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Regulating code

  1. 1. Regulating Code Good Governance and Better Regulation in the Information Age (MIT Press) Ian Brown (Oxford) Chris Marsden (Sussex) @IanBrownOII #RegulatingCode
  2. 2. John Perry Barlow A Declaration of the Independence of Cyberspace (1996) response to CDA 1996 (partly struck down in Reno v. ACLU 1997) ‘Governments of the Industrial World, you weary giants 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 to leave us alone. You are not welcome among us. You have no sovereignty where we gather.’
  3. 3. Regulation and governance  Internet use now ubiquitous ◦ but governments, legislators and regulatory agencies falling further behind rapidly changing Internet technologies and uses  Critical analysis of regulatory shaping of ―code‖ or technological environment ◦ ‗Code is law‘ and coders operate within normative framework ◦ More economically efficient and socially just regulation ◦ Critical socio-technical and socio-legal approach
  4. 4. Literature  Previous legal focus on elephant‘s trunk? ◦ Benkler, Wu, Lessig, Zittrain, Van Schewick ◦ General US scepticism of govt action  Ohm‘s Myth of the Super-User  More empirical view: Mueller (2010), De Nardis (2009) ◦ Institutional economics and political science
  5. 5. Prosumers not super-users  Web 2.0 and related tools make for active users, not passive consumers  United States administrative and academic arguments for self- regulation may work for geeks, but what about the other 99%?  European regulatory space is more fertile ground to explore prosumerism as both a market-based and citizen- oriented regulatory tool
  6. 6. Empirical investigation  Five case studies and one ‗prior art‘ (encryption, anonymity, security) ◦ Multi-year empirical investigation ◦ Builds on various EC/other studies including  ‗‘ (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)  Reassesses prior art in view of ‗hard cases‘ ◦ Topics with no organised regulation/self- regulation ◦ Due to lack of consensus over solutions
  7. 7. Five case study chapters 1. Data protection ◦ Enforcement failures, Privacy by Design 2. Copyright ◦ Capture of law by lobbyists, code solutions outflank 3. Filtering ◦ Growth of censorship, surprising degree of freedom – disappearing? 4. Social Networks ◦ Dominance, network effects, corporate social irresponsibility 5. Smart Pipes ◦ Net neutrality argument, DPI deployment
  8. 8. Towards interoperability as prosumer law  Solution in favour of prosumers and competition: ◦ enhance the competitive production of public goods ◦ including innovation, public safety, and fundamental democratic rights  Key aspect: interoperability (incl. FRAND) ◦ (Note: this is detailed software interoperability, not the general description offered by Gasser/Paltrey 2012)
  9. 9. 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 ◦ Lower entry barriers tend to lead to increased consumer welfare
  10. 10. 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.‖
  11. 11. Euro-Interoperability Framework  Response to multi-€bn competition cases: ◦ Microsoft saga (to 2009), Intel (2009), Apple (2010), Rambus (2009) ◦ Google (2013?) perhaps Facebook.... ◦ Coates (2011: Chapters 5-6)  Announced by Information Society Commissioner Neelie Kroes in 2009- 2010  Bias in favour of interoperability in policy  Concerns are broader than competition ◦ Include privacy, IPR, security, fundamental
  12. 12. Mandated choice  Microsoft fined €561m for ‗browser choice‘ ―error‖ – expensive line of code  Sky EPG carries terrestrial channels on 101-105 due to ―must carry‖ and ―due prominence‖ AVMSD
  13. 13. Do Not Track  ―I think it‘s right to think about shutting down the process and saying we just can‘t agree. We gave it the old college try. But sometimes you can‘t reach a negotiated deal.‖ –DNT member Jonathan Meyer
  14. 14.  Competition investigation both sides of Atlantic since 2010: ◦ Settled with US authorities 3 Jan 2013 ◦ Settlement proposal to EC 1 Feb 2013  Experts have severely criticized timing and content of FTC settlement  Grimmelman argued: ―If the final FTC statement had been any more favourable to Google, I‘d be checking the file metadata to see whether Google wrote it.‖ Google FTC and EC cases Source: Google proposal leaked to SearchEngineLand, 25/4/13
  15. 15. Amazon and Kindle  ―[N]ot only booksellers…but publishers and agents too run the risk of being excluded due to Amazon‘s wish to be a book retailer and publisher, and its aggressive plans to vertically integrate‖  ―responsible for 95% of [UK] e-book purchases…92% of the 1.3 million e-readers sold in the UK before Christmas were Kindles‖  ―[F]rom data mining [Amazon] know[s] what its customers buy, when they buy it, what books they actually read on their Kindles and even which books are not read in full‖ Tim Godfray (Chief Executive of Booksellers’ Association UK & Ireland), London Book Fair, 15/4/13
  16. 16. Regulating Kindle  ―Having such a dominant position enables Amazon to put huge pressure on individual publishers for higher trade discounts to be given, enabling it to sell books at much lower prices than competing booksellers.‖  ―Most Kindle customers—unless they are very tech savvy—end up buying their e-books from Amazon‘s Kindle store‖ – Mandated choice of e-bookstore, and interoperable stores  ―EPUB3 has just been approved by the International Publishers Association as the new standard format for e-books. We believe that steps should be taken to ensure that in the future all e-book retailers—including Amazon—should support EPUB3, so that consumers can read any e-book on any device and are not locked in to any proprietary system.‖
  17. 17. Tor and DRM  ―[W]e felt a strong sense that the reading experience for this tech-savvy, multi-device owning readership was being inhibited by DRM, leaving our readers unable to reasonably and legally transfer ebook files between all the devices they had.‖  ―DRM-protected titles are still subject to piracy, and we believe a great majority of readers are just as against piracy as publishers are... As it is, we‘ve seen no discernible increase in piracy on any of our titles, despite them being DRM-free for nearly a year.‖ –Julie Crisp, UK Editorial Director
  18. 18. Economics and Human Rights  Interoperability linked to open data, open code, and arguably to human rights  Blizzard of Internet governance principles in 2011: ◦ 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.
  19. 19. Developing study of code regulation  Similarities and cross-over with ◦ complexity science ◦ network science ◦ 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  Internet Science? EC Network of Excellence
  20. 20. Questions?  Book published March 2013  ‗Prosumer law‘ article (early version now on SSRN)  Comments welcome!
  21. 21. Test the existing ‗received truths‘ 1. Self-regulation and minimal state involvement is most efficient in dynamic innovative industries; ◦ technology is never neutral in societal impact ◦ network and scale effects drive massive concentration 2. Self-regulation critically lacks constitutional checks and balances for the private citizen, including appeal 3. 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.
  22. 22. Approach embraces complexity  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
  23. 23. Government and market failure  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?
  24. 24. What regulation teaches about code  Ex ante and ex post intervention  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)
  25. 25. Prosumer law suggests a more directed 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.

Editor's Notes

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