Wednesday 1 January 2014

Cyberlaw memes and themes for 2014

[Updated as at 20 December 2014]
Following my hard law roundup of legislation and pending court cases in the EU/UK pipeline, here are some rather more amorphous cyberlaw themes to look out for in 2014. This is the realm of soft law, inter-government negotiations, NGOs, lobbyists, op-ed writers, bloggers and policy wonks. I have also thrown in some concrete items that were too speculative to qualify for the hard law survey.

Nudging and bludgeoning You could describe the UK government’s campaign to persuade ISPs to introduce default content filters as a variety of nudging, the idea being that a householder subscriber has to make an active selection to disable the filter. Aside from the inevitable coarseness of the filters, if this is nudging it is nudging with sharp elbows. Like many nudging ideas, changing the behavioural environment of the end user requires the co-operation, voluntary or enforced, of an intermediary. Call it what you like – private-public partnership, co-regulation, nudging, bludgeoning, backdoor armtwisting – we can expect more of it in 2014. [Here is David Cameron claiming that internet companies will Agree to do More to Filter Extremist Material Online, though the details of the supposed agreement seem a mite fuzzy.]

Magic wand politics Mention of filtering leads on to magic wand politics: the collective delusion of the governing class that the Good Fairy of the Internet can wave her magic wand and cure whatever perceived internet ill is troubling the PM and his advisers today. Steel yourselves for more in 2014. [The Intelligence and Security Committee Report on the Lee Rigby murder. If only Facebook had waved its magic wand.]

Understanding the internet Ill-considered political interventions provoke wailing from geeky quarters that politicians don’t understand the internet. But is the problem a lack of technical knowledge, or is it a deeper failure to embrace the liberal values that we like to think are embodied in the internet? If they did understand the consequences of their actions how many politicians would care? Given what politicians have shown themselves already capable of, tremble for the day (unlikely to be in 2014) when they do understand the internet. [
Clause 17 of the Counter Terrorism and Security Bill is about so-called IP address resolution. MPs can hardly be blamed for not understanding it when every government explanation adds to the confusion.]

The Internet Wild West It is impossible to debate behaviour on the internet without somebody painting a picture of the internet as a lawless Wild West and casting themselves in the role of Sheriff come to bring order to the chaos. No matter that the internet is beset with more laws than the offline world and that many of those impose stricter rules (often inappropriately so) than offline. It is depressingly safe to predict that the Wild West meme will continue to flourish in 2014. [Perhaps less of the Wild West than expected (examples here and here), but we did get 
'the beautiful dream of the internet as a totally ungoverned space' from Sir Iain Lobbanshortly followed by another Wild West in the Parliament Intelligence and Security Committee here (11:28). Then almost at the end of the year we had this corker from President Obama (with "rules of the road" thrown in for good measure).] 

Doctorow’s Warning Two years ago Cory Doctorow identified "the coming war on general purpose computing". He worried about the future lobbyists who would ask:

"Can't you just make us a general-purpose computer that runs all the programs, except the ones that scare and anger us? Can't you just make us an Internet that transmits any message over any protocol between any two points, unless it upsets us?" The answer (see Magic Wand Politics) is ‘No’, but serious damage can be done in trying and failing. Doctorow again:
"Reality asserts itself. Like the nursery rhyme lady who swallows a spider to catch a fly, and has to swallow a bird to catch the spider, and a cat to catch the bird, so must these regulations, which have broad general appeal but are disastrous in their implementation. Each regulation begets a new one, aimed at shoring up its own failures." With each new round of regulation aimed at preventing wrongdoing, the greater the temptation to rectify the failure of the previous round by throwing a wider regulatory net over non-culpable actors engaged in general purpose activities. Site blocking injunctions against online intermediaries is an obvious example. Co-option of payment processors, advertising networks, domain name registrars and search engines is another, as would be action against VPN. 

These are not the only examples. Traditionally liability for wrongdoing has applied to doing, participating in and procuring wrongful acts, but stopped short of facilitating and enabling them. One reason for drawing that dividing line is that acts of facilitation and enablement are by their nature general purpose. As such, damnifying them always carries a high risk of damage to legitimate activity, whether present or future, known or unknown. There will in 2014 be continued pressure to extend all sorts of online liability and obligations to facilitation and enablement. [The amendment to the RIPA definition of 'telecommunications service' by the Data Retention and Investigatory Powers Act 2014 (DRIPA) is a classic example.  It now includes "facilitating" the creation, management or storage of communications transmitted, or that may be transmitted, by means of a telecommunication system.]  

