This article arises from Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. A Future Tense conference on whether governments can keep pace with scientific advances will be held at Google D.C.'s headquarters on Feb. 3-4. (For more information and to sign up for the event, please visit the NAF Web site.)
Summing up the history of lawlessness on the American frontier, Frederick Jackson Turner famously concluded in 1893: "A system of administration was not what the West demanded; it wanted land."
Our modern information frontier, known inelegantly (and inaccurately) as "the Internet," has likewise resisted efforts from governments to impose their provincial laws, local regulations, and moral disapproval disguised as legislation. Porn and gambling purveyors move their servers off-shore; political dissidents take advantage of anonymous relays and encryption; broadband providers hire Washington lawyers to challenge the Federal Communications Commission in old-fashioned courts.
And thank goodness. While politicians and self-appointed consumer advocates opportunistically decry anarchy on the digital borderlands, those of us who reside there know it runs a hell of a lot better than anyplace else we've lived. Digital life has its own norms and values, enforced by efficient and effective engineering. As it was on the American frontier, those systems reflect the environmental realities of digital life. From simple reputation systems such as eBay's buyer-and-seller ratings to elaborate self-policing by the 12 million participants in online World of Warcraft games, Internet communities tend to invent their own unique "systems of administration."
Even if the Internet really does need saving, however, the most useful thing for traditional regulators to do would be nothing. That's largely because the Internet is the poster child for what Harvard's Clayton Christensen calls a "disruptive technology"—an innovation that upends the core assumptions and operating principles for enterprises that try to embrace it. In this case the enterprise is pretty much every aspect of human life, and the disruption is felt most acutely in basic ideas about how to govern.
By design, democratic governments innovate slowly, incrementally, and deliberatively. But when that approach is applied to an ecosystem that expands and evolves at accelerating speeds, laws aimed at controlling the technology or how it's used become quickly outdated. And that's just the best-case scenario. Often, instantly-anachronistic regulations lead to unintended consequences, warping or even stunting the development of new applications and products that weren't even on the drawing boards when the legislating started.
The most profound mismatch is geographic. Even national laws fail to encompass the increasingly global scale of digital life, creating a patchwork of incompatible rules that nobody can follow, or that cannot be enforced. I live in a small town north of the Berkeley Hills, in California. Every month, the local newspaper publishes a police blotter of petty theft from unlocked cars or the occasional unneighborly dispute over tree-trimming. But lately there have been also a few reports of identity theft, Internet scams, or downloaded viruses that erased files. What can our part-time police force do about any of that?
The ongoing and seemingly endless fight over "net neutrality" is a good example of bad regulating. For those who have somehow missed this, the FCC has been promising for over a year to implement what it calls "prophylactic" rules to limit how U.S. ISPs can manage network traffic for consumers in the future. When the rules were finally voted on in late December, the agency was obliged to carve out well over a dozen exceptions to its basic principle of a "neutral" Internet, recognizing that in the last 10 years the technology has evolved to optimize popular applications and resource-intensive content such as voice and video.
There are exceptions for content-delivery networks, IP-based television and voice, and peering arrangements between backbone providers; special rules for nascent and resource-constrained mobile Internet users; and exemptions for e-book readers, game platforms, and coffee shops that offer limited forms of Internet access. The Internet has evolved into a much more complicated place than it was in 1998, when the FCC last paid it much attention.
For some, these caveats fatally undermine the goal of the rules, which was to ensure a "level playing field" for new participants in the Internet ecosystem. But these exceptions are crucial to maintain today's vastly expanded and improved online experience. The problem, rather, is that by putting an arbitrary stake in the ground, the FCC's "these but no more" exceptions will unintentionally slow or even smother further improvements in network-management techniques yet to be invented.
Given the rapid transition to mobile computing in progress, and the government-created problems of misallocated radio-spectrum and transmission-tower-siting limits for cellular carriers, the new rules could in particular upend the best engine of innovation the struggling economy currently has.
The agency promises to review its rule in two years. But two years in Internet time is an eternity.
Let me give an example, on the other hand, of good lawmaking. In 1996, Congress granted all Internet service providers—a term broadly defined—immunity from most forms of secondary liability, including state defamation laws, for content posted by users and other third parties. Blog hosts, broadband providers, and news sites that allow comments are not legally responsible for what their users say. Neither are companies such as Yelp, Twitter, YouTube, and Facebook, whose entire business relies on content shared by users.
Few other countries had the foresight to create this kind of "law-free" zone for innovators to play around in. As a result, the vast majority of social networking and other "Web 2.0" companies that led the second great wave of Internet innovation have their origins—and their headquarters—in the United States. It wasn't that U.S. lawmakers planned for Facebook and Twitter or could have if they wanted to. But by protecting startups from potentially lethal nuisance lawsuits, new applications were able to evolve on their own terms.
If governments do more harm than good, who's left to police digital life? The answer is the users themselves. One important side effect of social networking, user video, and app-based interactions has been the empowerment of consumers. Pro-regulatory advocates worry about what giant content providers such as Google or access companies including Verizon and Comcast might do in a future absent government intervention. But I have faith that consumers, users, and citizens increasingly have the tools to make their views known and effect change when necessary—quickly and effectively.
Facebook learns that lesson every time it tries to change how it manages user data, ironically falling victim to the very tools the company provides its users. Two years ago, a Facebook group called "People against the new Terms of Service" signed up 100,000 members in a matter of minutes. That's the starting point. Increasingly, users will overcome the traditionally high costs of collective action and exert their will as equals to corporations and governments that take technology in directions they don't like.
Early on, unfortunately, we may also have to endure episodes of digital mob rule, with all the negative consequences that go with it. That, too, is what happened in the American West. But over time, the posse and the hanging tree gave way to local sheriffs and circuit-riding judges. The frontier civilized itself.
The Internet will do the same. Only faster.