#IFCLA2014 keynote 'Open internet and Open access to law'

OPEN INTERNET AND OPEN
ACCESS TO LAW
IFCLA 2014, Antwerp
@ChrisTMarsden
Chris Marsden (Sussex) 1

What is he talking about?
• Open access to the Internet
– Net neutrality
– Challenges to end-user control of access
• Open access to law
– Law via the Internet
– Law apps on your mobile
– Global public good of access to law(yers)

Who cares?
• Mobile users
• Fixed Internet users
• Facebook members
• Google users
• Apple fanbois
• Everyone…except politicians…

John Oliver…for 2million viewers

Author:
• Regulating Code
– MIT Press, March 2013
• Oxford Bibliography of Internet Law
– Oxford UP, 2012
• Network Neutrality: A Research Guide
– in 'Handbook Of Internet Research' (Elgar, 2013)
• Internet Co-regulation
– Cambridge UP, 2011
• Net Neutrality: Towards a Co-regulatory Solution
– Bloomsbury, 2010

In this talk
• I explain its past,
• explore the legislation and regulation of its
present, and explain that
• economics and human rights will both play a
part in its future.

Common Carriage not new
• Began with obligations on inns/boats
• Determined by public function of networks
• Continued into modern networks
• E.g. Railways and telegraphs
• 1844 Railway Regulation Act
– Setting both emergency access (‘kill switch’)
– AND Parliamentary trains
• FRAND end-to-end access at set cost

The Internet as a platform for
innovation
vs.

Network neutrality past/present
• “messages received from any individual, or from any
telegraph lines connecting at either of its termini,
• shall be impartially transmitted in order of reception”
– [Pacific Telegraph Act of 1860]
• “Just as telephone companies are not permitted to tell
consumers who they can call or what they can say,
• broadband carriers should not be allowed to use their
market power to control activity online.”
– [Guide to Net Neutrality for Google Users]

Telcos never liked the Internet
• AT&T’s Jack Osterman reacting to
• Paul Baran’s 1964 concept of the Internet:
• ‘First it can’t possibly work, and if it did,
• damned if we are going to allow the
creation of a competitor to ourselves.’

Net neutrality permanent
feature of telecoms law
• It is a debate which
– has existed since 1999
– will grow in importance as
• Internet matures & service quality increases
• demand on the network for
– more attractive fixed and
– mobile/wireless services.

1999
• Network Neutrality debate began in 1999
• Mergers: cable TV and broadband companies
• AT&T/MediaOne and AOL/TimeWarner
• Lessig and Lemley FCC submission:
– ‘The end of End-to-End’
• Before ‘Code and Other Laws…’
• Fear of closed duopoly model

2000s Debate
• 2002-4 US ‘Title II’ telecoms competition
removed by courts, Republican FCC
– Brand X and Trinko cases, Triennial Review
• Lessig and Wu write to Congress 2002:
– fear cable-TV business model
– Wu (lessig’s protégé) term ‘net neutrality’ 2003
• FCC introduces 4 ‘Net Freedoms’ 2005
– Not including enforcement of same!
– Congress fails to legislate 2005-6
– 2008 – Obama campaigns on net neutrality

2009 FCC, CRTC and European Commission
introduce vague broad
principles of non-discrimination
2014 devil lies in the detail…

Incidentally it’s not net neutrality...
• It’s ‘the open Internet’
• In both EC consultation and FCC Order

Key Policy Concerns
• Service available to consumers
– What kind of QoS should consumers expect to get when they purchase
‘basic’ broadband Internet access?
– Will consumers be able to access the applications that they want via
the broadband and mobile Internet?
• Discrimination/monopoly rents
– To what extent can network operators treat differently the traffic of
particular content or application providers?
– When can network operators charge for QoS on different terms to
similarly situated providers?

6/5/2014 23
‘Negative neutrality’
or
Net neutrality ‘lite’

Net Neutrality: European and
Comparative Approaches
2 elements:
1. present net neutrality 'lite' debate
2. Future net neutrality 'heavy'
• fibre access networks

Telecoms law not just competition law
• ISPs all engaged in similar practices?
– All discriminating against innovative users
– Blocking gamers and P2P file sharers
– Are they all doing it for security reasons?
• Vertical integration and discrimination?
– US Comcast (2008) and Madison River (2005)
cases
– easy FCC competition cases

Problem bottlenecks: access service provider
• Problems:
– price discrimination, access tiering,
– blocking and service discrimination/degradation
• Nothing inherently wrong with these
practices:
– willingness to pay quality/level of service
– ‘linear’ vs. ‘non-linear content varies.

