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The Tortoise, the Hare, and the Internet

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When governments began to stake out their Internet policy positions in the mid-1990s, there was general agreement among countries such as Canada, the United States, Australia, as well as the European Union, on the wisdom of adopting a self-regulatory approach led by the private sector.

A core premise behind this approach was that Internet regulation was different from real-space, traditional regulation. The Internet was growing at an unprecedented rate and its regulatory response also needed to be quick and nimble, something to which government was ill-suited.

While many governments have gradually moved toward a more aggressive regulatory position, many retain the earlier belief that the private sector is better able to quickly respond to emerging Internet issues.

For example, on Internet governance matters some policy makers favour assigning control to the Internet Corporation for Assigned Names and Numbers (ICANN), a California-based non-profit corporation, rather than the obvious alternative, the International Telecommunications Union, partly because the latter is viewed as an "old-style" U.N. regulatory agency unable to adapt to the Internet's speed.

Although the Internet continues to develop at a rapid pace, it is time to put an end to the myths that its regulation necessitates a rapid response and that only the private sector can meet the challenge.

Experience over the past eight years suggests that both governments and the private sector are equally capable of moving either fast or slow on Internet policy with equally questionable results. Moreover, fast policy-making often leads to both undesirable and unforeseen outcomes, results that later necessitate painful changes and create greater uncertainty.

Uncovering examples of slow government policy development is relatively easy. Privacy law in Canada provides one such example — discussions on a possible bill date back to 1996 and the federal government introduced legislation in the fall of 1998.

The resulting federal privacy law only takes full effect in January 2004, a spread of nearly eight years from the initial policy work. Similarly, spam policy has been years in the making as Canada unveiled its first spam policy in 1999, opened the door to revisions in 2002, and is only likely to develop a finalized policy and possible legislation in 2004.

The private sector rarely does much better. The Canadian government recently released for comment draft guidelines on electronic authentication services. This initiative, which was led by the private sector, dates back to 2001 and is also unlikely to conclude before early 2004.

In the U.S., the private sector has also been grappling with key privacy law issues for years with no resolution in sight.

More troubling is policy, whether led by government or the private sector, which moves too quickly. Consider the anti-terrorism legislation enacted by governments in Canada and the U.S. within weeks of the events of 9/11.

That policy process moved so fast that few believe that the policies were effectively vetted, leading even supportive lawmakers to institute sunset clauses that automatically rescind the most controversial provisions after five years.

In the private sector, ICANN, heralded by supporters as a new form of governance better suited to the characteristics of the Internet, has amended its by-laws over a dozen times and engaged in regular organizational reform since its creation less than five years ago. While ICANN may be treading on uncharted territory, its ongoing evolution suggests that speed brings with it no shortage of complications.

Perhaps the best example of the trade-off between a steady and speedy policy process comes from the world of copyright. The U.S. has led the way on copyright reform, quickly enacting the Digital Millennium Copyright Act in 1998.

The DMCA has been a source of controversy ever since.

While it has done little to stem the tide of online copying, the law has led to troubling consequences such as the arrest and imprisonment of a Russian software programmer for the creation of an infringing software program in his native land, the refusal of a Princeton professor to present his research findings due to fear of legal action, as well as the use of the statute for such matters as preventing the distribution of printer ink-cartridge refills.

Canada, meanwhile, has moved very slowly in the digital copyright reform field. This deliberate pace has enabled the Canadian Supreme Court to offer guidance on copyright policy with a landmark decision last year that emphasized the importance of protecting both creators and consumers. It also allowed policy makers to conduct hearings and nationwide meetings to gather the views of Canadians.

Although this deliberate process may not yield better results than those found in the U.S., it will not be due to a lack of consultations and effort.

As countries continue to grapple with Internet policy issues, the lesson of the tortoise and the hare comes to mind, with its moral that being fast and first out of the gate does not necessarily lead to a better result.

There may well be many reasons for preferring private sector leadership to that of the government on Internet policy, but speed is not one of them.

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