I am distracted by the complexity of two momentums in how nation-states are responding to the complexity of the Internet, notably my country of residence, the United States.
On the one hand, “net neutrality” is driving headlines, with greater velocity triggered by the President’s recent suggestion the Federal Communications Commission should exercise discretion to intervene in using their regulatory authority to prevent differential and preferential pricing of content delivery by infrastructure owners. That view finds its foundation, among other bases, on concepts of freedom of expression, freedom of access, and working to assure the best possible use of the Internet by the largest number of citizens.
On the other hand, the Director of the FBI has argued that efforts to improve the security of personal devices, cell phones, and tablets cannot get in the way of legitimate law enforcement investigations of improper or illegal conduct. Encryption backdoors, and similar means of access, must be provided to assure the nation-state the capacity to enforce the law and protect its citizens. Those focused on international terrorism similarly emphasize the bad actors are now using encryption successfully to avoid government monitoring and surveillance, making it harder to detect planned actions, and intervene to prevent their execution.
Frankly, the ambitions of both lines of thought are appealing—maximize access and freedom of expression but do not let technology become an insulation of the conduct of those who aspire to violate the rule of law or the ethics of humankind.
Yet, in either direction, freedom vs. surveillance, what are being proposed are nation-state rules. At this point in the Net’s evolution, any national solutions seem almost contradictory to the ambitions of any government to actually be effective in achieving their ambitions. The inherent functionality of the Net is to “route around failure”. Nation-state rules that impose restrictions on the market’s appetite to create economic pricing tiers merely drive commercial activity into other geographic regions. Laws requiring backdoors have the same effect, provoking and encouraging bad actors to find mechanisms that avoid such technology features to be baked into the relevant devices. In a global market where, as one economist observed, there will soon be no further emerging economies, what is the proper role of the nation-states toward the Net? When do new regulations, well-intentioned to provide positive qualities of life, actually become walls that divert the movement of information, funds, and economic activity to other geographic regions?
The last three decades of the 20th century bore witness to an amazing migration of manufacturing activities away from “high” regulatory locations (think minimum wage, health and safety, environmental controls, product liability costs, reporting to comply with regulatory supervision) toward “low” locations where the governments, the people, and the industries operated without such regulatory structures (a quick look at the air quality in any picture from Beijing tells the whole story). In many ways, the economic advantages of moving to a “low” cost location are diminishing as those regions and nations also begin to implement similar regulatory structures.
So, what should be done with the Internet? In about 1996-97, I was part of an effort to establish a new forum in which corporations could collaboratively develop the regulatory structures for doing business in cyberspace. It failed to take off, as the titans of the West Coast did battle over whether they would do better with collaborative rulemaking or simply try to author rules to their own specific corporate benefits. Now, nearly twenty years later, the stakes are more serious, as entire economies and regions begin to draw new lines in cyberspace through the rulemaking of their nation states.
I cannot help but think back to the post World War I efforts of Western Europe and the United States to draw lines across the Middle East, creating nations that never before existed. How well is that turning out,eh?
In the dimensions of the Internet, I believe our continued use of the infrastructure will fail without rules with which to play the game, rules that require compliance, rules that govern our newest, perpetual asset—digital information. But if we continue to rely on nation states to write those rules, particularly a single nation-state writing rules on its own, we are merely provoking actors to “route around failure” and seek geographic regions where there are “low” costs. The great challenge before us is to craft a path forward that engages the full world, and draws boundaries with our new rules that are functional and, most importantly, capable of being enforced. To do so, corporations must find a way to collaborate with each other and the inherent authority of most nation-states to act in the protection of the safety and well-being of its citizens and businesses.