1. Regulating Code
Good Governance and Better Regulation in
the Information Age (MIT Press)
Ian Brown (Oxford)
Chris Marsden (Sussex)
@IanBrownOII
#RegulatingCode

2. John Perry Barlow
A Declaration of the
Independence of Cyberspace
(1996)
response to CDA 1996
(partly struck down in Reno v. ACLU 1997)
‘Governments of the
Industrial World, you weary
giants of flesh and steel, I
come from Cyberspace,
the new home of the Mind.
On behalf of the future, I
ask you of the past to
leave us alone. You are not
welcome among us. You
have no sovereignty where
we gather.’

3. Regulation and governance
 Internet use now ubiquitous
◦ but governments, legislators and regulatory
agencies falling further behind rapidly
changing Internet technologies and uses
 Critical analysis of regulatory shaping of
―code‖ or technological environment
◦ ‗Code is law‘ and coders operate within
normative framework
◦ More economically efficient and socially just
regulation
◦ Critical socio-technical and socio-legal
approach

4. Literature
 Previous legal focus on elephant‘s
trunk?
◦ Benkler, Wu, Lessig, Zittrain, Van
Schewick
◦ General US scepticism of govt action
 Ohm‘s Myth of the Super-User
 More empirical view: Mueller (2010),
De Nardis (2009)
◦ Institutional economics and political
science

5. Prosumers not super-users
 Web 2.0 and related tools make for
active users, not passive consumers
 United States administrative and
academic arguments for self-
regulation may work for geeks, but
what about the other 99%?
 European regulatory space is more
fertile ground to explore prosumerism
as both a market-based and citizen-
oriented regulatory tool

6. Empirical investigation
 Five case studies and one ‗prior art‘
(encryption, anonymity, security)
◦ Multi-year empirical investigation
◦ Builds on various EC/other studies including
 ‗Self-regulation.info‘ (2001-4), ‗Co-regulation‘ (2006-
8), ‗Towards a Future Internet‘ (2008-10), ‗Privacy
Value Networks‘ (2008-11), ‗Network neutrality‘
(2007-10) ‗Internet science‘ (2012-15)
 Reassesses prior art in view of ‗hard
cases‘
◦ Topics with no organised regulation/self-
regulation
◦ Due to lack of consensus over solutions

7. Five case study chapters
1. Data protection
◦ Enforcement failures, Privacy by Design
2. Copyright
◦ Capture of law by lobbyists, code solutions
outflank
3. Filtering
◦ Growth of censorship, surprising degree of
freedom – disappearing?
4. Social Networks
◦ Dominance, network effects, corporate social
irresponsibility
5. Smart Pipes
◦ Net neutrality argument, DPI deployment

8. Towards interoperability as
prosumer law
 Solution in favour of prosumers and
competition:
◦ enhance the competitive production of
public goods
◦ including innovation, public safety, and
fundamental democratic rights
 Key aspect: interoperability (incl.
FRAND)
◦ (Note: this is detailed software
interoperability, not the general
description offered by Gasser/Paltrey
2012)

9. 50 ways to leave Facebook
 Not sufficient to permit data deletion
◦ as that only covers the user‘s tracks.
 Interconnection and interoperability,
◦ more than transparency and
◦ theoretical possibility to switch.
 Ability for prosumers to interoperate to
permit exit
◦ Lower entry barriers tend to lead to increased
consumer welfare

10. Kroes‘ promise post-Microsoft
 Will ―seriously explore
all options to ensure
that significant market
players cannot just
choose to deny
interoperability.
 ―The Commission
should not need to
run an epic antitrust
case every time
software lacks
interoperability.‖

11. Euro-Interoperability
Framework
 Response to multi-€bn competition
cases:
◦ Microsoft saga (to 2009), Intel (2009), Apple
(2010), Rambus (2009)
◦ Google (2013?) perhaps Facebook....
◦ Coates (2011: Chapters 5-6)
 Announced by Information Society
Commissioner Neelie Kroes in 2009-
2010
 Bias in favour of interoperability in policy
 Concerns are broader than competition
◦ Include privacy, IPR, security, fundamental

12. Mandated choice
 Microsoft fined
€561m for ‗browser
choice‘ ―error‖ –
expensive line of
code
 Sky EPG carries
terrestrial channels
on 101-105 due to
―must carry‖ and
―due prominence‖
AVMSD

13. Do Not Track
 ―I think it‘s right to think about shutting
down the process and saying we just
can‘t agree. We gave it the old college
try. But sometimes you can‘t reach a
negotiated deal.‖ –DNT member
Jonathan Meyer

14.  Competition
investigation both sides
of Atlantic since 2010:
◦ Settled with US
authorities 3 Jan 2013
◦ Settlement proposal to EC
1 Feb 2013
 Experts have severely
criticized timing and
content of FTC
settlement
 Grimmelman argued: ―If
the final FTC statement
had been any more
favourable to Google, I‘d
be checking the file
metadata to see whether
Google wrote it.‖
Google FTC and EC cases
Source: Google proposal leaked to SearchEngineLand, 25/4/13

