Reflections on legal history plus views on proselytizing to the academy

1. GIKII XII (?)
WINCHESTER
1 5 S E P T E M B E R 2 0 1 7
C H R I S M A R S D E N
Internet Law:
15 years after E-Commerce Regs 2002;
25 years after Info Superhighway thing:
We should all proselytise

2. 1992: “Information Superhighway” vision thing
 When Al Gore “invented the Internet”
 Sort of: US federal funding authorised by Congress from 1960s
 Yet Europeans had not adopted the Internet
 Waited until 1998 FRIACO (flat rate internet access)
 Unlimited use through local call rates
 But had invented turbo codes for 3G, the modem,
DSL etc.
 FP4 until now
 Including European Internet Science (FP7)

3. 1993: world was innocent or ignorant?
(Windows 3.x export licensed encryption,
clipper chip/key escrow fights)

5. Cartoonists need to be careful of monkeys

7. The more things change…

8. Gartner Hype Cycle scales 1-8

9. 1995 – Congress discovers Internet pornography
 No sex please, we’re Anglo-Saxons
 1995 – Netscape IPO
 Hence overwhelming support for TV ‘V-chip’ and
mandatory content filtering
 (1996 – Pamela Anderson sex tape, not implicated)
 Resulting in Communications Decency Act 1996
 Part V of “Telecommunications Deregulation Act 1996” – in
which S.222 deals with privacy and transparency
 1997: ACLU v. Reno overturned all of CDA except…

10. s.230 CDA
 Single most important element in US and global law
for Internet intermediaries
 Supported by case law and Digital Millenium
Copyright Act 1998 s.512 et seq.
 Though noting that adoption in 2000/31/EC
Electronic Commerce Directive was incomplete
 E.g. no ‘put back’ provision
 No academic exception

11. Code as Law/Law as Code
 Lemley and McGowan 1998
 Legal Implications of Network Economic Effects 86 Cal. L. Rev. 1998
 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=32212
 Lessig 1999 adapts Reidenberg’s Lex Informatica
 Code and Other Laws of Cyberspace
 We were there at Warwick 1999 to hear him
 Benkler best-titled and most interesting article of 2002:
 Coase's Penguin, or Linux and the Nature of the Firm, 112 Yale L.J.
http://www.benkler.org/CoasesPenguin.html
 Wu 2003 writes an important article (not that one!)
 When Code Isn't Law, Virginia Law Review, Vol. 89, 2003
 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=413201
 Zittrain 2006 develops ideas
 The Generative Internet, Harvard Law Review, Vol. 119, 2006
 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=847124

12. 1996 Bonn Ministerial on E-Commerce
 Our founding EU-US agreement?
 Led by German & US (Magaziner/Gore/Hundt) governments
 US-EU compromises on intermediary liability in
‘Information Society’
 Resulting in raft of legislation 1996-2002
 Note most students still think we have ISPs
responsible for net neutrality
 Not ECSPs regulating ISSPs…
 They also think we have no AVMS regulation online
 Directive 89/552/EEC revised as 97/36/EC then 2007/65/EC
 Soon to be further revised – 2018?

13. Retrospective: Digital Tornado (1997)

14. Hype Cycle Alive and Well

15. Result…

16. 2016 Ad Shares United States

17. Landmark European Legislation and Regulation
 1998: Telecoms Single Market
 2000: ‘Safe Harbor’ for Privacy
 Negotiated from 1998 always nonsense, struck down Case C-362/14 Schrems
 2000: E-Commerce Directive
 2002 Electronic Communications Regulations (UK)
 2000: Local Loop Unbundling Regulation
 1999: Net Neutrality in US
 I also included it in Council of Europe Report…
 2000: Yahoo v. LICRA
 1998: Bavaria v. Felix Somm (Compuserv case)
 2001: Copyright Enforcement Directive
 2001: Budapest Convention on Cybercrime (force 2004)
 Protocol of 2003 on hate speech (entered into force 2006) not signed by UK,
Ireland, US

18. Horse taking over the law?
 Lessig famously debated ‘law of the horse’
 Larouche predicted death of Internet law
 Except telecoms, media law & copyright….
 Guadamuz ‘Attack of the Killer Acronym’
 2017: empirical textual analysis, tools of
information retrieval, ‘scientific legal approach’
begin to dominate analysis
 When did students last visit a Law Library?
 Pasquale, Cohen and others question AI and
dominance of ‘surveillance-industrial’ state
 Exciting times to be an information lawyer!

