Each state has its own stake in controlling certain behaviors, and these behaviors are different. But the key is this: the same architecture that enables Minnesota to achieve its regulatory end can also help other states achieve their regulatory ends. And this can initiate a kind of quid pro quo between jurisdictions.

The pact would look like this. Each state would promise to enforce on servers within its jurisdiction the regulations of other states for citizens from those other states, in exchange for having its own regulations enforced in other jurisdictions. New York would require that servers within New York keep Minnesotans away from New York gambling servers, in exchange for Minnesota keeping New York citizens away from privacy-exploiting servers. Utah would keep EU citizens away from privacy-exploiting servers, in exchange for Europe keeping Utah citizens away from European gambling sites. Each state would enforce a set of regulations for the other states, in exchange for the other states enforcing its own set of regulations.

This structure, in effect, is precisely the structure that is already in place for regulating interstate gambling. According to federal law, interstate Internet gambling is not permitted unless the user is calling from a gambling-permissive state into another gambling-permissive state.¹ If the user calls from a gambling-restrictive state or into a gambling-restrictive state, he or she has committed a federal offense.

The same structure could be used to support local regulation of Internet behavior. With a simple way to verify citizenship, a simple way to verify that servers are discriminating on the basis of citizenship, and a federal commitment to support such local discrimination, we could easily imagine an architecture that enables local regulation of Internet behavior.

And if all this could occur within the United States, it could occur between nations generally. There is the same interest internationally in enforcing local laws as there is nationally—indeed, the interest is most likely even higher. An ID, or certificate-rich, Internet would facilitate international zoning and enable this structure of international control.

Stop. Don’t turn away. I know at least some of the thousands of reasons you have for rejecting the structure I’ve just described. Some of those reasons are normative—you hate the world I am describing. Or you hate the idea that cyberspace would become like this world. I do too. I am not promoting an idea, I am arguing that this is the world we are moving to. Those who want to resist this world, or at least its worst features, had better understand the evolution. There are critical architectural decisions that need to be made, and we must begin to make those decisions now.

Others might not be so opposed to the emerging ID-enabled world I am describing but may simply believe that it is unlikely to come about. They believe that the desire of governments to facilitate such discrimination is not terribly strong, and in any case, the technology to enable it would be too difficult to erect.

These two points, of course, operate together. Some governments, regardless of the cost, are willing to adopt technologies to block access. (China is an example.) But other countries would not go to such great lengths to control access. If the cost were too high, they would simply leave the regulation aside and move on to other, more important activities (Taiwan).

This trade-off—between cost and the willingness to regulate—is one we have seen before. It is a theme that recurs in many contexts. Cost for the government is liberty for us. The higher the cost of a regulation, the less likely it will be pursued as a regulation. Liberty depends on the regulation remaining expensive.

When it becomes easy or cheap to regulate, however, this contingent liberty is at risk. We can expect more regulation. In these cases, if we want to preserve liberty, we need to develop affirmative arguments for it. We will need these affirmative arguments to prevent identity-based regulation of the Net. As I explain in the balance of this book, there is both a surprisingly great desire for nations to embrace regimes that facilitate jurisdiction-specific regulation and a significant reason why the costs of regulation are likely to fall. We should expect, then, that there will be more such regulation. Soon.

Footnotes

¹ See 18 USC 1955 (regulating businesses, defining interstate “illegal gambling” as gambling that occurs in a state in which it is illegal). Edit Delete