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Theories of cyberspace regulation Internet Governance, Topic 3 Professor Graham Greenleaf.

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Presentation on theme: "Theories of cyberspace regulation Internet Governance, Topic 3 Professor Graham Greenleaf."— Presentation transcript:

1 Theories of cyberspace regulation Internet Governance, Topic 3 Professor Graham Greenleaf

2 Cyberspace regulation?  The problem: Cyberspace is a different context from the physical world. yWe may need to rethink how regulation of behaviour works.  The questions:  (i) What regulates? - What different forms of regulation are there? y(ii) Who regulates? - Who controls the forms of regulation, and what is their legitimacy?

3 Theorists and theories  ‘ Digital libertarians ’ / anarchists yTheorists  Barlow ’ s ‘ Cyberspace Declaration of Independence ’ (1996) xSelf-governance theorists (eg David Post) yTheories criticising: xIrrelevance of legal concepts based on matter xIneffectiveness and illegitimacy of territorially-based government in cyberspace xScepticism about international agreements or institutions (even self-governing ones) yTheories favouring xEffectiveness of self-governing cyberspace institutions  Arguments for the most decentralised forms of regulation, and for ‘ private orderings ’ based on contract

4 Other theorists  Trotter Hardy - most decentralised level of regulation is the ‘ proper regime ’ (1994)  Joel Reidenberg - ‘ Lex Informatica ’ yThe Internet (somehow) provides the appropriate technical devices for regulation

5 Do theories describe or / and prescribe? Barlow Regulation will fail; Internet cannot be regulated Nations have no right to regulate ‘ new realm of mind ’ Post Self-regulation can work Self-regulation should be left to work Hardy Decentralised regulation is efficient Decentralised is the ‘ proper regime ’

6 Description and/or prescription Reidenberg ’ s lex informatica Technology provides effective tools for regulation Regulators should use infrastructure to regulate Lessig Cyberspace is regulated by all 4 modes; code is increasingly effective Legitimacy of those controlling code should be questioned

7 ‘ Digital realists ’  Lawrence Lessig (best known), James Boyle  Lessig's answers to what and who regulates: Lessig's y4 things regulate - Norms; Markets, Law and 'Code' yLaw also regulates the other 3 - indirect regulation yEffectiveness is very different in cyberspace  Main lesson: Consider all 4 and their interaction  Criticisms:  ‘ code ’ does not capture all of ‘ architecture ’  misses other forms of regulation (informal sanctions; surveillance?)

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9 Constraint 1 -Norms, morality, conventions  Real space norms cause disapproval and guilt  Cyberspace has its own 'netiquette' yExamples: using CAPITALS; attachments sent to lists  Some Internet self-regulation creates norms  Eg observance of Robot Exclusion Standard  Observance is by voluntary conduct, not code  Numerous other Internet governance conventions  Effectiveness increased by surveillance yThe morality of the goldfish bowl  ‘ In cyberspace no one knows you ’ re a dog ’ is false

10 Constraint 2- Markets  Market constrains work in cyberspace  Unpopular 'code' can perish ySelling region-blocked DVD players in HK? ySurveillance damaged DoubleClick's share price  Prices can affect norms yAre CD / DVD prices considered fair? yIs DVD region blocking fair? zTheories of network economics are important

11 Constraint 3- 'Code ’ zIn real space - Natural and built environment - yBank robberies - Laws and morality help; but walls, locks, glass & guns are better yImmigration - Distance and lack of borders yEasy to ignore, often because unchangeable  In cyberspace - ‘ Code ’ is the equivalent yCan control access, and monitor it yDetermines what actions are possible and impossible  ‘ A set of constraints on how one can behave ’ -Lessig yThe walls, bridges, locks and cameras of cyberspace

12 E2e: 'code' layer commons  e2e ('end to end') network design xPhilosophy of the original Internet designers x'Smart' features are at the margins xAnyone can add a new application to the net xNetwork controllers do not decide applications allowed  Innovation irrespective of the wishes of network owners x'Code' helps determine the level of innovation xAbsence of control by code here enables innovation

13 ‘ Code' or 'architecture'?  'Code' is cute but confusing yEast coast code (Washington) vs West coast code (Redmond) yThe US Code vs hackers' code  'Architecture' is more accurate yCyberspace is more than software xProtocols (non-material artefacts) xHardware (material artefacts) xBiology and geography (natural environment)  'Code' is part of cyberspace architecture

14 More confusion: Code and ‘ code layer ’ ‘ physical layer ’ ‘ Computers and wires that link them ’ ‘ code layer ’ (or ‘ logical layer ’ ) Includes Internet protocols ‘ content layer ’ ( ‘ material served across the network ’ ) Includes applications software (still called ‘ code ’, but not in the ‘ code layer ’ ) From Lessig ‘ The Internet Under Siege ’

15 Cyberspace architecture: why it is different  It is almost entirely artefact  It has generally high plasticity yIts easier to change cyberspace, even when built yExceptions: Internet protocols; open source code  Greater immediacy of application yIt is often self-executing  Its legitimacy is questionable yWe should ask the pedigree of any regulation yWhat should private companies control?

16 4 Law - direct and indirect  Law increasingly directly regulates cyberspace behaviour - both national and international  But it indirectly regulates the other 3 constraints  Legal regulation of architecture is the key yIt is the most effective strategy for governments yAnti-circumvention laws protect private control of architecture yIt is also vital for limiting private power zThe digital libertarians were wrong

17 Effective regulation  Finding the best mix of constraints yHow to prevent discrimination? xProhibition; education; building codes yHow to stop people smoking? xAge limits; prohibited places; education; warnings; taxes  Q: Does Lessig ’ s model describe adequately the range of constraints? ….

