Common Regulatory Strategies

Enabling Multiple Policy (2/2) Table-of-Contents How do the regulators propose to address the Technical Constraints of Regulation

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.)

Joseph Reagle


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