Internet Regulation in the Future

FORGET A PARADIGM
PREDICTING THE PATH OF DEVELOPING REGULATIONS
MULTI-LAYERED APPROACH
CAVEAT
CONCLUSION

Given the discussions in the preceding chapters, how would government officials in a developing country approach the regulation of the internet? This chapter aims to give some pointers to the answer.

FORGET A PARADIGM

There is a tendency to look for a philosophical short-cut for such a difficult issue. The ideal would be a philosophical light-sabre that could cut the regulatory Gordian knot. If an analogy can be drawn between the internet and another medium, then it would be a simple process of applying that medium's regulation to the internet without having to reinvent the wheel. Such an approach is tempting because the legal fraternity thinks in this mode. Similar cases should be

decided similarly, therefore, similar media should be governed similarly.

Is the internet a print medium? A broadcast medium? A common carrier medium? It is a new medium that has multiple uses. Like the computer on which it is based, it is flexible depending on the software being used. It can be all of the above at the same time. So no one regulatory paradigm will work.

Worse, regulatory paradigms can be misleading because of the fluid nature of the internet. The Singapore case is instructive. In the mid-1990s, when there was an outcry against the Singapore code of conduct for the internet, the authorities decided that email was private communication and, therefore, should not be regulated. Even as the problem of spam grew, the authorities continued to hold that position. It was only in 2004, when many countries had passed anti-spam laws, that legislation was proposed.

Instead, what regulators have done in practice, without expressly saying so, is to regulate the internet depending on the function in which the internet is being used. If it has broadcast components, then broadcast regulations apply mutatis mutandis to the broadcast functions. If it is used as an online newspaper, then newspaper rules apply mutatis mutandis.

This “functional approach”¹ —functional because it regulates on the basis of the function of the internet—does work, for now. But regulators themselves are uneasy because the regulations are patchwork. A new approach to regulation is probably needed to marry the diverse functions of the internet. Some governments are inconsistent in applying the rules. Just what the approach will be needs time to uncover.

¹ Such an approach has been called “application-centric.” Timothy Wu, “Application-Centered Internet Analysis,” Virginia Law Review 85 (1999) 1163.

PREDICTING THE PATH OF DEVELOPING REGULATIONS

One approach to predicting the path that has yielded some results is to use historical analogy, that is, to analyze analogous events historically and then use the findings to predict a path of development. Debora Spar has done it in her book Ruling the Waves, where she studies the rise and fall of piracy on the high seas. She concludes that, with disruptive technologies, there can arise a period of chaos and lawlessness that pirates and pioneers can exploit. However, over time, the pirates and pioneers become part of the establishment and will want rules to protect themselves from newcomers.

Her study does indeed parallel developments of the internet. The pioneers were of the view that they were beyond regulation and some have exploited this to their benefit. However, over time, rules were promulgated.

The difference with the internet, however, is that the rules are being promulgated in a relatively short period of time. The rules on piracy took decades to formulate. It is not possible to say if the pace of rule-making is too fast. Haste can make waste as rules become outmoded. Here, Spar's analysis is not as helpful as it cannot hint at timelines or even the direction of development. Analogies can only go so far.

Why USA and Europe will Continue to Lead in Internet Regulation

Any commentator of internet law and policy will quickly realize that much of the law and policy formation is originating from the US and Europe. Looking down the road, it is likely that they will continue to lead. The first reason for this is that these regions lead in internet use. A mantra in law is that the lifeblood of law is experience, not logic,

that is, law steps in to solve real-world problems. Continents like Africa and South America encounter a smaller scale of problems on the internet and so, to that extent, have a less pressing need to regulate it. Asia's scale of internet use will increase with the economic rise of China and India. The scale of internet-related issues will rise correspondingly.

The US has had a headstart in regulating activities on the internet because, as pointed out earlier, all the components that make up the internet were invented there. Each of the components—computer, networking and telephony—were already well-regulated in the US. Bringing the parts together to create the internet did not require a wholesale creation of new rules. Rather, the rules were often adapted from what was already in place.

Second, there are a lot of inputs in the policy formation process in the US and Europe. Sources of such inputs include industry associations, civil society groups and academics. Certainly in the US, industry associations and civil society groups generally tend to be well-funded and vocal in lobbying for their interests. This is much less so in Asia where inputs are less diverse.