UNITED STATES:
RECLASSIFYING BROADBAND
AS ‘INFORMATION SERVICE’

2. United States
• Fifteen years and counting…
• FCC Chairmen:
– Reed Hundt
– Michael Powell
– Kevin Martin
– Julius Genachowski
– Still continues to be non-enforced

2000s Debate
• 2002 – telecoms competition in US removed
by courts, Republican FCC,
• Lessig and Wu write to Congress 2002: fear
cable-TV business model
• Wu coins term ‘net neutrality’ 2003
• FCC introduces 4 ‘Net Freedoms’ 2005
• Not including enforcement of same!
• Congress fails to legislate 2005-6
• 2008 – Obama campaigns w.net neutrality

• (04-277) 545 U.S. 967 (2005)
• 345 F.3d 1120, reversed and remanded.
• Major Supreme Court case abolishing common
carriage for broadband telecom services:
– Overturning centuries of legal history
– Removing Title II obligations under
Telecommunications Act 1934 as amended
– Reclassifying broadband Internet by telecoms
companies as equivalent to cable service
– Making both cable and telecoms broadband Title 1
information services
National Cable & Telecoms Assn. V.
Brand X Internet Services

• Federal Communications Commission (FCC)
• has once again attempted to concoct
• “a whole new regime of regulation (or of free-
market competition)”
• under the guise of statutory construction.
– MCI v. AT&T 512 U.S. 218, 234 (1994).
Scalia J. dissenting (6-3 SC vote)

US FCC Order 2010, challenge 2012
• FCC Report and Order (2010) Preserving the Open Internet,
– 25 FCC Rcd 17905 (Christmas present)
• FCC Report and Order, In The Matter Of Preserving The Open
Internet And Broadband Industry Practices,
– GN Docket No. 09-191 WC Docket NO. 07-52 FCC 10-201 §21-30
– Published 22 Dec 2010, appeared Federal Register 23 Sept 2011
• In Re: FCC, In the Matter of Preserving the Open Internet,
Report and Order, FCC 10-201, 76 Fed. Reg. 59192 (2011),
– Judicial Panel on Multidistrict Litigation Consolidation Order
6/10/2011 http://commcns.org/sOFyyT

Verizon v. FCC, Case No: 11-1356
D.C. Circuit Court of Appeals
• FCC Order: In the Matter of: Preserving the Open
Internet; Broadband Industry Practices
– (rel. Dec. 23, 2010)
– FCC 10-201; GN Docket No. 09-191; WC Docket No.
07-52
• Petition for Review filed September 30, 2011.
• 2011 Order consolidates case numbers 11-1356,
11-1403, 11-1404, and 11-1411 with lead case
number 11-1355
• Open Internet Order legitimacy court case

• Verizon v. Federal Communications
Commission
• 740 F.3d 623 (D.C. Cir.2014); 11–1355 (2014)
14 Jan
• And what will they do? We don’t know yet.
14 January 2014: FCC sent back tae
think again

Special and Managed Services
• FCC excludes Quality of Service
• Private ‘managed’ or ‘specialized’ services
– IPTV, VOIP, emergency calls and telemedicine
• These use the IP pipe, but a reserved section
– How big is the private pipe? 10% or 90%
• Who gets access? Anyone who pays?
– Or only those ‘preferred partners’ to ISPs?
– Do you only see certain IPTV channels?
– Its making part of the pipe back into cable!

Open Internet Advisory Committee
• Co-regulatory: appointed by FCC in May 2012
– http://www.fcc.gov/document/open-internet-advisory-
committee-members-announced
• Chair: Jonathan Zittrain (Harvard Law),
– Vice-chair David Clark (MIT/IETF/engineer)
– Multi-stakeholder – includes NGOs and industry
• 'Specialized Services' definitions sub-group
• When can a managed service lane
be partitioned out of the regular open IP stream?

Working assumptions - require case
studies to flesh out their details:
• "Specialized services is a term that is
– meaningful only within context of the Order.
• It is a way to talk about “anything else”
– that is IP-based over a physical access path.
• It is NOT a new category of service
– for which a class of regulation is applicable."

