Recommended reading, 7-13 February 2013

News, blog posts, etc

European Commission, ‘EU Cybersecurity plan to protect open internet and online freedom and opportunity‘ (press release, 7 February 2013).  Marking the release of a new strategy and proposed Directive (download both of them here) on this topic.  The interesting bit about this is how it’s framed – legally speaking it’s an internal market measure (not crime!); strategically, it follows up on the many comments about ‘trust’ in the Digital Agenda documents of the last couple of years.  While most of the operative provisions of the Directive are about national authorities for infrastructure and cooperation between them, there is an interesting (proposed) obligation for member states to regulate ‘market operators’ in terms of security and also notification of breaches.  (Incidentally, is this category of ‘market operator’ a new one?  It has two sub-categories – information society services ‘which enable the provision of other’ ISSes (examples in an Annex are cloud computing platforms, app stores, search engines, social networks), and operators of certain types of critical infrastructure.  Art 14 doesn’t apply, in essence, to telephone/mobile/broadband providers, because the electronic communications directives already occupy the field.  (It also doesn’t apply to certain players in the much-maligned electronic signatures field – although I read that exclusion as being broader than those entities contemplated in the 1999 Directive).  (The ‘open internet’ etc language of the strategy and press release is slightly overstated, I think).

John Brodkin, ‘Wi-Fi “as free as air”—the totally false story that refuses to die‘ (Ars Technica 8 February 2013). This is most curious. The (interesting and potentially significant) work of the FCC on what to do with UHF ‘white spaces’ – spectrum formerly used or left as a buffer for TV broadcasting but becoming available for other uses – has been of interest in IT law for some years now.  Then seemingly from nowhere, a normal development in the regulatory process became the basis for an article about free wifi.  This is not to say that white spaces and Internet access are unconnected; clearly, it’s one of the reasons that people beyond spectrum gurus talk about it.  (I wrote about it in passing in this 2009 article, in section 5.5).  But the licensing process does not deliver a free service by any means (even if, as is being discussed, the regulatory model would not include a license fee for spectrum use).  Nor has anything particularly interesting happened in recent weeks – as Brodkin’s deconstruction points out, the interesting stuff either happened a few years ago (when the opening up started) or will happen in the future (if new services are launched).

Simon Fodden, ‘Edwin Mellen Press’s Curious Case‘ (Slaw 10 February 2013).  A comment, with plenty of links, on the developing (and worrying) story about the huge defamation claim (the applicant seeks the equivalent of over £2m!) against a librarian (who wrote some quite critical things about a publisher, informed by his knowledge of the field) and his university employer.  I would certainly not have anything to do with this publisher as a result of its actions in this case (whatever about the underlying allegations themselves!).

Alexander Hanff, ‘The murky world of privacy advocacy‘ (10 February 2013). A new blog and a rollicking start, with a detailed analysis of corporate funding for tech-related NGOs. It’s about time. Given the field I’m working in, I’ve seen quite a few of these organisations (and indeed, their close cousins, the consultant reinventing themselves as an NGO/think-tank with no membership, no membership and often nothing to add). I think the post by Hanff demonstrates a very honest attempt to understand the weaknesses of the lobbying system and reminds us all to think about the motives as well as the contents of interventions.

Virtual currency and virtual property revisited‘ (Technollama 11 February 2013). An overview of recent developments on virtual £££ and IP and other things, prompted by a piece in Forbes which mostly about virtual property). See also this nice PBS video on Bitcoin, etc.

Academic articles

Nina Mendelson, ‘Should Mass Comments Count?’ (2012) 2 Michigan Journal of Environmental & Administrative Law 173 (SSRN). This is a response to the author’s earlier work (and a debate about it), but reading the article covers much of what before quite neatly.  The issue is a controversial one – how, when public consultation happens, to deal with different forms of participation (particularly one-click or template methods).

Michael O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34′ (2012) 12 Human Rights Law Review 627-654 (£, link).  The author of this article was the rapporteur work on this General Comment and discusses the comment as well as some of the cases and stories it relied upon.  Watch out for the interesting discussion of article 19 and emerging technology, too.

