By Lawrence Lessig †
forthcoming,
This is an essay about standards in future of the Internet’s governance. I begin with a distinction between two types of standards, and then a reminder of a bit of history of the evolution of thought about regulation in cyberspace. I then draw upon this distinction and this history to suggest a question about the future of the net’s regulation. This question relates to the place of open source software in the future of the "application space" of the Internet. My argument is that open source software will make regulating cyberspace more difficult than it otherwise would be.
I. Standards
Distinguish between two sorts of standards: coordinating and regulating. A coordinating standard is a rule that facilitates an activity that otherwise would not exist. A regulating standard restricts behavior within that activity, according to a policy set by the regulators. A coordinating standard can be imposed from the top down, or emerge from the bottom; a regulating standard is ordinarily imposed only from the top down. Driving on the right side of the road is a coordinating standard. A speed limit is a regulating standard. Coordinating standards limit liberty (drive on the right) to make an activity possible (driving); regulating standards limit liberty within that activity (speeding) to advance a regulatory end (safety or fuel conservation). We understand why an individual would want to deviate from a regulating standard; it is (often) hard to make sense of a desire to deviate from a coordinating standard.
Standards on a computer network are similarly coordinating and regulating. TCP/IP is a coordinating standard—it is a convention that makes exchange of information over the Internet possible. Space allocation on a network server is a regulating standard—it limits the storage space assigned to a particular user to allow many users to use the same storage resource.
Most of the most important Internet standards to date have been coordinating standards—standards such as TCP/IP, or FTP, or HTML. The Internet community has demonstrated well its ability to develop and deploy coordinating standards; this is the genius in organizations such as the Internet Engineering Task Force. But in the future, most of the most significant debates about standards will be debates about regulating standards
Brilliant to this point. But why do you assert that in the future "most" of the "most significant" debates about standards will be regulatory. When we have seen such extraordinary benefit already from open coordinating standards, why would we not strive to continue our growth trajectory?