where he thinks the government has a role to play. And, if you're unfamiliar with the deeper details in any of those areas, it might be hard to disagree. But, as you dig deeper on each one, it gets more and more troubling. Take one area that is near and dear to the hearts of many folks here: copyright. Here's what he has to say about copyright:

Copyright protection: How do we protect against illegal piracy of copyrighted works and intellectual property on the Internet while preserving the rights of users to access lawful content? NTIA and our sister agency at the Department of Commerce, the US Patent and Trademark Office, are beginning a comprehensive consultation process that will help the Administration develop a forward-looking set of policies to address online copyright infringement in a balanced, Internet-savvy manner.

Pretty non-descript and bland, and who would disagree with that idea? Well, if you've paid attention to the past history of copyright law, the above paragraph should scare you silly. Every single time that the US has developed new copyright policies, the process has totally been controlled by special interests whose goal have nothing to do with being balanced or internet-savvy -- but about better protecting their own business models and building the walls up higher around them. And, to date, neither the Commerce Department, nor the USPTO, have given the slightest indication that they're interested in changing that. In fact, Strickling's boss has a history of buying into bogus claims from Hollywood.

And that's the real fear on any of these things. The devil is very much in the details, and special interests have a really strong ability to influence the process and the details, so that any "balanced, internet-savvy" plan comes out as anything but that. For all of Strickling's best intentions, opening these things up to new laws really opens them up to abuse by folks who are world-class experts in abusing the system.

Oh, and it should be noted, of course that Strickling's "good example" of Section 230 of the CDA was sort of an accidental by-product of what was left over after the Supreme Court got around to throwing out pretty much all of the awful CDA. It's easy to look in hindsight and say "this is a good law" and "this is a bad law," but it's incredibly difficult in advance. If there were actually a system and process for reviewing laws to see if they ever actually did what was promised, perhaps it would be worthwhile to experiment. But that's not how the government works. Instead, politicians pass laws and just pretend they must do what they claim -- and then unintended consequences are ignored until the problems become big enough that a new bad law takes the old bad law's place.

Yes, that's a cynical view, but it's hard to argue with it when you look at the way the federal government works. So, as idealistic as Strickling may be, his ideas on Internet Policy 3.0 are incredibly scary, because of those unintended consequences that he can't predict.

Filed Under: lawrence strickling, policy 3.0, regulations, us government