The major obstacle was Apple Computer's near-monopoly on commercial online music distribution through its proprietary software-protected iTunes Store, iPod music players, and iPhones. The Euro-Communitarian Model Europe has become one of the largest sources of international communication law and policy.
The Euro- communitarian Internet regulatory system is a market-based system of governance characterized by the formulation and transfer of directives, in specific issue areas of Internet communication, from the European Union to its member countries. The system is based on the transposition and uniform application of EU Directives on the Information Society for purposes of harmonization. In order to put its socially conscious, single-market Euro-governmental imprimatur on the Internet, the European Union launched Europe's Information Society initiative, a multi-thematic policy framework that covers areas ranging from digital libraries and digital literacy to the Safer Internet Plus Programme, which fights illegal and unwanted Internet content.
The aim of the European Information Society initiative is to create a single, socially conscious European information space, promote investment and innovation in information and communication technologies, support social inclusion, set up better online government services, and improve the quality of life of Europeans.
European Union rules also cover standards for electronic signatures, intellectual property, prohibition of pedopornography in the audiovisual media in general and on the Internet in particular, as well as telecommunications regulation. The Gateway Model Under this model, a governmental agency serves as the de facto or de jure gateway to the Internet.
Usually, the government creates a national intranet that insulates and isolates the country domain from the rest of the Internet.
These intranets are often protected by firewalls and proxy servers that filter undesirable websites. In these countries, the government is both Internet operator and regulator. The thinking behind the gateway model is that the Internet is an electronic conveyor belt for decadent western culture and political subversion, which could potentially infect political systems and cultures. Elman et al. These systems are all premised on electronic literacy and universal access to the Internet and other high technology electronic resources by all citizens.
They have gone from active resistance — the Internet was viewed as a conduit for western decadence that would infect Arab-Islamic culture — to allowing controlled access to government-approved content on national intranets that insulate and isolate country domains from the live, uncensored Internet. It is aimed at using Internet technologies and protocols to reinvent Arabize, Islamize, and regulate those portions of the Internet that operate within the geographical area of the Arab League.
This evolution has led to the gradual emergence of a unique, state-controlled Arab-Islamic cybersphere shorn of the English language, Latin characters, and undesirable political, cultural, social, and religious content Abdulla Kofi Annan, former Secretary-General of the United Nations, said that, by connecting to the Internet, African countries would become part of the global economy, leaving behind decades of stagnation and poverty.
African countries were told that, by connecting to the Internet, they would be able to bypass expensive information and telecommunication technologies. Most countries liberalized their telecommunications systems and privatized state-owned telecommunications operators. While all African countries are now connected to the Internet, most of them do not have an adequate regulatory framework to deal with issues like online child pornography, Internet gambling, advance-fee fraud, hackers, and phishing or identity theft.
For example, in Nigeria, advance-fee fraud solicitations through mail are punishable under Decree No. However, the Nigerian government has watched helplessly as this illegal activity has migrated to the Internet. As the typology shows, global treaties, and conventions regulate the Internet at the international level while individual regions and countries have laws and policies that seek to shape their respective sections of the network to reflect their cultures, socio-political, and legal realities.
The Internet in the Arab world: Egypt and beyond. New York: Peter Lang. Clinton, W. A framework for electronic commerce. Eko, L. Many spiders, one world wide web: Towards a typology of Internet regulation. Communication Law and Policy, 6 , — New medium: Old free speech regimes: The historical and ideological foundations of French and American regulation of bias-motivated speech and symbolic expression on the Internet. Goldsmith, J.
Who controls the Internet? Illusions of a borderless world. New York: Oxford University Press. Hofstede, Geert H. Cultures and organizations: Software of the mind. New York: McGraw-Hill. Kalathil, S. Open networks, closed regimes: The impact of the Internet on authoritarian rule. Lessig, L. Code and other laws of cyberspace. New York: Basic Books. Mattelart, A. La mondialisation de la communication [Globalization of communication].
