Why Hayek Would Hate SOPA
Watching the House Judiciary Committee’s markup session on the latest version of the Stop Online Piracy Act, I’m struck by how the bill exemplifies what F.A. Hayek called the “Fatal Conceit” of government planners and regulators. As Rep. Jason Chaffetz noted with incredulity, a bill that would perform major surgery on the Internet is moving forward, at breakneck speed, without any doctors in the room. Legislators who think it’s cute to make jokes about how little they understand network technology are endorsing regulation of that technology, in statutory language has only just been introduced in its current form, without so much as a hearing from the actual engineers who are loudly warning of its grave defects. But the “fatal conceit” is inherent in the attempt to issue this kind of top‐down mandate on the Internet, even with the best expert advice.
In many ways, the Internet is a perfect embodiment of Hayek’s concept of an evolved “spontaneous order.” Its enormous complexity is the product of relatively simple rules that allow individuals to deploy their local knowledge productively without having to understand the total system. Each layer in the “stack” of protocols in the Internet is independent, which means I can write a network application or generate content without having to understand the details of Internet addressing, packet routing, or how WiFI and Ethernet work: I just need to know how to pass application data to the next layer.
Moreover, the standards themselves are the product of gradual evolution, as engineers voluntarily adopt them following a long process of deliberation and consensus‐building. Often, that makes the process necessarily quite slow. As former assistant DHS secretary and NSA general counsel Stewart Baker observes, the vital DNSSEC standard, designed to secure the Internet addressing system and guard against malicious hijacking of Internet traffic, has been in the works for 15 years. But SOPA would create massive regulatory uncertainty about the status of client software robustly implementing that standard. In short, argues Baker, “SOPA will kill DNSSEC,” to the detriment of global cybersecurity. Legislators seem to imagine that they can simply add language saying that their mandates aren’t meant to impair cybersecurity, as if uttering the magic words were enough to make it so. But you can’t just inject a top‐down national mandate into a global evolutionary process and expect to achieve the effects the planners intend without disruptive consequences.
This isn’t just a narrow issue with one specific protocol, though. The general approach of SOPA is to attempt to solve a content problem — copyrighted material circulating illicitly — with a mandate targeting a completely different level of the Internet’s architecture, where domain names are translated into network addresses.That guarantees a poor fit between regulatory aims and outcomes, and enormously magnifies the likelihood of unpredictable and unintended consequences. That unpredictability is increased because — in what might otherwise seem like a wise example of regulatory flexibility — SOPA leaves it to providers to pick the best method of blocking forbidden sites, which means we’re likely to see different providers testing a variety of approaches. A dramatic example of how attempts to blocking can generate unexpected cascading failures was provided in 2008, when Pakistan ordered the blocking of YouTube — and inadvertently broke access for millions of users around the world.
Some legal scholars have suggested a “Layers Principle” to guide Internet policymaking. In brief, legislators and regulators should respect the independence of Internet layers by targeting solutions, as nearly as possible, at the layer where the problem exists. The Digital Millennium Copyright Act takes this sort of approach by providing a notice‐and‐takedown mechanism that targets specific cases of infringing content. SOPA, by contrast, violates this principle by seeking to solve a content problem by regulating the Internet’s addressing system. A Congress that displayed a modicum of humility about its ability to effectively redirect the operation of such a complex, organic, evolving system would accept that these blunt and broad interventions, however well‐intentioned, are more likely to damage the system than achieve the intended result.
