What Larry Strickling Meant to Say (and Should have Said)

On February 24, Larry Strickling, Assistant Secretary of Commerce for Communications and Information, gave a speech to The Media Institute in which he said: “Given all the human actors involved in the Internet with all their competing interests, we have to ask, do governments have to be involved to sort out these interests so that the Internet will continue to thrive?” He answered his own question as follows: “I say yes but, just as emphatically, I say that the government’s role need not be one of a heavy-handed regulator.”

Well, that set the cat among the pigeons! The resulting headlines included: “NTIA Chief: Net Needs a Ref,” “US Gov’t. Ending Its Hands-Off-the-Internet Stance,” and “US government rescinds ‘leave internet alone’ policy.” The danger is that foreign governments that seek to regulate the Internet, and many others who read these headlines but not the whole speech, will assume that the United States is giving the green light for the establishment of a newly aggressive form of “Internet Governance” – composed of new rules imposed by local sovereigns responding to the “cacophony of human actors” who demand that there be rules or laws to protect their specific interests.

First, we should note that the speech as written does not suggest that there should be a new rule, much less a governmentally imposed law or regulation, in response to every complaint. To the contrary, Strickling welcomes the possibility that some problems may be addressed by “individual actors accepting new processes” and calls for problem solving collaboration among “key Internet constituencies – commercial, academia, civil society.”

Second, no one can quarrel with Strickling’s list of issues that need to be addressed: Privacy, Child Protection and Freedom of Expression, Cybersecurity, Copyright and Internet Governance. What makes the speech notable is its suggestion that we need a new approach to addressing these issues – something so new that he dubs it “Internet Policy 3.0.” The fundamental problem with the speech is that, while saying “we must take rules more seriously if we want full participation”, it does not provide any framework within which to judge which rules to adopt, in response to which demands, or when regulatory efforts might go too far and destroy the core values of openness and innovation and free speech and association that he seems still to endorse.

Third, the speech goes off the rails, as a theoretical matter, right at the outset when it suggests that previous policy was based on treating the Net like an “ecosystem” that would, if mostly left alone, come to an “equilibrium.”  Now that there are people with differing values involved in this “social organization”, he suggests, we must recognize that “the Internet is not a natural park or wilderness area that should be left to nature.” Indeed, he suggests that “There are no natural laws to guide it.”

We must note that there is a big difference between a well tended park and a wilderness. And the question is, really, who should tend the Internet to enhance its value to a global society. The possibility that we might have many different gardeners, creating various areas of the Internet that appeal to people with differing values – but who share the core values of openness and freedom of expression and association – is invisibly dismissed by suggesting that the Internet is a single “organization”. The possibility of preserving the innovation that pushes the Internet ecosystem towards new, empowering forms of order (technically, “far from equilibrium”), simply disappears from view when the question is posed the way he posed it.

What He Meant to Say

We think what Mr. Strickling meant to say, or should have said, is that the Internet is now sufficiently important to global society that we must all think carefully about how best to preserve the core characteristics that enabled it to emerge and will make it even more valuable over time. CDT agrees with him that, sometimes, laws or regulations may be necessary to preserve openness (net neutrality), innovation (balanced intellectual property laws) and freedom of speech and association (laws that constrain government censorship or tyranny by unaccountable gatekeepers and preserve enough privacy and enough identifiability to engender trust-based interactions). We think it equally important to say that laws may not be necessary to address, or even capable of resolving, many of the problems that inevitably arise in global, online society. The optimal amount of “disorder” in society is, of course, not zero.

Most importantly, we need a road map to decide when regulation has gone too far, just as much as we need one to tell us when problems have gotten out of hand. We suppose that Mr. Strickling might have been saying that, if there is a continuum from overly restrictive regulation (rigidity) and overly permissive regulation (what he calls a “wilderness” and we will call “randomness – such that trust cannot be formed online), then the Internet has strayed too far towards the random side, away from the sweet spot in the middle. So, charitably read, his speech might just mean that we all need to be more innovative with regard to the kinds of institutions and rules that will restore enough social order so that users of all kinds won’t flee. But there is such a thing as too much social order, too much “trust” — so many rules that consent of the governed and freedom of association are lost.

Even if what he meant to say is just that things are getting a bit too random – and we might quarrel with that, as a factual matter, given the growth rates that suggest that people around the world are finding the Internet increasingly valuable every day – he should have called for creative solutions that keep the power to make any rules in the hands of end users to the maximum extent possible. He uses the word “we” (“we must take rules more seriously”) without reflecting hard enough on the fact that we have globalized society but not sovereignty. He takes for granted that governments fully represent all of the interests of their citizens – a dubious claim even in the context of the United States. If the Internet is a “social organization”, it is a very complex organism that, to adapt and thrive, must be “regulated” by every one of its components, not treated like a machine that can be repaired from the outside. To treat global (online) society as a mechanism that can be controlled and repaired by US law is itself a violation of a “natural law” recognized by the founders of our democracy themselves.

In short, we applaud Mr. Strickling for calling us all to think hard about how to keep the Internet open, innovative and free and how to combat various problems and wrongdoers who threaten to get in the way of the development of an ever more valuable social organism that enables trust-based interactions. He does recognize that this will not be easy and that it will involve collaboration by all concerned. We don’t think he meant that it is time for governments to intervene with lots more regulation – he expressly says the opposite of this. So we hope that other governments, and those with special interests to advance, won’t misunderstand his most provocative speech. We call on him to take them to task if they do so.

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