Paris: Presses Universitaires de France. The EU began to view electronic commerce as a vital tool in keeping the Single Market competitive. On the other hand, the EU also realized that the development and spreading of the Internet had a direct influence on the protection of individuals as consumers and as private persons since the global impact of the Internet was felt in everyday activities, including the actions of private individuals.
The intervention, therefore, could not concentrate on furthering only the Single Market aims but had to include individual freedoms. As a result of this tension, two focal points of EU intervention in the field of Internet law began to crystallize: one centred around the Single Market and the other around consumers.
Both aims were asserted strongly, beginning from treaty provisions, through Directives and judgments. The presence of both aims in EU instruments gave, as will be argued elsewhere in this book, conflicting results. As a result of fast-paced legislative activity in many loosely connected areas, the Community body of laws relating to the Internet, at present, is not joined in a common overarching structure, guided by Single Market-informed policies.
The policy instruments such as Action Plans or Green and White Papers have indirect influence on the multitude of Directives in fields other than their own. Many projects were begun in the s, at a time when the Internet was in its infancy and its potential impact poorly understood. Others yet were a result of the work of the Council of Europe, the EU lacking the required competence. At the same time, policies and legislation on the other side of the Atlantic appeared more transparent, individual interests were easier to trace and public debate seemed louder.
The drafting of such laws as the hotly disputed Digital Millennium Copyright Act DMCA 6 in the United States was followed by a public and academic debate, the formation of interest groups and clashes in Congress.
In the United States, the battles also raged over speech regulation on the Internet in light of the First Amendment, as well as over privacy and the role of intermediaries. In Europe, some of these issues remained altogether unnoticed while many others were observed dispassionately. Where even stricter regimes than those found in the United States came into place beginning in the s, none of the public excitement seen in the US was evident and general interests seemed to be lost in complicated law-making procedures that demonstrated the less democratic traits of EU law-making only too well.
It was only after , with the net neutrality debate and the Snowden revelations, that public interest in telecommunications and data protection regimes respectively began to stir.
In the meantime, the Internet as it was in the s and early s had gradually transformed. What influenced the Internet of the twenty-first century more than any other development was the presence and expansion of collaborative efforts.
From a linear model characterized by exclusive content being placed by individual corporations, the Web has moved towards a collaborative, interoperable, user-centred platform sometimes referred to as Web 2.
At the same time, the telecommunications carrier and audio-visual and e-commerce worlds content began to converge. Services which had hitherto been the privilege of traditional providers such as telephony, text messages or television increasingly started to be provided through disruptive business models which use the Internet as their universal pipeline.
The Internet itself gradually started to be more accessible through mobile platforms such as smartphones and SIM-enabled tablets and laptops. But it is not only the content distribution model that has changed.
At the same time, much of daily life had migrated to the Internet to the extent that the Internet became representative of our culture. We, the users, at the same time, have transformed our identities. The Internet, whose regulation is also in the hands of the European Union, is built on an architecture different from any other medium before it.
The uniqueness of Internet architecture rests on three groups of features: its layered structure, its end-to-end nature and its neutrality. This architecture led some authors to declare that it also determines its governance method. This architecture depends on packet switching, decentralized standard-setting, cryptography and anonymity. Packet switching is a technology that is inherently difficult to control by traditional mechanisms applied to telecommunications.
The most important feature of the protocol is that it enables the data to be broken into packets, which are then transmitted through the network of intermediaries and reassembled in the target computer.
The data can use any route available on the way but the route chosen does not have an impact on the quality of the ultimate information received. This feature of the Internet is a result of the desire of the original client the US Defense Department to make the network resistant to failures of individual communication lines.
Directly in connection with this is the decentralized standard-setting. Although the original network arose under the auspices of the US government, the actual standard-setting is performed by non-governmental bodies. Connected with these features are anonymity and cryptography. A varying degree of anonymity is available and even guaranteed to users on the Internet. Following from this last feature is what Froomkin 14 calls regulatory arbitrage: the ability of Internet users to evade unfavourable regulatory regimes by choosing to subject their transaction to more liberal ones.