E Tarantino, ‘A simple model of vertical search engines foreclosure’ (2013) 37 Telecommunications Policy 1 (£, link).  The new volume of this journal (mix of law, business, economics, etc) starts off with one of the topics of the year, competition law and search engines.

Health Nazis and Nicole Ritchie

When I teach about the regulation of ‘standards’ in broadcasting, I tend to start with ‘that’ clip from the Super Bowl in 2004.  Over time, fewer know from the start how it’s going to end, but for me, it’s turning into the case that will always be with us!  I suppose for some, it’s our version of George Carlin’s Seven Dirty Words (although give me Carlin any day).  But this week, there have been two important developments, in the US and the UK, that do move these debates on a little.  (The actual Super Bowl case, which is CBS v FCC, is itself still on the go, and will certainly be affected by one of this week’s decisions).

Starting closer to home, though,(and with much less discussion as far as I’ve found) we have the High Court decision in Gaunt v Ofcom [2010] EWHC 1756 (QB).  This decision has (to use a cliché) been ‘eagerly awaited’ by those interested in media regulation as well as free speech issues in general.  Jon Gaunt, then of TalkSport, brought the case (with the support of Liberty), to challenge an adverse finding of Ofcom under the Communications Act 2003 and the Broadcasting Code regarding Gaunt’s interview with Redbridge councillor Michael Stark (or as Gaunt put it, a ‘Nazi’ or a ‘health Nazi’).  The challenge wasn’t to the Code, but to the decision regarding Gaunt (who was able to establish standing, although the original decision was – in formal terms – directed at TalkSport as the responsible broadcaster), and the basis for the challenge was article 10 of the European Convention on Human Rights, through the UK’s Human Rights Act.  Indeed, a wide range of ECHR decisions were presented, particularly on Gaunt’s side.  Ofcom’s argument included the special position of broadcasting, the regulatory role of Ofcom which takes Convention rights into account, and an attempt to relocate the debate away from political speech territory due to the gratuitous abuse that Gaunt was said to have been delivering.  The actual discussion by the court is very short, and while it is accepted that article 10 has a role to play (key phrase: ‘we regard “generally accepted standards” in this context as elusive, and the concept of harmful and/or offensive material needs to be moderated in the light of Article 10 and the domestic and Strasbourg case law‘) and that the Court needs to engage in its own analysis of the matter, there is ultimately no problem: ‘the essential point is that, the offensive and abusive nature of the broadcast was gratuitous, having no factual content or justification‘.

Now on one hand, it was somewhat encouraging to see that the High Court would have a chance to say something about broadcast regulation.  In that context, it’s fair enough that some (such as the comprehensive Media Blog) would see the decision as ultimately supportive of the British approach to impartiality.  I’m not sure that I’m seeing this, though (and I do have good things to say about impartiality regulation in the licensed broadcast sector) – there is not very much in the operative parts of the judgement regarding broader principles, and in the end it seems that the issue was a failure to persuade the court of the value of the speech, rather than a principle regarding the role of regulation that will affect other areas.  Within those terms, then, the decision remains unfulfilling, as the disposition makes little attempt to engage with the Strasbourg jurisprudence discussed in earlier paragraphs, and introduces what seems like a new sort of test for what is political speech without really explaining the distinction between political and other speech.  Some reports hail the definition of some of Gaunt’s comments as political as some sort of victory for him.  I disagree – this is not much of a victory, and the test remains unclear in any event.

Anyway, over to the wonderful world of the FCC, where the decision in FCC v Fox (PDF) does appear to have something very important to say about broadcast regulation and the ongoing life of the 1978 Pacifica decision, FCC v Pacifica 438 US 726, about those seven words mentioned in the introduction to this post. This case has already been up to the Supreme Court (coverage here), which found in favour of the FCC on the administrative law ground, but sent the matter back down without resolving the First Amendment issue.  It’s a challenge to a series of FCC decisions regarding the broadcast of one-off dangerous words such as shit (as uttered by the Ms. Ritchie of this blog’s title).  This week’s decision is thus the First Amendment one, and the answer is that the court favours the Fox position and finds the FCC’s current policy on ‘fleeting expletives’ being indecent (and profane too, don’t you know?)  unconstitutional on the grounds of its vagueness, with some further comments on the chilling effect of the FCC’s approach.  The latter section is loaded with examples and is extremely well argued, concluding that “sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War [and] the digestive system and excretion are also important areas of human attention [...] to place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment“.