“Service is NOT a specialized service,
and is subject to the Order if:
[1] The service is a general service
e.g. a service like IP on which higher-level services can run,
[2] It reaches most… of end-points of the Internet
As opposed to a specific “user-level” service like telephony or
home security, which is presumably a specialized service
• E.g. one cannot evade the Order
– by offering an Internet-like service
– that cannot reach a small country somewhere."

Limits the reach of specialized services
that evade the Order
Example:
• "If [a DSL or cable ISP] decided to offer a “poor”
Internet service, would we view this as:
– “Better than nothing or unacceptably slow[?]
Perhaps they can call it Internet but not broadband?
• Do we:
– [1] impose FRAND conditions and
– [2] insist that slow service is NOT the 'real' Internet'?

2006-2013
EUROPEAN POLICY

Ofcom International Conference, Nov 2006
• Charlie Dunstone, Chairman, TalkTalk
• “We shape traffic to restrict P2P users.
• I get hate mail at home from people
• when that means we restrict
their ability to play games.”

4 European Policy Levers
1. Competition policy affecting NN policy
1. Not much enthusiasm apparent
2. E-Communications Services package
3. EU Directives affecting content
1. AVMS, eCommerce, Services, E-Privacy
4. Security issues
1. restricting types of content: spam, malware

Universal Service Obligation
• NN proponents claim that Universal Service
Obligation for broadband should include
– unfettered access to the unfiltered Internet.
– Should that include all the bandwidth advertised?
– Should ‘reasonable’ monthly caps be regulated?
– Should claimed maximum speeds be regulated?

Two dimensions to USO
• May apply to NN:
– current and reformed EC law,
– the general question of consumer protection
• how content, quality, reliability, access, affordability,
enter the policy debate.

Glasnost initial results

48
Net Neutrality Lite: EU approach
NN ‘Lite’ permits discrimination on speed and price
• for new ‘specialized’ network capacity,
– but insists existing networks do not discriminate ‘backwards’
– i.e. do not reduce the existing levels of service.
‘Amazon Net Neutrality’ (September 2006)
– decided on acceptable minimal level of regulation
• Future possible investment sharing
• but protects existing user levels
• Question: what is a ‘specialized service’?
Chris Marsden (Sussex)

Positive obligations on private actors to uphold
citizens’ right to free expression?
• Horizontal and indirect effects should be considered
– Not just states, and not just companies obeying state law
• It’s not just about blocking and filtering – easy cases
• More interesting: closed high speed lanes
– ‘Managed Services’ – such as Deutsche Telekom IPTV
– Accompanied by data caps set until 2017? 2Mbps (was
384Kbps)
– Now even Vice-Chair of BNetZ agrees this is wrong?
– US refuses to permit this naked discrimination by corporates
• Equivalence of access?
– Leaving users on 1950s roads while they build toll
motorways? Chris Marsden (Sussex) 49

DIRECTIVE 2009/136/EC
New Articles 20 and 22, Recital 26:
• Consumer protection/citizen rights NOT SMP
• Requirements to notify customers & NRAs
• Added to interoperability requirements
• Article 5 Interconnection Directive

Specific strengthening of Directives
• Article 8(4)(g) Framework Directive
– strengthening of related transparency
requirements
• USD Articles 20(1)(b) and 21(3)(c) and (d)
– safeguard NRA powers to prevent service
degradation
– slowing down traffic over public networks
• USD Article 22(3)
– Transparency for end-users

Declaration: Neutrality 2009/140EC
“Commission attaches high importance to preserving the
open and neutral character of the Internet,
• taking full account of the will of the co-legislators
• to enshrine net neutrality as a policy objective and
• regulatory principle to be promoted by NRAs”

Commission will monitor closely
implementation in Member States
• introducing a particular focus on how
– European citizens ‘net freedoms’ are safeguarded
– in its annual Progress Report to Parliament and Council.
Commission will monitor impact on ‘net freedoms’
– of market and technological developments
– reporting to Parliament/Council before end-2010
– on whether additional guidance is required, and
• will invoke its existing competition law powers
– to deal with anti-competitive practices that may emerge.