19. Our colleagues need our help
 IP and data protection obviously…
 Human rights & PIL
 private enforcement/lack of treaties = lack of interest…
 Crime
 Cybercrime, hate speech etc.
 Contract
 E-commerce, AI
 Property
 Blockchain & smart contracts as post-conveyancing
 Tort
 Privacy & Libel/Defamation, AVs as case study
 Even basic online researching skills
 BAILII, legislation.gov.uk, blawgs

20. We predicted all this horsing around years ago
 Susskind…But see also Bing, Leith, Paliwala etc.
 Most recently Katz

21. Focus on civil liability
 I will only touch on criminal and copyright laws
 From lack of competence not interest!
 For copyright see:
 Hoeren Hugenholtz
 Guadamuz (@Technollama), IPKat
 Samuelson, Lemley and many others (even Lessig)
 In UK, we are waking up (again) to cybercrime studies
 (Reed/Walden/Wall pioneers) Note surveillance laws much studied
 UN Comprehensive Study on Cybercrime
 https://www.unodc.org/.../CYBERCRIME_STUDY_210213.pdf
 Brown and Edwards and me
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1427776

22. Net Neutrality 2017 –
just when I thought it was safe to publish a book

23. Regulated self-regulation
 The European approach?
 Holznagel, Grunwald, Bender , Schulz
http://www.uni-
muenster.de/Jura.tkr/oer/publikationen/
 Historically (Max Planck)
https://www.rg.mpg.de/research/regulated-self-
regulation-from-a-legal-histrorians-perspective
 Co-regulation
 Senden (2005), Marsden (2011)
 Multistakeholder governance
 Noveck and Verhulst, throughout last 20 years
 Some studies code for ‘private censorship’ connived at by
governments and cybersecurity types

24. Competition: From ‘New Chicago School’
to “hipster antitrust”
 Innovation and vertical tying Microsoft 1996-2011
 Lemley/McGowan (1998) Legal Implications of Network Effects
 Telecoms cases
 BT/MCI 1996 WorldCom/MCI 1998 BT/AT&T (Concert) 1999
 Mobile - Vodafone/Mannesmann 2000
 Multimedia
 AOL-TimeWarner 2000 British Interactive Broadcasting 1998
 Net neutrality cases 1999/2000
 Bell South/AT&T, Bell Atlantic/GTE = Verizon
 2017: GAFA cases inc.
 Google (from 2009) & FBK/WhatsApp

25. Competition 2: Dominance
Ongoing throughout period:
 Media Mergers
 AOL (every company it buys dies) to Facebook via
 Software – Microsoft/Netscape
 Began with 1993 Windows 3.1 case in US
 Continued until 2008
 Search – Google
 Began 2009 – continues 2017
 Hardware – Intel
 Many fines but “only the paranoid survive”

26. Future Past Imperfect? More of the Same
 Gordian knot of intermediary safe harbour/harbor
 Gordian knot of privacy
 Gordian knot of copyright enforcement
 Gordian knot of European regulations
 Enter Brexit!

27. Platform Dominance

28. Privacy mania
 EC/95/46 was pre-Internet privacy
 GDPR comes into effect 2018
 Meantime e-privacy rules in 2002 and 2009
 Yet how much of our legislation is still pre-Internet?

29. Internet world is becoming Gall-Peters,
not US, EU & Japan

30. Horse law? Copyright law? Monkey selfies?

31. We should all proselytise
 Theological anthropology teaches us
 new movements spend their first decades
 organising and constructing founders’ myths
 Laws and horses
 Revolutionary People’s Movement of Judea
 ‘End to end’ net neutrality (sic)
 Gikii! BILETA
 And resisting merger/takeover by existing ‘faiths’
 media law, copyright, law and economics - TPRC
 Now it’s time to preach to the unconverted
 Not just IP, privacy and law/technology and regulation
 Though nudgers need reminders of myths of super-users
 Competition lawyers need educating
 Human rights lawyers forget Internet law is rights-based discourse
 Cybercrime, access to law
 Blockchain contract/property, Tortious liability

32. Are we all information
lawyers?
Are we data social scientists?
(probably not…)
@ChrisTMarsden