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State of the Web: Why can’t Washington craft better Internet laws?

State of the Web internet law hThe tragic suicide of programmer and activist Aaron Swartz, who was charged with multiple computer crime felonies prior to his death, has reignited calls for Washington to craft better Internet-related legislation. Many laws on the books are seen as outdated, misaligned with reality, and just plain crazy. There has to be a better way, or so the theory goes. But what if there isn’t? What if the lawmaking process, by its very nature, cannot handle the fast-paced world of the Internet and the cultural shifts that go along with it? What then?

The time problem

The first hurdle to better Internet legislation is a basic one: Time. While it is technically possible for Congress to pass a bill in about an hour, as it did in 1941 when the U.S. declared war on Japan, most bills linger for far longer periods – think months or years, not weeks. And given the complex nature of Internet-related legislation, such bills generally fall into the latter camp.

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Cybersecurity legislation, for example, has been on and off Congress’s agenda for years, despite increasingly pressing concerns over allegedly impending cyber attacks. Efforts to revamp the outdated Electronic Communications Privacy Act so that law enforcement may not intrude upon our emails and instant messages without a warrant have failed two years in a row. Add to the mix our hilariously dysfunctional Congress, Members of which are now terrified of pissing off the Internet community thanks to SOPA, and you have a recipe for massive delay or outright deadlock.

There are many reasons inaction in Congress is bad for America. But this problem is exponentially worse with regard to Internet-related legislation because what the Internet is, and what we do with it, changes too rapidly for the sluggish process of lawmaking to properly address the problems that arise.

Our laws were unable to foresee the rise of Facebook, smartphones, data brokers, or hacktivists like Aaron Swartz, and the legal complications that go with them. What reason do we have to believe that the laws we write in 2013 will not crumble under the innovations and cultural shifts that occur in the next 10 years?

Broad vs. narrow

One way to alleviate the problem of time is to write legislation that is broad enough to remain applicable even if the underlying technology or habits change. But as we’ve seen with bills like SOPA and the Cyber Intelligence Sharing and Protection Act, broad language causes problems of its own; it often makes activities that should be perfectly legal illegal, or gives the government too much power over our digital lives than it should have.

The same broadness can occur when we amend current laws. Case in point: the Computer Fraud and Abuse Act (CFAA), which was the basis for 11 of the 13 felonies burdened by Aaron Swartz, has been amended so many times that it is now a nearly indiscernible mess that makes it possible to prosecute things like Terms of Service violations as federal crimes. Some legal scholars even argue that the CFAA should be “void for vagueness,” a doctrine derived from the U.S. Constitution that says laws must be clear enough that the average person can discern what they mean.

Technical understanding

The next mountain that legislators must climb when dealing with Internet-related legislation is learning how the Internet actually works, on a technical level. Much of the uproar over SOPA revolved around how it would “break the Internet” through the implementation of DNS filtering – something 83 of the people responsible for creating the Internet, as well as former Department of Homeland Security Assistant Secretary Stewart Baker, said could happen if SOPA went into effect.

On top of the technical confusion is the problem that there are some who believe that offline rules should apply to the online world, unaltered. This is most apparent in debates over copyright infringement and the nature of file sharing on the Web: One side says illegal file sharing is the same as stealing, the other side says it’s more like giving a copy to a friend.

As TechDirt’s Mike Masnic put it: “If we’re going to address issues involving the Internet, it’s going to take actually understanding the Internet, rather than trying to apply misleading analogies that don’t actually represent the situation. The Internet is different. That doesn’t mean it is (or should be) lawless. But if there are going to be appropriate laws, they need to recognize the realities of the technology, not pretend that the internet is just like the physical world… but in pixels.”

In other words, lawmakers must tackle both the complicated technical matters inherent in the Internet, as well as the amorphous differences between life online and off, before a piece of legislation can be considered “good” by those who do grasp those issues. As smart as many in Congress are, finding this balance seems to me an Everest-like order.

What freedom looks like

In addition to disagreement and misunderstanding between Member of Congress, the giant leap to Internet legislation glory depends on the activists themselves agreeing on what the Internet should be. But that is not even close to happening.

Both factions of “open Internet” activists believe that government intrusion is a bad thing. What they don’t agree on is which parties matter more for the Internet to exist and thrive. On one side is the consumer protection crowd, which believes legislation should protect Internet users from both overreaching government and greedy corporations. On the other, the libertarian faction, which demands that no laws encroach on Internet companies abilities to do whatever they want.

Given that lawmakers will be looking for guidance from both of these crews, and countless other organizations and companies, for how to craft proper legislation, I cannot see how much progress can be made.

A glimmer of hope

Of all the Internet-related laws I’ve come across, the one that stands out as a beacon of hope is the Communications Decency Act, which protects websites from getting hit with lawsuits or criminal charges for the acts of users. CDA is what allows Facebook to not get sued into oblivion for liable. It’s what keeps YouTube from dying a long death in a court room. It is, in other words, a key reason the Web we all know and love exists in its current form.

But even the CDA was not perfect – much of the law was struck down by the Supreme Court due to restrictions it placed on free speech. Out of the rubble, however, emerged a good law. And that makes me feel like progress can be made.

What will likely come in the months and years that follow is the same as what came before it: Piles of bills, both good and bad, and fights over whether those bills should become law. That’s the nature of our democracy, after all: slow, tenuous, and tedious. My only fear is that the addition of overzealousness, arrogance, stubbornness, and ignorance will bring us back to where we are today, for all time.

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