Slovenia Economic Communications Act 2012
– http://www.scribd.com/doc/144614369/Slovenia-Net-Neutrality-law-
2012
• "net neutrality means that operators will have to
send internet traffic with uniform speed and
permeability regardless of the content”
– ISPs prevented from restricting, or slowing Internet traffic
• except to solve congestion, security or addressing spam.
– Commercial differentiation of QoS will be prohibited.
– ISP prohibited from different connectivity prices
• strong impact on mobile operators “data caps”

Net neutrality laws 2013
Country Legal Approach
Netherlands 15 May 2012 (S.7.4.a of Telecoms Law)
Chile &
Finland
Universal access to ‘unfiltered’ Internet
United States FCC Open Internet Order Sept ‘11
Norway Co-regulation – 2009 agreement
Canada CRTC rules 2009 (not implemented?)
Japan, UK
France
Self-regulation unenforced
ARCEP ‘Ten Principles ‘Chris Marsden (Sussex) 55

Net neutrality laws 2014 update
• 3 countries in Europe:
– Finland via universal service
– Netherlands after mobile WhatsApp blocking
– Slovenia
• 19 December 2012: Slovenia net neutrality law
• 1 January 2013: Netherlands to enforce 2012 law
• March 2013: France proposes net neutrality law
– And search neutrality? ‘all intermediaries’
• Germany Dec’13 declares policy in coalition
agreement

EC net neutrality regulation 2014
• ConnectedContinent 11 September 2013
• 3 April 2014: 1st Reading in Euro Parliament
• Council of Ministers in 2014
– 2nd Reading will be end-2014

1. generalize from the particular
2. pretend competition solves the problem
3. pretend to be technologically neutral
4. regulate asymmetrically
5. don’t provide effective protection for
consumers
6. don’t protect freedom of expression
7. don’t understand Internet innovation
Net Neutrality a microcosm of
European telecoms policy failures

• Generalising from the particular
• Netherlands advanced telecoms competition
• Swedish mobile cartels
• Romania has fibre and 450MHz 4G
• UK has no 4G nor any sign of it!
– 4 MNOs in UK – only one acts for consumer interest
1. One size does not fit all

• Standard 1990s answer to 1980s monopoly
problem
• We are still in some Chicago School fantasy?
• ‘American problem’ – so why US solution?
• All ISPs have incentives to block
– file-sharing and VOIP
• Naked DSL anyone?
– Why do we still have voice telephony?
2. Competition is not the answer

• Mobile is not fixed!
• Cable is not DSL
• Why pretend that we can solve this in a
platform-neutral manner
• Architecture matters!
3. Technological neutrality?

Managed services FRAND
Fair
Reasonable and
Non-discriminatory
Access
• means Murdoch, UEFA and Disney
–can’t cut exclusive deals to freeze out
competitors
• Universal service must also be considered
• As well as Public Service must-carry

• Fixed incumbent regulated as SMP
• Problem is not retailers of wholesale network
• Why don’t we ex ante regulate?
• NOT cable monopolist
• NOR satellite/ISP combine
– Must carry
– Due prominence
4. Asymmetrical regulation

What’s the problem?
–‘Anecdote’ is not evidence
–Nor is ex post an effective remedy
Ofcom work on transparency and switching
–Transparency like mobile pricing?
–Switching like: let them eat cake?
5. Prosumer law and redress

• I have made an extended argument for
prosumers to be protected
• Paper at EuroCPR March 2013
• Book with MIT Press March 2013
– with Ian Brown (Oxford Internet Institute)
Prosumer Law

• Published 22March
2013
• ‘Prosumer law’ article
(now on SSRN)
• Comments welcome!

6/5/2014 68
6. ISPs as police?

• ‘Internet’ is unrestricted
• It’s the right to communicate
• Restriction is censorship
– Tim Berners Lee tells the truth
• La Rue: UN Human Rights Council
– warns against private as well as state censorship
• Akdeniz: OSCE
– Article 10 ECHR, Article 19 ICCPR
• European Data Protection Supervisor
– Warns about behavioural advertising and tracking
Citizens’ freedom of expression

Losing liberty?
• ISPs important intermediary limited liability
• Based on their wise monkeys role
• Behavioural advertising – PHORM
• Blocking and filtering
• Throttling on non-transparent basis
• Removes 2000/31/EC Art.12-14 exemption
• Freedom of expression vital to democracy

European Data Protection Supervisor
October 2011
• Concerned that traffic management would
result in exposure of users’ personal data
– Including IP addresses
• ‘Opinion on net neutrality, traffic management
and protection of privacy and personal data’
– http://www.edps.europa.eu/EDPSWEB/webdav/si
te/mySite/shared/Documents/Consultation/Opini
ons/2011/11-10-07_Net_neutrality_EN.pdf

• Value chain analysis
• Problem – innovation at content-app-services
level
• Providing fibre is not innovation by ISPs!
• So whole basis of policy is flawed
• Do telecoms regulators understand the
Internet?
• Are politicians ignorami?
7. What innovation?

