Early thoughts on Leveson 2 of 4 – the Internet!

This is one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.

There was much discussion on whether Leveson would make recommendations regarding Internet regulation.  There’s a decent discussion of Web issues in the report, and brief mentions of the system for regulating video-on-demand (discussed a bit more below), but in terms of recommendations there is not much there.  Of course, the remit was the press, and indeed there will be some who express relief regarding the lack of recommendations in this regard.  The proposed regulatory system would be open to participation by websites (as I read it) and that is sensible.  (There is a discussion of a ‘de minimis’ approach to required/encouraged participation, which would be particularly important in this context).  However it will be interesting to see whether further work on taking forward that discussion (e.g. on intermediaries, on dissemination through social networking sites, etc) will now be appropriate, i.e. outside of the Leveson process.  In my view, one outcome of the process was a lot of evidence on how different service providers governed their services (and thus their users), as well as issues raised about the application and enforcement of existing law.  On balance it was probably right to stay away from specific recommendations, but it would be sad to see that effort go to waste (the problems will not go away).

On demarcation, it is recommended that services within the scope of the Broadcasting Code or the ATVOD system would not be within the scope of the proposed press body (p. 1791).  This is interesting, although since the Ofcom finding that the Sun’s video content did not constitute (for the purposes of VOD regulation) an on-demand audiovisual media service, and ATVOD’s subsequent withdrawal of actions against (broadly speaking) other newspaper websites, the potential for overlap is significantly reduced.  I raised an eyebrow at the idea on the same page that the criterion for regulation of on-demand services (that they are ‘TV-like’) applied by ATVOD and Ofcom (but following the language of the AVMS Directive) could help to define ‘press-like’ in the context of press regulation.  I still harbour doubts about the sustainability of the TV-like definition (not least because, when you put all the defined terms together, one goes around in circles), so I hope the press body, if it is created, has a strong pot of coffee for figuring it out.

By the way, at p. 166 (discussing on-demand services and the designation of ATVOD by Ofcom), the report argues that “protections similar to that applied to broadcast content are applied to that same or similar content when made available online.” In this case, I disagree.  Aside from the procedural differences in licensing (which don’t tell us about protections, really), or sanctions (which might), the content standards are radically different.  ATVOD applies a much smaller set of regulatory requirements (identification, incitement to hatred, protection of minors and some controls on commercial promotion) than Ofcom does.  Think for example of the EU-required higher level of protection of children or on advertising which applies to ‘linear’ content only, not to mention the many requirements of UK law (which apply to all broadcasters, not just the public service ones) on due impartiality, on fairness and privacy, and much, much more.

I think that the discussion on intermediaries (p. 178) will require further thought – it cites article 15 ECD as the regulatory framework, which doesn’t quite concur with how I read the Directive, but no conclusions are drawn in any event.  (There is a much better explanation of the issue, including the issues raised in Tamiz, at p. 1900)

Finally, there is a neat framing of the Internet as an ethical vacuum (page 736) – the report is careful in pointing out that this is not intended to impugn the ethical standards of individual bloggers etc, and that the point is to demonstrate that the Internet does not make a claim as to standards.  Nonetheless I think attributing an ethical concept to ‘the Internet’ does not get us very far; I think the class is too big to make sense. There may also be useful ethical models associated with online communication which might, I dare to say, be useful for the press!

Sorry, two other things.  There is what might be interpreted as praise for Google’s approach to privacy (p. 168).  I’d imagine this will be controversial in some eyes.  But not much is made of it.  And there is a quirky mention of, of all things, ICANN (not further developed) (p. 166)!

COICA

I’ve signed on to a ‘Professors’ Letter’ regarding the Combatting Online Infringements and Counterfeits Bill (COICA), legislation about to be debated in the US Congress. This post is a brief explanation of my approach to this issue and why I signed the letter. You can read its full text here.

