Copyright issues, for one, have been around for a while and need to be addressed; however, governments, various authorities and stakeholders have a number of additional concerns regarding the Internet they wish to address through regulatory change.

In an article titled A crusade against the Internet’s “regulatory uncertainty” , ArsTechnica.com summarizes the situation in a nutshell.

It may be said that regulators do not feel comfortable with uncertainty arising from powerful unregulated entities, even informal* ones such as the Internet.

On the other hand, is this a case where powerful media, such as the Internet, will attract the attention of regulators if they fail to properly regulate themselves?

Highly recommended reading!

*PS: Actually, one might wonder whether or not the Internet is ’informal’. Simply consider the rise, over the years, of secure log-in procedures and online transactions, as well as the ability for lawyers to quote legal material lifted from the Internet, to name but a few formalized features of the Internet. Briefly stated, the Internet can only be as informal as the information and data it gives access to, or allows to pass on. Agree?

Vendée Globe 2008-2009 - Surfing with South Pacific Swell

These crazy yachtsmen in their awesome round-the-world racing 60 footers gathered recently to fine-tune the standards applicable to off-shore sailboat racing in the IMOCA class.

The last edition of the Vendée Globe race took its toll, as in the past VG races.

Remember Gerry Roufs from Montreal (Quebec) who vanished without a trace, somewhere between Cap Horn and Antarctica in the 1997-98 edition of the Vendée Gobe? 

Luckily, in the 2008-09 edition of the race, there were no reported loss of skippers at sea.

There were injuries at sea, serious technical break-downs this time, but zero loss of life. This is progress!

The skippers of this year’s Vendée-Globe recently got together for a serious discussion on how to prevent the kind of  life-threatening mishaps that occurred in the last race.

And they came up with new private regulatory proposals described here.

These 60-foot sailboat racers are speed demons and their encounters with marine animals and unknown floating objects was of great concern during the last race, as they resulted in many forced retirements from this year’s Vendée Globe race.  Half the skippers who departed the Sables-d’Olonne last fall crossed the finish line in early 2009.

The next edition of the Vendée Globe, the most gruesome of single-handed sailboat races around the world, will be subject to new and improved private standards.

Good news: fewer skipper casualties and sailboat structural failures, and greater respect for ocean wildlife are amongst the objectives of the upcoming revised standards.

This post-mortem briefing is another shining example of how responsible private citizens gathered under a specific banner can come up with novelties, e.g.: in off-shore racing, sailboat design and equipment that will benefit the general pleasure craft industry in future years.

This issue has been raised previously in this blog as one of the emerging trends in the way modern governments set the framework for new regulatory initiatives. This is certainly not a novel issue. However the article by Kevin Lynch comes as a timely reminder that for governments to develop both quick and quality policies in response to pressing issues is, more than ever, a risky balancing act.

What follows is an excerpt of the opinion by Kevin Lynch published today in the Ottawa Citizen:

“In this age of instantaneous communications comes a demand for instantaneous responses. The 24/7 multi-channel communications universe now expects 24/7 responses from governments, from public services, from business, from whomever. This, in turn, has changed the complexity of public policy-making.

With much more “real-time” information access by the public through a wide variety of data sources, it raises the issue of whether the speed of policy-making processes can possibly match the expectations for the speed of communications responses. And, if it can’t, what are the dynamic consequences?”

Statutes and regulations are the major tools by which public policy is carried into effect. Being at the top of the pyramid, however subject to the Constitution, public policies require careful thinking and meaningful debate. Knee-jerk reaction public policies are, of course, almost doomed to failure or dysfunctionality in regulatory systems.

That being said, we should remember that we do not live in a perfect public policy making environment. As a matter of fact, I often think of a statement found in Tracy Kidder’s Pulitzer-winning novel, “The Soul of a New Machine“, to the effect that “Not everything worth doing is worth doing well.” Kind of shocking, isn’t it? Yet, the underlying concept of the statement is the basis of expediency when it comes to developing public policies among other spearheading activities.

I am not condoning that statement at all as a source of legitimacy for making public policies hastily. If anything at all, the statement just makes it easier for me to accept reluctantly some of the harsh realities of government processes.

Free market theories and regulatory environments cannot be reduced to such simplistic views of public administration fiats, or absence thereof, as the recent global financial turmoil unfortunately demonstrates.

The above list of government regulatory material and actions is not exhaustive and may involve, depending on the enabling statute, other types of legislative material and actions, such as treaties and non-statutory or foreign documents formally ratified or incorporated by reference into domestic legislation.

However, for the purposes of this blog, the terms “regulatory material” or “regulatory environment” include, as posted earlier, any private sector material, practice or framework that has a significant impact on the way the persons targeted by the regulatory material, traditions or frameworks conduct themselves.

