In my story so far, I’ve described a certain kind of cooperation between East Coast Code and West Coast Code. I’ve argued that commerce alone has an interest in creating an architecture of identification, and I’ve laid out just how the government might influence the architecture of the Net to create the requirement of some sort of identification, or traceability. The final step in this argument is to make explicit what has been implicit throughout—that an ID-enabled world facilitates regulation.

How will the internal passports of digital ID enable regulation? The proof comes in two steps. In the first, I lay out how an ID-enabled world would enable regulation for a particular problem of regulation—in this case, gambling. In the second, I show how this technique generalizes. Although not every government may want to solve the problem of gambling, every government does have some problem that it wants to solve. The ID-enabled world can help each government solve its own regulatory problem. Thus, governments share an interest in an ID-enabled world, even if they do not share an interest in the particular regulations such a world makes possible.

Let’s return to the problem of Internet gambling and consider it both with and without digital IDs. My claim is that a certificate-rich Internet solves the problem of regulability. Once you see this point with respect to this single example, you will see the point more generally.

Gambling is one of the stock examples given by cyberlibertarians to show why behavior in cyberspace is unregulable. Take the case of Minnesota, which has a strong state policy against gambling.¹ Its legislature has banned its citizens from gambling, and its attorney general has vigorously enforced this legislative judgment—both by shutting down gambling sites in the state and by threatening legal action against sites outside of the state if they let citizens from Minnesota gamble.

This threat, cyberlibertarians argue, will have no effect on gambling on the Internet, nor on the gambling behavior of Minnesota citizens.² The proof is fairly straightforward. Imagine a gambling server located in Minnesota. When Minnesota makes gambling illegal, that server can move outside of Minnesota. From the standpoint of citizens in Minnesota, the change has (almost) no effect. It is just as easy to access a server located in Minneapolis as one located in Chicago. So the gambling site can easily move yet keep all its Minnesota customers.

Suppose that Minnesota then threatens to prosecute the owner of the Chicago server. It is relatively easy for the attorney general to persuade the courts of Illinois to prosecute the illegal server in Chicago (assuming it could be shown that the behavior of the server was in fact illegal). So the server simply moves from Chicago to Cayman, making it one step more difficult for Minnesota to prosecute but still no more difficult for citizens of Minnesota to get access. No matter what Minnesota does, it seems the Net helps its citizens beat the government. The Net, oblivious to geography, makes it practically impossible for geographically limited governments to enforce their rules over actors on the Net.

Now, however, imagine a world where everyone holds a digital ID, and not necessarily a governmentally issued ID; any ID will do. As you pass onto a site, the site checks your ID. If you do not hold the proper ID for that type of site—if you are under eighteen and it is an adult site, or if you are from Minnesota and it is a gambling site—the site does not let you pass. But if you hold a proper ID, the site does let you pass. This process occurs invisibly, or machine to machine. All the user knows is that she has gotten in, or if she has not, then why.³

In this story, then, the interests of Minnesota are respected. Its citizens are not allowed to gamble. But Minnesota’s desires do not determine the gambling practices of people from outside the state. Only citizens of Minnesota are disabled by this regulation; other citizens can gamble.

This is regulation at the level of one state, for one problem. But why would other states cooperate with Minnesota? Why would any other jurisdiction want to carry out Minnesota’s regulation?

The answer is that they would not if this were the only regulation at stake. Minnesota wants to protect its citizens from gambling, but New York may want to protect its citizens against the misuse of private data. The European Union may share New York’s objective; Utah may share Minnesota’s.

Footnotes

¹ See Minnesota Statute 609.75, subd. 2–3, 609.755(1) (1994), making it a misdemeanor to place a bet unless done pursuant to an exempted, state-regulated activity, such as licensed charitable gambling or the state lottery. Internet gambling organizations are not exempted. Edit Delete

² See Scott M. Montpas, “Gambling Online: For a Hundred Dollars, I Bet You Government Regulation Will Not Stop the Newest Form of Gambling,” University of Dayton Law Review 22 (1996): 163. Edit Delete

³ Or at least it could work like this. Depending on the design, it could reveal much more. Edit Delete