By Paul Ohm
Harvard Law Review Forum
There are many reasons people oppose government regulation of the various bits of software, hardware, and social glue that we call the internet. I write to respond to only one of these: the fear that regulation will have spillover effects and unintended consequences. Regardless of which side one takes in any number of debates about the regulation of the internet, one background view seems to be broadly held: law possesses the power to destroy the internet as we know it.
In communications law, net neutrality regulations are fearsome because they will kill investment in infrastructure. Modest proposals to limit online discrimination or online hate speech will scare away innovators and dry up venture capital. Copyright law will destroy everything good on the internet, and limitations on encryption will too.
Apocalyptic predictions about the potential of regulation to kill the internet occur frequently in debates over proposals to protect privacy online. Critics warned that the modest self-regulatory effort to create a “Do Not Track” signal for the web would “kill the internet as we know it.” Opponents said something similar about a European measure to require consent for web tracking. Many people worried about the internet-wrecking potential of Europe’s modest implementation of the right to be forgotten in 2014’s Google Spain SL v. Costeja decision.
These fears are unfounded. The internet is a resilient, self-healing system, thanks to the power of code.9 Software, as Professor Jonathan Zittrain points out, is a generative force unlike any other technology we have concocted to date. In Zittrain’s powerful telling, generativity is something we need to work proactively to protect, opposing efforts — whether by private actors or regulators — to turn our general computing machines into dumb appliances. My argument picks up where Zittrain’s leaves off, pointing out that this same generative power can act as an important check on the impact of regulation. An earlier observer of the internet, writing a decade before Zittrain, connected these dots between generativity and resilience in the face of regulation. In 1993, “[i]nternet pioneer” John Gilmore famously said: “The Net interprets censorship as damage and routes around it.” This early-internet brag seems difficult to square with the way many today treat the internet as fragile and susceptible to destruction through law. I believe Gilmore’s quote is as true today as it was when he first said it. The power of software to evade regulation is more than up to the challenge.