At a deeper level, the concern about co-opting law-abiders, facilitators and enablers represents the difference between a society in which each is free to set and pursue his or her own goals and allocate their own resources accordingly, and one in which anyone can be conscripted into an online army and commanded to crusade against the government’s designated enemy of the day.

Doctorow’s Warning is as relevant at the start of 2014 as it was two years ago.

Technological neutrality. Everyone loves technological neutrality and will appeal to it in support of whatever legal or policy position they are advocating. Laws should obviously be technologically neutral, shouldn’t they? Not necessarily. In fact resort to technological neutrality is dangerous without understanding (a) which version of technological neutrality you are invoking (b) when it is safe or appropriate to deploy it and (c) when other principles (e.g. fundamental human rights) should outweigh it. These were my slides on the topic at the Society of Legal Scholars conference in September. A full paper is in the works. [Now published.]

The rise of PIPCU Launched on 12 September 2013 with £2.6m of taxpayer funding over two years from the Intellectual Property Office and a special focus on offences committed online, the activities of the Police Intellectual Property Crime Unit, operated by the City of London Police, have perhaps so far attracted most attention in the pages of Torrentfreak.  With emphasis on preventative and deterrent action, including requesting suspensions from domain name registrars around the world, its activities will inevitably attract wider scrutiny. The Open Rights Group has requested a meeting with PIPCU to discuss its processes. Definitely one to watch in 2014. [PIPCU in the news already 11 Jan 2014.][As at 11 June 2014 PIPCU has suspended 2,359 domains and achieved 19 website payment provision suspensions (IP Crime Highlight Report). It has also launched an unpublished Infringing Websites List to be shared with advertisers in an attempt to disrupt advertising revenue.][On 23 October 2014 the IP Minister announced that PIPCU would receive another £3 million government funding to take it through to 2017.  Meanwhile PIPCU has been putting replacement advertisements on infringing websites, including one making the at first sight curious claim that "Illegal Downloading is a Crime". Unauthorised downloading is of course a civil copyright infringement, but is not in itself a criminal offence under the UK Copyright Act. This is how PIPCU has explained it:

 So there you have it.]

Copyright wars The Piscean fishes swimming in opposite directions have nothing on the copyright wars. Historically there was pressure from rightsowner interests for stronger copyright, provoking largely reactive and patchy opposition. Now we can identify not just resistance to stronger copyright, but a coalescing agenda for digital copyright reform. In the UK the Hargreaves recommendations are going through. Ireland and Australia have completed significant reviews of copyright, with the Australian Law Reform Commission having recommended the adoption of a flexible fair use copyright exception and the Irish review a more limited version. Some EU MEPs have started to formulate an agenda for copyright reform. The courts have started to show interest in aligning digital copyright to its offline equivalent. The copyright wars will continue to be fought out in arenas such as TTIP. [The new European Commission has included copyright modernisation in its Work Programme for 2015. Expect a bloodbath.]

Blocking injunctions In my hard law piece I mentioned the pending CJEU reference in Constantin Films v UPC. In parallel there will almost certainly be more UK applications for blocking injunctions under S97A. In practice the court normally makes a determination on the basis of evidence and submissions from rightsowners alone - a less than ideal situation. Will 2014 be the year in which some public minded body tries to intervene in an application on a quasi-amicus basis? 
[Yes. The Open Rights Group obtained permission to intervene with written submissions in Cartier's application for a trade mark blocking injunction. The court adopted some of ORG's suggestions for further safeguards in the blocking order.] 

Privacy In a prediction at the end of 2012 for BNA I said that 2013 might be the year in which the privacy industry remembered that the state is more threatening than a cookie. And so it proved. But will we keep our eye on the ball? Will we let EU politicians turn PRISM, TEMPORA and Snowden into an excuse for an information trade war with the USA? Will they get away with suggesting that EU data protection laws have historically protected against surveillance by EU national governments? Or will we convince ourselves that it’s all the fault of US corporations for collecting data (as if Galileo should never have built a telescope)? We will find out in 2014. [No. Yes. Yes. Yes.]

See also: Internet Legal Developments to Look Out For in 2014

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