These may be a statement of vision, purpose and objectives issued by the concerned regulatory agencies, or the terms of insurance policies issued by underwriters.  They may also appear in the form of best practices, codes of ethics, resolutions, guidelines, policies, plans, etc. agreed upon by members of private associations and governing bodies.  The regulated activity/environment may also be directly influenced by competition, a genuine concern for doing things in the industry’s or public’s interest, by professionalism, and out of concern for a positive public image.

Governments regulate mostly in formal ways and are subject to regulatory frameworks set out by statute.  Private regulatory organizations operate more on the basis of consensual principles that are less formal, but nonetheless just as effective because of the industry-wide consensus underlying them.

Accordingly, the meaning generally ascribed to the term “regulatory”, namely in the private industry, is quite broad, as exemplified in the following contextual meaning taken NationMaster.com, among various sources:

“Business regulatory environment assesses the extent to which the legal, regulatory, and policy environments help or hinder private businesses in investing, creating jobs, and becoming more productive.”

Hence, the practical meaning of ‘regulatory document’ (or ‘regulatory material’) and ‘regulatory environment’ varies widely according to the context in which these terms are used.

So why cast such a broad net by ascribing a large and flexible meaning to the word “regulatory” as encompassing any document, authorized sign or verbal communication, by the regulatory frameworks, practices or traditions impacting on individuals’ and interest groups’ conduct?  This is because, I would suggest, we are more capable, under this broad approach, to ‘think outside the box’ and, as a consequence, to better assess the merits of proposed government rules or of private industry conventions and agreements, while still being able to consider alternative and less formal options.

There is still a strong tendency, mainly on the part of government, public regulators and the regulated public, to perceive regulatory systems as necessarily government-run, or at least as conduct monitoring systems, based on delegation processes and mandatory reporting requirements stemming from government or government agencies.  Mandatory legislative or adjudicative functions, supervisory role, reporting requirements and audits are usually the hallmarks of such regulatory systems.

However these systems and frameworks don’t account for all regulatory systems and frameworks worthy of interest. On the contrary!  Many other regulatory systems are of a private or voluntary nature and have nothing or little to do with government authorities.  Some of their common traits are that they are not necessarily government funded or coercitive.

For the purposes of this blog, the adjective “regulatory” may refer, depending on context, to either or both types of regulatory systems. Any significant rule, whether legislated or freely adopted, as well as standards, specifications, best practices, compliance activities, industry-wide non-proprietary technologies and generally accepted innovations, participants’ and stakeholders’ stable positions and policies, steady industry trends and goals and industry resources sharing  versus competing for such resources, market entry/exit requirements & costs, both practical (such as financial capability) and documentary (e.g.: qualifications, licenses),  all have the potential to effectively influence and regulate conduct within regulatory systems or frameworks.

Here is how one reputable high-tech world reporting agency puts it:

“No matter how much the [computer] industry talks about compatibility, new formats and languages appear routinely. The standards makers are always trying to cast a standard in concrete, while the innovators are trying to create a new one. Even when standards are created, they are violated as soon as one vendor adds a proprietary extension.”  (ZDnet.com)

A peek by TechNewsWorld into future mutations of the rule-making process.

Today’s daring ideas can be tomorrow’s routine way of handling the legislative/regulatory process.  More specifically, open legislation could could bolster participatory democracy.

The idea of open legislation is attractive at face value, but then one is left to wonder about the effects of open legislation on the role of interest groups and lobbyists, if any person is allowed to put directly their two-cent’s worth in regulatory proposals.  Sure, it’s empowering for individuals, and open legislation might very well revitalize participatory democracy with a beneficial side-effect on voter turn-out at elections, for one thing.  With open legislation, many people would not feel so disenfranchised and cynical about regulatory systems, especially the ones run by government.

It is said that legislation is the highest form of government policy.  As such, the preparation of legislation and regulations have come to be regarded as the complex task of meshing together political vision, social sensitivity and technical expertise with legal knowledge.  As a rule-making process potentially accessible to the unitiated and to a greater number of stakeholders, the open legislation concept has its merits, no doubt, provided that legitimate and truly representative interest groups, including members of Parliament, of provincial legislatives assemblies and of public regulating bodies would not see their role diminished as a result.  Various prescribed formal requirements would have to be met as well to ensure legality and enforceability.

Given these constraints, if the process of open legislation were indeed implemented by public rule-making entities, it remains to be seen how workable this would be in practice.  I can see such a free and open process of participating in the drafting of rules of conduct or product and services standards as requiring a lot of moderation and screening of individual submissions.  Governments and regulatory bodies are already handling individuals sumissions.  However they presently do it through more formal channels, such a selective or public consultation, and not as directly as the open legislation concept.

This is not to say that open legislation is mere utopia.  As a matter of fact, the success of many on-line forums where participants work out compromise positions and specific solutions to various issues concerning society tends to show that the idea of open legislation is indeed attainable. As a matter of fact, advances in the Plain Language Movement should soon or later make it possible to translate compromise solutions arising out of well moderated forums into actual sets of draft rules. These can then be perfected and passed into law by legislative or regulatory authorities.