The first consequence of this is that proper censorship is difficult. A website can be registered under any one of a multitude of domain names every country has one, plus there are a number of universal ones such as. The content itself can be offered for hosting to any one of the thousands of hosting services across the globe.
Cryptography can be used on any content crossing the borders. The second consequence is that it is often easier to speak freely on the Internet than it is on traditional media. The countries that do control the Internet with varying degrees of success 15 face rising costs and difficulties as the customer base and the number of services grow. Alongside its architecture, which opens up its liberating potential, the Internet is also influenced by the regulatory regime to which it is subject.
That regime has been described by Oxman 16 as having succeeded due to three factors. First, no legacy solutions were imposed on new technologies. They were transmitted through telephone infrastructure, and yet they were not regulated as telephone services. Secondly, as Internet services began replacing legacy services, the former were not forced into regulatory models of the latter but, rather, remained unregulated.
As services such as Voice over Internet Protocol VOIP and wireless access spread, this should have the effect of removing the regulatory burdens from legacy services.
Finally, competition was strictly monitored and preserved, and the responses to violations were targeted and minimal — they addressed specific problems rather than the whole industry. The final of the three defining features of the Internet is its neutrality. More precisely, it refers to the belief that governments should step in to actively prevent the Internet service providers ISPs from discriminating between types of data on the network.
Presently, the Internet provides the same standards of service upstream and downstream download speeds, bandwidth, quality of signal irrespective of the application or content used and distributed. The question has distinctly political undertones see section 6 below. Importantly, network neutrality is a result of Internet architecture.
This architecture, as was indicated above, rests on the end-to-end principle: the core of the network is simply a protocol that describes how the neutral machines placed at the end of the network communicate. What exactly is placed on the network is not a result of a decision made at the core but, on the contrary, on the periphery, where ultimate users reside 18 and changing this balance may damage the Internet.
As a consequence of the described architecture, the Internet is open — not susceptible to authorizations either at the production or at the user end. At the same time, these features make it a subject and target of numerous interests: international, national, corporate and individual.
Although this point does not have a particularly European flavour it is perhaps worth recalling the complexities of the EU law-making process and emphasizing that good flexible solutions, although much needed, are also the most difficult to achieve.
Many ideas about governing the Internet have crystallized since its emergence. We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.
Other ideas, however, have crystallized into policy and decidedly shaped the Internet. The Clinton framework notes that the expansion of the Internet has been driven primarily by investment from private corporations.
To ensure future development, businesses and consumers should maintain their central role with as little government intervention as possible. On the contrary, governments should encourage self-regulation and create such environments that would enable free and unhindered development of the Internet.
Governments should also recognize the unique qualities of the Internet and not attempt to fit the Internet to the legacy regime developed for telecommunication services.
Finally, e-commerce should be facilitated on a global basis. Internet governance does not have a precise definition. Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.
Governance, in other words, is an attempt to address a global phenomenon by global action. The Internet, in other words, requires something more than pure traditional regulation.
It suggests alternative legal paradigms for regulating issues ranging from environment to education and others. Others are participation of the affected, transparency, openness, evaluation and review. Another term which has an autonomous EU meaning is multi-stakeholder governance. Since its inception in , the approach has already found its way into several initiatives.
We suggest, and will demonstrate in different parts of this book, that the dominant EU paradigm is, therefore, that the Internet ought to be governed rather than purely regulated. But how is the right balance chosen between intervention of national governments, involvement of independent bodies and of corporations and the power of the medium, which has, it seems, a significant potential to regulate itself? Looking purely in terms of traditional regulation, there are four exclusive or concurrent potentially applicable governance models.
The first model presupposes the extension of territorial sovereignty. This model assumes that the present legal paradigm based on state territorial sovereignty is adequate for Internet regulation, and its proponents say that the state can simply adapt its current laws to apply to the Internet.
The latter is not a separate entity that exists outside national borders, but, on the contrary, is largely subject to national jurisdictions which states can and should take advantage of. A large proportion of activity on the Web does rely on this model, ranging from protection and enforcement of intellectual property rights to data protection, taxation or consumer protection.
