Monday, June 4, 2012

That Pesky Regulation Problem

Larry Downes is a member of the CNET Blog Network. The name of his blog is Politics and Law. However, his biographical statement at the bottom of his posts describes him as “a consultant and author.” It says nothing about his understanding of either political or legal systems in either theory or practice. All we know is that he writes books, the most recent having the title The Laws of Disruption.

His latest post, filed this morning, has the title “Government control of Net is always a bad idea.” Notwithstanding the primary injunction in writing, which is to avoid words like “always,” the post has some good points. However, it is easy to criticize the workings of government these days, whether it involves a local school board trying to make drastic cuts in the face of an unmanageably low budget or the United Nations not being able to progress beyond harsh (but effectively meaningless) words in response to the atrocities in Syria.

The world has changed. The Internet has had a lot to do with how the world has changed; but the underlying axioms of governance have not been keeping up with those changes, primarily because just about every government is heavy with stakeholders whose personal interests would be threatened by any such change. As a result cyberspace is, for all intents and purposes, anarchic.

Now I am sure that there are any number of Internet evangelists ready to cite Henry David Thoreau at the drop of a hat when in Civil Disobedience he quotes a familiar motto:
"That government is best which governs not at all"; and when men are prepared for it, that will be the kind of government which they will have.
The kicker in that quote, however, is the condition “when men are prepared for it.” One only has to examine a quote by Vint Cerf in Downes’ post to appreciate how unprepared those of us who inhabit cyberspace (as well as those still exterior to it) are at the present time:
The greatest strength of the current system of Internet governance is its meritocratic democracy. Anyone who cares can voice ideas and opinions, but the ultimate decisions are governed by broad consensus. It might not always be the most convenient of systems, but it's the fairest, safest, and historically most effective way to ensure that good ideas win out and bad ideas die.
This is, at best, idealistic claptrap with little appreciation for the role of regulation in any social system. Here is how I tried to advocate for regulation in a post of my own a little over a year ago:
Perhaps the best analogy [for the currently inadequate Internet governance] would be Typhoid Mary, back in an age in which health standards for restaurants barely existed.  Hardly any were stipulated;  and, for all practical purposes, none were enforced.  One of the great advances in reform was the recognition of government responsibility for the physical health of its citizens, a responsibility that has been placed in serious jeopardy by current conservative ideologues.  When it comes to “digital health,” the Internet has emerged as a Deadwood-like culture, which not only avoids efforts to discuss issues of government but overtly scorns them.  In such a culture only the brutes survive, and their survival is predicated by their success in preying on those weaker.  Since this is a culture in which neither the brutes nor the weaklings have ever heard of Thomas Hobbes, it is unlikely that conditions will change in the foreseeable future.
I do not disagree with Cerf about the generally democratic nature of the Internet. However, I think he confuses merit with skillful power manipulation. The difference between a republic and a democracy is that the former believes that any form of power should be regulated through a system of checks and balances, and that is why our own Constitution is studied as a model of governance in countries around the world.

This leaves us in a stalemate. Those in the current institutions of government reject change, because it threatens their individual powers. Those, like Cerf, who evangelize the Internet, reject the need to move from democracy to republic for exactly the same reason. The rest of us are stuck in the middle, about as helpless as the entire world was when the United States and the Soviet Union were competing over who could build the most destructive thermonuclear device.

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