CANARY IN THE COAL MINE: WHY THE INTERNET IS A LEAD INDICATOR FOR GENERIC REGULATIONCHRIS MARSDENUTRECHT11 APRIL 2016

‘CANARY IN THE COAL MINE’?

Underground miningHigh concentrations of poisonous gasesMiners carried canary When the canary stops singing….It’s about to fall downTime to get out!

WE CAN MODEL FROM EXAMPLES

INTERNET PLATFORMS HAVE INTENSE INTERDEPENDENT RELATIONSHIP WITH USERSUsers often don’t pay platforms for services 1. because they form an audience the platform

can sell to advertisers and direct marketers, 2. 3rd party vendors use platform to sell to users

1. paying the platform a commission (e.g. eBay, Amazon Marketplace)

2. PLATFORM USERS ARE ALSO PRODUCERS OF CONTENT INCLUDING PERSONAL DATAplatforms as distributor and archive of that content, • imposing terms of use including privacy & intellectual propertyPrivate platform actors regulate much activity on the Internet, including a durable and intense interaction with their users. Also often dominant in their respective service offerings • e.g. Google, Microsoft, Facebook, Amazon, Apple No other private actors (utility companies or car manufacturers) • has this intense a relationship with users/consumers.

PROSUMER LAW AND POLICY FOR ONLINE INTERMEDIARIES: TOWARDS A BEHAVIOURAL SOLUTIONA decade into the Web2.0 era • intermediaries are extraordinarily powerful gatekeepers • broadband social media advertising-dominated Internet • that is now a ubiquitous presence in wealthy lifestyles These include dominant operators in: • search (Google), operating systems (Microsoft, Android), • media (Apple iTunes, YouTube), • social networking (Facebook), • photo sharing (Instagram and Snapchat), • chat (Skype and WhatsApp), • commerce (eBay and Amazon).

These companies dominate their respective sectors.

USERS ARE ALSO PRODUCERS, HENCE TERMED PROSUMERS (TOFLER 1980)

We rely on these platforms • to process personal data fairly and securely. Regulatory responses are finally emerging driven by • both data protection & competition concerns Over-arching need: greater neutrality of intermediaries Limited to last mile monopolists & mobile oligopolists, • legacy telecoms providing Internet access

PARTICULARLY AS INFORMATION TECHNOLOGY IS A GENERAL PURPOSE TECHNOLOGY (GPT)

#DIESELGATE

FINANCIAL SERVICES

PLATFORMS RAISE SIGNIFICANT PUBLIC INTEREST REGULATION QUESTIONSPrivate platforms are providing what amount to mass communications services, • in other eras (e.g. broadcasting) • Platforms were tightly regulated for the public good Competition law and general data protection concerns, • while applicable, are recognised as providing • insufficient public interest regulation for platforms

WHAT WE NEED IS A COMPREHENSIVE PROSUMER LAW SOLUTION

Draws on • fundamental human rights to

• privacy and free expression, • competition, and • technology regulation • to ensure a fair and neutral

deal for prosumers

MARSDEN AND BROWN (2013) COMPREHENSIVE SOLUTIONCase studies examined: • search, social networking, Internet access, EU/US competition

and data protection The interdisciplinary mixed method used contains • primary and secondary literature analysis and case analysis

(both regulatory and judicial, where relevant), • qualitative empirical interviews with leading stakeholders and • both economic and engineering quantitative data analysis. Law, computer science and economics interdisciplinary analysis to explore a comprehensive policy solution to intermediary liability.

INTERNET FAST-MOVING LIKE FINANCEWhy are we surprised?Finance is the simultaneous global transfer of trillions of bits of dataWe choose value this data as ‘money’• Options, derivatives, Credit Default Swaps• All enabled by Internet trading

STRAIGHT SHALLOW CABLES ENABLE MICROSECOND FASTER TRANSFERS

SURVEILLANCE: INTERNET NOT SO INNOCENT

INTERNET SELF- AND CO-REGULATION

IT’S ALWAYS ‘SAME-SAME BUT DIFFERENT’

NEW ‘SAME SAME’

NEW ‘DIFFERENT’

.TK FREE DOMAIN NAMES FOR THE WORLD

CO-REGULATION?Government has enabling legislation to put regulation in place but chooses to forbearExample: Nominet (UK Digital Economy Act 2010 amending Communications Act 2003)But: Authority for Television on Demand

• Set up as self-regulatory Association 2003• Authority in 2010 DEA implementing 2007 AVMS

(2010/13/EU)• Abolished in 2016 – functions integrated into Ofcom

BEREC & NET NEUTRALITY