Social Protocols: Analytical Framework

Audience: Students of HLS and MIT 6.805: Ethics and Law on the Electronic Frontier

Goal: Present an analytical framework for the students as they approach their topics.

Anecdotes:

5 Key Points

Abstract: 

Outline:

Common Regulatory Strategies [repeated]

These strategies are not exclusive, rather they are often used in conjunction:

1. link: couple a related issue to a contentious issue. (Clipper 3 coupled digital signatures (and their legitimiticy) to key escrow policies; strong confidentiality to export controls.)
2. choke: regulate those that are easy to go after. (CDA focussed on large ISPs, and telco common carriers, rather than those creating the content.)
3. gouge: regulate those that have deep pockets, often used with choke. (Some have pushed to criminalize the contributory infringement of copyright.)
4. browbeat:  use the bully pulpit to abash, or threaten further regulatory action. (US privacy policy has to date been predicated on the fact that if the "industry" doesn't self regulate, the government will get involved.)
5. herd: selectively place and remove liability to channel policy towards a goal without overtly setting the direction. ("Mandatory self regulation" and safe harbor provisions are frequently proposed solutions to Internet content issues.)

Choice of Policy Instrument

• Is it a human right, constitutional, civil, criminal, insitutional, economic, or moral issue?
• How is the issue presented legally with respect to it being a right, liability, or obligation?
• Much regulation is sectorial or media based; what sector or media is addressed? i.e. Is speech like personal speech, print, or broadcast, is search cast as a warrent or court order?
• Often, half the battle is setting the venue and choice of the policy/legal instrument before the merits (in that venue) are decided. How much debate is related to this for your given issue?
  • Europeans speak often of human rights
  • Americans often speak of constitutional rights
  • Moving an issue from the civil to the criminal domain (or employing both) can be advantageous to a party. (i.e. recent copyright legislation.)
  • Technical issues are often resolved through standards organizations or old boy networks. Rationalizations include "we know best," and free market efficiency.
  • Legal issues are brought to bear in cases of common or statutory law and equity.

Relationship to Technology

• Is it purely a technical issue or a legal issue,?
• Can the two be cleanly separated?
• Sometimes it is detrimental to a parties interest to have the two separated or joined, is this the case for your issue? Who benefits when its cast as a legal problem, who benefits when it is cast as a technical problem?

The Paradox of Good Technology

• Definition: Good technology, often created through simple processes, lends itself to applications unforeseen by its designers.
• Paradox: The unforeseen applications often have highly contentious issues associated with them that the original process is incapable of addressing:
  • DNS resolves names to IP numbers. Now small countries with roots such as ".nu" and ".tm" are likely to garner significant portions of their national income from domain name registration.
  • Cookies manage state for a single Web site. Now used to track users and store profile information across sites.
  • HTML links are a useful way to navigate information. Now companies frequently create contracts and sue each other because of an unwanted link.
• Once those applications and their economic dependencies are established, technical or policy reformation is extremely difficult.
• Is this paradox reflected in your issue? Is their a way to overcome it? How can we resolved the seemingly intractable situations?