MODULE 3 - Regulation

Theories on digital regulation

Theory of Barlow

Called for independence of the internet from traditional forms of government
Cyberspace is its own jurisdiction, with its own people to whom no government has solicited their consent to rule over them.
Cyberspace is no public construction project that the government can direct.
The problems within cyberspace are for the denizens of that incorporeal place to deal with – the government of man has no place in determining what are problems and how they will solve it.
With no corporeal form there can be no physical coercion, thus all order is self directed enlightened self interest.

Johnson & Post:

There is a disconnect between legal status of internet and reality.
The idea that the internet is just a marketplace of transactions from one geographic location to another is unsatisfying.
The solution is to think of the internet as a self contained otherspace. Thus the question of law re a transaction is no longer which geographical location should govern this transaction but rather what is the best way of imposing rules upon this place and the people in it.
A new jurisdiction means a new separate law. A new ‘cyberspace law’ where old rules of IP etc do not apply.

Greenleaf: Architecture v law (an endnote)

The best method of regulating cyberspace is the regulation of the technology behind it – by preventing the development of certain technologies you prevent the architecture from creating an environment that you do not want. (Reidenberg)
Lessig proposes 4 constraints on the net: laws, social norms, market and nature (architecture)

Lessig: Law of the Horse

In cyberspace code can displace law because it can, in a more subtle way, control and influence behaviour. Therefore, in terms of regulation the pedigree of the code designer is crucial in the regulation of cyberspace – code is king,
The code itself does not change the law on the book – it merely changes the effectiveness of the law on the books. Thus, when the constraints of the law change, the code effectively displaces law. Policymakers then have to decide whether to reinforce the law on the book or allow the change to occur.
Example 1: IP
There are specific laws against stealing cash and cars, but no law on stealing a skyscraper. Why? The architecture of the real world – its code – prevents us. How? Try and lift a motherfucking skyscraper.
IP is the opposite. At least when someone steals your car you can tell. There is no way to directly tell short of seeing it occur whether someone steals your IP.
People say copyright is dead because perfect copying is possible. No one considers that it doesn’t have to be that way – a new code could exist to protect anothers IP. Analogy: There are things you can do with a book because of copyright law, ie photocopy enough for education or fair use. There are other things you can do, like shove it up your ass, that isn’t permitted by law but you can’t be stopped really – the code of reality permits it.
The other way is to provide the rights to books unbundled – the right to read once or 100 times, the right to keep or send to a friend etc. A new form of code – a new cyberspace reality – could permit this.
However, there is no way that the public values that underlie the rules of IP could be enforced – fair use, reproduction, IP commons etc.
Code is similar but not the same as IP law and shouldn’t be considered to protect in the same way.
Example B: Contract
There is false logic in considering code and contract equal – yes, code can exist that enforces an agreement between 2 parties ie a contract for internet access between a ISP and the client. However, they are not the same, only similar. A lion in like a cat but you’d be foolish to let your kid play with a lion.
Contract law enforces voluntary obligations between parties. However, there are other matters, such as policy arguments or doctrines like impossibility or frustration that impact and displace some privately entered obligations. Code does not follow these external real world rules.
Code could hold people to obligations where the common law would provide relief through the court – there is no oversight to the conduct of code.
Code does not emulate contract, it can only act in similar ways.

Private Regulation

The internet is like one decentralised workplace – 99% of the routine problems are handled by lower end people with the truly exceptional 1% handled by ‘managers’

ISOC private entity concerned with the mix between social, tech and political issues of the internet.
IETF (Internet engineering task force) – does most of the standard writing . No real board or membership requirements. Anyone can turn up, participate and help write standards.
IAB (Internet architecture board) – kind of an appeals committee for IETF. IETF appoints IAB, IAB appoints secretariat of IETF

CO-REGULATION

There are 3 types of Internet: Regulation:

European - Legislative
American – Free Market
Australian – Co-Regulatory

2 Extremes:

European – Legislative Regulation
U.S – Free Market

Legislative Regulation v Free Market Regulation

1.EU - Legislative Regulation - (European Union Policy Statement). [Cyber Text p. 99].

