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A decade ago the unregulated Internet was already subject to attempts to regulate: first-generation regulation was in full flow. Today a second wave of internet regulation is based on a better understanding of the Internet and of law’s ability to shape and control it. Some things about the second wave are encouraging, but even more is troubling. Internet regulation is increasingly based on a sound understanding of the technology, minimizing pointless rules or unintended consequences. But where a decade ago it was still reasonable to see the Internet technologies as empowering and anti-totalitarian, now regulators in both democratic and totalitarian states have learned to structure rules that cannot easily be evaded, leading to previously impossible levels of regulatory control.
First generation Internet regulation involved three differently motivated reactions to disruption.
1) Categorization. Was the Internet speech more like radio, or newspapers, or private letters? Was e-commerce like catalogue sales? Is encryption speech or a widget? Where is an online transaction? But the categories were contestable because the true nature of the Internet-mediated activity was unclear, analogies are imperfect, parties dueled about levels of generality, or category choice determined outcomes.
2) New categories and new institutions (e.g. ICANN). Either existing categories seemed inadequate, or new technology promised new capabilities or new solutions to old problems. Sometimes, proponents saw in the Internet an opportunity to achieve otherwise unjustifiable regulatory goals. Occasionally (e.g. digital signature regulation), enthusiasts enabled solutions that had yet to find problems.
3) Preserving (or reinstating) the status quo. As government attempts to set technical standards failed (e.g. the Clipper Chip), policy makers legislated more directly (e.g. the US’s DMCA and CALEA, the UK’s RIPA).