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Internet Governance Is It Time for Comprehensive Regulation?

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Presentation on theme: "Internet Governance Is It Time for Comprehensive Regulation?"— Presentation transcript:

1 Internet Governance Is It Time for Comprehensive Regulation?

2 Historical Picture 18 th – 19 th Century – Agricultural Age 19 th -20 th Century – Industrial Age 20 th -21 Century – Information Age

3 Overview of Market-Government Relations 18 th century colonial society highly regulated by Britain: – Significant factor in the revolution and the development of a laissez-faire ideology 19 th century opened up free market society – Especially after the Civil War and the end of slavery 20 th century pendulum swing marking the degrees of regulation to cabin excesses and maintain social order of industrial capitalism

4 Need Begets Policy Interstate Commercial Commission, 1887 Set rules for gauge, schedule and pricing on railroads; Originally promoted by farmers who could not rely on the transportation of goods with railroad competitive practices and by populists who opposed the railroad industrys conglomerate economic power; Originally opposed by railroads as interference with their autonomy to compete and make a profit; Railroad industry later accepted and ultimately benefitted from the regulation because it rationalized the industry and allowed for consolidation; Good for U.S. because it promoted more rational flow of commerce and furthered industrialization

5 …and Regulation Federal Reserve Administration – From gold standard to paper money – Early watchdog of banking industry – Rationalized relationship between U.S. and foreign currencies – Allowed for the rationalization of the market and the sale of securities Precursor of Securities and Exchange Commission, Federal Deposit Insurance Corporation and other New Deal agencies designed to stabilize the economy …

6 Other Notable Examples Federal Trade Commission, 1914 – Consumer protection agency – Anti-competitive practices (joined with DOJ Anti- Trust Division) – (Under New Deal) unfair and deceptive practices – (Since the Internet) on-line marketing, privacy … policies Sites that acquire personally identifiable information and/or engage consumer in financial transactions

7 Increasingly Relevant to the Internet Federal Communications Commission, 1934 Regulates interstate and international communications by radio, television, wire, satellite and cable … *But is not the agency where Internet is housed officially. That distinction goes to the Department of Commerce, which oversees the foundational domain name servers of the Internet and delegated authority to ICANN, the Internet Corporation for Assigned Names and Numbers.

8 But Not … United States Copyright Office, 1897 – The mission of the Copyright Office is to promote creativity by administering and sustaining an effective national copyright system. Which is an office in the Library of Congress …

9 Or the … United States Patent and Trademark Office – To foster innovation and competitiveness by providing high quality and timely examination of patent and trademark applications, guiding domestic and international intellectual property policy, and delivering intellectual property information and education worldwide. Which is in the Department of Commerce (even though it is all intellectual property).

10 And Then There Is Department of Homeland Security, 2002 – The DHS has a vital mission: to secure the nation from the many threats we face. Before the establishment of the Department of Homeland Security, homeland security activities were spread across more than 40 federal agencies and an estimated 2,000 separate Congressional appropriations accounts. DHS is the largest federal agency in U.S. history.

11 Which Is the Departmental Home of The National Cyber Security Division – which works collaboratively with public, private and international entities to secure cyberspace and Americas cyber assets. But is still not the Office of the White House Cyber Security Coordinator, (U.S. Cyberczar.)

12 What Informs Internet Policy? Physical Layer: Broadband Deployment – 18-20 in international ranking geographically a big country – How did we get electricity (and other services) to farm and rural areas? New Deal Legislation and Regulation – Rural Electrification Administration, 1935 – Tax on telephone bills to fund last mile telephony Will the new F.C.C. proposal pass Congress?

13 Cyber Security Logical Layer – Is there an organized strategy to develop, harmonize and deploy IPv6? {No …} {But there could be … witness DARPANet history of the development of the Internet …} Should the federal government lead – fund? – this development? Or, like electrification, coordinate a government-public utilities initiative?

14 Applications: Consumer Privacy Contrast sectoral U.S. privacy laws … FACTA, FERPA, ECPA, HIPAA, FMSA, COPA, Video Protection, etc. – … and how to implement in the electronic realm of data networking XX number of state breach notification laws FTC privacy policy rules …that have no pith at all! – We will sell your personally identifiable information to the highest bidder … With comprehensive European Union Data Protection laws (and those of developed countries): 1995 Directive: Protect Personally Identifiable Information 2002 E-Privacy Directives 2009 Madrid Declaration

15 Fair Information Practices Noticedata subjects should be given notice when their data is being collected; Purposedata should only be used for the purpose stated and not for any other purposes; Consentdata should not be disclosed without the data subjects consent; Securitycollected data should be kept secure from any potential abuses; Disclosuredata subjects should be informed as to who is collecting their data; Accessdata subjects should be allowed to access their data and make corrections to any inaccurate data; Accountabilitydata subjects should have a method available to them to hold data collectors accountable for following the above principles.

16 Facebook: Seek Forgiveness, not Permission E.F.F. Bill of User Privacy Rights – Right to informed decision making Notice – Right to control Disclosure – Right to Leave Opt-Out, ownership of information To regulate or not to regulate, that is the question!

17 A Primer in Electronic Surveillance Law Olmstead v. U.S., 1928 – No Fourth Amendment protection for wiretap Not a person, a thing. Katz v. U.S., 1967 – Fourth Amendment protection Fourth Amendment protects people, not things. – Omnibus Crime Control and Safe Streets Act, 1968 First wiretapping act Electronic Communications Privacy Act, 1986 – Updated OCCSSA but collapsed the technology Which upsets Fourth Amendment jurisprudence

18 U.S.A. – Patriot Act, 2001 Lowered the threshold for law enforcement showing for conversational detail This lowered threshold, combined with the gaps between telephony and data networking, resulted in the disclosure of content against Fourth Amendment protection. Extra-legal tapping resulted in no reprisals and legal immunity from Congress.

