Soft Law in U.S. ICT Sectors: Four Case Studies

Abstract

Traditional hard law tools and processes are struggling to keep up with the rapid pace of innovation in many emerging technologies sectors. As a result, policy-makers in the United States rely increasingly on less formal “soft law” governance mechanisms to address concerns surrounding many newer technologies. This Article explores four case studies from different information technology areas where soft law mechanisms have already been utilized to address governance concerns. These four sectoral case studies include domain name management, content oversight, privacy policy, and cybersecurity matters. After considering the various soft law mechanisms used to address those issues, the Article concludes with some general thoughts about the effectiveness of those approaches and what lessons those case studies might hold for the use of soft law in other emerging technology sectors and contexts.

Keywords: Technology, tech, emerging, policy, law, governance, rules, regulation, APA, administrative, procedures, agency, threats, multistakeholder, guidance, guidelines, standards, consultation, formal, informal, jawboning, privacy, security, domain, ICANN, content, speech

JEL Classification: M3, L86, L88, L5, L2, K13, L86, K00, K39, O3, O31, O33, M38