18 5th constraint?: Informal sanctions zMuch regulation is by informal sanctions: yAbility to exclude (taking your ball home) yAbility to use physical force / intimidation zInformal sanctions (IS) do not necessarily require any of the other constraints: yMuch law aims at limiting IS yIS may but need not support norms yQ: In cyberspace, are informal sanctions largely dependent on control of architecture?

19 6th constraint?: Surveillance  A relationship of knowledge xKnowledge by the watcher of those watched xFoucault's 'discipline'; Bentham's Panopticon xFacilitated by architecture, but not part of it xFacilitates observance of norms and laws, but independent  More important in cyberspace regulation xThe normal context of identification is removed xIdentification, not anonymity, is the default yQ: In cyberspace, does surveillance depend on control of architecture?

20 Law modifying surveillance  Law acts indirectly to modify surveillance yData protection laws protect privacy xEg Personal Data (Privacy) OrdinancePersonal Data (Privacy) Ordinance yLaws mandate compliance xeg smart ID card yLaws prevent circumvention xEg illegal to modify smart card, or possess  eg DRMS anti-circumvention …DRMS anti-circumvention

21 Example: Copyright, DRMS and anti-circumvention  DRMS - The new paradigm for content protection yCopyright law was the old paradigm  Content owners want to control 3 parties yContent consumers yConsumer hardware manufacturers yContent intermediaries z(DRMS diagram modified from Bechtold)

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23 Technological measures zDistinguish content-protection technologies and systems (aka DRMS) zTechnologies are broadly either for copy- protection or access-prevention

24 Contract ’ s new role in IP  ‘ Click wrap ’ contracts with consumers  Contracts go beyond © law yCan impose contracts on all consumers yRecognised in ProCD v Zeidenberg (USA, 1996); no equivalent HK development yet zDistribution licences with intermediaries yStronger anti-circumvention and RMI zDRMS licences with hardware makers yEnsuring hardware enforces copy-protection

25 Technology protection legislation zHong Kong Copyright Ordinance  Q: Does the Ordinance prohibit actions which are not breaches of © ? ys273 - Devices to circumvent copy-protections273 ys274 - interference with rights management information (RMI)s274

26 Residual role of © law  Copyright legislation no longer the principal protection of content ‘ owners ’  Some content owners wish to eliminate consumer rights in © laws  Control over content outside © law is one objective: eg works out of © ; database content

27 DRMS, theory and innovation zDRMS are one of the best examples of the interaction between forms of Internet regulation  Lessig also attempts to demonstrate how the Internet is losing its character as an ‘ innovation commons ’, partly through changes to IP law and regulation

28 Importance of 'commons'  Lessig's argument in ’ The Future of Ideas'  The Internet is an 'innovation commons ’ xIt is in danger of losing that character  'Commons' - Resources from which no-one may be excluded - the 'free'  Commons are not necessarily 'tragic': xNot if they are non-rivalrous (eg protocols) xNot if you control over-consumption xBoth require sufficient incentives to create

29 Internet as an 'innovation commons'  Benefits of the Internet as a commons xBenefits to freedom (first book) xBenefits to innovation (second book)  Must consider each Internet 'layer' xPhysical layer, 'code' layer (protocols and applications) and content layer xEach could be a commons or controlled xCurrently, each layer is partly controlled xChanges imperil the mix providing innovation

30 Lessig's innovation recipe (1)  1'Physical' layer reforms xSpectrum allocation for wireless Internet  2'Code' layer reforms xGovernment encouragement of open code US government uses proprietary programs [The PRC government has done this already] xRequire 'code neutrality' by carriers, by (a) Banishment from providing Internet services; or (b) Requirement to provide open access; or (c) No TCP/IP without observing e2e

31 Lessig's innovation recipe (2)  3aContent layer - Copyright law reforms xShort renewable terms Eldred v Ashmore: stop the term being extended [Shorter or renewable terms would breach US treaty obligations] xFor software, 5 year term only, renewable once xA defence for new technologies 'No breach if no harm to copyright owner' xCompulsory licensing of music for file-sharing

32 Lessig's innovation recipe (3)  3a Content layer - Copyright law reforms (cont) xTax benefits for putting works into the public domain xA 'right to hack' DRMS to protect fair use ('Cohen theorem') xStop contract law undermining copyright law  3bContent layer - Patent law reforms xMoratorium on patents for software and business methods

33 References(1)  Works by Lawrence Lessig Lawrence Lessig 'The Law of the Horse: What Cyberlaw Might Teach' (PDF only) (1999) 113 Harvard Law Review 501 (drafts were available from 1997) Lawrence Lessig Code and Other Laws of Cyberspace Basic Books 1999 Lawrence Lessig 'Cyberspace's Architectural Constitution' (June 2000, Text of lecture at www9, Amsterdam) Lawrence Lessig The Future of Ideas: The Fate of the Commons in a Connected World Random House, 2001 See his home page for links to these and othershome page

34 References(2)  Works by others James Boyle 'Surveillance, Sovereignty, and Hard-Wired Censors' (1997)'Surveillance, Sovereignty, and Hard-Wired Censors' Graham Greenleaf 'An Endnote on Regulating Cyberspace: Architecture vs Law? (1998) University of New South Wales Law Journal Volume 21, Number 2'An Endnote on Regulating Cyberspace: Architecture vs Law? Stefan Bechtold 'From Copyright to Information Law - Implications of Digital Rights Management'. Workshop on Security and Privacy in Digital Rights Management 2001. 5. November 2001, Philadelphia, USA.'From Copyright to Information Law - Implications of Digital Rights Management' See the Timetable for further readingfurther reading


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