Why It’s Hard to Teach Internet Law
As I cover CyberLaw here, I figured I’d share a few thoughts from putting together a teaching syllabus on the subject for the spring.
After many years of studying, practicing, and teaching the law of telecommunications, media, and Internet law, it’s still tough to explain.
I spent years as a consumer advocate, sometimes trying to explain why obscure communications laws affect the daily lives of Americans–their ability to participate in our democracy, their job prospects, and our national future. You have to explain clearly to get people to care about something that could be described as special access rates or false resets.
And I’ve spent a few years as a law professor, trying to teach these subjects to law students. It’s not at all impossible to explain these things, but doing so simply has some major challenges. I figured, since I’ve been thinking about the challenges, I’d explain a few. (And I’ll say, as an aside, I’m in awe of professors like Larry Lessig, Tim Wu, and the many excellent journalists (and other experts) in this field who can explain these concepts so clearly so often.)
So, why is teaching Internet law hard?
First, three fields are involved at least.
To study telecom or Internet law, you need some familiarity with (1) law (which you learn in law school), but also with (2) economics and (3) technology. I think I can count on one hand (actually one finger) how many people are experts in law, economics, and technology. (Barbara van Schewick, of Stanford–law professor, computer science phd and professor, expert in innovation economics…) For the rest of us mortals, we’re experts in one field at best.
Second, even non-experts need more than a passing familiarity with all three.
Take economics. Beyond the basics of supply and demand, economies of scale, transaction costs, marginal and average costs, oligopolies, you come across network effects, network externalities, natural monopolies, theories of price regulation, vertical foreclosure theory, one monopoly rent/Baxters’s law/internalizing complementary externalities (and the exceptions to it), Ramsey pricing, cross-subsidies, some innovation theory (disruptive vs incremental innovation, Schumpeterian creative destruction) , two-sided markets, termination access monopolies, and even property rights theory for spectrum. Let me try to say that simply: it’s a lot of shit.
Third, you have to know a lot of different areas of the law.
Telecom and Internet laws involve areas of law set out in statutes, FCC and other administrative regulations, cases, and even important consent decrees. First-year law students read a lot of judicial cases in contracts and property law classes, but they read few administrative regulations (from, say, the FCC or even the SEC or FDA, etc.) and few statutes (like the 1964 Civil Rights Act). So, you might want to have taken administrative law and statutory interpretation. It might also help to take antitrust law and copyright law. You’ll put some tort, property, and contract law to good use. And don’t forget the First Amendment or federal courts. But, since nobody has taken all those classes, a telecom or Internet law class will have to cover the basics of those laws to explain the basics of telecom and Internet law.
Fourth, the law is totally fucked up.
The communications laws, taken together, don’t make sense any more, if they ever did. The law doesn’t make sense because it’s outdated–the Internet is our basic communications infrastructure and the FCC has interpreted the existing Communications Act not to cover Internet access. The FCC has now made a somewhat confusing jurisdictional authority called ancillary jurisdiction central to communications law courses. And the law doesn’t make sense mainly because it’s dictated by phone, cable, and broadcast companies (who, for example, urge the FCC to misread the Communications Act). Those companies, of course, dictate the law to serve their shifting interests rather than to make rational policy for the nation. So you get a mess of special-interest regulations largely protecting incumbents.
Fifth, it’s another language.
The concepts of telecom law are draped in an obscure foreign language of acronyms, like (a) MVPDs and (b) ILECs and (c) CPEs (meaning roughly (a) pay-TV companies, (b) local phone companies, and (c) devices like phones and faxes and computers).
What’s a law Prof to do?
I’m still wondering. I’m using the clearest book I could find as the course text, though it’s a few years old (I can supplement easily). So thanks to those authors (Jon Nuechterlein and Phil Weiser) for a great book. And I assign Wikipedia and Ars Technica and other popular writings that clarify and simplify, as supplements to the cases and statutes where relevant.
I also make assignments like, “Make a Skype call today.”
But I don’t think I’d assign: “Please cancel your Verizon smart phone a little early and see what happens.” That would be educational, but could make me an unpopular professor.
Cross-posted at ammori.org.
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