impose any control over private actors online, but rather what constraints might be placed on
those private actors with respect to the first-order regulation. When states disagree with each
other, private actors chartered in one state and operating in the other can become proxies in
the fight.
The most efficient and thorough way to address this conundrum is for the corporations
themselves to take the lead. The corporations, as an industry, are best placed to work together to resolve this tension by adopting a code of conduct to govern their activities in these
increasingly common situations. This approach could, at a minimum, clarify to end-users what
they need to know about what companies will and will not do in response to demands from
the state. At best, the industry might be able to resist the most excessive first-order demands
of the state with a corresponding benefit for civil liberties online. The corporations should call
upon the knowledge and goodwill of NGOs, academics, public officials, and others to help
frame this code of conduct. The drafters of the code should consider neither the firms nor
the markets to be singular in terms of their respective ethical obligations, but rather consider
them to be disaggregated. The goal of drafting and putting in place a code should be to
establish a meaningful, flexible, and lasting solution to the problem of corporate ethics on
a filtered Internet, a solution that may be as much process as substance, creating mechanisms for the resolution of questions as they arise that earn the acquiescence of their firstorder regulators, and the respect of their customers and their second-order regulators.
First-Order Regulation of the Online Environment
The initial debate over the regulation of the online environment, as we describe in chapter 2,
was whether or not states could regulate online activity. Cyberlibertarians—often derided as
cyberutopians—took the provocative view that cyberspace was so different that states could
not reach it. That debate is now settled. The answer is that they can, more or less in the ways
that they have regulated offline activity. Whether or not states should regulate the online environment in comparable manner to how they have regulated in the past is a more complicated
matter.
We refer here to ‘‘first-order regulation’’ of the Internet as this first generation of questions.
The large issues covered in Lawrence Lessig’s Code and Other Laws of Cyberspace, the definitive text in this area, comprise a reliable list.
1 Should the state regulate speech online—
whether hate speech, political speech, or otherwise? Should the state step in to protect user
privacy? Or listen in on the conversations of citizens in the service of law enforcement? What
is the proper role of the state in granting and enforcing intellectual property rights in ideas and
expression, or brand and trade secrets, in the online environment? In each instance, virtually
every state with a significant population online has exerted some control of this ordinary sort.
The story of this chapter, though, is about whether regulation should come into play in response to this first-order regulation of private actors doing business in other jurisdictions. The
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Jonathan Zittrain and John Palfrey
those private actors with respect to the first-order regulation. When states disagree with each
other, private actors chartered in one state and operating in the other can become proxies in
the fight.
The most efficient and thorough way to address this conundrum is for the corporations
themselves to take the lead. The corporations, as an industry, are best placed to work together to resolve this tension by adopting a code of conduct to govern their activities in these
increasingly common situations. This approach could, at a minimum, clarify to end-users what
they need to know about what companies will and will not do in response to demands from
the state. At best, the industry might be able to resist the most excessive first-order demands
of the state with a corresponding benefit for civil liberties online. The corporations should call
upon the knowledge and goodwill of NGOs, academics, public officials, and others to help
frame this code of conduct. The drafters of the code should consider neither the firms nor
the markets to be singular in terms of their respective ethical obligations, but rather consider
them to be disaggregated. The goal of drafting and putting in place a code should be to
establish a meaningful, flexible, and lasting solution to the problem of corporate ethics on
a filtered Internet, a solution that may be as much process as substance, creating mechanisms for the resolution of questions as they arise that earn the acquiescence of their firstorder regulators, and the respect of their customers and their second-order regulators.
First-Order Regulation of the Online Environment
The initial debate over the regulation of the online environment, as we describe in chapter 2,
was whether or not states could regulate online activity. Cyberlibertarians—often derided as
cyberutopians—took the provocative view that cyberspace was so different that states could
not reach it. That debate is now settled. The answer is that they can, more or less in the ways
that they have regulated offline activity. Whether or not states should regulate the online environment in comparable manner to how they have regulated in the past is a more complicated
matter.
We refer here to ‘‘first-order regulation’’ of the Internet as this first generation of questions.
The large issues covered in Lawrence Lessig’s Code and Other Laws of Cyberspace, the definitive text in this area, comprise a reliable list.
1 Should the state regulate speech online—
whether hate speech, political speech, or otherwise? Should the state step in to protect user
privacy? Or listen in on the conversations of citizens in the service of law enforcement? What
is the proper role of the state in granting and enforcing intellectual property rights in ideas and
expression, or brand and trade secrets, in the online environment? In each instance, virtually
every state with a significant population online has exerted some control of this ordinary sort.
The story of this chapter, though, is about whether regulation should come into play in response to this first-order regulation of private actors doing business in other jurisdictions. The
106
Jonathan Zittrain and John Palfrey