19 Contemporary Developments Digital Due Process – Revise E.C.P.A. 0370-2551-11DF-8E02000C296BA163 0370-2551-11DF-8E02000C296BA163 Communications Law to be Reviewed – NYT, May 24, – Telecommunication Act Who will harmonize federal law?

20 Intellectual Property Why is it important? – It (copyright, patent, trademark) has always been important as part of the fabric of a free market society. Thats why it is in our constitution, Article I, section 8 Why is it so important now? – Because technology is disruptive and upset the mid-twentieth century balance of technology, law, social norms and market.

21 And because … Whoever controls the content effectively controls the Internet.

22 Intellectual Property … Is about who and how to control resources in the information age.

23 The Stakes Are as high, as significant, as the stakes in battles over agriculture and railroads in the nineteenth century; food, drugs, commerce, communications and the fruits of industrialization were in the twentieth century.

24 Information is the Commodity Whoever owns, controls, has access, under whatever terms, conditions and costs will be the winners and will reshape the economic, social and political landscape of tomorrow, and not just in the United States but globally.

25 Anti-Trust Microsoft vs.. United States was legally about unfair business practices (bundling and inappropriate influence over computer producers). Realistically, the Department of Justice used anti-trust as a legal hook to manage Microsofts corporate and product hegemony.

26 Real Question Why didnt Microsoft bear any financial responsibility for flagrantly insecure software to users?

27 Do we need a new legal paradigm to maintain innovation and justice in the information age?

28 Who has the charter to frame theses questions for American society and for the United States place in a global economy? Who does, effectively? Who should, ideally?

29 Internet Public Policy Circa 1995 Let a thousand flowers bloom – Section 230 of the Communications Decency Act Economic interdependencies – No one wants to ruin the engine of our economy Market adjustment – Googles rise softened concern over Microsofts market control

30 F.C.C. v. Comcast: Network Neutrality U.S. Court of Appeals: – F.C.C. does not have authority to rule over Comcast as an information provider – But about as a telephone company? Outside the Beltway – Resembles a shell game of Title I and Title II – What is the underlying issue? Do federal agencies have sufficient authority to regulate the Internet in the public interest?

31 Google Google is the arbiter of every single thing on the Web, and it favors its properties over everyone elses. – Gary Reback, erstwhile DOJ in Microsoft case They are not just on the radar screen. They are at the center of it. – Tim Wu, Professor of Law, Columbia University Google Ads, Google Books, Google Maps – Anti-trust, copyright and privacy …

32 Search Today, search engines like Google, Yahoo and Microsofts new Bing have become the Internets gatekeepers, and the crucial role they play in directing users to Web sites means they are now as essential a component of its infrastructure as the physical network itself. The F.C.C. needs to look beyond network neutrality and include search neutrality: the principle that search engines should have no editorial policies other than that their results be comprehensive, impartial and based solely on relevance. Adam Raff, NYT Op-Ed, Dec. 27, 2009

33 What Would It Take to Regulate Search? An unprecedented kind and degree of governmental control over an Internet corporation; Disclosure of the most important component of their business: search algorithm; Delegation of authority to an agency to exercise the requisite authority to … do what exactly?

34 Pros and Cons of Regulating Search Pro – Really educate populous about how information is gathered, managed, controlled, shaped by search companies … and how those processes affect commerce, competition and consumer consciousness. – If legal principles of fairness could be translated into the technology … but look at the difficulty we have had doing that with a concept of network neutrality!

35 Pros and Cons of Regulating Search Cons – Market interference could inhibit commerce, making the U.S. (more) economically vulnerable, in particular to foreign search companies especially on an global Internet. Baidu! – How do we keep politics out of regulation? You dont … you set rules to cabin it. – How do we square such rules with First Amendment principles and jurisprudence?

36 Need Begets … Broadband deployment to the last mile; Cyber security Harmonizing laws and technologies – Taxation – Government surveillance and communication laws – Consumer privacy – Jurisdiction and due process Harmonizing law and business models – Network neutrality – Intellectual property – Search algorithms

37 Educational Networks and Regulation Two strands of thought: – Protection for minority in a democracy Footnote 4 Caroline Products Regulation is for public interest – What role does education play in American society? Why tax benefits? Because of other benefits to society. – Citizenship – Economic vitality – Upward mobility and social stability – Continuity of the culture – Learning for learning sake is a value unto itself!

38 Do Educational Networks Require Special Treatment? Taxed? – Not so long as private is not-for-profit Monitored? – Yes and no! Yes by owner, no for government, except: Subject to Fourth Amendment – Naturally, no perfect law of privacy – But due process, please! Higher Education Opportunity Act of 2008 – Our own legislation – Harbinger for commercial providers or slippery slope for education?

39 Favored? What role might higher education networks play in F.C.C.s Broadband deployment proposal? – Transforming American Education: Learning Powered by Technology Access, information literacy and integration into active learning for a new generation of natives Federal Stimulus Money – Available for deployment Or cities could compete for Google … Example of difference between legal and market solutions is telling

40 Do What Is Right Because It Is Good For Society History demonstrates regulation serves social interests and education serves society uniquely. Educational networks should not be burdened by unnecessary governmental monitoring or oversight but should enjoy protective regulation regarding tax, funding and autonomy in service of our missions.

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