Myth #01 Chapter I

Myth #01: What people do on the Internet cannot be regulated.
Nikolas Guggenberger

Myth: The Internet cannot be regulated. Human behaviour on the Internet resists all or at least meaningful regulation. Laws either do not apply or, if they apply and are broken, cannot be enforced by the state because of the architecture of the infrastructure and the nature of online communication.


Busted: Despite all evidence to the contrary, the myth that behaviour on the Internet, in cyberspace, or on the “information superhighway” cannot be regulated has prevailed in principle and resurrected in new clothes with every cycle of innovation. The myth builds on both, a misconception of the very nature of regulation and a misunderstanding of the network’s infrastructure and the characteristics of online communication in general. Thirty years of scholarship, legislation, and enforcement actions have debunked this myth, and, yet, with every new phenomenon from search engines to social media and Blockchain technology, the myth reemerges.

Let us start with the misconception of the nature of regulations. Regulations address persons, natural or legal persons to be precise. Regulations do not directly regulate things, including networks, spaces or highways of all sorts, but, at best, relationships between persons and things. Therefore, the question whether the Internet itself can be regulated directly would be the wrong question to ask. Rather, the question to ask is whether persons communicating or transacting via the Internet can be addressed by regulations and whether that in turn shapes the gestalt of the Internet. Phrased correctly, we can clearly answer the question in the affirmative: Persons can be punished for online fraud, they can be held accountable for copyright violations and for distributing illegal content. Electronic contracts are legally binding just as their analogue equivalents. Consumer protection rights have shaped the practice of e-commerce, and the GDPR and its predecessors have defined the boundaries of processing personal data.

The second misunderstanding confuses certain shortcomings in the practical enforcement of legal provisions and the ability to regulate in general. No doubt, the digital, global, partially decentralized, and in certain ways anonymous environment online promotes certain crimes and eases the circumvention of local rules by lowering transaction costs for such practices (#5). However, none of these challenges to law enforcement would undermine the ability to regulate online conduct. First, the competent authorities have developed approaches to investigate crimes and enforce rules online. Second, the Internet as a network and intermediaries depend on physical infrastructure, which can easily be targeted by enforcement actions. Third, the Internet is by no means an environment in which supervision, for systemic reasons, is substantially more difficult than elsewhere.


Truth: Behaviour on the Internet can be subjected to regulation just as any other behaviour. Laws and regulations apply and breaches trigger enforcement actions. Though anonymity, the cross-border character of contracts and crimes, the speed of communication and technical prowess of criminals challenge the effectiveness of law enforcement, this does not change the simple fact that online just as offline, our lives are subjected to regulation.


Source: Lawrence Lessig, Code Version 2.0 (Cambridge: Basic Books).