This is the second article in a six-part series on in-house counsel lobbying for policy change. Read the first installment here.
I still recall the first trip Go Daddy Founder Bob Parsons and I took to Washington, D.C. It was in early 2002. Go Daddy was just breaking into the ranks of the top 10 largest domain name registrars. The room was full of CEOs and lawyers from all the giant registrars, and we were the new kids on the block. We were the people from the company with the silly name and the goofy little logo. Not a single person in that room could have predicted what would happen to the domain name industry in the next 10 years, including Bob and me.
As it turned out, we did okay. And, because of the significant number of websites we came to host at Go Daddy, we ended up having the ability to impact a substantial portion of the content available on the Internet. Thousands of inquiries a month came in asking us to take one action or another with respect to content that was deemed inappropriate, offensive or illegal, in a variety of contexts. Use your imagination. I guarantee you will only scratch the surface of the types of wild complaints you receive when you have your finger on the proverbial button that will take down millions of hosted websites. The possibilities are endless. The trouble is, at least in the beginning, there were few laws to guide the types of decisions we were making on a daily basis. This created both an opportunity and a challenge.
On the one hand, we established a series of internal policies to address the different types of complaints we were receiving. That worked well for us internally. On the other hand, there was no way for us to get all other similarly situated Internet providers to voluntarily take the same action. This left us with an obvious need to advocate for some more formal policies
Our default position was always, “leave it up.” In other words, leave a website or domain name alone and defer to the domain name registrant and/or website operator to deal with issues arising out of their use of our services. That default position gave us a solid starting point for policy-making purposes. You can, and should, identify this same type of starting point in other industries, as well. Knowing the context in which you operate is essential to establishing a good policy-making strategy. Therefore, you should know the answers to at least the following questions:
- Do you exist in a highly regulated field where compliance with existing laws is a major operational focus and well-known part of your employees’ day-to-day existence? Or do you work in an environment similar to the Wild West lawlessness of the Internet, where you are looking at issues of first impression on a regular basis?
- Is yours an industry that needs more laws? Or does too much regulation make it more difficult for your business to operate?(These questions are not designed to draw political lines. On the contrary, the answers will help the law department tunderstand how to guide the operational side of the house, as well as whether to advocate for more, different, or better public policy in a given area.)
- Are there already well-established and defined industry groups, coalitions, and leaders with whom you can have policy discussions? Or are you operating in a newly established or young industry in which you have an opportunity to help shape policy as the industry grows and matures?
- Does it make sense to focus on addressing issues through internal policy development processes, over which you have absolute control? Or is a more formal legislative framework necessary to ensure all industry players are addressing issues in a similar fashion?
The infinite range of spaces in which in-house lawyers operate requires these questions to be necessarily generic. Determining whether to remove Internet content is completely different from determining whether toxic waste should be eliminated in a particular type of receptacle, or whether mortgage lenders should be required to keep certain documentation, or whether foreign ships should be required to dock in a certain set of harbors. But, the fundamental analysis is always the same.
To help narrow the focus, and perhaps inform your decision about how to proceed, here is some historical insight that helped guide the process at Go Daddy. When I was faced with the first policy-type decision I had to make at Go Daddy, and it became clear to me there was no law on point, I gave the best advice I could under the circumstances. And, then, I immediately started talking to other lawyers, reading as much as I could about trends online and plotting a way to begin to shape policy for the entire Internet, one issue at a time.
Over time, an obvious strategy emerged:
- Make relationships ahead of time to rely on later, when you need them. This included relationships with my counterparts at other companies operating in the same space, members of Congress and the administration with whom I would later work to establish meaningful legislation, and especially, in my particular situation, members of law enforcement around the country who were working on issues germane to the Internet.
- Attend or host industry events with other senior in-house lawyers. Perhaps one of the most beneficial policy-making moves I made was to host an annual summit of the head lawyers from the largest companies in our space. While the antitrust lawyers reading this will probably cringe, the summit was actually an extremely beneficial way to exchange ideas about significant policy issues, and resulted in the development of many of the best practices that industry leaders follow today.
- Practice a hybrid approach to policy development and implementation. What worked well in my experience was encouraging voluntary industry cooperation with a set of best practices and then establishing legislative consequences for non-compliance with those voluntary measures. I have testified about and advocated for this type of hybrid approach for many years now. Although perhaps anecdotal, at least in my experience, the hybrid approach was extremely successful.
Again, in-house lawyers in every industry should engage in their own analysis and careful consideration of what works best in a specific situation. But, if you don’t establish a strategy, you will inevitably find yourself living in a policy environment shaped by someone else. And, that is rarely the best result for your client.