IP: "The Regulatory Ratchet" and Interception

[David Farber <farber () cis upenn edu>]

> X-Sender: dpreed () mail reed com
> Date: Sat, 11 Sep 1999 21:38:12 -0400
> To: farber () cis upenn edu
> From: "David P. Reed" <dpreed () reed com>
> Subject: "The Regulatory Ratchet" and Interception
>
> Dave - thanks for the pointer to the "consultation paper" on intercepts in
> the UK.  It was interesting, as you say.
>
> One portion of the paper uses a rhetorical technique that a friend, with
> many years of experience in regulated industries (power and medicine), used
> to call the "regulatory ratchet".  The "ratchet" is when a regulator makes
> a claim that a proposed rule is no more than the generally accepted
> practice in other jurisdictions.  (the discussion of the government's
> requirements on CSPs makes such a claim).  But even without specific
> intent, the rule tends to be slightly more restrictive, or enforced by
> penalties that are more powerful, than in the other referenced jurisdictions.
>
> Other jurisdictions then use the same logic to bring their regulations up
> to the severity of that slightly more powerful rule.
>
> The resulting regulatory system in the presence of such a "ratchet" becomes
> a positive feedback loop, with each step forward by one regulator
> justifying the next by another.
>
> The "regulatory ratchet" is hard to fight, because no regulator wants to
> look "softer" than its peers with regard to a problem, and the incremental
> losses are tiny, but irreversible.
>
> Damping the positive feedback loop requires cross-jurisdictional
> cooperation, and perhaps in some cases, the establishment of a
> countervailing ratchet.
>
> Perhaps  now is the time to form an international committee on Human
> Communication Rights that transcends jurisdiction.  The international
> bodies that regulate communications are all focused on the rights of
> governments and on the rights of non-human legal persons (corporations,
> etc.).  There appears to be no one who stands for the rights of individuals
> to communicate (which includes, but is not limited to, free speech rights
> of the traditional sort).
> - David
> --------------------------------------------
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