Книга: Code 2.0

Chapter 5. Regulating Code

Chapter 5. Regulating Code

Commerce has done its part — for commerce, and indirectly, for governments. Technologies that make commerce more efficient are also technologies that make regulation simpler. The one supports the other. There are a host of technologies now that make it easier to know who someone is on the Net, what they’re doing, and where they’re doing it. These technologies were built to make business work better. They make life on the Internet safer. But the by-product of these technologies is to make the Net more regulable.

More regulable. Not perfectly regulable. These tools alone do a great deal. As Joel Reidenberg notes, they are already leading courts to recognize how behavior on the Net can be reached — and regulated.[1] But they don’t yet create the incentives to build regulability into the heart of the Net. That final step will require action by the government.[2]

When I wrote the first version of this book, I certainly expected that the government would eventually take these steps. Events since 1999 — including the birth of Z-theory described below — have only increased my confidence. In the United States, the identification of “an enemy” — terrorism — has weakened the resolve to resist government action to make government more powerful and regulation more effective. There’s a limit, or at least I hope there is, but there is also no doubt that the line has been moved. And in any case, there is not much more that the government would need to do in order to radically increase the regulability of the net. These steps would not themselves excite any significant resistance. The government has the means, and the motive. This chapter maps the opportunity.

The trick is obvious once it is seen. It may well be difficult for the government to regulate behavior directly, given the architecture of the Internet as it is. But that doesn’t mean it is difficult for the government to regulate the architecture of the Internet as it is. The trick, then, is for the government to take steps that induce the development of an architecture that makes behavior more regulable.

In this context, I don’t mean by “architecture” the regulation of TCP/IP itself. Instead, I simply mean regulation that changes the effective constraints of the architecture of the Internet, by altering the code at any layer within that space. If technologies of identification are lacking, then regulating the architecture in this sense means steps the government can take to induce the deployment of technologies of identification.

If the government takes these steps, it will increase the regulability of behavior on the Internet. And depending upon the substance of these steps taken, it could render the Internet the most perfectly regulable space we’ve known. As Michael Geist describes it, “governments may have been willing to step aside during the commercial Internet’s nascent years, but no longer.”[3]

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