The first point is that I am concerned about the impact on the legislation on the regulation of the Internet. The approach proposed in the Bill is very different to that adopted in the US, or indeed in many other jurisdictions, and it’s not appropriate for this major leap to be made without proper scrutiny, if at all. The Bill would allow actions to be brought against ‘domain names’ (at least), including both registrars and registries, where a website is ‘dedicated to infringing activities’, i.e. alleged copyright and trademark violations. This is a complete change to the purpose and operation of the domain name system. If it wasn’t so serious, it would be amusing after years of the US government arguing against over-regulation and international control of ICANN. The method of doing this is messy too, as domain names are very frequently shared between multiple uses, meaning that one action would unavoidably prevent access to unrelated materials. We’ve already seen some actions against domain names in the US – and indeed, the practice is growing in the UK, even with quite informal approaches as in the Fitwatch issue highlighted this week. This legislation would take this and go many steps beyond, all at once.

Of course, as the letter points out, websites from around the world use registrars or registries in the US – particularly for generic top-level domains like .com. Although there is a limitation to situations where the site ‘conducts business directed’ to the US, we know well that the threshold for direction can be quite easy – and remind me of this the next time a legislature in the US passes a ‘Libel Terrorism’ statute. In practice, this statute will affect websites and service providers the world over, and so it’s important that a genuinely international response be heard. I often receive requests or circulars about amicus briefs, joint letters and so on, but while many are interesting, I’m reluctant to intervene in a situation of US law where I don’t know enough details and the influence of foreign scholars is meaningless or indeed counterproductive. This is my second point: a unilateral step of this nature will affect Internet activities far beyond the US. And so, the letter includes signatures from UK-based scholars, including Konstantinos Komaitis at Strathclyde, and other jurisdictions too, such as Kim Wetherall at Queensland and Cedric Manara at EDHEC in France.

My final point is the quality of the argument and why this type of response is so desperately needed. The letter has been drafted by David Post, a professor at Temple University in Philadelphia, known to many readers as one of the first ‘cyberlaw’ scholars and – more recently – author of the fabulous In Search Of Jefferson’s Moose. There are situations where I would depart from Post’s published views on this question or that, and I tend to set a high bar before I put my name to a letter I support part but not all of, but in this case the letter sets out a straightforward, persuasive, well-researched, and very reasonable explanation as to the very serious problems with COICA, and I am just as concerned about the problem as he is. I hope that the letter will be taken seriously – it might not be obvious to some, but the range of views on Internet law covered by the signatories is very broad (i.e. it’s not ‘just’ a particular group of cyberlibertarians, far from it), and this issue deserves far more attention than it is getting.

Now that I’ve tried to talk to you and make you understand

I’m very pleased to note the publication of my article on ICANN and its struggles with internationalised domain names and top-level domains.  It has been in the works for quite some time, and includes what I think is a fairly novel approach to the relationship between law, language and technology in the ‘offline’ world.  Please do download it and contribute your own comments!  It appears to be available without a login through ‘advance access’, but will ultimately appear in the print and electronic versions of OUP’s International Journal of Law and Information Technology.

More than words: the introduction of internationalised domain names and the reform of generic top-level domains at ICANN
Download the PDF here

The Internet Corporation for Assigned Names and Numbers (ICANN) is assessed in this paper as having a special role in the development of the law of new media, recognising both the importance of its management of the global domain name system and how questions of institutional legitimacy have highlighted the lack of agreement on the role of law in the governance of the global Internet. In order to underline how ICANN’s work relates to the regulation of the Internet and new media in particular., two particular issues are considered, both of which have been the subject of major announcements in 2009: (1) the facilitation of Internet multilingualism through internationalised domain names (IDNs) and (2) an attempt to expand the generic top-level domain (gTLD) system including prospect of dedicated gTLDs such as .xxx. In the case of internationalisation, it is argued that the question of internationalised domain names is best understood through its relation to historical processes of engagement between law, language and technology..

I didn’t put in the original set of acknowledgements (after taking them out for peer review), so thanks to the National Archives of Ireland, Trinity College Library Dublin, Dr. Eoin O’Dell and those who heard very early versions at the Dublin Legal Workshop and the International Academy of Linguistic Law.

One small step for .ie – but will there be a giant leap?

Another Irish post. It’s a long one, and I’m slightly guilty of burying the lead. Apologies.

A long process has (almost) come to an end, with yesterday’s announcement by Irish communications regulator ComReg of its findings in relation to the regulation of .ie. Like many, I wondered if it had been forgotten about – the 2008 consultation closed some time ago..but like media pluralism, its time has come. Or something.