15. Amazon and Kindle
 ―[N]ot only booksellers…but publishers and agents
too run the risk of being excluded due to Amazon‘s
wish to be a book retailer and publisher, and its
aggressive plans to vertically integrate‖
 Amazon.co.uk ―responsible for 95% of [UK] e-book
purchases…92% of the 1.3 million e-readers sold in
the UK before Christmas were Kindles‖
 ―[F]rom data mining [Amazon] know[s] what its
customers buy, when they buy it, what books they
actually read on their Kindles and even which books
are not read in full‖
Tim Godfray (Chief Executive of Booksellers’
Association UK & Ireland), London Book Fair, 15/4/13

16. Regulating Kindle
 ―Having such a dominant position enables Amazon to
put huge pressure on individual publishers for higher
trade discounts to be given, enabling it to sell books at
much lower prices than competing booksellers.‖
 ―Most Kindle customers—unless they are very tech
savvy—end up buying their e-books from Amazon‘s
Kindle store‖ – Mandated choice of e-bookstore, and
interoperable stores
 ―EPUB3 has just been approved by the International
Publishers Association as the new standard format for
e-books. We believe that steps should be taken to
ensure that in the future all e-book retailers—including
Amazon—should support EPUB3, so that consumers
can read any e-book on any device and are not locked
in to any proprietary system.‖

17. Tor and DRM
 ―[W]e felt a strong sense that the reading
experience for this tech-savvy, multi-device
owning readership was being inhibited by
DRM, leaving our readers unable to
reasonably and legally transfer ebook files
between all the devices they had.‖
 ―DRM-protected titles are still subject to
piracy, and we believe a great majority of
readers are just as against piracy as
publishers are... As it is, we‘ve seen no
discernible increase in piracy on any of our
titles, despite them being DRM-free for nearly
a year.‖ –Julie Crisp, UK Editorial Director

18. Economics and Human
Rights
 Interoperability linked to open data, open code,
and arguably to human rights
 Blizzard of Internet governance principles in
2011:
◦ origins in law and economics,
◦ or human rights, but
◦ apparently do not translate one to the other
 This apparent dialogue of the deaf is a
competition policy (Brown and Waelde 2005),
and corporate governance problem
 Urgent task: dialogue between previous discrete expert
fields
◦ ICT growth driver and transformative technology
◦ Equally transformative role in human communication
and dialogue.

19. Developing study of code
regulation
 Similarities and cross-over with
◦ complexity science
◦ network science
◦ web science/graph theory
 Match Internet regulation to complexity theory
◦ Longstaff (2003), Cherry (2008),
Schneider/Bauer (2007)
 Network science fusion of scientific/
fundamental elements from various
components
 Internet Science? EC Network of Excellence

20. Questions?
 Book published
March 2013
 ‗Prosumer law‘
article (early
version now on
SSRN)
 Comments
welcome!

21. Test the existing ‗received
truths‘
1. Self-regulation and minimal state
involvement is most efficient in dynamic
innovative industries;
◦ technology is never neutral in societal impact
◦ network and scale effects drive massive
concentration
2. Self-regulation critically lacks constitutional
checks and balances for the private citizen,
including appeal
3. Multi-stakeholder co-regulation chance to
reconcile the market failures and
constitutional legitimacy failures in self-
regulation
◦ voters will not allow governments to ignore the
Internet.

22. Approach embraces
complexity
 No easy examples that demonstrate the
'truth' of
◦ technical, political, legal or economic solutions
◦ based on self-, co- or state regulatory
approaches.
◦ Cf. Mansell (2012) Imagining the Internet
 Examine the deficiencies and benefits
◦ Match market and social developments
◦ With human rights concerns
◦ E.g. In fields of privacy and freedom of
expression
 Note: analysis based on Article 19 UDHR not 1st
Amendment
 Most of world uses variants of Article 19

23. Government and market
failure
 Industry capture of regulators and
legislators,
 Incumbents protect/introduce new
barriers to entry
 Continued exclusion of wider civil society
from the policy discussion – but
◦ tenuous chain of accountability of
participants to voters, shareholders and NGO
stakeholders.
◦ effectiveness, accountability and legitimacy
of these groups in representing the public
interest?

24. What regulation teaches about
code
 Ex ante and ex post intervention
 Interoperability and open code/data -
procurement
 A biased policy towards open code –
◦ Data open to mash-ups (govt)
◦ Systems interoperable (procurement)
◦ Use of alternatives to market leader (e.g.
Linux)

25. Prosumer law suggests a more
directed intervention
 Example:
 proposed solution to the problems of
dominant social networking sites,
 to prevent Facebook, Google+ or any
other network
 from erecting a fence around its piece
of the information commons:
 to ensure interoperability with open
standards.