Wednesday, September 21, 2005
Susan Crawford, an assistant professor of law at Cardozo, examines whether someone should impose legal and ethical norms on the Internet, and whether that "someone" has, or is in the process of becoming the FCC, in her piece Someone to Watch Over Me, available via the SSRN. Here is the abstract.
Over the last ten years, the United States has avoided creating rules dictating how the internet works or what devices can attach to the internet. In recent months, the Federal Communications Commission has begun aggressively to regulate internet activity by applying to the internet policies that were developed for the world of telephone networks.
This Article presents a comprehensive inquiry into the social policies the FCC is imposing on the internet. It begins by describing the mindset of telephony companies, and why telephonists believe that someone must be in charge of any network, and continues by examining the mindset of internet exceptionalists, and why their beliefs in the unfettered future of the internet may prove remarkably naive. Next, the Article explains how the FCC has construed its implementing statute to give it authority to make rules for internet applications, and examines three social policies that are being transferred wholesale by the FCC into the internet context. Finally, the Article offers a normative proposal for online social policies. This section argues that Congress should take the nature of the internet into account when adjusting the FCC's statutory powers. The section justifies this proposal on several grounds. First, although the social concerns addressed by the FCC's actions (emergency service, assistance to law enforcement, funding of universal service) are substantial, there are better, more technologically sophisticated ways to implement these same policies online, and the path the FCC is taking is likely to be destructive of nascent online services and products. Second, there are other social policies that are equally important for the future of U.S. citizens, including open access and consumer education. Third, the proposed approach is consistent with the direction that Congress has taken thus far with respect to the internet, which has resulted in enormous innovation, creative collaboration, economic growth, and social development. The world is watching what the U.S. does, and Congress should act carefully as it takes on the regulation of the internet.
Download the full paper here.