From Right Side News.com 25/01/10:
Baker said she worried about "the increase in laws that make it difficult to run an open network," especially rules about content.
"You suddenly become liable for anything that gets downloaded, whether it's legal or not," she said. "If you said to a municipality, if you build a road, you have to guarantee nothing illegal happens on it - that's what's happening on the Internet now. So that's the kind of regulatory disruption that's going to have some long-term consequences."
Wacky hair-dos aside, I’ve nothing particularly against Mitchell Baker. And yes, that’s despite her recent efforts in spearheading unreasonable demands in relation to the ‘ballot screen’ idea for Microsoft to include with further versions of Windows to better allow other browsers to compete on a level playing field. Kind of. As head of Mozilla, I guess that’s her prerogative.
What I don’t get is why she’s come out with this ridiculous analogy, which crumbles to pieces on even the most cursory of glances.
Finding the correct regulatory balance is one of the challenges in any sphere of modern life. Governmental regulation can often overstep the mark and it must be kept in check. My grievance with Baker is that her comments were wholly unsubstantiated – she didn’t even try and back her point up with examples. Far from those ‘running networks’ being held liable, recent developments point the other way: that end users are being held more and more responsible for their contact rather than the organisations offering services to them through which their spurious behaviour is conducted.
ISPs continue to fly under the radar through the exception to liability under the heading 
of ‘mere conduit’ and just last week, the outcome of the OiNK case saw the site’s creator escape the teeth of national regulators.
Regulation of the net is inevitable and vital. Of course it shouldn’t be arbitrarily done and, where possible, competitive forces should be harnessed to regulate efficiently. But Baker’s points were poorly made and not backed up in the slightest - which detracts from the underlying worthiness of the cause.
Trying to compare national regulators who seek to hold road builders responsible for the conduct of road users with situations on the internet is a terrible example. This oversimplification does nothing to try and help find the correct regulatory balance and just makes Baker look a trifle silly – with or without that bizarre hair cut.
I happen to think regulation online is pretty important too, but that's not the only view. There's a substantial school of opinion that thinks that the content neutral internet made of interconnected independent networks doesn't need to be regulated for what users do on it, only the users do (and they already are under existing domestic law all around the world). I think the problem that ISPs have with it, that despite being in exactly the same position as telecoms providers as far as complicity with illegal acts by users goes, they are also the easiest point to regulate. I think it's quite fair to feel a bit hard done by if you are made liable because of practical ease of enforcement instead of your own conduct.
ReplyDeleteThe other problem is the uneven protections given to big commercial ISPs and people who just have a wireless access point in their cafe.