One point of note  is that the Court would (if it could) depart from Pacifica and apply strict scrutiny to broadcast television.  This is well-reported – but not the reasons for such, which rely in great part on the existence of the V-chip.  This does sting a little – I think that there are problems with Pacifica, but the existence of this stupid required technology (most brilliantly parodied in the South Park movie) as the cause for such feels a little strange.  There’s also some very revealing phrasing from the head of the FCC as quoted in the New York Times: the agency will be “reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment”.  Interesting order of commitments there.  But generally speaking, a big change in the regulation debate in the US, which is more than we can say for the UK after the Gaunt case.

BILETA 2008 : Net Neutrality

Chris Marsden (Essex) is an expert on net neutrality in Europe (and other things); see his SCRIPT-ed article on the topic here. And that’s also his topic for this morning’s keynote. Oh, and and it rained lots aréir but it’s quite mild this morning.

This presentation : It’s about convergence, it’s different in Europe, it’s “politics not economics” and it’s not going away.

Convergence – but this isn’t new, the arguments have been seen in the 1950s (spectrum use), 1970s/80s (cable), 1990s (satellite – in particular Sky and football), 2000s (mobile) – and now Internet.

In the US – monopoly power (see Madison River / Vonage case); it’s a result of the Telecoms Act 1996 and the Trinko and BrandX decisions (which means that all networks are, for FCC purposes, ‘information services’ and therefore not common carriers). Should ‘common carriage’ be reintroduced? He mentioned the papers by Lemley & Lessig, Tim Wu’s arguments, the opposition (from techies, economists and lawyers), and the fun times at the FCC hearing in Harvard this year.

Europe is different, though, because of local loop unbundling, control of significant market power, and there is in fact a trend towards *more* regulation (e.g. roaming, reforms to the electronic communications directives). Also, the ‘content’ is different (in the US, it’s often “a commercial dispute hidden as a freedom (or fr’dom) argument”), whereas Europe has EPG regulation, ‘must carry’, etc. We even have the BBC iPlayer – the ‘death star’ for ADSL networks. What if it’s not VOIP that’s being blocked, but Eastenders? UK consumers are paying for broadband, licence fee, Sky subscription…

Japan, now, is an interesting example – net neutrality is in place, and there’s a privileged role for consumer protection in the legal framework; there are incentives to roll out high-speed (e.g. incumbent NT&T can do so without regulation for a ‘holiday’ period).

The lobbies are the networks (trying to protect investment, not to mention the need to ensure quality of service) vs the content providers (who don’t want to be charged). But the networks *are* actually blocking things like BitTorrent (under the headings of traffic management, antivirus,etc) while advertising unlimited access. And the content providers (like the BBC telling users to lobby their ISPs to switch on simulcasting!) are having a free ride, especially for video and P2P.

Also, the interaction between filtering and net neutrality, which has lots of unforseen possible consequences. And there are issues with competition law, and what of BT which has a dominant position?

Chris also spoke about Phorm, a very interesting yet terrifying ‘adware’ system at the ISP level (“Google on steroids, or Big Brother incarnate”) (couple of links here) – is it even legal? He wondered, though, if Phorm is the response to net neutrality, i.e. if the telco can’t make money through NN, can they make it through something like Phorm?

We also heard a little about ‘end to end’ and other such pronouncements; how much innovation happens “at the edge” in reality? And a related question is on what basis filtering can actually be allowed…

The conclusion looked at DRM, privacy, blocking, hate speech and even the AVMS Directive. The legal provisions, aside from the directive, include the electronic communicaitons directive, the IS Security Framework Agreement, the E-Commerce Directive and more – which taken together mean greater intervention by ISPs in what goes through its network. The regulators are passing the buck – we are going in circles. “They’re all a bunch of tubes”.