Regulating Open Source

So imagine a future in which a significant portion of the application space code is open code. What would that mean for regulability? How would that affect the story I’ve told of the increasing power of the state to order cyberspace?

In chapter 4, I sketched examples of government regulating code. But think again about those examples: How does such regulation work?

Consider two. The government tells the telephone company something about how its networks are to be designed, and the government tells television manufacturers what kinds of chips TVs are to have. Why do these regulations work?

The answer in each case is obvious. The code is regulable only because the code writers can be controlled. If the state tells the phone company to do something, the phone company is not likely to resist. Resistance would bring punishment; punishment is expensive; phone companies, like all other companies, want to reduce their cost of doing business. If the state’s regulation is rational (that is, effective), it will set the cost of disobeying the state above any possible benefit. If, in addition, the target of regulation is within the reach of the state, and a rational actor, then the regulation is likely to have its effect. CALEA’s regulation of the network architecture for telephones is an obvious example of this (see chapter 5).

An unmovable, and unmoving, target of regulation, then, is a good start toward regulability. And this statement has an interesting corollary: regulable code is closed code. Think again about telephone networks. When the government induces the telephone networks to modify their network software, users have no choice about whether to adopt this modification or not. You pick up the phone, you get the dial tone the phone company gives you. No one I know hacks the telephone company’s code to build a different network design. The same with the V-chip—I doubt that many people would risk destroying their television by pulling out the chip, and I am certain that no one re-burns the chip to build in a different filtering technology.

In both cases the government’s regulation works because when the target of the regulation complies, customers can do little but accept it.

Open code is different. We can see something of the difference in a story told by Netscape’s legal counsel, Peter Harter, about Netscape and the French.¹

Footnotes

¹ Peter Harter, “The Legal and Policy Framework for Global Electronic Commerce,” comments at the Berkeley Center for Law and Technology Conference, March 5–6, 1999. Edit Delete