‘Prosumer Law’:Consumer Protection viaPlatform Interoperabilityand FundamentalRightsEUI GGP 14 December 2012
Regulating CodeGood Governance and Better Regulation inthe Information AgeIan Brown (Oxford) Chris Marsden (Sussex)
Book due out spring 2013
Biographies Chris Marsden is ◦ Professor of Law, ◦ author of Net Neutrality: Towards a Co-Regulatory Solution (2010), Internet Co-regulation (2011) and three other books.
Ian Brown is ◦ Senior Research Fellow at ◦ Oxford Universitys Oxford Internet Institute. ◦ Computer scientist with public policy focus ◦ editor of Research Handbook on Internet Governance„ (Elgar 2013)
Holistic regulation of the Internet Interdisciplinary approach written by ◦ socio-legal scholar (Marsden) ◦ computer scientist (Brown) Core idea: develop a „prosumer law‟ ◦ Must work with innovation and socio- economic incentives ◦ Human rights continual focus
Regulation and governance Internet use now ubiquitous ◦ but governments, legislators and regulatory agencies ◦ falling further behind rapidly changing Internet technologies and uses. Regulatory lawyer Marsden and computer scientist Brown critically analyze regulatory shaping of “code” ◦ Technological environment of the Internet „code is law‟ and coders operate within normative framework ◦ more economically efficient and socially just regulation ◦ Critical socio-technical and socio-legal approach
Literature Previous legal focus on elephant‟s trunk? ◦ Benkler, Wu, Lessig, Zittrain, Van Schewick ◦ Wikipedia + Apache + Firefox + GPL ◦ But fatally flawed by lack of trust in federal government More „worldly‟ view Mueller (2010) De Nardis (2009) ◦ Institutional economic and political science literature ◦ Note new Mansell book… Fascinating but limited view ◦ World uses Facebook on Windows...on mobile (and not the Jesus-phone and Fondle-slab) Ohm‟s Myth of the Super-User? Code V2.0?
„Governments of theIndustrial World, you wearygiants of flesh and steel, I come from Cyberspace,the new home of the Mind. On behalf of the future, I ask you of the past toleave us alone. You are not John Perry Barlow welcome among us. You A Declaration of the Independence of Cyberspace (1996)have no sovereignty where response to Communications Decency we gather.‟ Act 1996 (partly struck down in Reno v. ACLU 1997)
The nation strikes back?Respect for national borders Governance by and regulation by nation or? supra-national bodies and networks states
Complexity and pace of change Technical variety of different devices and platforms ◦ 4G mobile vs. PC, Kindle vs iPad Sociological variety in how different platforms and devices are used ◦ child‟s PC located where it can be monitored, but not phone Differing industry standards across different companies ◦ means technological „fixes‟ hard to implement. Multiplicity of players; ecology of actors even more complex in the world of „apps‟ and cloud computing. Pace of change means that any regulation has to be „future-proofed‟ if it is to avoid becoming redundant.
“…generativity is a systems capacity to produceunanticipated change throughunfiltered contributions frombroad and varied audiences” ‘Generativity’ Jonathan Zittrain 2008
MODALITIES OFREGULATIO N Lawrence Lessig Code 2.0 (2006)
Test the existing receivedtruthsStrawmen:  Self-regulation and minimal state involvement is most efficient in dynamic innovative industries; technology is never neutral;  Self-regulation critically lacks constitutional checks and balances for the private citizen, including appeal; network and scale effects drive massive concentration  Multi-stakeholder co-regulation chance to reconcile the market failures and constitutional legitimacy failures in self-regulation voters will not allow governments to ignore the Internet.
Government and marketfailure Industry capture of regulators and legislators, Incumbents protect/introduce new barriers to entry Continued exclusion of wider civil society from the policy discussion – but ◦ tenuous chain of accountability of participants to voters, shareholders and NGO stakeholders. ◦ effectiveness, accountability and legitimacy of these groups in representing the public interest?
5 Case Study Chapters1. Data protection 1. Enforcement failures, Privacy by Design2. Copyright 1. Capture of law by lobbyists, code solutions outflank3. Filtering 1. Growth of censorship, surprising degree of freedom – disappearing?4. Social Networks 1. Dominance, network effects, corporate social irresponsibility5. Smart Pipes ◦ Net neutrality argument, DPI deployment
Lessons from 5 case studies Lessons for better future regulation from the ◦ regulatory and interoperability failures illustrated. Conclusion: governments, users/citizens and functioning markets need a smarter "prosumer law" approach. Prosumer law would be designed to ◦ enhance the competitive production of public goods, ◦ including innovation, public safety, and ◦ fundamental democratic rights.
