Regulating CodeGood Governance and Better Regulation in the Information Age (MIT Press)Ian Brown (Oxford) Chris Marsden (Sussex)@IanBrownOII#RegulatingCode

John Perry BarlowA 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.’

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

LiteraturePrevious legal focus on elephant’s

trunk?◦Benkler, Wu, Lessig, Zittrain, Van

Schewick◦General US scepticism of govt action

Ohm’s Myth of the Super-UserMore empirical view: Mueller

(2010), De Nardis (2009)◦Institutional economics and political

science

Prosumers not super-usersWeb 2.0 and related tools make for

active users, not passive consumersUnited 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

Empirical investigationFive case studies and one ‘prior art’

(encryption, anonymity, security)◦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)

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

rights

Five case study chapters1. 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

Towards interoperability as prosumer lawSolution in favour of prosumers and

competition:◦enhance the competitive production of

public goods◦including innovation, public safety, and

fundamental democratic rightsKey aspect: interoperability (incl.

FRAND)◦(Note: this is detailed software

interoperability, not the general description offered by Gasser/Paltrey 2012)

50 ways to leave FacebookNot 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

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.”

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 policyConcerns are broader than competition

◦ Include privacy, IPR, security, fundamental rights

Mandated choiceMicrosoft 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

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

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

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”

Amazon.co.uk “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

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.”

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

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.

Developing study of code regulationSimilarities 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 componentsInternet Science? EC Network of Excellence

Questions?

Book published March 2013

‘Prosumer law’ article (early version now on SSRN)

Comments welcome!

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.

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

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?

What regulation teaches about codeEx ante and ex post interventionInteroperability and open

code/data - procurementA biased policy towards open

code – ◦Data open to mash-ups (govt)◦Systems interoperable (procurement)◦Use of alternatives to market leader

(e.g. Linux)

Prosumer law suggests a more directed interventionExample: 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.