Between the two, the author is of the view that the European position will be more internationally acceptable than the US. There is no doubt that there is much thoughtful work being done in the US. However, there is a special focus on the impact of regulation on free speech and free expression in the US. Although these are certainly important, many countries have other countervailing concerns.

In general, many Western European countries recognize the need for a degree of censorship of some media content. So it is perfectly understandable why German bookstores, for example, in practice do not allow books by Hitler to be sold and why Nazi memorabilia are not available for sale on German websites. The European position, while trying to accommodate both free speech as well as local cultural concerns, more closely resembles the situation in many parts of the world where censorship is present, varying only in degree.

On the other hand, many European countries also protect free expression under Article 10 of the Council of Europe's Convention on Human Rights, formally known as the Convention for the Protection of Human Rights and Fundamental Freedoms.² This protection closely resembles the US First Amendment as well the culture of internet users. In short, Europe has checks and balances for the competing interests of censorship and free expression.

A second important reason is that the European position is laid down by the EU and the Council of Europe (CoE). These two entities have overlapping memberships and have each issued directives and recommendations concerning internet law and policy. Each of these directives and recommendations are subject to debate across the diverse membership body of Europe. This debate makes the final outcome, be it a directive or a recommendation, that much more robust. To be sure, the EU and the CoE do not make up the entire world. But their composition is certainly more representative of a multicultural and international community than the US.

MULTI-LAYERED APPROACH

One phrase that crops up in any discussion of internet regulation is that of a “multi-layered approach.” Lessig has pointed out that all regulations in life can be summed up in four modes: social, architecture, market and legislation. Spam is a good example of where the multi-layered approach has to be used to address a new internet-specific mischief. Netiquette, spam filters and user education, among others, are needed to complement self-regulation and legislation.

² http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm (accessed October 8, 2001).

Such a multi-layered approach should be used when confronted with new mischiefs. Because the internet is still a new medium, legislation can be experimental. There is a first-mover disadvantage here. Witness the approach of governments towards liability for third-party content as discussed earlier. Over time, legislation “improves” and elegantly converges towards a few simple concepts. Meanwhile, the first-movers will actually need to amend their laws thereafter. Utah's Digital Signature Act is one such example of a hitherto-pioneering law now needing amendment.

CAVEAT

The war on terrorism that began after the attack on New York City's Twin Towers on September 11 has reached the internet. The fear of terrorism is driving many governments to pass laws that would enable them to access data to help in their law enforcement investigations. Law enforcement agencies have been paying particular attention to the internet because of its ability to cloak the identity of users. In fact, at the time of writing, Singapore's The Straits Times ran an article entitled: “Militant's prime tool: The Internet.”³ At issue is the extent to which laws will be passed to address the immediate issue of terrorism while jeopardizing long-term gains. The UK Official Secrets Act (the “Act”), which was later promulgated to British colonies, was passed in just such a climate of fear. Although the Act was originally intended to be used against espionage, it has been used even in England against those who may have wanted to embarrass the government in power.⁴

³ “Militant's Prime Tool: The Internet,” The Straits Times, October 4, 2004, 7.

⁴ David Hooper, Official Secrets: The Use & Abuse of the Act (London: Secker & Warburg, 1987).

CONCLUSION

In all probability, we are seeing the advent of the next phase of the regulation of the internet. The first euphoric phase of no-regulation is over. It is now widely recognized that there is a need to reign in the net and that there can be some regulation within certain limits.

However, regulation has not always yielded the outcome hoped for. A classic case is spam. Despite laws being passed, spam still is churned out in their millions especially from the US where the laws are the toughest. In some areas of regulation, enforcement is the most significant issue. Unlike drawing two yellow lines down the side of a road to stop parking, drawing any kind of line on the internet requires enforcement and that is the root of the problem.

In other areas, however, the laws require adaptation. Defamation is probably one such area. Before the printing press came into being, defamation law was aimed more at personal insults and injury. But when the printing press was invented, rules had to be created that first punished the author and compensated the victim and, second, created defenses for the author. In that sense, a different paradigm will be needed.

A first draft of any law for the internet would normally consist the offline rules. But with the increasingly sophistication of the internet, new paradigms and approaches would probably be necessary.

It is when we reach this third phase—developing new paradigms and new approaches—that we know we have arrived at what can be expected to be a “steady state.” At the end of the day, the internet is a new medium that humankind has not encountered before. And if the lifeblood of any law is experience, this is a new experience that requires new approaches and new laws.