ComReg has announced (press release | full report) that it will, by regulation, appoint the incumbent IE Domain Registry (IEDR) as the body for domain registration in Ireland; for 12 months but with an expected extension. An application will be made (to ICANN) to designate the Dept. of Communications, Energy and National Resources as responsible for the .ie namespace. We haven’t seen sight of the regulations yet, and ComReg’s power to make the regulations already exists, so there’s still more work to be done. The various consultation responses have also been published (giving me some relief – I had to make an FOI request to get the fruits of a prior (DCMNR) consultation), including some extremely good contributions (read them all here) by Antoin O Lachtnain and ICANN board member Dennis Jennings. But to figure out what’s going on, we need to go back, back (…insert misty dreamlike transition slide…)

The story starts, or at least gets going, with section 31 of the Electronic Commerce Act 2000. Although most of the Act dealt with a bundle of obvious e-commerce issues, this section always sat a little awkwardly. It gave the relevant Minister, then the Minister for Public Enterprise (but now the Minister for Communications, Energy & Natural Resources), the power to regulate .ie. At the time, there was a genuine doubt as to the role of governments in the regulation of country-code top level domains (ccTLDs), and the IE Domain Registry (IEDR) had been around for some time, originally fairly informally out of University College Dublin (UCD) but emerging into a more formal, independent legal structure (though UCD is still, nominally, still the responsible body from an international (ICANN/IANA) point of view).

Fast-forward to the middle of the present decade, and the Minister’s powers have not been exercised, despite various bits of criticism of IEDR and indeed a series of announcements by Government that something was about to happen. The pre-legislative process for the Electronic Communications (Miscellaneous) Bill 2005 did suggest that these powers would be transferred to ComReg, and indeed ended up in what became the Communications Regulation (Amendment) Bill (and then Act) 2007. There was some confusion at the time (I attempted to unravel it all here), but not much changed as a matter of law, other than the reassignment of the theoretical possibility of doing something. However, informally there was a good deal of chatter that ComReg would be more likely to use its powers than the Minister; the official line was that ComReg was better placed to carry out the task than central government. I have a big bundle of FOI documents on the process leading up to the 2007 Act, awaiting time to write about it properly.

While we’ve been waiting for the outcome of Comreg’s consultation, criticism of IEDR has continued, such as Michele Neylon’s posts, Has the time come to redelegate IE namespace? I’m quite surprised at how IEDR in its own submission to ComReg still opposes the role of ComReg, despite the legislation (that Comreg has no power to amend): lots of concern for its property rights, and even arguing that it is ‘ironic’ that ComReg “is seeking to regulate” its activities while not regulating .com and .net (“the source of spam, identity theft, credit card fraud and unsavoury practices such as cyber crime, warehousing of Internet addresses etc“). The mind boggles.

It’s quite hard to get a picture of what’s happening, as ComReg still refuses to release its own report on IEDR, and finds in a whole load of places that it is necessary for various unnamed recommendations to be dealt with. Indeed, the key finding: “ComReg has satisfied itself through its external review and due diligence examinations that IEDR is financially and technically sound and operates under an acceptable code of governance” is effectively meaningless to the citizen observer, as neither the external review nor due diligence examination is available. In any other context, this would be a joke. While there are of course reasons to redact certain elements, the presumption should always in favour of publication to the maximum extent possible, particularly when powers that originate in specific legislation are being exercised.

That said, there’s lots to think about here. The ‘managed’ status will continue (.ie is restricted through various rules, such as requiring Irish presence, specific requirements regarding personal and company names, etc), fees won’t be set by ComReg, escrow (a backup in case IEDR disappears in a puff of smoke) will be required, and there’s more in the report for all of us to digest this week. Nothing clear on the problem of supposedly inappropriate names, though. And I also raise an eyebrow at asking the Department to be the body receiving the ICANN/IANA delegation, given that the legislation took away most of the Department’s functions in favour of Comreg – it’s a further split with one body ‘in charge’ (DCENR), another body making the regulations (ComReg) and another body (IEDR or any future replacement) doing the work. It might just be crazy enough to work.

And we’re going to see an Irish version of the Nominet Policy Advisory Body, called the Policy Advisory Committee. Probably fairly toothless, but progress nonetheless.

Other coverage from ENN (in brief) and that man again, Michele Neylon (first impressions). More as I find them.