As soon as new technologies are introduced, the call for government regulation inevitably rings out. And as lawmakers feel the pressure to cure technology-related societal harms, their approach has increasingly focused on regulating technology, not bad conduct.
New laws are sometimes desirable and address challenges posed by new technologies. But when are they really needed? For a useful analytical framework, we can turn to the study The Electronic Frontier: The Challenge of Unlawful Conduct Involving the Use of the Internet, published in 2000 by the Working Group on Unlawful Conduct on the Internet (which was created by a 1999 Clinton Executive Order).
Although initially criticized by civil libertarians as focusing, almost deferentially, on the needs of law enforcement, the report’s analytical framework is useful for analyzing legislative proposals to curb harmful conduct—an invariable byproduct of new technology. The report considers three main steps to determine whether new laws are needed:
• First, identify the conduct and the laws applicable to it. Are existing laws suffi cient to address unlawful conduct involving the use of new technology?
• Second, ask whether novel ways are needed to detect and catch wrongdoers. Does the legislation provide not just new law, but also new tools or capabilities to investigate and prosecute bad conduct?
• Third, analyze market alternatives to government regulation. What is the potential for using education and empowerment tools to minimize the risks for misuse? Using a similar framework, let’s analyze current legislative attempts to address two major Internet-related issues: spyware and file-sharing software.