The aim of the EU initiative is to encourage vigorous growth of electronic commerce in Europe.

A fast-moving sector, electronic commerce will have a considerable impact on Europe’s competitiveness in global markets. It provides a coherent policy framework for future community action, and aims at establishing a common European position to achieve global consensus through international negotiations.

Also serves to:

Ensures access to the global market place
Creates a favorable regulatory framework
Promotes a favorable business environment

2.U.S. - Free Market Regulation – (U.S. Policy Statement). [Cyber Text p. 98]

Principles:

Private Sector should lead
Governments should avoid undue restrictions on electronic commerce
Where governmental involvement is needed, its aim should be to support and enforce a predictable, minimalist, consistent and simple legal environment for commerce.
Governments should recognize the unique qualities of the internet
Electronic commerce over the Internet should be facilitated on a global basis

Availability of content filters in the market provided by the market in response to the market’s need.

American Style – Do little as possible –Emphasis on Self –reliance & individual freedom.

U.S. – Government financed initial development of private sector primarily driven

Government encourages industry Self-regulation & supports effort of the private sector – to develop mechanisms to facilitate the successful operation of the internet.

3.Australia - Co-Regulation– Australian Policy Statements [Cyber Text p. 96]

Australian Co-Regulation is an attempt to integrate both extremes of the US & European models:

-Complaints mechanism - ISP

-Private sector government working together

-Co-regulation

-Industry codes of practice

NOIE ‘ A strategic Framework for the information economy: Identifying Priorities for action’ Dec 1998. [p.96].

The Private Sector & the Role of Government:

The private sector is driving and will continue to drive the transition to the informati9n economy. It is the role of governments to provide an environment conducive to investment in new technology, to the formation and growth of new enterprises, & to the acquisition of information technology skills & knowledge.

Mission:

To ensure that the lives work & well being of Australians are enriched, jobs are created & the national wealth is enhanced through the participation of all Australians in the growing information economy..

Guiding Principles:

The Australian government is guided by 4 principles:

Access to information Society for all Australians m& skills & knowledge to harness the information economy’s benefits for employment and living standards.
Government is to create the environment & to provide a legal and regulatory framework that ensures the information economy is safe secure and respectful of personal privacy, certain & open.
For electronic commerce to flourish – the private sector must continue to lead. The government encourages self-regulation
Because electronic commerce crosses national boundaries, government favours national approaches to strategic issues that are consistent with those evolving in the international, arena.

Australia is committed to develop a set of norms and conventions for international governance of elect5ronbic commerce across national boundaries – that accords with Australia national interests and ensures the openness, safety security legality and fairness of all transactions

The Notion of Co-Regulation: [Refer Article Cyber Text p. 103.]

Advantage:Technology changes rapidly – we must not rely on slow moving legislative solutions.
Disadvantages: No Government. backing – “There are no teeth to solutions” This is a misconception about the act [Cyber Text p. 222]

Legislation mandates the enforcement of its own provisions.

Co-regulation:

In essence; Co-Regulation combines market driven solutions with the flexibility to mend the Codes – ability to enhance Code.

If you are going to regulate the Internet at all – it must have teeth.

Broadcasting Services Act 1 Jan 2000 - Holds jurisdiction to implement fines – if there is a breach of direction in applying the Code.

We don’t need heavy-handed regulation – due to Australia’s Co-Regulative. Practices – with teeth.

Perception v Reality

On its face the Act appears erroneous & draconian in parts – needs changing.

Implementation is different – while still providing meaningful protection for those who wish to utilize them.

History:

Acknowledging Legislative Outcomes:

Bill passed in 1999 – Due to Telstra being sold

ISP - Internet Service Providers

-Mandatory Filtering

-Very hard to enforce

- Default Provisions are draconian