7.2 Law and the interactions of the regulators of behaviour

We looked at the model of the constraints on behaviour shown below in Section 6. We also noted in the context of innovation and the Net that law and architecture are the most important of the regulators.

Figure 11: constraints on behaviour

We considered a government's power to regulate behaviour through law and looked at the example of a retailer constrained from selling cigarettes to children. The law forbids such sales, and retailers comply to the extent that they fear being caught and prosecuted.

This is a little simplistic, though. Surely many retailers also comply with the law because they think it is wrong to sell cigarettes to children. Social norms apply here too. The four regulators of behaviour interact and can reinforce or undermine each other.

Figure 12: interaction between the four regulators of behaviour

When trying to model this our diagram gets much more messy. Yet even this diagram does not demonstrate the complexity of the interactions between the regulators. Depending on the situation the degree of influence of each of the regulators changes. Let's take some examples of where law is the most powerful regulator.

Figure 13: law as the most powerful regulator

The diagram is now less complicated but only models one situation, where law is the most influential. Neither does it consider the complex interactions of all four regulators. Let's look at some examples of where the law influences the other regulators.

Education is one example. It is compulsory for children in the UK and the US to be educated. It is possible for parents to teach their children at home, but most go through a formal schooling system. This schooling system values certain behaviours above others and hence children get taught social norms. Those children who do not conform to these norms have a hard time. Here the law is indirectly influencing behaviour by directly influencing social norms.

Can the law influence market forces? One example is the anti-trust laws which led to Microsoft being convicted of anti-competitive practices. Critics of the power of such laws might suggest that the remedy decision by Judge Colleen Kollar-Kotelly had little effect on Microsoft's practices. Critics might also suggest that governments are better placed to influence market forces through their spending decisions than through law. Nevertheless, the anti-trust laws are designed to influence market forces.

Can the law influence architecture? Yes. One example in relation to conventional architecture is the legislation in the UK outlawing discrimination on disability grounds. Under the Special Educational Needs and Disability Act 2001 (SENDA), local educational authorities will have a duty to improve ‘the physical environment of the schools for the purpose of increasing the extent to which disabled pupils are able to take advantage of education.’ Educational institutions will need to be physically accessible, e.g. via lifts and ramps if necessary.

What about technical architecture? The Communications Assistance for Law Enforcement Act (CALEA) was passed in 1994 in the US. Telecommunications companies are obliged under the Act to change the architecture of their systems to make phone tapping easier for law enforcement agencies. In the UK the Regulation of Investigatory Powers Act 2000 means that internet service providers can be forced to install equipment to facilitate surveillance by law enforcement authorities.

In March 2004 US law enforcement agencies petitioned the Federal Communications Commission (FCC) to expand CALEA-like surveillance powers to broadband internet networks. As with the 1994 Act this would mean redesigning networks to be more surveillance friendly. Companies such as AOL Time Warner have already developed these kinds of networks.

In August 2004 the FCC ruled that broadband and internet phone services need to be CALEA compliant. This means further architectural changes to networks that are already constructed to facilitate central control and may have implications for the kind of innovation that Lessig attributes to the end-to-end features of the original Net.

Further reading:

‘Intellectual property is theft. Ideas are for sharing.’

‘Politics, language and the Eldred decision.’

7 The counter-revolution through law and architecture

7.3 Curbing the Web