The law and the web just don’t mix

Talk of government regulation of web entities has been all over the news lately, from the near daily privacy complaints to Google’s antitrust woes to questions about how the Fourth Amendment applies to email. While these are important discussions to have, almost every attempt to shoehorn current practices into existing legal frameworks suffers from a common problem: Yesterday’s laws are antiquated in a web-driven world that rarely sits still.

Software development is always evolving and advancing, and business models and cultural norms evolve along with it. Entirely new capabilities spring up regularly, and business models can change overnight, meaning a law written to address a specific concern can fast become obsolete or, perhaps worse, a hindrance to innovation. Three recent situations illustrate what I’m talking about.

Netflix, Facebook and privacy

I’ve discussed the issue of online privacy in numerous posts, and two considerations strike me as absolutely critical. One is that in the free-to-consumers-but-ad-supported business model that underpins most social media, data is the currency. Failure to recognize this and allow certain freedoms could cripple not only the user experience, but also the high rate of analytics innovation that companies like Facebook produce.

Another — probably even more important issue — is an apparent failure to acknowledge that social norms are changing with regard to how willingly citizens share their information. My colleague Ryan Lawler wrote about a prime example of this disconnect earlier this week, in the form of congressmen debating the decades-old, reactionary and wholly archaic Video Privacy Protection Act that currently prevents U.S. consumers from automatically displaying their Netflix (s nflx) rentals on Facebook.

That law, which prohibits companies from publicly sharing viewer records, “was enacted in the wake of the Robert Bork’s Supreme Court nomination hearings (after Bork’s video rental records were released to a newspaper by his local video store).”

The problem — aside from the its reactionary and therefore inherently inflexible foundation — is that the law was written in an era when video stores still existed (and were the primary method of renting movies, in fact) and well before the advent of social media. In the latter world, automation and APIs rule, and many users really do want what Facebook calls “frictionless sharing.” Certainly, many more will want it in the future. That might not comport with many congresspersons’ views on personal privacy, but it’s reality.

Google’s violating antitrust laws in what market, exactly?

The recent congressional inquiry into Google’s trade practices highlights the bad fit between traditional antitrust law and the web. Mathew Ingram has written a lot about why the questions about Google’s (s goog) search dominance are misguided, addressing the question of whether there’s such a thing as consumer harm when we’re talking about free products that no one is forced to use. That point alone highlights a big difference between the web and traditional businesses, but there’s another consideration that’s even more damning.

However, as Mathew also points out, the web world is one of constant disruption, and Google, despite its considerable size, is constantly fighting to define its place in the ecosystem. Antitrust violations require abusing one’s power in a particular market, and Google doesn’t operate in a clearly defined market of any sort. In its inquiry, Congress focused heavily on search as the relevant market, but that’s fast becoming yesterday’s news. As Google continues losing traffic to Facebook and other platforms, search becomes part of a broader effort that includes social elements, location services and other components.

This raises questions around how to define the market in which Google actually plays, and whether it’s actually even in the lead. Sure, there’s search for the sake of search, but if Google’s search engine is part of a greater platform market that aims to connect users with relevant information, services and other people, then it’s arguable that Google doesn’t have a monopoly position at all.

No warrant needed for tweets

Then there’s the old argument over what web-based activities are covered by the Fourth Amendment’s protection against unreasonable search and seizure. This issue reared its head again when we learned that Twitter, Google and an ISP called had been forced to turn over information about a particular WikiLeaks supporter. The law in question, the Electronic Communications Privacy Act (or ECPA), was enacted in 1986 — ages ago in technology terms — and services such as Twitter fall far beyond its scope.

There’s a fair amount of momentum to amend the act (something attorney Nolan Goldberg and I discussed during a chat at Structure 2011), but you have to wonder how thoroughly that actually can be done. We still don’t really know how it applies to email, especially of the web-based variety. But in the past few years alone Facebook, Twitter, text messages and other communication methods have usurped email’s dominance.

Assuming an amended ECPA fairly addresses today’s forms of electronic communications, it will take some careful wording to account for tomorrow’s methods that have yet to emerge. The alternative, given the pace of innovation, is a constant battle over what communications are constitutionally protected, which only serves to hinder adoption and stoke fears over undue government surveillance.

There’s no easy answer

Unfortunately, while it’s easy to criticize existing laws, figuring out a workable strategy for regulating the web is difficult. Laws and regulations by nature involve establishing boundaries so those of us tasked with following them know what we can and can’t do. But because code can be edited, added and rolled back with relative ease, nothing is ever static — and we don’t always know what we’ll be doing next.

Image courtesy of Flickr user RecoilRick.