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.
5 Key Points
Common Regulatory Strategies [repeated]
These strategies are not exclusive, rather they are often used in conjunction:
- link: couple a related issue to a contentious issue. (Clipper 3 coupled digital
signatures (and their legitimiticy) to key escrow policies; strong confidentiality to
- choke: regulate those that are easy to go after. (CDA focussed on large ISPs, and telco
common carriers, rather than those creating the content.)
- gouge: regulate those that have deep pockets, often used with choke. (Some have pushed
to criminalize the contributory infringement of copyright.)
- browbeat: use the bully pulpit to abash, or threaten further regulatory action.
"industry" doesn't self regulate, the government will get involved.)
- 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
- How is the issue presented legally with respect to it being a right, liability, or
- 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
- 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
- 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?