In fact, it would be difficult to claim that this model is anything but dominant today. This does not automatically mean that the Internet is illiberal and subject to government restrictions, or liable to adapt to the standard of the most restrictive state.
The application of this model simply means that the Internet can be contained. In as much as this localization is present, that is, to the extent that the users and the networks are found in individual geographic locations, the rules that apply to them will also be local.
This prevents neither the globalizing nor the liberalizing effect of the Internet which both derive from its architecture. In fact, one can go as far as to say that Internet architecture encourages regulatory competition and forces governments to be liberal rather than restrictive regulators.
This competition has been especially evident in the case of electronic commerce, where businesses tend to place themselves in jurisdictions legally and financially more favourable to them. At the same time, it would be wrong to say that complete reliance on national regulation is a desirable model. First, the relationship between regulation and innovation is still largely unknown.
An overly restrictive regulatory climate may create a less competitive, less innovative digital economy. Second, a significant number of areas such as regulation of spam, child pornography, domain names or data transfer between states require either cooperation between states, or corporate involvement, or both. The second model relies on international agreements and international regulatory efforts.
The Internet, its proponents argue, should be left to international agreements, concluded between sovereign Member States. The record of such achievements is, at least at the present time, poor although existent. This transfer agreement introduces a special regime for data transfer across the Atlantic as a way of overcoming these limitations.
The US security regulations require that all passenger airline data is transferred, and the two parties managed to negotiate a deal setting the conditions on which such data can be provided to the United States.
The third model of regulation relies on new international organizations. This model presupposes the creation of new international organizations formed specifically to deal with the Internet and entrusted with its regulation. The nature of these organizations varies. The first, ICANN, is a non-profit organization created in to supervise the performance of a number of Internet-related tasks of which the most notable is the assignment of Internet names and addresses.
It is a consortium of member organizations, of which there are presently over , which it coordinates in their job of setting Internet standards.
The third, the Internet Society, is an international organization for the promotion of Internet use. Some of the organizations are unique and historical. Others, such as W3C, are, although successful, entrusted with standard-setting rather than regulation. Others, yet, play a limited role. Arguably, this model has not had a significant success rate in any of the Internet governance areas today.
The final model emphasizes Internet architecture and its regulatory potential. The Internet is governed not only by traditional regulatory methods in the form of legal norms but also and primarily by the architecture it is based on. Any impact on the regulatory regime also brings changes to the architecture itself, making it more or less restrictive. The present Internet is liberal only because it is built on architecture not easily subject to centralized control.
Left to itself, cyberspace will become a perfect tool of control … The invisible hand, through commerce, is constructing an architecture that perfects control. We can build, or architect, or code cyberspace to protect values that we believe are fundamental. Or we can build, or architect, or code cyberspace to allow those values to disappear.
However, the issues are of considerable complexity. Closely related to the link between code and law is the idea that the Internet is not suited to direct legal control and needs a more flexible approach in the form of self-regulation. As such, self-regulation is not synonymous with deregulation, which is the reduction of excessive governmental control, or with non-regulation, which is complete absence of regulation. Likewise, self-regulation is not synonymous with governance, which is a general term for a move from regulation to less government-oriented approaches.
In Europe, self-regulation started to gain prominence in the Internet area in the late s. Today, self-regulatory authorities and codes of conduct are widespread. In a study of Internet self-regulation in the EU, the Oxford Internet Institute found that self-regulation had worked best where there was a firm legal basis, where codes of practice were well known and where clarity and transparency were not at issue.
In the EU-commissioned study on co-regulation, 44 this model was seen as a viable option as long as transparency and openness were maintained. It provides that Member States and the Commission shall encourage:. The European Union, as will be seen further in this book, relies on all four models of regulation. The perceived and desired freedom of the Internet is a function of many factors. In the European Union, first among them is the Single Market. However, tensions are present between the Single Market, on the one hand, and other treaty values, such as the protection of private life, fundamental rights or consumer protection, on the other.
Furthermore, the Internet originated in the United States 45 and much of the development and control as well as legal problems, are inextricably tied to it.
