Jonathan Zittrain on Regulation - Dictionary of Arguments
Regulation/Internet/Zittrain: Perhaps it is best to say that neither the governor nor the governed should be able to monopolize technological tricks. We are better off without flat-out trumps that make the world the way either regulator or target wants it to be without the need for the expenditure of some effort and cooperation from others to make it so. The danger of a trump is greater for a sterile system, where a user must accept the system as it is if he or she is to use it at all, than for the tools developed for a generative one, where there is a constant—perhaps healthy—back-and-forth between tools to circumvent regulation and tools to effect the regulation anyway. (1) The generative Internet upholds a precious if hidden dynamic where a regulator must be in a relationship with both those regulated and those who are needed to make the regulation effective. This dynamic is not found solely within the political maneuvers that transpire in a liberal democracy to put a law in place at the outset. Today our conception of the Internet is still largely as a tool whose regulability is a function of its initial design, modified by
the sum of vectors to rework it for control: as Lessig has put it, code is law, and commerce and government can work together to change the code. There is a hierarchy of dogs, cats, and mice: Governments might ask ISPs to retain more data or less about their users; individual users might go to greater or lesser lengths to cloak their online activities from observation by their ISPs. (2)
1. See Tim Wu, When Code Isn’t Law, 89 VA. L. REV. 679, 707 (2003) (disputing Lessig’s argument and suggesting that instead of looking at code as law, society should understand code as a mechanism for avoiding an d thus shaping law, in a similar fashion to how tax lawyers look for loopholes); id. at 689 (analyzing law-following behavior using an economic compliance model, which states that people obey laws when disobedience yields greater harms than benefits, and therefore concluding that code—and, by extension, code’s ability to circumvent regulation—can easily be understood as a productive part of the process of law).
2. In May 2007, anonymous browsing services had the following use levels as studied by Hal Roberts of Harvard’s Berkman Center for Internet & Society. Anonymizer: no data; dynaweb: 24 mil hit/day/700k users/day est.; ultrareach: 70 mil hits/day/1mil users/ day est.; circumventor: 30 installs/day; psiphon: 8,000 servers/80,000 users est.; jap: 6,000 concurrent clients; tor: 1 Gbps. E-mail from Hal Roberts to Jonathan Zittrain (May 31, 2007 at 21:44 EDT) (on file with the author).
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The Future of the Internet--And How to Stop It New Haven 2009