Empirical Investigation Five case studies and one „prior art‟ (encryption, anonymity, security: a „case apart‟) ◦ Multi-year empirical investigation ◦ Builds on various EC/other studies including „Self-regulation.info‟ (2001-4), „Co-regulation‟ (2006-8), „Towards a Future Internet‟ (2008-10), „Privacy Value Networks‟ (2008-11), „Network neutrality‟ (2007-10) „Internet science‟ (2012-15) Timeline important as partly historical studies Reassesses prior art in view of „hard cases‟ ◦ Topics with no organised regulation/self-regulation ◦ Due to lack of consensus over solutions ◦ Clash between market outcomes and human
Example: Smart Pipes Legislation and regulation in place ◦ 10 year evidence base of discrimination by protocol/user ◦ Merger reviews ex ante regulation ◦ EC Directives and Netherlands law Political will to act on freedom of expression ◦ Especially in view of broadband universal service ◦ Reinforced by competition problems in video/voice Enforcement? Problems Canada, Netherlands, UK ◦ Co-regulatory solution? BITAG (US), Berners Lee (UK) ◦ Innovation in the core? Mobile true test case
Recent net neutrality work „‟Three Wise Monkeys‟ 2011 ◦ www.globalpolicyjournal.com/ „Mobile Net Neutrality‟ 2011 ◦ ejlt.org//article/view/32 „Net Neutrality: A Research Guide‟ 2013 ◦ ssrn.com/author=220925
Approach embracescomplexity No easy examples that demonstrate the truth of ◦ technical, political, legal or economic solutions ◦ based on self-, co- or state regulatory approaches. ◦ Cf. Mansell (2012) Imagining the Internet Examine the deficiencies and benefits ◦ Match market and social developments ◦ With human rights concerns ◦ E.g. In fields of privacy and freedom of expression Note: analysis based on Article 19 UDHR not 1st Amendment Most of world uses variants of Article 19
Not just a book - epilogue We assess the environmental preconditions for prosumer law to operate in Europe. The multi-stakeholder environment for Internet governance and regulation, in which user groups lobbied along with business and governments, insights of new institutionalism.
Towards Interoperability asProsumer Law We note the failures and capture of government by „information giants‟ Many (not all) problems caused by giants‟ perceived need to maintain proprietary lock-in via code ◦ Microsoft/Google/Facebook/ad industry ◦ Favoured by big government as big solution ◦ Aiding in control of networks for government interest Solution in favour of prosumers and competition: Interoperability ◦ (Note: this is detailed software interoperability, not the general description offered by Gasser/Paltrey 2012)
Prosumer law suggests a moredirected intervention Example: proposed solution to the problems of dominant social networking sites, to prevent Facebook, Google+ or any other network from erecting a fence around its piece of the information commons: to ensure interoperability with open standards.
50 Ways to Leave Facebook Not sufficient to permit data deletion ◦ as that only covers the user‟s tracks. Interconnection and interoperability, ◦ more than transparency and ◦ theoretical possibility to switch. Ability for prosumers to interoperate to permit exit.
Standards wars continued Exit and competition for standards increasingly critical in the information economy; ◦ Textbook examples: 3G (Qalcomm/Ericsson) VHS/V2000/BetaMax ◦ New example: patent pooling/trolling inc. Apple/Samsung/Google-Motorola, MSFT We focus on interoperability, ◦ lower entry barriers, increased consumer welfare
Prosumers not super-users United States administrative and academic arguments (Wu 2010, Zittrain 2008, Lessig 2006) for self- regulation to have demonstrably failed, I focus on the European regulatory space as a more fertile ground to explore prosumerism as both a market-based and citizen-oriented regulatory tool
„Islands in the Bitstream‟ (Borrus, Bar 1995) “Inquiring into interconnection and interoperability is a bit like the search for justice. Everyone avows its virtue; but....” “peculiar economic character of interface standards raises real questions about whether market mechanisms will be sufficient to create a highly interoperable [Internet]”
Gasser et al (2007) Breaking Down Digital Barriers There is no one-size-fits-all way to achieve interoperability in the ICT context. Our conclusion: interoperability generally supports innovation in ICT context, but that the relationship between the two is highly complex and fact-specific. We conclude also that the best path to interoperability ◦ depends greatly upon context and which subsidiary goals matter most cyber.law.harvard.edu/publications/2007/Breaking_Down_Digital _Barriers
“Not surprisingly, European attitudes toward the mode of accomplishing interoperability are quite different from American inclinations.”
Range of approaches haverelative merits in circumstances Efforts within a single firm to interconnect products or within firms; collaboration between or among two or more firms; standards processes, including open fora and ad hoc cooperation; and a wide range of roles for governments, most are ex post not ex ante modes of regulation.
