One possibility for a viable long-term solution would be for the industry consensus to be
given the status of law over time. This approach would help to address three of the primary
shortcomings of the industry self-regulation model. First, self-regulation can amount to the
fox guarding the chicken coop. Second, self-regulation permits some actors to opt out of
the system and to gain an unfair competitive advantage as a result. Last, the self-regulatory
system could collapse or be amended, for the worse, at any time—and may or may not persist in an optimal form, even if such an optimal form could be reached initially.
This mode of ratifying an industry self-regulatory scheme has instructive antecedents. Most
immediately relevant, the Sullivan Principles—proposed initially by one man—eventually became incorporated into U.S. law: the Anti-Apartheid Act in 1986 that embodied the Sullivan
Principles passed over President Reagan’s veto.
12 In the technology context, a series of proposed laws in the United States—some more advisable as public policy than others—have
had a similar history. In the case of the Security Systems Standards and Certification Act of
2001 (SSSCA), the Consumer Broadband and Digital Television Promotion Act of 2002
(CBPTPA), and the Audio Home Recording Act of 1992 (AHRA), the industry came to consensus as to a feasible solution to a common problem, which the Congress then took up as
possible legislation. The analogy here is not to the merits of each proposal, each of which
suffered from deep flaws. The analogy runs instead to the process of the industry working
through the details of a common problem, with lawmakers coming along thereafter to ratify
the agreement.
The advantages of such a process are several. This approach would lead to a more stable
regulatory regime, bringing with it the benefits of administrative, enforcement, and appellate
mechanisms. Depending on what emerges from the process, the Congress or their colleagues in other jurisdictions could decline to ratify the agreement if the industry had not
moved the bar high enough. This approach would also solve possibly the toughest problem
of industry self-regulations, whereby industry outliers who do not opt in may enjoy an unfair
advantage, especially in a context like this one where the behavior is hard to codify as good
or bad. The function of ratifying the industry-led agreement ex post facto would be to level the
playing field for all relevant firms. Local firms might retain their advantage—they would have
only the first-order regulation to contend with, not the second-order—but that is another problem of globalization altogether.
International Governance
Problems in cyberspace rarely have been solved through coordinated international action,
though there is no inherent reason to believe that international cooperation or governance
could not play a meaningful role in resolving these ethical dilemmas. The United Nations has
not been involved in extensive regulation of the online space. The primary U.N.-related entity
to play a regulatory role in anything related to the Internet is the International Telecommunication Union (ITU), which has a long history in the coordination between states and private
Corporate Ethics on a Filtered Internet
119
given the status of law over time. This approach would help to address three of the primary
shortcomings of the industry self-regulation model. First, self-regulation can amount to the
fox guarding the chicken coop. Second, self-regulation permits some actors to opt out of
the system and to gain an unfair competitive advantage as a result. Last, the self-regulatory
system could collapse or be amended, for the worse, at any time—and may or may not persist in an optimal form, even if such an optimal form could be reached initially.
This mode of ratifying an industry self-regulatory scheme has instructive antecedents. Most
immediately relevant, the Sullivan Principles—proposed initially by one man—eventually became incorporated into U.S. law: the Anti-Apartheid Act in 1986 that embodied the Sullivan
Principles passed over President Reagan’s veto.
12 In the technology context, a series of proposed laws in the United States—some more advisable as public policy than others—have
had a similar history. In the case of the Security Systems Standards and Certification Act of
2001 (SSSCA), the Consumer Broadband and Digital Television Promotion Act of 2002
(CBPTPA), and the Audio Home Recording Act of 1992 (AHRA), the industry came to consensus as to a feasible solution to a common problem, which the Congress then took up as
possible legislation. The analogy here is not to the merits of each proposal, each of which
suffered from deep flaws. The analogy runs instead to the process of the industry working
through the details of a common problem, with lawmakers coming along thereafter to ratify
the agreement.
The advantages of such a process are several. This approach would lead to a more stable
regulatory regime, bringing with it the benefits of administrative, enforcement, and appellate
mechanisms. Depending on what emerges from the process, the Congress or their colleagues in other jurisdictions could decline to ratify the agreement if the industry had not
moved the bar high enough. This approach would also solve possibly the toughest problem
of industry self-regulations, whereby industry outliers who do not opt in may enjoy an unfair
advantage, especially in a context like this one where the behavior is hard to codify as good
or bad. The function of ratifying the industry-led agreement ex post facto would be to level the
playing field for all relevant firms. Local firms might retain their advantage—they would have
only the first-order regulation to contend with, not the second-order—but that is another problem of globalization altogether.
International Governance
Problems in cyberspace rarely have been solved through coordinated international action,
though there is no inherent reason to believe that international cooperation or governance
could not play a meaningful role in resolving these ethical dilemmas. The United Nations has
not been involved in extensive regulation of the online space. The primary U.N.-related entity
to play a regulatory role in anything related to the Internet is the International Telecommunication Union (ITU), which has a long history in the coordination between states and private
Corporate Ethics on a Filtered Internet
119