A Deference to Protocol: Fashioning a Three-Dimensional Public Policy Framework for the Internet Age
Richard S. Whitt
Google Access/Google Inc.; affiliation not provided to SSRN
July 12, 2013
Cardozo Arts & Entertainment Law Journal, Forthcoming
This paper discusses how public policy grounded in the Internet’s architecture can best ensure that the Net fully enables tangible benefits such as innovation, economic growth, free expression, and user empowerment. In particular, recognizing that the Internet is rapidly becoming society’s chief operating system, this paper shows how an overarching public policy framework should be faithful to the multifaceted nature of the online world. As part of such a framework, this paper will explore one key aspect of the Internet: the “logical” Middle Layers functions, its inner workings derived from open software protocols. Adhering to the deferential principle of “respect the functional integrity of the Internet,” in combination with the appropriate institutional and organizational implements, can help ensure that any potential regulation of Internet-based activities enables, rather than hinders, tangible and intangible benefits for end users.
Part I briefly describes the present day challenge: policymakers looking to enact laws and regulations of various online activities often lack a necessary understanding of how the Internet actually operates. Part II explains how the Internet was designed and implemented essentially with four fundamental design features: modular assembly (the “what” function), interconnected networks (the “why” function), end-to-end control (the “where” function), and agnostic protocols (the “how” function). These internal design features were derived organically and bottom-up, through many years of rough consensus from well-understood engineering principles. The designers largely were academics and volunteers, crafting informal rules and standards informed by basic beliefs in values such as openness and transparency and robustness.
Part III explores how collectively these novel architectural attributes enable the Internet to be seen as a macro-phenomenon through the cross-functional prism of at least three differing but complementary perspectives. Technologists perceive the Net as a general platform technology (GPT), scientists understand it as a complex adaptive system (CAS), and economists analyze it as a common pool resource (CPR).
Part IV then summarizes the Internet’s collective “Net effects,” both beneficial and otherwise. Those positive effects include user innovation, economic growth, free flow of information, and user empowerment and human flourishing. In each instance, the fundamental internal design features built into the Internet’s architecture -- and reflected in its parallel roles in society as a GPT, CAS, and CPR -- facilitate the emergent background conditions that produce and enhance these many beneficial properties. Importantly, this same architecture also invites various “Net challenges,” which can lead to legitimate concerns about problems such as network security and content piracy. While it is posited that the Internet’s user benefits greatly outweigh the costs, the point is neither to ignore these Net challenges, nor to confront them without regard for the Internet’s fundamental design features. Rather, potential policy concerns should be tackled with the right policy solutions, so as not to do violence to the Internet’s remarkably robust and rich architecture.
Part V explains that policymakers should approach potential regulation of the Internet’s inner workings with a grounded sense of deference. The layering principle, first enunciated by Lawrence Solum, is discussed – namely, that policymakers should respect the integrity of the layered Internet. Solum showed how would-be regulators should exercise policy restraint with regard to the modular nature of this ubiquitous platform, unless there is both a compelling regulatory justification and a carefully tailored remedy. The paper extends this valuable insight to other key design attributes of the Internet, as part of a more comprehensive and thus useful Internet policy framework.
In particular, policymakers should avoid adopting top-down legal requirements that violate the utility of the Internet’s Middle Layers routing and addressing functions, including its modular, end-to-end, interconnected, and agnostic structure. Such technology mandates often represent a poor fit to the perceived policy challenge, threatening to be under-inclusive (and thus not particularly effective) as well as over-inclusive (and thus imposing collateral damage on innocent activities). Examples of such ill-conceived policy approaches include cross-layer regulation (turning the Internet upside down), injection of unneeded central functions (turning the Internet inside out), interference with voluntary network interconnections (making the Internet less interoperable), and skewed packet carriage (making the Internet more differential to favor certain business models).
In contrast to more traditional forms of direct government intervention, Part VI posits that a wide range of targets, institutions, and organizations can be harnessed successfully to devise pragmatic solutions to recognized policy concerns involving the Internet’s inner workings. The three dimensions of an Internet policy framework include (1) the functional target (or which specific Internet operation to address, and in what manner), (2) the institutional implements (or which specific policy tool to be employed), and (3) the organizational body (or which specific entity to employ the tool). Notably, and consistent with newer thinking on “polycentric governance,” the institutional and organizational tools should encompass standards and best practices for the Net’s Middle Layers routing and addressing functions, as crafted by strong versions of multistakeholder groups such as the IETF.
Finally, Part VII broaches current day public policy issues, showing how utilizing an Internet policy framework grounded in the three dimensions of target/rules/entities can help promote, rather than stifle, the proliferation of the Internet’s numerous material and intangible benefits. These examples include: (1) the appropriate operational target in the SOPA/PIPA legislative debates over IP piracy; (2) the appropriate international organizational body for Internet governance; and (3) the appropriate institutional tools in broadband network management policy. The paper also suggests a few new ways to think about the persistent challenge of online privacy.
Number of Pages in PDF File: 80
Keywords: Internet, regulation, technology, public policy, framework
JEL Classification: A12, K23, L51, L86, O31, O33
Date posted: March 31, 2012 ; Last revised: October 4, 2013
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