Information Law Possum (discontinued)

In July, Professor John Palfrey and Robert Rogoyski published an article called “The Move to the Middle: The Enduring Threat of ‘Harmful’ Speech to Network Neutrality”, which draws our attention to an important shift in the way how legislators regulate the internet: Instead of regulating end-points, governments across the globe have been targeting intermediaries (in particular ISPs) over the last years. The authors argue that this approach has important drawbacks which result from their inherent violation of the end-to-end principle.
Here are some lessions I personally learned from that reading:

Intermediary regulation – a powerful enforcement tool
Compared to end-point regulation, intermediary regulation is a very effective enforcement tool. Accordingly, it can make – and has made in most cases – bad policies worse. Examples are the censoring policies of repressive governments, such as China, Burma, and many others, but also copyright and TPM laws in democratic countries, which are widely perceived as having undesirable effects. But in my view, we cannot make the effectiveness of intermediary regulation responsible for the bad policies which can be enforced through it.

Does intermediary regulation curb (what kind of) innovation?
As the authors write, one of the well-known advantages of the end-to-end principle is its openness to innovation on top of the basic layers of the internet. I suspect that intermediary regulation can be used to curb innovation, e.g. if data that is expressed in a peer-to-peer file sharing protocol is systematically filtered. However, the existing cases of intermediary regulation seem to target certain types of content (e.g. pornographic, racist or political websites, or copyrighted MP3 files), and I am not sure whether these activities are apt to curb the development of new protocols or applications.

On the other hand, intermediary regulation might curb social innovation, especially the emergence of peer production of governance the authors mention: I believe that governance problems are regarded as problems of the government – and not of citizens – as soon as the government attends to a problem, and that the latter are more likely to do that if an effective means of enforcements such asi intermediary regulation is at their disposal.

Spillover effects: the most important practical problem
The authors mention spillover effects of intermediary regulation that take place at two levels:

• First, as intermediaries don’t have a direct stake in what content flows through their pipes, there seem to be considerable incentives for them to over-comply with the law.
• Second, for the same reason, but also due to insufficient technology and incompetence, intermediaries often apply overshooting means to block or filter traffic. Worse, many of the more straightforward counter-measures to prevent this are ineffective: The authors exemplify that in an impressive way, showing the inherent dysfunctionality of a procedure to ask the library staff to unblock URLs which are erroneously blocked by their automatic blocking software.

Is intermediary regulation evil?
The authors’ main conclusion is – in my eyes – that, when a democratic society considers targeting intermediaries to accomplish its policy goals, the costs and drawbacks of violating the end-to-end principle should be acknowledged. In other words, intermediary regulation is not evil per se.

A good example is child pornography, where end-point regulation has not been totally ineffective, as the many successful police raids prove, but it has inherent cost and jurisdictional limitations. On the other hand, the example of the British Internet Watch Foundation (IWF) demonstrates the effectiveness of intermediary (self-)regulation: When the organization set to work in 1997, 18 % of the child abuse content reported by citizens and reviewed by the foundation was hosted in the UK; now, it’s 0.2 %. (In contrast, 51% of child abuse content found by that organization is hosted in the US.)

Call for action
The (mainly negative) experiences with existing attempts to regulate intermediaries call for action: Information lawyers could assist legislators in pursuing legitimate policy goals through intermediary regulation, and companies in implementing the regulatory framework, by developing a best practice model for intermediary regulation. The model could contain recommendations concerning due process safeguards (for all stakeholders, not only for intermediaries), safe harbor rules (which could prevent anticipatory obedience, as long as they are simple), and much more. Unless we help making good intermediary regulation, we will continue to see bad regulation in the future!

This entry was posted on Sunday, August 20th, 2006 at 1:52 pm and is filed under internet governance, net neutrality.