Table Of ContentRegulating Code
Information Revolution and Global Politics
William J. Drake and Ernest J. Wilson III, editors
The Information Revolution and Developing Countries
Ernest J. Wilson III
Human Rights in the Global Information Society
Rikke Frank J ø rgensen, editor
Mobile Communication and Society: A Global Perspective
Manuel Castells, Mireia Ferná ndez-Ard èv ol, Jack Linchuan Qiu, and Araba Sey
Access Denied: The Practice and Policy of Global Internet Filtering
Ronald Deibert, John Palfrey, Rafal Rohozinski, and Jonathan Zittrain, editors
Governing Global Electronic Networks: International Perspectives on Policy and Power
William J. Drake and Ernest J. Wilson III, editors
Working-Class Network Society: Communication Technology and the Information
Have-Less in Urban China
Jack Linchuan Qiu
Transforming Global Information and Communication Markets: The Political Economy of
Innovation
Peter F. Cowhey and Jonathan D. Aronson
Protocol Politics: The Globalization of Internet Governance
Laura DeNardis
Access Controlled: The Policy of Internet Filtering and Surveillance
Ronald Deibert, John Palfrey, Rafal Rohozinski, and Jonathan Zittrain, editors
Networks and States: The Global Politics of Internet Governance
Milton L. Mueller
Access Contested: Security, Identity, and Resistance in Asian Cyberspace
Ronald Deibert, John Palfrey, Rafal Rohozinski, and Jonathan Zittrain, editors
Regulating Code: Good Governance and Better Regulation in the Information Age
Ian Brown and Christopher T. Marsden
Regulating Code: Good Governance and Better Regulation
in the Information Age
Ian Brown and Christopher T. Marsden
The MIT Press
Cambridge, Massachusetts
London, England
© 2 013 M assachusetts Institute of Technology
All rights reserved. No part of this book may be reproduced in any form by any
electronic or mechanical means (including photocopying, recording, or information
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This book was set in Stone Sans and Stone Serif by Toppan Best-set Premedia Limited,
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Library of Congress Cataloging-in-Publication Data
Brown, Ian, Dr.
Regulating code : good governance and better regulation in the information age /
Ian Brown and Christopher T. Marsden.
p. cm. — (Information revolution and global politics)
Includes bibliographical references and index.
ISBN 978-0-262-01882-1 (hardcover : alk. paper)
1. Computer networks — Law and legislation. 2. Programming languages
(Electronic computers) 3. Internet— Law and legislation. 4. Information
policy. I. Marsden, Christopher T. II. Title.
K564.C6B76 2013
338.9'26 — dc23
2012029444
10 9 8 7 6 5 4 3 2 1
Contents
Acknowledgments vii
Introduction: Regulating the Information Giants ix
1 Mapping the Hard Cases 1
2 Code Constraints on Regulation and Competition 21
3 Privacy and Data Protection 47
4 Copyrights 69
5 Censors 93
6 Social Networking Services 117
7 Smart Pipes: Net Neutrality and Innovation 139
8 Comparative Case Study Analysis 163
9 Holistic Regulation of the Interoperable Internet 183
Glossary of Abbreviations and Terms 205
References 211
Index 257
Acknowledgments
Ian Brown thanks his research assistant at Oxford University, Jon
Penney, and his research sponsor EPSRC (grant EP/G002606/1).
Both Chris and Ian are grateful to the reviewers of the manuscript for
this book: Trisha Meyer, Yana Breindl, Axel Arnbak, Andre Oboler, and the
anonymous reviewers at MIT Press. All errors and omissions remain our
own responsibility.
Chris Marsden thanks Dr. Tiew Han for keeping his wife, Kenza, able
to function despite a calamitous period of ill health as this book was
being finalized in Melbourne; Andrew Kenyon at the University of Mel-
bourne for his hospitality when Chris was an academic visitor there in
that period; and Kenza for putting up with him during the last
frenetic weeks of February 2012. Truly it was the longest February in many
years.
The ideas in this book fermented for many years, notably during a walk
with his coauthor by the Thames on a summer day in 2008 that led to the
inspiration for the 2008 GiKii paper that started the “ prosumer interoper-
ability ” idea germinating. He also benefited from many conversations over
many years with Internet lawyers, scientists, and sages. The main venues
for this process were the TPRC conferences in Arlington, Virginia; the
Ruschlikon conferences in Switzerland; the Wharton colloquia in Philadel-
phia; Oxford media conventions; symposia at Columbia University and
the Organization for Economic Cooperation and Development; discussions
in Brussels; and various other venues on the U.S. West and East Coasts. If
this book is the adequate result of the best of ideas from the United States
and Europe, then it is thanks to illuminating discussions with these and
viii Acknowledgments
other colleagues. He also thanks his colleagues at Essex, notably dearly
departed Kevin Boyle, for encouraging the unthinkable. Bill Drake was the
most honest of series editors and an inspiration throughout the writing
process.
Chris Marsden dedicates his contribution to this book to his family, who
endured throughout the period of its gestation, and especially his mother,
who taught the value of patience and durability.
Introduction: Regulating the Information Giants
Governments and their regulatory agencies, those “ weary giants of flesh
and steel ” (Barlow 1996), have spent the past two decades playing catch-
up with the rapidly changing technologies and uses of the Internet. Few
would now follow Barlow in claiming that governments have no legitimate
claim to sovereignty in cyberspace, but many government agencies are still
feeling their way in regulating this new global ecosystem (Brynjolfsson,
Smith, and Hu 2003).
In this book, we conduct a comparative analysis of hard cases that best
illustrate the state exercise of regulatory power in this new domain, as
well as forbearance from regulation, to enhance the production of public
goods such as fully functioning markets and security, and the protection
of fundamental democratic rights (Stiglitz 1999). Our focus is the regula-
tory shaping of “ code ” — the technologies that underpin the Internet — to
achieve more efficient outcomes, drawing out lessons for more economi-
cally effective and socially just regulation of the Internet.
Broad political attention began being paid to the Internet around 1993
with Berners-Lee ’ s World Wide Web popularized by the release of Mosaic
as the first widely adopted browser (Kahin and Abbate 1995) and the
Clinton-Gore electoral campaign policy toward what was then touted as
the “ information superhighway.” This book addresses the third decade of
Internet regulation, not the libertarian first decade (1993 – 2002) or the
re-regulatory middle decade (2003 – 2012), that followed the dot-com bust
and state security imperative driven by the 9/11 terrorist attacks on the
United States.
This introduction sets out the terms of our research engagement with
these topical and critical issues for all Internet users. We use code in the
sense of Joel Reidenberg (1998) and Lawrence Lessig ’ s foundational work
