***HONORABLE MENTION*** 2015 Nissenbaum Internet Law Scholarship Essay – KELLY WALDO (Boston College Law School- Anticipated Graduation Date: 2018)

How Can The American Legal System Improve Its Approach To Policing And Regulating Digital Technology Without Unduly Stifling Innovation And Civil Liberties?                                                                                                                         

When the World Wide Web was created in 1990, even Tim Berners-Lee could not have predicted how much it would progress during the next twenty-five years. The Internet advanced rapidly and continues to advance rapidly to this day. The Internet is a place where individuals can communicate on a universal scale, where businesses can develop and grow, where economic development occurs, where people can act politically and create real change, and where somebody can share a photograph of what they prepared for dinner. With something so multi-dimensional and so far-reaching, it is no surprise that the Internet and the digital technology related to it is extremely complicated to regulate.

When addressing the issue of how to improve America’s regulation of digital technology, one must first speak to whether digital technology even needs to be regulated at all. The Internet serves as a level playing field. One individual has as much of a right to post on the Internet as any other individual. If one decides to compete with Google, he or she has every opportunity to try and create something that will compete. It initially appears that without regulation, the Internet would be truly open and free.

However, recent cases involving the FCC, Verizon and Comcast display a need for regulation. Internet Service Providers, such as Comcast, currently have a monopoly on the cable market. Because Internet is currently combined with cable access, companies like Comcast are able to charge additional fees to access certain areas of the Internet and have attempted to charge certain companies on the Internet additional fees. For example, Comcast stated that because more people access Netflix than a blog, that Comcast could charge Netflix additional fees. This action clearly hurts Netflix’s freedom to operate on the Internet and impairs the openness of the Internet.

The ability of an ISP to control the speed of certain websites and the amount of fees that certain websites must pay is a stifle on the civil liberties of these website owners. This ability opens the door for Comcast or Verizon to arbitrarily decide which websites they will allow and because of their monopolies on the market, ISPs would have an unseemly amount of control over the Internet. With the control of a monopoly over something so powerful and widespread, an abuse of power is almost guaranteed.

Another example of how regulation, better regulation at that, is needed is through the recent situation involving Instagram photographs. According to the Washington Post, Richard Prince, a controversial artist, printed out screenshots from other Instagrams, made slight adjustments, and sold the photographs in an art gallery for $90,000 each. Prince had the ability to profit so much from another person’s work without his or her permission because the Instagram copyright laws apply solely to the Instagram world. While Prince could have been successfully sued if he had taken the photographs and put them on his own Instagram, he cannot be successfully sued by using the photographs outside of Instagram.

Many individuals were unaware of their loss of possession of their photographs until Prince’s gallery, and many individuals think that this suppresses their liberties. One’s loss of ownership of his or her photographs appears to make it so that less people would post photographs and less people would share.

Even by just examining these two examples, it comes into light that many companies and individuals are attempting to and succeeding in profiting from information shared on the Internet, without actually having much ownership over it. While there are certain aspects of deregulation that seem principal, issues of property ownership and the fight for control of the Internet necessitate being addressed with regulation.

The current regulation on the Internet stifles civil liberties and stifles innovation in many ways. Website owners fear that they will be controlled with arbitrary fees by one authority. Many individuals fear that they cannot claim ownership to anything they discover or create if they put it on the Internet. This fear is detrimental because with a network so universally accessible, not sharing ideas could inhibit many types of beneficial progress that this world needs.

The Internet and its digital technology in America should be regulated like its government. As with America, one entity cannot control nor have the power to regulate something as significant and expansive as the Internet. As seen in the recent cases with Verizon and Comcast, allowing one organization to regulate the Internet leads to the opportunity to abuse power.

There should be three organizations, or “branches” used to regulate the Internet. Each group would have the ability to draft and create regulation, examine cases about the Internet and supposed infringement of rights and vote on both of these aspects. Each group is subject to checks and balances by the other groups. The organizations would work separately but together in their attempt to keep the Internet as deregulated as possible, but to create fair regulation where necessary. These three organizations, which currently do serve as the main authorities on Internet regulation should only be able to pass regulation through a system of debate and voting.

The FCC, ICANN, and the Internet Society are potential organizations that could serve as the main three groups that have the power to regulate the Internet within the United States. The ISOC also contains the groups, IAB, IESG, and the IETF among others within it.

However, although framed after the government, it is necessary that these three groups do not become political. The Internet cannot become another political venture where if liberals make up the majority of the organizations that the Internet will be censored more so for conservatives and vice versa. Politicizing the Internet would stifle civil liberties and the right to speak freely.

One requirement of these groups is to keep regulation on the Internet as transparent and comprehensible as possible. With the world at almost every single individual’s fingertips, it is essential that each individual be aware of the legal framework surrounding the Internet and have the ability to access these laws whenever necessary. It is crucial that these organizations look at the rules involving certain Apps such as Instagram to see if their rules are worthy to be laws applicable on all other forms of media or outside of media. It is imperative that ownership of one’s ideas and property be sustained in certain ways so that innovation and invention can continue to flourish.

The American legal system can improve its approach to policing and regulating digital technology by creating an actual system, with checks and balances. This system is essential for increasing the clarity of Internet regulation and allowing access and transparency to Internet law.

These groups, with the authority to regulate, should attempt to keep the Internet as deregulated as possible, but should create law where the ability of one organization to control or infringe on one’s rights is probable. It is clear because of the recent attempts by monopolies to control the Internet and the success of some in gaining the rights to other’s creations that a comprehensible organization needs to be created to ensure the fairness of the Internet. A three- organization system with checks and balances would hopefully allow minimal regulation to be created so that stifling innovation and civil liberties is avoided.