Prosumer Law and Networked Platform Regulation: The Long View Platform regulation has become the cause of technology regulation: a call to regulate the intermediaries who provide platforms for networked digital services. These include the GAFA giants: Google, Amazon, Facebook and Apple. Many policy entrepreneurs are peddling solutions as the policy cycle turns, in a classic Kingdon case of ‘solutions chasing a problem’. Yet networks are not new, and their platforms have been regulated for hundreds of years. In this paper, I take the long view, focussing on common carriage neutrality and the railways/telegraphy regulation of the 1840s in England. I offer some historical examples that may be highly relevant to ‘prosumer’ digital capitalism 180 years later. Any Internet user who has posted content, from Facebook to Twitter to blog posts to podcasts, has become a prosumer – though there are very broad categories, ranging from the occasional tweeter to the fully developed hacker. Over two billion people now use Google to search for content, Facebook, Instagram and WhatsApp to share news, gossip and photos, YouTube to watch and upload videos, and Twitter/Snap and other sites to say just about anything. We are all becoming ‘prosumers’ sharing intimate details of our personal lives. But this ‘prosumer environment’ is currently either grossly unregulated, leaving users' data and content at the mercy of the multinationals who host it and sometimes claim to own it, or subject to knee-jerk over-regulation as with the current ‘fake news’ controversy in Germany. It is a new regulatory policy cycle in network regulation. Regulatory responses are finally emerging, driven by both data protection and competition concerns, yet the over-arching need to ensure greater neutrality of intermediaries has largely been limited to last mile monopolists and mobile oligopolists: the legacy telecommunications companies who provide Internet access. What is needed is a comprehensive Prosumer Law solution that draws on fundamental human rights to privacy and free expression, competition, and technology regulation to ensure a fair and neutral deal for prosumers and citizens.

1. Professor Chris Marsden
Georgetown #InformationPlatforms 23 February
OffData:
a prosumer law agency to
govern big data platforms
in the public interest

2. .
Formerly Essex (2007-13), RAND Europe (2005-7),
Oxford (2004-5), Warwick (1997-2000), LSE (1995-
1997)
Visitor Harvard ‘99, Melbourne, Cambridge, USC, Keio, FGV Rio
Corporate work (WorldCom 2001-2 World Economic Forum 1993-
4)
Govt advisor (RAND 2005-7, ITC 2001, OECD 2017)
Books: Codifying Cyberspace (2007) Internet
Co-regulation (2011) Net Neutrality (2010
and 2017) Regulating Code (2013)
Professor of Internet Law,
researched in field for 22 years

3. Prior art....
2/23/2018

4. 50 miles from London
University of Sussex
Brighton, England

5. First of new wave of UK ‘Robbins’ universities
Critical thinking and international approach
‘New’ Law School (200% bigger post-2012)
• 1000+ undergraduate,
• 200+ postgraduate students
• 70+ professorial faculty/
• top 15 UK research intensity
University of Sussex founded 1961

6. Regulate intermediaries who provide platforms for digital service.
• GAFA giants: Google, Amazon, Facebook and Apple.
Many policy entrepreneurs are peddling solutions as policy cycle turns,
Networks are not new, platforms have been regulated for centuries
I take the long view, focussing on common carriage neutrality and
• the railways/telegraphy regulation of the 1840s in England.
Historical examples highly relevant to ‘prosumer’ capitalism 180 years on
Platform regulation the current
cause of technology regulation

7. Nothing in regulation is new
2/23/2018

8. Response to railways in 1830s-40s
UK Railways investment US/EU Internet Investment
Repeal of Bubble Act 1825 UK ‘Big Bang’ City of London 1987- following rise of
Eurodollar market since 1960s (esp. since 1973)
Railways Regulation Act (‘1844 Act’) 9th August 1844
Dublin and South Eastern Railway Act 1845 (D&SER)
Telecommunications Deregulation (hah!) Act 1996
European Telecommunications Single Market 1996
Bill of Repeal (Importation Act 1846) 25 June 1846 and
associated legislation (Corn Laws)
Marrakech Treaty 1994: World Trade Organisation
(Agreement on Basic Telecoms 1997)
Joint Stock Companies Act 1844 (7 & 8 Vict. c.110) Joint
Stock Companies Act 1856 (19 & 20 Vict. c.47)
US Banking Act 1933 amendments/repeals to 1998
Milken revolution in junk bonds/Venture capital rise 1980s
onwards
1845 Railways Mania Crash – rise of overseas
investment by British railway barons (note also
California/Australia gold rushes of 1848-51 refloated)
2000 Dot-com crash; 2002 Telecoms crash; 2008-10
Great Recession. Rise of offshore investment by
vulture/chaos capitalists (post9/11 surveillance gold rush)

