Objects of governance: From things to behaviors

In spite of our penchant for abstraction, we think best in concrete terms. That means we prefer to think about things rather than processes, including when it comes to communications regulation. The growing intangibility of our world is making this harder to do, however.

The legal scholar William Boyd introduced me the concept of an “object of governance”, i.e. the explicit focus or nominal topic of regulatory activity. [1] Boyd is concerned with deforestation as an object of climate governance [2]; a quick web search throws up examples like organized crime, “The East”, the Sahel, and risk. Objects of communications regulation include personally identifiable information (PII), spectrum, phone service, and the internet.

While most of these objects are intangible, they are at least to some extent thing-like; they’re nouns. It becomes more tricky when regulation addresses behavior – that is, verbs. I’ll work through a few examples in communications regulation where the object of governance started off as a thing/noun, and is becoming a behavior/verb:

Privacy: From PII to Use

The current approach to protecting privacy on the web is rooted in the notion of data security: information exists somewhere, and needs to be protected. However, an alternative conception based on appropriate use rather than access restrictions is emerging. [3] [4] The idea is that the tradition Notice & Choice regime is complemented by use-and-obligations model where organizations disclose the purposes to which they intend to put information, and undertake to limit themselves to those uses.

Wireless regulation: From spectrum to radio operation

Radio regulation has been framed in terms of government management of a “spectrum asset” for many decades. Even though in practice the regulations concerned themselves with the operating parameters of transmitters, the idea that some underlying asset existed has been a useful fiction, particularly as the detailed technology and service choices have been increasingly privatized through auctions of general-use licenses.

However, a new generation of radio technologies has been used to call this approach into question. “Open Spectrum” advocates have argued that dynamic wireless technologies obviate many underlying assumptions of current regulation, and prefer “commons” access over exclusive licenses. [5] Some in the RF engineering community recommend that regulation take into account dynamic adaptation at all layers in the network stack, not just at the radio layer. [6] I have argued that a static, spectrum-as-asset approach is not a given; a more dynamic radio-as-trademark interference metaphor is perfectly workable. [7]

Universal Service: From telephony to internet access

The Universal Service Fund in the US, and its equivalents in other countries, was conceived of as guaranteeing phone service to those who would not otherwise be able to afford it, particularly in rural communities. There is no a great deal of debate about extending the universal service concept to the internet. However, since internet access can come in an unlimited variety of flavors, it is unclear what the goal of the program should be. Phone service is the same everywhere; but what broadband speed is “good enough”? The regulatory debate is moving away from how to fund phone service to how to define baseline access.

Common carriage: From a neutral network to network management

The most recent of these debates concerns the 21st century equivalent of common carriage for the internet. The rallying cry of Network Neutrality had satisfyingly thing-like connotations: there was a network, and it had to have the attribute of neutrality (noun/adjective). Over time is has largely been agreed that network operators should have some discretion in managing the behavior of their network. The question has now become a behavioral one: what is degree of network management (verb) is appropriate?

Implications

A shift in the objects of governance from things to behaviors suggests a shift in regulation from ex ante to ex post action, that is, from making detailed rules up-front to stating general principles and enforcing breach after the fact. In Law’s Order [8], economist David M. Friedman compares speed limits (ex ante) with reckless driving (ex post), and observes that ex post punishments are most useful when the behavior is determined by private knowledge that the regulator cannot observe.

"Ex ante punishments can be imposed only on behavior that a traffic cop can observe; so far, at least, that does not include what is going on inside my head. Ex post punishments can be imposed for outcomes that can be observed due to behavior that cannot—when what is going on inside my head results in my running a red light and colliding with another automobile."

When an object of governance is thing-like, and changes in the attributes of those things are easily observed – a data breach occurs, some packets don’t cross the network – then ex ante rules are attractive. When governance concerns behavior, particularly behavior that is difficult to observe – the uses to which data is put by a company, whether a particular network management technique discriminates against a competitor – then the regulator has to fall back on ex post enforcement. The difficulties with ex post are well-known, though: from providing sufficient clarity up-front about what would constitute a breach, to the political difficulty of exacting very occasional but very large penalties from powerful players.

Footnotes

[1] Note that this is not the traditional meaning of the term, which used “object” as synonymous with “objective”, e.g. Edmund Burke: “To govern according to the sense and agreement of the interests of the people is a great and glorious object of governance. This object cannot be obtained but through the medium of popular election, and popular election is a mighty evil.”

[2] Boyd, William, “Ways of Seeing in Environmental Law: How Deforestation Became an Object of
Climate Governance”, to be published in Ecology Law Quarterly

[3] Daniel J. Weitzner, Harold Abelson, Tim Berners-Lee, Joan Feigenbaum, James Hendler, Gerald J. Sussman (2007) “Information Accountability”, Computer Science and Artificial Intelligence Laboratory Technical Report, MIT-CSAIL-TR-2007-034, June 13, 2007

[4] Business Forum for Consumer Privacy, “A New Approach to Protecting Privacy in the Evolving Digital Economy: A Concept for Discussion”, March 2009

[5] Kevin Werbach (2003), "Radio Revolution: The Coming of Age of Unlicensed Wireless," New America Foundation and Public Knowledge, no date on document, dated 15 Dec 2003 on NAF site

[6] Preston Marshall (2009) “Quantifying Aspects of Cognitive Radio and Dynamic Spectrum Access Performance” (see slides 15, 16)

[7] J Pierre de Vries, (2008) "De-situating spectrum: Rethinking radio policy using non-spatial metaphors" New Frontiers in Dynamic Spectrum Access Networks, 2008 (DySPAN 2008). http://ssrn.com/abstract=1241342

[8] David M. Friedman, Law's Order: What Economics Has to Do with Law and Why It Matters, Princeton University Press: 2001. See Chapter 7 for a discussion of ex ante/ex post.