Are We Regulating the Internet to Death?

Is the Internet in danger of governmental takeover by overzealous legislators? Are overstepping government agencies sucking the commercial life out of it? Is it falling into the vice-like jaws of the monolithic telecommunications carriers? Are the ravenous media companies manipulating it to support their self-serving business models? Are the nefarious big advertising and marketing firms using it to rob people of their privacy? Is the Internet losing its essential character and the very qualities that made it great, and if so, who is to blame and what should be done?

The answer to any one of those questions depends on who you talk to, where they come from and who signs their paycheck. But the overall answer is nobody knows for sure because no one has entirely figured out what the Internet is or how it should be handled.

The current kerfuffle about who can do what with what to whom and for whom on the Internet is one of the most complex tangles of uncertainty yet to emerge in the era of Literacy 2.0. But one thing is certain, there is no possibility of coming up with the one “right” course of action.

Any one component of the debate about how to regulate or not regulate the Internet would in itself be a Gordian Knot of uncertainties, contradictions and differing opinions. But even more confounding is the fact that the issues are all part of the same knot. The reason the Internet will not yield to a reductionist approach is because issues such as privacy, security, copyright, open access, free commerce, competition, communication and even basic human rights are tightly and inextricably enmeshed.

But that isn’t stopping public and private entities from myopically and one-sidedly attacking one issue after another with a growing fervency and frequency.

Digital Jousting in the Legislature

The familiar battle themes of privacy versus profit, corporate greed versus governmental intervention and free market versus freedom of access, were in the spotlight in Washington D.C. last week and are again this week.

Last Thursday, Rep. Bobby Rush (D-Ill.) reintroduced online privacy legislation that would allow for the collection and use of information from Internet users but require firms to obtain consent from consumers before sharing information with third parties. At the same time it would give firms the option of adhering to a self-regulatory program approved by the Federal Trade Commission (FTC).

Last Friday, Rep. Jackie Speier (D-Calif.) introduced the “Do Not Track Me Online Act of 2011” that would require the FTC to develop a system that gives consumers the option to opt out of being tracked while browsing online. Speier’s companion bill, “Financial Information Privacy Act of 2011”, would prevent financial institutions from sharing or selling personal financial information without a consumer’s permission.

Today, the House Judiciary Committee Subcommittee on Intellectual Property, Competition and the Internet is conducting a hearing titled “Ensuring Competition on the Internet: Net Neutrality and Antitrust.

On Wednesday the House Commerce Committee Subcommittee on Communications and Technology is conducting a hearing titled “Network Neutrality and Internet Regulation: Warranted or More Economic Harm than Good? The main purpose will be to discuss whether or not to nullify the Federal Communications Commission’s (FCC) “net neutrality” regulations that the agency put into place to protect the Internet from being dominated by the infrastructure providers. Those opposed to the action believe the FCC overstepped its authority and that the restrictions are a threat to free commerce.

Also on Wednesday, the Senate Judiciary Committee will conduct a hearing titled “Targeting Websites Dedicated To Stealing American Intellectual Property“. Essentially this is a hearing into the “Combating Online Infringement and Counterfeits Act” introduced by Patrick Leahy (D-Vt.) last year. It would allow the government to shut down websites that infringe on content copyrights. The FBI has already been shutting down websites with court orders, but the act would regularize the process. Those in favor say copyright protection is desperately needed. Those opposed say it would mostly benefit the large media companies and goes too far in tramping on the rights of website owners.

The battle of the bills is largely driven by partisan ideology and is chockfull of irony. Conservatives decry government’s Big Brother approach to regulation and fear a dampening of free market forces, but at the same time want regulation that will protect business interests. Liberals want a free and open Internet, but want legislative protections that would make it less free and open for big business. There is a demand for simultaneous cake consumption and ownership.

Understanding the Net’s Nature

What many of the competing parties seem not to realize is that the Internet is not a thing, like a cake, or a Boeing 747. You can tinker with a Boeing 747—bigger engines, wider seats, new navigation system—and it will still do what it was designed and built to do. But when you tinker with the Internet, because it is in a sense alive and constantly evolving, even the slightest alteration can have unforeseen consequences that zoom out of scale to the intention.

The Internet is not a 747, it’s the weather that a 747 flies in. The Internet is subject to the same principles of complexity and self-organization as clouds, rain and wind. Every new regulatory action, new technology or new online application generates unpredictable changes that set off more changes that cause other changes, and so on. In the knot of the Internet, everything affects everything and control is fundamentally illusory.

Switching metaphors for a moment, in earlier times, government regulators probably would have observed these dynamics and concluded “the Internet is a moving target.” No doubt some do call it that even now without realizing they are betraying their deep misperceptions.

Hitting a moving target simply requires the right calculation of speed and distance and the right projectile. Those who see regulatory action that way see a safe and fair Internet as the target and rules and regulations as the arrows. They make their calculations, they shoot their arrows and they strike the bull’s eye. But, because of the intertwined nature of the Internet, instead of producing the Internet of their dreams, the impacts of their efforts cause collateral damage or create new sets of problems, which leads to a perceived need for more arrows.

In trying to prevent any of the questions at the beginning of this post from becoming fact, regulators must be careful that in their zeal to protect the goose that lays the golden eggs they don’t accidentally put an arrow through its heart. Likewise, giant telecoms, search engines, media companies and marketing firms must beware of the possibility that in their eagerness to eat the goose they might deprive themselves of the long-term gold it has to offer.

Protecting and Feeding the Goose

Of course the Internet must be free and open. Of course market forces must be allowed to function. Of course users must be protected from exploitation. Of course businesses must be allowed to profit. Of course there must be an open flow of content. Of course there must be copyright protections.

Contrary to the view of many of the Internet’s stakeholders, those are not competing needs. It all needs to happen if the Internet is going to continue to fulfill and expand its potential. When it comes to the health and well being of the Internet, the competing parties are not competitors at all. They are de facto partners.

In the natural course of things, decisions and actions concerning the need for a safe and fair Internet must be taken, but they must be taken in the larger context and for the good of the Internet itself. What we need is a kind of all-user stewardship in which no one seeks unfair advantage or tries to impose one vision of what the Internet should be and how it should be managed.

It is wildly idealistic to state that the only way to nurture and defend the Internet is to neither exploit it nor control it. But it is a fact that the very people that would seek to mold it in their own image or use it to their own advantage are at the same time its caregivers and protectors.

Will that happen? Will we see an Age of Internet Enlightenment in which all stakeholders do their jobs with an eye toward the greater good? Not likely. But that’s no cause for despair. Just as it is highly unlikely that an all-for-one-and-one-for-all stakeholder epiphany will come to pass, it is also highly unlikely that even the greediest corporation or the most controlling government agency could kill the Internet—no more likely than that a corporation or a government could bring an end to the weather.

Precisely because it is so complex, teeming with randomness and so much a reflection of human nature, it will defy economic domination and regulatory destruction.

The system of computers and switches and applications that we now call the Internet is destined to evolve into something very different from what we have today. It will continue in its unpredictable ways. It will continue to have its gentle breezes and mighty cyclones. It will continue to defy absolute control. And, it will continue to be there for the benefit of those who have the skill and understanding to fly in it.

Photo: Pedro Pinheiro

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