This article arises from Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. A Future Tense conference on whether governments can keep pace with scientific advances will be held at Google D.C.'s headquarters on Feb. 3-4. (For more information and to sign up for the event, please visit the NAF Web site.)
The agency promises to review its rule in two years. But two years in Internet time is an eternity.
Let me give an example, on the other hand, of good lawmaking. In 1996, Congress granted all Internet service providers—a term broadly defined—immunity from most forms of secondary liability, including state defamation laws, for content posted by users and other third parties. Blog hosts, broadband providers, and news sites that allow comments are not legally responsible for what their users say. Neither are companies such as Yelp, Twitter, YouTube, and Facebook, whose entire business relies on content shared by users.
Few other countries had the foresight to create this kind of "law-free" zone for innovators to play around in. As a result, the vast majority of social networking and other "Web 2.0" companies that led the second great wave of Internet innovation have their origins—and their headquarters—in the United States. It wasn't that U.S. lawmakers planned for Facebook and Twitter or could have if they wanted to. But by protecting startups from potentially lethal nuisance lawsuits, new applications were able to evolve on their own terms.
If governments do more harm than good, who's left to police digital life? The answer is the users themselves. One important side effect of social networking, user video, and app-based interactions has been the empowerment of consumers. Pro-regulatory advocates worry about what giant content providers such as Google or access companies including Verizon and Comcast might do in a future absent government intervention. But I have faith that consumers, users, and citizens increasingly have the tools to make their views known and effect change when necessary—quickly and effectively.
Facebook learns that lesson every time it tries to change how it manages user data, ironically falling victim to the very tools the company provides its users. Two years ago, a Facebook group called "People against the new Terms of Service" signed up 100,000 members in a matter of minutes. That's the starting point. Increasingly, users will overcome the traditionally high costs of collective action and exert their will as equals to corporations and governments that take technology in directions they don't like.
Early on, unfortunately, we may also have to endure episodes of digital mob rule, with all the negative consequences that go with it. That, too, is what happened in the American West. But over time, the posse and the hanging tree gave way to local sheriffs and circuit-riding judges. The frontier civilized itself.
The Internet will do the same. Only faster.
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