Internet Governance Is It Time for Comprehensive Regulation?

Internet Governance

Is It Time for Comprehensive Regulation?

Historical Picture

• 18th – 19th Century– Agricultural Age

• 19th-20th Century– Industrial Age

• 20th-21 Century– Information Age

Overview of Market-Government Relations

• 18th century colonial society highly regulated by Britain: – Significant factor in the revolution and the

development of a laissez-faire ideology• 19th century opened up free market society– Especially after the Civil War and the end of slavery

• 20th century pendulum swing marking the degrees of regulation to cabin excesses and maintain social order of industrial capitalism

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 industry’s 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

…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 …

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

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.

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 …

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”).

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.

Which Is the Departmental Home of

• The National Cyber Security Division– which works collaboratively with public, private

and international entities to secure cyberspace and America’s cyber assets.

But is still not the Office of the White House Cyber Security Coordinator,

(U.S. “Cyberczar.”)

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?

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?

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

Fair Information Practices• Notice—data subjects should be given notice when their data is being

collected;• Purpose—data should only be used for the purpose stated and not for

any other purposes;• Consent—data should not be disclosed without the data subject’s

consent;• Security—collected data should be kept secure from any potential abuses;• Disclosure—data subjects should be informed as to who is collecting their

data;• Access—data subjects should be allowed to access their data and make

corrections to any inaccurate data; • Accountability—data subjects should have a method available to them to

hold data collectors accountable for following the above principles.

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!

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

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.

Contemporary Developments

• Digital Due Process– Revise E.C.P.A.

• http://www.digitaldueprocess.org/index.cfm?objectid=37940370-2551-11DF-8E02000C296BA163

• http://www.youtube.com/watch?v=AYYjr3XNaGs

• Communications Law to be Reviewed– NYT, May 24, – Telecommunication Act

Who will harmonize federal law?

Intellectual Property

• Why is it important?– It (copyright, patent, trademark) has always been

important as part of the fabric of a free market society.• That’s 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.

And because …

Whoever controls the content effectively controls the Internet.

Intellectual Property …

Is about who and how to control resources in the information age.

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.

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.

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

Microsoft’s corporate and product hegemony.

Real Question

Why didn’t Microsoft bear any financial responsibility for flagrantly insecure software

to users?

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

Who has the charter to frame theses questions for American society and for the United State’s

place in a global economy?

Who does, effectively?

Who should, ideally?

Internet Public PolicyCirca 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– Google’s rise softened concern over Microsoft’s

market control

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?

Google

• “Google is ‘the arbiter of every single thing on the Web, and it favors its properties over everyone else’s’.”

– 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 …

Search

“Today, search engines like Google, Yahoo and Microsoft’s new Bing have become the Internet’s 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

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?

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!

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 don’t … you set rules to cabin it.

– How do we square such rules with First Amendment principles and jurisprudence?

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

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!

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?

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

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.