Solutions to problems in cyberspace inevitably often also need to be American solutions. A large number of questions, if not all of them, have a trans-Atlantic dimension.
The European Union can never match this historically given fact. Neither does it have to. Its regulatory choices are determined by its own history and environment. In reality, it was a small group of people, directly supervised by Jon Postel of the Information Society Institute of the University of South California. The United States has, directly or indirectly, been in charge of assignment of names and addresses since the inception of the Internet and is very reluctant to hand over that control to an international body.
Even Google has nearly resolved its trademarks challenges to AdWords. In Wisconsin, a court rejected a publicity rights concern, and the Tenth Circuit killed off a trademark query. The Florida State Bar even closed the possibility of banning lawyers from using keyword advertising. Keyword advertising lawsuits should not be much of a concern in the future. Recent problems for discussion include the dating of material, such as in the Grooveshark case, when pre recordings were not relevant to Section Also, courts have made it more likely for sites to be held responsible for users breaking copyright law, even when the copyright holder did not give notice.
Finally, investors may still be liable for infringement, even if the websites are not. Therefore, Section is not necessarily a safe harbor for us all, and there is much yet to be decided.
Government employees have gotten into trouble with social media due to over-sharing or lack of professionalism. There was also a question regarding whether government employees should be fired for speaking out against their employers on social media. Such posts have dire consequences because we rely on government officials to apply policies without bias.
Since then, Congress has been considering what else can be done to shut down abusive patent enforcement. Outside of Congress, the state of Vermont created a law to stop patent trolling , and lawyers have brought cases against senders of patent enforcement letters. The Supreme Court has also reviewed several cases regarding patent-related topics, keeping the issue in flux. The 47 USC was created by Congress in Section states that websites are not responsible for third party content.
Clearly, this is a defining law with wide-reaching implications. User-generated content sites benefit from it, but plaintiffs with complaints have suffered losses. In , Section expanded via the Speech Act. In , some content became exceptionally harmful, and for this reason, Section is beginning to receive more criticism. Online prostitution advertisements that are possibly connected to sex trafficking are a prominent example.
State legislatures have passed new laws to challenge these problems. Sometimes, judges simply ignore Section In , state attorneys general asked Congress to reform it, and revenge porn advocates are fighting it as well. This advocacy has already made some headway. Since any sort of hacking or lying to enter into a system is illegal according to this law, a normal internet user could technically be prosecuted for what is now considered normative online behaviour.
For example, it's forbidden to access a protected computer — but many people do this all the time, using their friends' or relatives' devices. Users who fail to follow a site's terms of service could also be charged under federal and state laws. The offense could be as simple a lying about your martial status on an eHarmony profile.
Aaron Swartz was threatened with 35 years in prison for apparently stealing academic articles with the plan to release them and later committed suicide. After his death, Aaron's Law was passed to amend the CFAA by addressing the terms of service issue, so that violating this would no longer be a crime. Now, a hacker must break a significant barrier in order to be charged. The Digital Millennium Copyright Act incorporated two copyright treatises in the hopes of controlling and manifesting rules of copyright online.
Although some major movie studios feel the law doesn't do enough, many people dislike the restriveness of the law. They feel the internet is a place for freedom and that this might sometimes include infringing upon copyright. The DMCA permits companies to send notices when someone breaks policy, urging them to remove the copyrighted material. Often, companies will agree, in order to avoid the hassle of a court case, but that doesn't mean the act isn't impeding freedom of speech.
It can be used against the following people:. The law also ffects cell phones. You cannot unlock a cell phone because providers place within them their own software. Changing the phone would mean affecting the company software, thus violating their copyright. Zoe Lofgren introduced a bill to protect people who modify devices for this purpose, but it has yet to be acted upon. The Electronic Communications Privacy Act of restricts government taps in telecommunications.
Service providers cannot release data without consent, or to the police or FBI without a warrant, if the material has been stored for less than six months. At the time of this law was passed, however, most telecommunications data was not maintained for longer than thirty or ninety days, and nowadays, some people keep messages or emails forever. Thanks to the six-month clause that is still in effect, police can easily retrieve information with only a subpeona.