9. Odlyzko, Andrew.
(2010) Collective hallucinations and inefficient markets: The
British Railway Mania of the 1840s
(2000) The History of Communications and its Implications for
the Internet. http://dx.doi.org/10.2139/ssrn.235284
(series of brilliant papers)
Great debt owed to Andrew Odlyzko

10. 2/23/2018
PAST:

11. 2/23/2018

13. Regulatory Toolkit: which mix of economics, engineering,
behavioural & evolutionary neuroscience (‘nudges’ & groups),
human rights law?
2/23/2018

14. The Internet: for everyone
2/23/2018

15. But this ‘prosumer environment’ is currently grossly unregulated,
• leaving users' data and content at the mercy of the multinationals
• who host it and sometimes claim to own it,
or subject to knee-jerk over-regulation
• current ‘fake news’ controversy in Germany.
It is a new regulatory policy cycle in network regulation.
We are all becoming ‘prosumers’ sharing
intimate details of our personal lives

16. Liability & Security pitfalls

17. Over-arching need to ensure greater neutrality of intermediaries has
largely been limited to last mile monopolists and mobile oligopolists:
• legacy telecommunications companies who provide Internet access.
What is needed is a comprehensive Prosumer Law solution
• drawing on fundamental human rights to privacy and free expression,
• competition,
• and technology regulation
• to ensure a fair and neutral deal for prosumers and citizens.
Regulatory responses finally emerging, driven
by both data protection and competition

19. Spectrum Problem: electoral/broadcast heavy
regulation; advertising self-regulation
Election law
(inc.
broadcasting +
funding)
Advertising
self-
regulation
1. Generic data protection (not US) 2. Unfair consumer contract law3. Fraud and (grossly) misleading
advertising law4. Unsolicited commercial commuication (‘spam’) law

20. Not COPPA
Data Consent
Age

22. Facebook & Google
armies of content
checkers
Not
necessarily AI

24. Techbros solutions don’t work?

25. ‘Intranet’ of Things in progress

26. • Personal data protection
• EUR-Lex - L:2016:119: Regulation (EU) 2016/679
• GDPR enters into force 25 May 2018
• Regulation of big data collection and processing lags severely
behind business processes
• Stylianou, Venturini, Zingales: Protecting User Privacy in the Cloud:
An Analysis of Terms of Service
• European Journal of Law and Technology
• Vol 6, No 3 (2015). Available at SSRN:
http://ssrn.com/abstract=2707852
Bulk automated data collection
infringes European law

27. • Huge trawl of data means they are able to “pick winners”
• among sectoral competitors in e.g. retail/transportation,
• in what is becoming known as "surveillance capitalism".
• Governments rely on big data brokers to support services,
• compromising regulatory independence.
Search engines and social media platforms

28. Dealing with big data curators:
Khan (2017) Amazon’s Antitrust Paradox, Yale Law Journal
Ezrachi & Stucke (2015) Artificial Intelligence & Collusion: When
Computers Inhibit Competition,
• Oxford Legal Studies Research Paper No.18/2015
http://dx.doi.org/10.2139/ssrn.2591874
Stucke & Grunes (2015) Debunking Myths Over Big Data & Antitrust,
• CPI Antitrust Chronicle, http://ssrn.com/abstract=2612562
Competition law faces existential crises

29. Governing big data platforms
• in the public interest
Let users take back control
• individual and collective control of their own data
Whispered in Brussels and London
• Turing Institute: Centre for Data Ethics & Innovation
Needed: a more
holistic regulatory framework

30. @ChrisTMarsden
Prosumer law agency:
‘OffData’