There has been some buzz recently concerning the idea of "licensing" Internet users. This idea was presented last month by Craig Mundie, Microsoft's chief research and strategy officer,
while speaking at an economic forum in Switzerland. The question pondered: are we at a point where it may become necessary to require some kind of licensure for Internet users? Mundie suggested that government entities could--even should--license potential Internet users in the same way that drivers are licensed. Keep in mind, this is an idea espoused not by some crackpot, but by a respected member of the technical community. The idea is hardly novel; it had
surfaced more than six years ago.
Mundie's argument is that the Internet is so often used as a tool for criminal activity and abuse, that perhaps government bodies should step in to create a licensing system to regulate who has access to the Internet and what activities those individuals may engage in. This frustration is derived from the fact that never before in history has such a broad communications tool been available to so many. Until about fifteen years ago, mass media was the sole domain of a relatively small number of players: publishers, broadcast station owners, networks, etc. There existed central control over those media outlets and outsiders had little, if any, access to the media. Now anybody with a PC and an Internet connection can communicate with any other person in the world who is connected. Abuse can--and does--occur. Copyrighted files are shared, viruses are circulated, defamatory and threatening messages are sent--by individuals who, for the most part, remain anonymous. There is no central control over what happens on the Internet, and some people are frightened by that.
We have seen what governments elsewhere have done to regulate the Internet. Perhaps the most striking example is that of the
Chinese government's efforts to control the content that Google's search engines serve up for Chinese users. Other nations have similarly restricted their citizens' abilities to access certain online data, either through filtering, monitoring, or by agreements with online providers--or all the above. Thus, the governmental
pinch point has primarily been with the online service providers. Mundie's proposal would effectively move that pinch point to the user. Clean up the user base and you clean up the activities that occur online. At least that's the theory. But is this a good idea?
Setting aside the complex technical and logistical issues that would invariably arise, let's turn our attention to the legal considerations at hand, should someone in the U.S. decide to move forward on this kind of regulation.
First, Mundie’s analogy to licensing automobiles and drivers is disingenuous–and flawed. Government licensing of drivers and vehicles is premised on public safety considerations, clearly within the scope of government regulation. There simply is no comparison between keeping our highways safe, and preventing misuse of online communications. You cannot convince me that the decision of who may be granted the ability to post photos (or viruses) on the Internet carries the same gravitas as choosing who we shall allow to steer a 4,000 pound vehicle down a busy freeway at 65 miles per hour.
A more apt analogy might be a comparison to the FCC’s regulation and licensing of public airwaves. But even that analogy falls short, because while FCC regulation of radio communication is necessary due to the limited spectrum available and the obvious need to avoid interference, there is no such limitation with the Internet. There is room for everyone to access and use the Internet and communicate freely.
But the most fundamental flaw in any Internet-user licensing proposal in the United States would of course be the insurmountable First Amendment issues that would arise. The government, in an attempt to regulate access to the Internet, would most certainly run afoul of constitutionally-protected free expression. Adding further scrutiny to the proposal is the fact that the government would be, by limiting who can access it, attempting to control the content placed online.
Regulation of the time, place and manner of speech by a government entity is subject to a four-part standard: (1) The regulation must serve an important government interest; (2) the government interest must be unrelated to the suppression of a particular speech; (3) the regulation must be narrowly tailored to the government's interest; and (4) the regulation must leave open ample alternative means for communicating speech.
While the proposed regulation would likely satisfy point (1) (the government's interest in reducing unlawful and abusive activities online) and probably (2) (the government seeking to mitigate online crime and not aiming to suppress speech), the remaining two points would be troublesome. The fact that the government would require sweeping licensing requirements for anyone wishing to access the Internet would likely be construed by the courts as overly broad in scope and thus not narrowly-tailored (3), and the fact that there are no alternatives to Internet access (read: no other mass-media access for ordinary citizens) means that (4) would likely be a major roadblock.
The issue is further muddied by some questions. What bright-line test would be used to determine qualification for licensure? What test would be used to determine when someone's activities have stepped over the line? What monitoring and metrics would be in place to ensure enforcement? Who will have access to that data? The idea doesn't just smack of arbitrary and capricious regulation, it defines it.
In sum, an Internet user licensing scheme like that advocated by Mr. Mundie would be somewhat like trying to license journalists. Or herding cats.
