From Volume 90, Number 3 (March 2017)
We are now some twenty years into the story of the Internet’s bold challenge to law and the legal system. In the early 2000s, Jack Goldsmith and I wrote Who Controls the Internet, a book that might be understood as a chronicle of some the early and more outlandish stages of the story. Professors Pollman and Barry’s excellent article, Regulatory Entrepreneurship, adds to and updates that story with subsequent chapters and a sophisticated analysis of the strategies more recently employed to avoid law using the Internet in some way. While Pollman and Barry’s article stands on its own, I write this Article to connect these two periods. I also wish to offer a slightly different normative assessment of the legal avoidance efforts described here, along with my opinion as to how law enforcement should conduct itself in these situations.
Behind regulatory entrepreneurship lies a history, albeit a short one, and one that has much to teach us about the very nature of law and the legal system as it interacts with new technologies. Viewed in context, Pollman and Barry’s “regulatory entrepreneurs” can be understood as, in fact, a second generation of entrepreneurs who learned lessons from an earlier generation that was active in the late 1990s and early 2000s. What both generations have in common is the idea that the Internet might provide profitable opportunities at the edges of the legal system. What has changed is the abandonment of so-called “evasion” strategies—ones that relied on concealment or geography (described below)—and a migration to strategies depending on “avoidance,” that is, avoiding the law’s direct application. In particular, the most successful entrepreneurs have relied on what might be called a mimicry strategy: they shape potentially illegal or regulated conduct to make it look like legal or unregulated conduct, thereby hopefully avoiding the weight of laws and regulatory regimes.
I take a different, though not necessarily inconsistent, normative position than do Pollman and Barry. Law avoidance is a complex phenomenon. Some of it is undignified avoidance of burdens faced by others, and it is not much different, normatively, from securities fraud or tax evasion. But it is also true that, over the long history of the Anglo-American system, efforts to avoid the law have played an important, and sometimes essential, role in the process of legal evolution; that is, in the process of the salutary adaption of our legal system to our current normative and technological environment. Sometimes technologies may genuinely make laws obsolete or unnecessary. Sometimes it is changing social norms that prompt challenges to the law: the best of such efforts, like forms of legal disobedience during the civil rights era, have become understood as dignified and justified.
But laws do not challenge themselves: someone or something must prompt a reevaulation of an existing regime, which I think is the strongest normative case for some tolerance of regulatory entrepreneurship and other forms of law avoidance. That said, for such a reexamination to provoke a full debate, I think it essential that law enforcement play its part in the dialogue. Sometimes it should vigorously enforce “old laws,” unless the law in question is so obviously moribund that doing so would be ridiculous. Enforcement creates an adversarial process where we, the public, can reexamine whether the values and goals that motivated the law’s enactment remain important or valuable today. This is, of course, necessarily an imperfect process, but one that I think is part of the poorly understood path of legal evolution. The struggle surrounding the Internet’s challenge to law provides a good opportunity to consider these questions afresh.