Again, technology has changed since the law was passed. In , phone companies could offer up records of calls with basic info such as a phone number and date or time of call.
Now phone bills typically list only a few details, such as the monthly charge and amount of data used, but providers have access to much more information, and much of it is deeply personal in nature. The National Security Letters could now be used to summon data such as which web addresses a user visited, how big an email was, and what time they logged into a chat session.
The FBI is not allowed to retrieve email content via an NSL, but metadata can be manipulated to construct or understand content. Naturally, the FBI will attempt what they can within the limitations of this law. Further, the Justice Department can apply an aspect of the law to receive the location data of cell phones without a warrant.
This remains true depsite the fact that the Supreme ruled in that a warrant is needed to place a GPS device on a car. Of course, when the ECPA was initiated, none of what we now have was conceivable. Bills introduced in March of to mandate that police to get a warrant before retrieving location data from telecommunication personnel, but these bills have not yet moved forward.
Despite the policies, regulations, and security screenings, many people commit crimes online. So many business and financial transactions take place online that it is still a prime territory for criminal activity, despite its many defenses. Additionally, as stated previously, with regulations differing from nation to nation, it can be difficult to prosecute those who are guilty of offenses.
Criminals can set up many disguises via the net and across the globe. Police continuously improve their methods, however, and do their best to enforce the regulations we presently have.
Through the use and abuse of the internet, the public has come up with its own rules. These "laws" should not be mistaken for actual legislation. A few examples follow:. Perhaps the most famous example is is Poe's Law, which requests that all mocking of fundamentalist thought must include a winking smiley — otherwise, people will believe the poster to be serious.
Nathan Poe came up with this idea in He attests that people who are non-fundamentalists will often mistake sincere fundamentalist thought for jokes and vice versa. The fake news phenomenon of the electrion cycle demonstrates how easily lies and satire can be mistaken for truth and sincerity. Several "news" stories were widely circulated on social media platforms that turned out to be pure fiction, causing confusion and real-world consequences. As global companies, lawyers, and policy makers attempt to decipher and implement new practices in regards to cyberlaw, numerous organizations have developed in order to relate to the relevant fields of practice.
Also helpful are the numerous publications related to internet policy, which can be used for furthering one's own knowledge, or for professionals who administer and regulate the law.
If you are facing an issue related to cyberlaw or any of the issues listed above, post your job on the UpCounsel marketplace. UpCounsel has lawyers who are well-versed in the complexities of internet law.
Internet Law: Everything You Need to Know Internet law refers to how legal principles and legislation govern the use of the internet in all its forms. Internet law can include the following: Laws related to the creation of websites Laws governing Internet Service Providers Laws related to how trademarks are used online Laws regarding how to resolve conflicts over domain names Laws related to how to link web pages Since the internet is relatively new and constantly evolving, laws surrounding its use cannot be informed solely by precedent or common law.
The four methods include: Laws: In ther attempts to handle issues related to the internet, comost countries rely on legislation to mold behavior and manage policy. Internet law is especially relevant within arenas such as gambling, child pornography, and fraud. The problem is determining how offenses can or should be prosecuted. How can an internet site developed on the other side of the world be expected to abide by the fluctuating and oftentimes confusing regulations of another country?
Architecture: Where laws are government-imposed rules, the term "architecture" refers to the actual technological limitations of the internet. It encompasses everything that affects how information can be transmitted on the internet, from search engines and filters to encryption and coding. Norms: On the internet, as in all areas of life, human behavior is governed by cultural norms.
These can help fill in the gaps left by formal regulations. For instance, in deleting inappropriate comments from an online forum, moderators go above and beyond legal requirements and rely on social norms.
Markets: The highs and lows of the online marketplace also affect what happens online. Unpopular concepts or behaviors will not be in demand and will eventually disappear. Likewise, if there is demand but far too much supply, sellers will need to offer more distinct or unique options. This can incentivize ethical behavior, creativity, and self-regulation.
0コメント