I’ve argued that as the Net changes to enable commerce, one by-product of this change will be to enable regulation. But let’s say you don’t buy it. Let’s say that you don’t believe that the invisible hand acting alone will erect the infrastructure of trust (and in turn regulation) that I said commerce needed. Let’s say you think the coordination needed is too great and that market incentives will create more confusion than guidance. If you are right, if commerce on its own does not flip the Net, will the Net remain unregulable?

The answer is no. Commerce does not act alone, and it is not morally opposed to partnerships with government. If commerce needs help constructing this architecture of trust, or (more likely) if the government begins to understand the value of an architecture of trust for its own regulatory objective, then government will help push the code along.

But how? So far I have left standing the assumption that it is impossible for the government to regulate the Net, that there is something in the nature of the Net that makes such regulation unworkable. So how is it possible for government to help? If the Net is unregulable, how could government regulate it to make the Net more regulable?

Regulating Architecture

To see how, we must distinguish between two claims. One is that, given the architecture of the Net as it is, it is difficult for government to regulate behavior on the Net. The other is that, given the architecture of the Net, it is difficult for the government to regulate the architecture of the Net.The first claim, I believe, is true. The second is not. Even if it is hard to regulate behavior given the Net as it is, it is not hard for the government to take steps to alter, or supplement, the architecture of the Net. And it is those steps in turn that could make behavior on the Net more regulable.

This is a regulatory two-step: the Net cannot be regulated now, but if the government regulates the architecture of the Net, it could be regulated in the future. And when government regulation of the architecture of the Net is tied to the changes that commerce is already introducing, I argue, the government will need to do very little to make behavior on the Net highly regulable.

This strategy of regulation is nothing new. From the beginning of the modern state, government has been regulating to make its regulations work better. My point is only to apply this commonplace to cyberspace. I want you to see how this old strategy works here.

I begin the chapter with some examples of regulation working, or not working, in spaces close to cyberspace. Once you see the pattern, you will see how the pattern might be applied elsewhere.

Telephones

The architecture of the telephone network¹ has undergone a radical shift as it has moved from a circuit-switched to a packet-switched network. There is a certain irony in this change: digital networks were the original design of the Internet. When the first architects of what would become the Internet went to AT&T in the early 1960s for help in building this digital network, AT&T told them that a packet-switched network could not work.² Indeed, AT&T at first refused to give the designers any help at all, so convinced were they that the design was a waste of time. But however convinced they were, eventually they changed their minds. Now we have a telephone system that is increasingly like the Internet.

Footnotes

¹ See generally Trust in Cyberspace, edited by Fred B. Schneider (Washington, D.C.: National Academy Press, 1999), 27–29. Edit Delete

² See Katie Hafner and Matthew Lyon, Where Wizards Stay Up Late: The Origins of the Internet (New York: Simon & Schuster, 1996), 62–63. Edit Delete