The Third Wave of Internet Exceptionalism
By Eric Goldman
From the beginning, the Internet has been viewed as something special and “unique.” For example, in 1996, a judge called the Internet “a unique and wholly new medium of worldwide human communication.”
The Internet’s perceived novelty has prompted regulators to engage in “Internet exceptionalism,” crafting Internet-specific laws that diverge from regulatory precedents in other media. Internet exceptionalism has come in three distinct waves:
The First Wave: Internet Utopianism
In the mid-1990s, some people fantasized about an Internet “utopia” that would overcome the problems inherent in other media. Some regulators, fearing disruption of this possible utopia, sought to treat the Internet more favorably than other media.
47 USC 230 (a law still on the books) is a flagship example of mid-1990s efforts to preserve Internet utopianism. The statute categorically immunizes online providers from liability for publishing most types of third party content. It was enacted (in part) “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” The statute is clearly exceptionalist because it treats online providers more favorably than offline publishers—even when they publish identical content.
The Second Wave: Internet Paranoia
Later in the 1990s, the regulatory pendulum swung in the other direction. Regulators still embraced Internet exceptionalism, but instead of favoring the Internet, regulators treated the Internet more harshly than analogous offline activity.
For example, in 2005, a Texas website called Live-shot.com announced that it would offer “Internet hunting.” The website allowed paying customers to control, via the Internet, a gun on its game farm. An employee manually monitored the gun and could override the customer’s instructions. The website wanted to give people who could not otherwise hunt, such as paraplegics, the opportunity to enjoy the hunting experience.
The regulatory reaction to Internet hunting was swift and severe. Over 3 dozen states banned Internet hunting. California also banned Internet fishing for good measure. However, regulators never explained how Internet hunting is more objectionable than physical space hunting.
For example, California Sen. Debra Bowen criticized Internet hunting because it “isn’t hunting; it’s an inhumane, over the top, pay-per-view video game using live animals for target practice….Shooting live animals over the Internet takes absolutely zero hunting skills, and it ought to be offensive to every legitimate hunter.”
Sen. Bowen’s remarks reflect numerous unexpressed assumptions about the nature of “hunting” and what constitutes fair play. In the end, however, hunting may just be “hunting,” in which case the response to Internet hunting may just be a typical example of adverse Internet exceptionalism. [For more, check out my 2005 editorial on Internet hunting.]
The Third Wave: Exceptionalism Proliferation
The past few years have brought a new regulatory trend. Regulators are still engaged in Internet exceptionalism, but each new advance in Internet technology has prompted exceptionalist regulations towards that technology.
For example, the emergence of blogs and virtual worlds has helped initiate a push towards blog-specific and virtual world-specific regulation. In effect, Internet exceptionalism has splintered into pockets of smaller exceptionalist efforts.
Regulatory responses to social networking sites like Facebook and MySpace are a prime example of Internet exceptionalism splintering. Rather than regulating these sites like other websites, regulators have sought social networking site-specific laws, such as requirements to verify users’ age, combat sexual predators and suppress content that promotes violence. The result is that the regulation of social networking sites differs not only from offline enterprises but from other websites as well.
Internet exceptionalism is not inherently bad. In some cases, the Internet truly is unique, special or different and should be regulated accordingly. Unfortunately, more typically, exceptionalism cannot be analytically justified and instead reflects regulatory panic.
In these cases, regulatory exceptionalism can be harmful, especially to Internet entrepreneurs and their investors. It can distort the marketplace between web enterprises and their offline competition—occasionally advantaging the website (such as 47 USC 230), but typically hindering the web business’ ability to compete. In extreme cases, such as Internet hunting, unjustified regulatory intervention may put companies out of business.
Accordingly, before enacting exceptionalist Internet regulation, regulators should articulate how the Internet is unique, special or different and explain why these differences support exceptionalism. Unfortunately, emotional overreactions to perceived Internet threats or harms typically trump such a rational regulatory process. Knowing this tendency, perhaps we can better resist that temptation.