ICTlogy

Communications on Government and Regulatory Policies
Chairs: Agustí Cerrillo Martínez, Senior Lecturer and Dean of the School of Law and Political Science of the Universitat Oberta de Catalunya (UOC).

Guiding Principles for Online Copyright Enforcement.
Andrew McDiarmid, Senior Policy Analyst, Center for Democracy & Technology, Washington, DC (USA); David Sohn, General Counsel, Center for Democracy & Technology (USA).

Since the 2008, in the US there has been a pro-intellectual property regulation process, establishing the IP enforcement coordinator and increasing the resources for government enforcement. Principles for a balanced copyright enforcement:

• Target true bad actors.
• Preserve safe harbours.
• Study the costs and benefits.
• Voluntary initiatives must respect consumer interests.
• Set realistic goals.
• Education and lawful options are essential.

Domain Name-focused enforcement is a blunt instrument: entire sites are affected, including other sites. There are workarounds and it violates safe harbour cases. There is a harm to free expression due to overbreadth. There are risks of evasion.

Internet Co-Regulation and Constitutionalism.
Christopher T. Marsden, Director of the Essex Centre for Comparative and European Law. Senior Lecturer, Essex School of Law (UK).

Regulation:

• Statute backed code, appointed by the Government. Threat of regulatory intervention.
• Approved code, regulated by an independent body. Treat of sanctions.
• Industry code, set by the industry associates. Industry self-interest.
• Unilateral code, set by service providers. Individual self-interest.

Co-regulation (the independent body’s) is more interesting than statutory regulation or self (industry & unilateral) regulation, which are, notwithstanding, the ones that are more common.

Co-regulation says that civil society, the people, should have a formal role in it: multistakeholder-isation, it is a process and not a static model, e.g. the ICANN. This is yet to be enforced by governments and courts.

We need movement towards formal recognition and formalisation of co-regulation: Legislation 2.0

Electronic Democracy, Internet and Governance. A concretion.
Fernando Galindo Ayuda, Catedrático de Filosofía del Derecho, Universidad de Zaragoza.

Access to information: conscious participation of citizens over a specific matter. Governance as politics: the art of ruling in the pursuit of public well-being. The Internet is certainly boosting communication, but is it fostering democracy?

• Electronic Government Observatory
• Portal de e-governo, inclusão digital e sociedade do conhecimento

Reviving privacy: the opportunity of cyber-security.
Maria Grazia Porcedda, Research assistant, Department of Law, European University Institute, Florence (Italy).

What is cybercrime?

• Crimes against availability, integrity and confidentiality of computer systems: illegal access and hacking, illegal interception, data interference (malware, botnets, trojans), system interference (DoS, DDoS).
• Computer related: forgery, fraud.
• Content-related crimes: child pornography.
• Copyright infringement.

There are different notions of security and privacy, depending on where the weight is put between privacy and security and what is the approach towards cybercrime. But we can integrate de facto security and privacy. Cybersecurity is about protecting privacy, both by passive measures taken by educated users and by active measures against cybercrime.

PIPA, SOPA, OPEN — The end of piracy or privacy?
László Németh, PhD Student, Institute of Comparative Law, Faculty of Law, University of Szeged (Hungary).

PIPA and SOPA are similar in many ways: against foreign (rogue) sites, domain name seizure, in personam, in rem action, presumption of guilt, voluntary action, etc.

PIPA and SOPA have raised concerns, objections and even protests.

The OPEN act demands the web to be kept open.

We surely now need new global treaties (WIPO, WTO), and in the makings of these treaties the users should be asked for their opinion. Of course, one of the problems of “asking the users” is how to find valid interlocutors. The website KeepTheWebOpen.com includes the feature of commenting on the OPEN Act.

Christopher T. Marsden, Communications Law Prof, University of Essex, UK
Network Neutrality: European Law?

Common carriage is fair reasonable and non-discriminatory treatment of content whatever its nature. Eli M. Noam predicted in 1994 the end of common carriage, though the debate is much older. Every time there has been a debate on monopolies on the “carrying” nature of some specific infrastructures, the debate on common carriage has rised: inns and boats, railways, telegraphs, then modern networks, etc.

Network neutrality debate began as we know it in 1999 due to mergers of cable TV and broadband companies, and sparkled by Lessig and Lemley FCC submission The end of End-to-End.

Internet, as an open network, was regulated by common carriage, and some general rights were granted to it to avoid discrimination:

• Interoperability
• Interconnection
• Privacy
• Interception

There actually are a number of actual and considered practices that are about to — or already have — cross the red line of net neutrality, like different tariffs according to usage, different speeds, etc.

So far we have a Net Neutrality ‘lite’, with some decisions in Canada, the US or Europe, with ‘non-discrimination’ presumption subject to national security, law enforcement, public safety, etc. and a ‘reasonable network management’. And we will negotiate Net Neutrality ‘heavy’ about different speed rates, special and managed services, etc.

The problem with the many backdoors that the exceptions add to ISP regulation imply, in practical terms, that there are many possibilities for ISPs not to be neutral at all.

Presently, Chile (2010), Finland (2010) and the Netherlands (2011) have issued Net Neutrality specific laws, while Canada and Norway are on their way to it.

In Europe, we had a declaration to protect Net Neutrality and no will to implement nothing but just delaying it forever (despite officially being a debate and a formal proposal for a directive).

Discussion

Q: What can policy-makers do? A: The ECOSOC is actually doing research on Net Neutrality. Civil society is also working hard, as it did at the OECD high-level meeting on net neutrality. There has to be a serious negotiation, especially in matters as censorship and what is the acceptable level of censorship that we want.

More information

• Neutralidad de la Red: Historia, regulación y futuro, by Christopher Thomas Marsden.