Abstract
I am writing this review in the aftermath of the Snowden revelations (June 2013), the European Commission’s consultation on copyright regulation (March 2014), the European Parliament’s first vote supporting strong network neutrality rules and, following court challenges, the US Federal Communications Commission’s plans for new network neutrality rules to allow Internet service providers (ISPs) to charge content providers for faster delivery (April 2014). ‘Regulating Code’ was published before these developments. But even though it does not discuss them, the book covers all these core Internet regulatory issues and the forces that have shaped them over the last 10–15 years. It is therefore welcome and timely.
The book has an original approach. It was written by two established authors with an impressive track record in Internet regulation (academic writings as well as contributions to policy debates) coming from two different disciplines: Ian Brown is a computer scientist, a Senior Research Fellow at the Oxford Internet Institute, and Chris Marsden is a Professor of Law at the University of Sussex. This dual-disciplinarity is fruitful and breaks from the predominance of single discipline writings. The book differs from existing studies also in that it offers five case studies as opposed to the prevalence of single case studies.
The five case studies (privacy and data protection, copyright, content censorship, social networks and network neutrality) aim, following Lawrence Lessig, to illustrate the interplay between the underpinning technologies of the Internet (‘code’) and law. The analysis is not normative (at least not explicitly) but pragmatic. The question is not whether but how the Internet should be regulated. The authors focus on the regulatory shaping of ‘code’ and aim to identify solutions that will deliver ‘more economically effective and [at the same time] socially just regulation’ (p. iv). They reject equally self-regulation by the industry and heavy-handed government intervention. Their preferred solution is co-regulation on the basis of what they call ‘prosumer’ paradigm (‘prosumer’ is the active user who produces and shares content as opposed to merely consuming it). A broadly government-enabling framework will facilitate multistakeholder processes whereby civil society will participate in Internet governance as equal partners with government and industry ‘prior to design or even implementation of innovative control technologies’, and not as a legitimating after-thought (p. 177). It would have been interesting if they had elaborated on the realistic potential and practicalities of such multistakeholder processes, which is one of their key tenets. They claim that this ‘holistic’ approach to Internet governance will encourage the use of both code and law ‘to create principles for regulatory intervention based on due process, effectiveness and efficiency, and respect for human rights’ (p. 20). In other words, ‘prosumer law’ is regulation in the public interest and is premised on genuine multistakeholderism and co-regulation.
The five chapters with the case studies are a valuable resource and each can be read independently. All chapters follow the same structure, and this helps readers to follow the overall themes and arguments of the book. They do an excellent job to capture the main issues and forces, the institutional political economy in each case, relevant regulatory developments predominantly in the United States and Europe, their outcomes and remaining challenges. The chapters are packed with information and might not always be easy to follow for non-experts, although all chapters contain useful tables summarising the main points.
The two final chapters (8 and 9) provide an overview of the main points and elaborate on the co-regulatory, multistakeholder, prosumer approach. In the cases examined, regulators either focused on economic aspects and there was no agency to support fundamental rights leaving them to the market, or they were very slow to appreciate the implications of technological and market developments for fundamental rights. As a result, Brown and Marsden conclude that user rights were subordinated to both corporate and government/security interests. They explain that ‘remedying this failure to protect the fundamental rights of citizens is both an engineering and a broader regulatory challenge’ (p. 170). They add that in each of the case studies, greater attention to user rights, interoperability and open standards would have resulted in greater transparency and better Internet regulation in the broader public interest for all Internet users. For instance, they explain interoperability using the example of dominant social networking sites. Even though it is not simple, they regard interoperability as the best solution which can curb abuse of dominant market positions and control of code, and at the same time keep the market open for innovative entrants. They assess the role of legislation and competition lawsuits in promoting interoperability (e.g. the revised European interoperability framework and the resolution of the Microsoft antitrust case by European competition authorities). They then consider specific interoperability requirements (e.g. must-carry obligations, disclosure requirements on application programming interfaces and interconnection obligations) as a means to address high sunk costs and network effects which protect dominant social networking sites and act as market entry barriers.
Given that information and communication technologies can play a critical role in spurring economic growth and at the same time fundamentally transform human communication, Brown and Marsden underline the pressing need for Internet governance to take into account both economic and free trade issues as well as human rights concerns. They argue that economic and human rights perspectives often share compatible goals and they therefore maintain that a better dialogue between experts in these respective fields is a win-win case. This, of course, is easier said than done. They call for more research which will address Internet design questions together with socio-political questions. This is one of the core aims and contributions of the book. The case studies offer an approach to undertake such research, analyse and assess the interlinkages between code, law and fundamental rights. Other recent examples of such socio-technical work include, for instance, Mansell (2012) and De Nardis (2014). Such work can produce evidence, facilitate the dialogue between civil society and technical experts and thus contribute to better policies. Indeed, Brown and Marsden stress that academics need to do more to ‘better explain Internet technology to legislators and regulators – to help prevent “spoon-feeding of disinformation” to politicians by lobbyists’ (p. 201). Their book is required reading for all those interested in Internet regulation and in particular for policymaking stakeholders. More transdisciplinary research is desperately needed.