• Survey of consumer broadband to find problems
• Example: BBC iPlayer ‘traffic lights’ scheme
• Example: Skype reporting (that’s Microsoft…)
• Example: SamKnows! FCC and Ofcom surveys
• Example: Consumer forums/Twitter etc.
• Example: Neubot and other consumer software
• BUT it needs regulatory commitment
• Based on competition AND freedom of expression
Solution: much faster consumer-
oriented regulatory evidence

WHY DOES THIS MATTER TO LAW
FIRMS?
BECAUSE YOU NEED TO ACCESS LAW
ON YOUR MOBILE

OpenLaws.eu - access to law
• Expanding open innovation to the legal field.
• Introducing concept of mass-customization to law
• Proposing a comprehensive European
• “Big Open Legal Data” (BOLD) Vision 2020
– for incremental implementation,
– built on top of existing EU and national systems and content
– (e.g. EUR-Lex, e-Justice System, e-Codex).

Developing initial BOLD ICT Platform
Launch of:
a. dedicated legal EU social networks.
b. a hub for open access legal journals.
Promote open data, open access publications, and
open standards
• (e.g. ELI, ECLI) in the legal field.
Contribute research for the Open Innovation Strategy
and Policy Group (OISPG).

Developing big online legal data
• Free Access to Law movement (FALM)
– online case law via BAILII in the UK
– Legal Information Institutes (AustLII, Cornell etc.)
• #GoodLaw online statutes
– expanded rapidly, crowdsourcing ideas for #goodlaw
• Online legal education and research
– BILETA since 1985
– Electronic Law Journals project at Warwick
• EJLT – now Script-ed + IJoC at USC many US law journals
– Journal of Open Access to Law (JOAL) est. 2014!
– publishing books via Creative Commons: Marsden 2010

Greenleaf et al (2011, 2012) identify six historic
attempts to achieve FALM
1. Example set by the LII (Cornell) and LexuM in early 90s
2. AustLII’s 1995 formulation: obligations of official publishers
3. 2002 Declaration on Free Access to Law
4. ‘Guiding Principles’ for States formulated by 2008 expert
meeting convened by Hague Conference on Private
International Law
5. ‘Law.Gov principles’ developed by Public Resources.org in
2010; and
6. draft Uniform Electronic Legal Materials Act recommended
in 2011
1. US National Conference of Commissioners of Uniform State Laws

Is Ministry of Justice ready for
revolution?
#Goodlaw
– radical crowd-sourced legislative approach
Open Data
– Very fashionable amongst G8 countries etc.
BAILII and Supreme Court reforms
Society for Computers and Law trying hard
– Computers and Law is open – it can be done
But what we really need is pan-European
approach

Why can’t we build a smartphone
app for lawyers?
• Already done using open case law, statute,
articles
• Where? Austria RIS:App
• Why not here? Why not everywhere?
OR

Openlaws.eu team
Institution Name
UVAmsterdam Prof. Radboud G.F. Winkels
Prof. Mireille van Eechoud LAPSI2.0
Sussex Prof. Chris Marsden
Dr Andres Guadamuz CC4.0
London School of
Economics
Dr. Paolo Dini
Dr. Shenja van der Graaf BXL
Dr. Antonella Passani ROMA
ALPENITE -
developers
Giulio Marcon
Gianluigi Alberici
SUAS Prof. Thomas Heistracher
DI (FH) Thomas Lampoltshammer
BYWASS Dr. Clemens Wass, MBL, MBAChris Marsden (Sussex) 81

Mapping Open Law
Mapping of stakeholders,
• processes in legal information production
and consumption
• levels of regulatory instruments
• flows of content, rights, value.

Key words: transparency, switching, specialized
services, Ofcom, traffic management
• c.marsden@sussex.ac.uk
• @ChrisTMarsden
• www.chrismarsden.blogspot.com

#IFCLA2014 keynote 'Open internet and Open access to law'

More Related Content

What's hot

Viewers also liked

Similar to #IFCLA2014 keynote 'Open internet and Open access to law'

More from Chris Marsden

Recently uploaded

#IFCLA2014 keynote 'Open internet and Open access to law'