European Moves in 2013? Public Consultation on the Access to Interoperability Information of Digital Products and Services ◦ http://ec.europa.eu/yourvoice/ipm/forms/di spatch?form=Interoperability&lang=EN
What regulation teaches aboutcode Ex ante and ex post intervention - regulation Interoperability and open code/data - procurement A biased policy towards open code – ◦ Data open to mash-ups (govt) ◦ Systems interoperable (procurement) ◦ Use of alternatives to market leader (e.g. Linux) ◦ But not to exclusion of average users
Economics and HumanRightsInteroperability linked to open data, open code, and arguably though technologically deterministically to free speech.Blizzard of Internet governance principles in 2011 have ◦ origins in law and economics, ◦ or human rights, but ◦ apparently do not translate one to the other. This apparent dialogue of the deaf is a competition policy (Brown and Waelde 2005), and corporate governance problem.Urgent task: dialogue between previous discrete expert fields ◦ ICT growth driver and transformative technology ◦ equally transformative role in human communication and dialogue.
Recent scholarship Intellectual Property, Human Rights And Competition: ◦ Access to Essential Innovation and Technology ◦ Abbe E.L. Brown ◦ Elgar 2012
Developing study of regulatingcode Similarities and cross-over with ◦ complexity science, ◦ network science and ◦ web science/graph theory Match Internet regulation to complexity theory Longstaff (2003) Cherry (2008) Schneider/Bauer (2007) Network science fusion of scientific/ fundamental elements from various components
Euro-InteroperabilityFramework Response to gigantic (billion-euro) anti- trust cases: Microsoft saga (to 2009), Intel (2009), Apple (2010), Rambus (2009) ◦ Google (2013?) perhaps Facebook.... ◦ Coates (2011: Chapters 5-6). Announced by Commissioner Kroes in 2009-2010 Bias in favour of interoperability in policy Concerns are broader than competition ◦ Include privacy, IPR, security, fundamental rights
Kroes‟ five-part EIF agenda1. new standard setting framework;2. new horizontal agreement guidelines to establish more transparency in licensing standards;3. common framework for ICT procurement;4. new „European Interoperability Framework‟;5. intervention in competition cases to establish a principle of interoperability, ◦ including via ex ante requirements.
New standard-setting end- 2010Fast-track approval of [Internet] standards through: process hosted by traditional Euro standards body ◦ such as ETSI through assessment of compliance with certain criteria ◦ openness, consensus, balance and transparency. [FRAND] New guidelines on the application of antitrust rules to horizontal agreements.
“We don‟t want uniformrules everywhere” “Standard-setting for software interoperability is not the same as setting a new standard for, say, ◦ digital television or mobile telephony. We should have right rules in the right contexts... I am convinced that a more visible role for fora and consortia standardisation in Europe will already lead to many improvements here.”
EIF V2.0“Higher status and importance than EIF version 1” ◦ was more guidance than instruction. „Comply or explain‟ requirement when governments do not adopt an available open standard, ◦ as already applies in the Netherlands. Resolvedvia legislation if necessary.
Kroes‟ promise post-Microsoft Will “seriously explore all options to ensure that significant market players cannot just choose to deny interoperability. “The Commission should not need to run an epic antitrust case every time software lacks interoperability.”
Commission (2010)adopted theCommunication“Common approach for public administrations” EC four prong strategy, with:1. Common frameworks in support of interoperability2. “Reusable generic tools”3. “Common services” 1. (operational applications and infrastructures of a generic nature to meet user requirements across policy areas), and4. “Analysis of the ICT side in new EU legislation”
Interoperability prevents abuse of vertical integration We argue that proprietorial long-term lock-in may ◦ tend to limit future competition ◦ by creating lock-in ◦ leading to what has been stated in mid-2011 as ◦ „ICT vendor cartel‟ dealing with governments.
Such an outcome could have been avoided with dedication to choosing interoperable solutions. Ganslandt (2010) argues for effective enforcement strategy, a „hard wired‟ interoperability proposal. We agree! Devil remains in the detail…
Book publishedFebruary 2013‘Prosumer law’article 2014…commentswelcome!Comments email@example.com
Dolmans (2010) offers „open‟ definitionof common standardTo qualify as “open” a standard must meet a number of open conditions: • access to the decision-making process • transparent and undistorted procedures • published, pro-competitive goals • published, objective, relevant criteria for technology selection • No over-standardizationAccess to the standard: Open information on blocking patents; No unjustified refusal to license; Fair (FRAND) pricing
Some broad definitions Government: formal and institutional processes (usually national or local) which maintain public order and take policy decisions on behalf of citizens. Governance: the act or process of governing (not necessarily by government) ◦ Is governance possible without outcomes? Regulation: application of laws, policies, rules, codes of conduct… ◦ Legal assumption of enforcement even if only by exclusion ◦ Even if self-enforcement by habitual obedience Self-regulation: operation according to a voluntary code of conduct or set of principles independent of government Co-regulation: State involved with industry in jointly developing rules and regulations with procedures for oversight.