Washington CAN get it when it comes to the Internet - here's how

In “Why Doesn’t Washington Understand the Internet?” (Washington Post, Sunday, January 22, 2012), Rebecca MacKinnon documents how often legislation fails to effectively address problems involving or supposedly caused by the Internet and how often Congress considers or enacts policy solutions that are rapidly outmoded by the continuing innovation that is at the heart of the Internet’s success. 

The question she asks in her piece is a fair one - but it is also fair to note, as even many who helped found the Internet would admit, that Internet’s design did not incorporate features to enhance security for example or help protect intellectual property or make it easier to protect against threats to personal security.  In addressing problems like these that clearly are a threat today, it is vital to keep the Internet’s core characteristics – as a platform for innovation, free expression, and global connectedness – intact.

How do we do that in today’s policy environment where, as MacKinnon correctly points out, Washington does not understand the Internet?  Many in the Internet “community” fear that too many policy approaches to deal with admitted problems have ended up undermining the Internet’s core strengths.

It starts with recognizing that traditional legislative approaches – based largely on mandates and rigid “Do and Don’t” rules - simply won’t work either to address key problems effectively or preserve the vitality and innovation of the Internet.   This type of approach is embodied in large measure in theTelecommunications Act of 1996 which focused largely on existing industry segments and on the physical networks that underlie the Internet’s operations.  

It is increasingly clear that the Internet ecosystem consists of all of the many players involved including broadband providers, software developers, apps makers, device manufacturers and online service providers.  Innovation, collaboration and competition, rapidly changing business models, and entry by new players as in the case of apps characterizes the Internet ecosystem. 

The Internet has evolved through the leadership and the work of many organizations made of up volunteers from a wide array of interests without government domination.  These models of what some call “multi-stakeholder” approaches can provide the basis for the right policy framework for the Internet in everything from privacy protection to security to protecting intellectual property.  What is necessary is to ensure that the government’s role is acknowledged but focused on ensuring accountability when voluntary compliance activities fail to ensure bad actors are disciplined for harming consumers or competition.

What are the elements of this policy framework?

First, a national policy overseen by one federal agency is a vital feature of the framework.  The Internet is global in both its reach and its technical and operational structure and having a single accountable agency domestically is important to maintaining its vibrancy and minimizing harmful government interference.

Second, basic policy principles set out in law and implemented not by regulation but by industry codes of conduct or corporate policies will ensure that effective policies guide companies and organizations in their actions while avoiding traditional inflexible government regulation.  Government should participate in the development of these policies but it should not be allowed to dictate or mandate any outcomes.  The process should be collaborative as is the case today with Internet organizations. 

Third, government should only intervene on a case by case basis after an investigation that has proven a particular company or organization has failed to live up to its commitments and has harmed consumers or competition.  Regulation and mandates which are the traditional tools of government should not be allowed under this framework. 

Finally, the policies should be technology neutral, applying equally to all players in the Internet ecosystem.  This is as much to help consumers – who should not be confused as to which agency is accountable when markets do not work properly – as it is to ensure fair competition.

This basic framework can apply equally well to most key policy areas ranging from privacy to cyber security.  By using the governance models that have made the Internet a success and effectively involving the government in ways that ensure accountability but do not stifle innovation or the ability to use the Internet freely to connect with others, we can build a model of Internet governance that is right for the modern era.  And we can finally ensure that Washington does get it when it comes to the Internet – and does not get in the way of the Internet’s continuing journey to build new ways to interact, communicate and innovate.