SOPA and the expertise crisis

[a-new-machine.livejournal.com]

Alexandra Petri raises a very good point about SOPA: nobody in the hearings knows fuckall about the Internet. When they consult the experts, they almost invariably consult just one side. So, how do we fix this problem?

Surprisingly, I think the answer is more regulation. No, not new laws passed to restrict the internet - those are inevitable. The real problem is that these laws are too specific. Congress are not technocrats. They're overwhelmingly lawyers, not engineers or computer scientists or even businesspeople. It's telling that most of the SOPA debate is occurring in the Judiciary Committees - that's hardly the sort of place one would expect to find discussion of communications and technology regulation. But, there it is.

So, what do I mean by "more regulation"? I mean regulatory rule-making. Congress has a lot of fairly broad laws that they let regulators fill in where necessary. There's a lot to commend this process, though it has its problems. First, it allows direct and consequential judicial review of the process by which the rules are created. Second, it allows Congress to set goals in areas whose technicalities it does not understand, but does not require Congress to pass specific rules relating to areas about which it hasn't the foggiest idea. Such decisions are (at least in theory) left up to technocrats at administrative agencies.

Now, there's a lot to caution against this strategy, as well. While agencies *can* respond quicker, they don't always do so. When the NTSB tried to require automatic seatbelts in cars, car makers fought the measure for nearly six years before the NTSB gave up and went to less intrusive - but less effective and more costly to consumers - airbags. Agencies are also subject to regulatory capture, so long-term they may not be the best source for neutral rules. (Of course, whether Congress has itself been "captured" by content on these issues is a worthwhile debate). The decisions of agencies are also given a great deal of deference (which I've discussed before), which could make them difficult to review fairly. But at least there would be *some* review allowed, without filing a Constitutional claim.

Still, my position is that, if we're getting rules anyway, we want them from the best-capable government source. To me, it's clear that that source is agencies, not a Congress made up of over-50 technological neophytes relying on tech papers from interested parties to make their determinations.

Comments

[a-new-machine.livejournal.com]

A note on the differences between my last agency-power post and this one: there, I recommended that Congress be required to approve new agency rules. That could still work here, as approval is a whole lot less complicated than drafting and amending. I think that there are far fewer technological or expert concerns in the Freedom of Information Act than there are in SOPA. One regulates just the actions of government, the other regulates the actions of tens of millions of users and websites. Somewhat different worlds.

[sealwhiskers.livejournal.com]

Really?? FOR REALS!!

[musicpsych.livejournal.com]

I haven't heard much about SOPA, but that's really concerning. Not only do they not have expertise, but it's not really relevant to their lives. They probably don't think this could impact their lives in a significant way (and for the "series of tubes" people, it probably wouldn't). I like what Petri wrote: "There ought to be a law, I think, that in order to regulate something you have to have some understanding of it."

I think you're right, that it should be left up to an agency to work out the details, rather than Congress.

I wonder how SOPA would define "piracy." Like, if a politician used an image on his campaign website that he didn't have the copyright for or permission to use, would that be piracy? Could that website be blocked?

[a-new-machine.livejournal.com]

That'd likely be fair use.

[ghoststrider.livejournal.com]

I think handing over more law making power to unelected bureaucrats is a bad idea.

Yes, Congress knows fuckall about the Internet, not only because they're mostly lawyers, but also because, well, in general, they're all geriatrics. You need term limits to fix that. However, I don't think that regulatory agencies necessarily know what they're doing either. Arnold Kling has a great essay on how everyone ignores their own ignorance, and how that relates to government regulators. (http://www.american.com/archive/2011/december/the-political-implications-of-ignoring-our-own-ignorance/) Giving them more powers won't fix that.

And then there's just the principle of it: legislators are elected to write laws. Regulations are laws. If they're not doing that, why the hell are they in office? And if a regulator makes a very bad regulation--read: administrative law--then how do the people deal with that? At least with Congresscritters, they (theoretically) have the power to throw them out. Not so with bureaucrats.

I understand what you're saying, but really, it doesn't fix anything. Heck, you note it in your own OP.

[a-new-machine.livejournal.com]

I think it's less-bad than having Congress do it, is all. At this point I'm resigned to (IMO unnecessary) regulations of the Internet. I think agencies would do a better job than Congress, though not a perfect one.

As for the essay - good read, and one with which I largely agree. I think that the agency model would, though, do as the author suggests - "minimize the potential risks and costs that any individual can impose on society through his own ignorance." Agency models give a great deal more access to decision-makers than is available in the Congressional process, thanks to notice-and-comment rulemaking. They're also more easily revised by the agency - Congressmen hate revising laws because it admits of a mistake, whereas agencies have fewer incentives to continue in error. To me, it's apparent that at least at the moment, Congress are vastly overestimating their understanding of the DNS system, the function of IP addresses, and the like. Agencies, at least, can have people who have their own independent knowledge of those systems gained through experience. I think the days of our first computer scientist-slash-Congressman are not yet come.

So I guess our biggest disagreement, at least as I see it, is whether these rules are inevitable or not. Given how easy it's been for content providers to get their way in the past thirty to fifty years (see copyright extensions to ridiculous terms approaching or exceeding a century) I think something more than DMCA is inevitable. The real question is, who do you want writing those rules?

[ghoststrider.livejournal.com]

Considering that everyone gets around these laws all the time, I'm not convinced that they are "inevitable." And there's still a lot of resistance everywhere.

Of course now, since the military can just lock you up if they even think you're related somehow to terrorism, that might actually be moot.

[a-new-machine.livejournal.com]

Of course now, since the military can just lock you up if they even think you're related somehow to terrorism, that might actually be moot.

Which, of course, they can't actually do under the NDAA.

[ghoststrider.livejournal.com]

Uh, have you actually read the bill?

[a-new-machine.livejournal.com]

Yes. Here (http://www.reddit.com/r/TrueReddit/comments/n5wsi/the_united_states_senate_has_just_passed_a/c36ko3z) is a long post I wrote explaining exactly why it doesn't affect anything about detainee law.