Newish edited volume: Power and Authority in Internet Governance: Return of the State?

(finally getting around to noting my recent publications)

My edited volume (co-edited with Natasha Tusikov and Jan Aart Scholte) is now out, via Routledge. It focuses on the question of the state role in internet regulation from three perspectives: global internet governance; internet governance in authoritarian countries; and internet governance in democratic countries. As you’ll see from our table of contents, we were fortunate to draw on the talents of some very insightful internet scholars from around the world. Please do check it out.

Book description:

Power and Authority in Internet Governance investigates the hotly contested role of the state in today’s digital society. The book asks: Is the state “back” in internet regulation? If so, what forms are state involvement taking, and with what consequences for the future?

The volume includes case studies from across the world and addresses a wide range of issues regarding internet infrastructure, data and content. The book pushes the debate beyond a simplistic dichotomy between liberalism and authoritarianism in order to consider also greater state involvement based on values of democracy and human rights. Seeing internet governance as a complex arena where power is contested among diverse non-state and state actors across local, national, regional and global scales, the book offers a critical and nuanced discussion of how the internet is governed – and how it should be governed.

Power and Authority in Internet Governance provides an important resource for researchers across international relations, global governance, science and technology studies and law as well as policymakers and analysts concerned with regulating the global internet.

Table of contents:

Introduction: Return of the State?, Blayne Haggart, Jan Aart Scholte, Natasha Tusikov 

Part 1: Global Internet Governance: The Bird’s Eye View 

Chapter 1: From Governance Denial to State Regulation: A Controversy-Based Typology of Internet Governance Models, Mauro Santaniello  

Chapter 2: The Role of States in Internet Governance at ICANN, Olga Cavalli and Jan Aart Scholte 

Chapter 3: The Metagovernance of Internet Governance, Niels ten Oever 

Chapter 4: The Data-Driven Economy and the Role of the State, Dan Ciuriak and Maria Ptashkina 

Part 2: Internet Governance and Authoritarian States 

Chapter 5: Building China’s Tech Superpower: State, Domestic Champions and Foreign Capital, Lianrui Jia 

Chapter 6: “Nine Dragons Run the Water”: Fragmented Internet Governance in China, Ting Luo, Aofei Lv 

Chapter 7: Russia: An Independent and Sovereign Internet?, Ilona Stadnik 

Part 3: Internet Governance and Democratic States 

Chapter 8: The Return of the State? Power and Legitimacy Challenges to EU’s regulation of Online Disinformation, Julia Rone 

Chapter 9: Varieties of Digital Capitalism and the role of the state in Internet governance: A view from Latin America, Jean-Marie Chenou 

Chapter 10: Seeing through the Smart City Narrative: Data Governance, Power Relations, and Regulatory Challenges in Brazil, Jhessica Reia, Luã Fergus Cruz 

Conclusion: State Power (and Its Limits) in Internet Governance, Natasha Tusikov, Blayne Haggart, Jan Aart Scholte

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Newish article: Democratic Legitimacy in Global Platform Governance

A recently published article of mine in Telecommunications Policy, with Clara Iglesias Keller. It’s Open Access, so please do check it out.

It’s part of an excellent special issue on Norm entrepreneurship in internet governance, edited by by Roxana Radu, Matthias C. Kettemann, Trisha Meyer and Jamal Shahin. The other articles are definitely worth checking out

Abstract: The goal of this paper is to propose a democratic legitimacy framework for evaluating platform-goverance proposals, and in doing so clarify terms of debate in this area, allowing for more nuanced policy assessments. It applies a democratic legitimacy framework originally created to assess the European Union’s democratic bona fides – Vivian Schmidt’s (2013) modification of Scharpf’s (1999) well-known taxonomy of forms of democratic legitimacy – to various representative platform governance proposals and policies. The first section discusses briefly the issue of legitimacy in internet and platform governance, while the second outlines our analytical framework. The second section describes the three forms of legitimacy that, according to this framework, are necessary for democratic legitimation: input, throughput and output legitimacy.

The third section demonstrates our framework’s utility by applying it to four paradigmatic proposals/regimes: Facebook’s Oversight Board (self-governance regimes); adjudication-focused proposals such as the Manila Principles for Intermediary Liability (rule-of-law-focused regimes); the human-rights-focused framework proposed by then-UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; and the United Kingdom’s Online Harms White Paper (domestic regime). Section four describes our four main findings regarding the case studies: non-state proposals seem to focus on throughput legitimacy; input legitimacy requirements are frequently under examined; state regulation is usually side-lined as a policy option; and output legitimacy is a limited standard to be adopted in supranational contexts. We conclude that only by considering legitimacy as a multifaceted phenomenon based in democratic accountability will it be possible to design platform-governance models that will not only stand the test of time, but will also be accepted by the people whose lives they affect.

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Doug Ford’s Gen-X vaccine bribe

(reposted from Twitter)

I’m 48 and I’ve registered for my AZ shot. The sooner everyone’s vaccinated the better. But that doesn’t make @fordnation’s opening AZ to the 40-plus anything less than an attempt to buy off Gen-Xers to avoid helping the most vulnerable. Here’s why:

The Sunday announcement is clearly part of the government’s attempt to deal with the nuclear fallout from its disastrous Friday doomfest. Remember, that “plan” involved a slew of actions whose common feature was their irrelevance to actually getting the pandemic under control.Almost immediately, they rolled back the playground ban and their papers-please police policy. Which, great, but still does nothing to actually save lives. And the rest of the outdoors is still pretty much closed.

Then on Sunday – who announces carefully considered major policy changes on a Sunday? – we get the AZ announcement. Yay, Gen X finally gets something! But of course, there’s a catch.

If lowering the AZ age threshold were part of a consistent or coordinated plan, it would’ve targeted the most at-risk communities. It would’ve been announced alongside #PaidSickDays and the many other things medical professionals have been screaming about for months now.

Instead, they made yet another conscious choice. Rather than help those that need it most, or implement the detailed advice from his science advisors, Doug Ford just threw open the AZ doors.. That it’s being done in the absence of anything else tells us that it’s only happening so Doug Ford can avoid actually helping the most affected by (gasp!) providing #PaidSickDays.

To put it bluntly, I’m being bumped to the front of the line because Doug Ford and his Progressive Conservatives are feeling politically pressured and really, really don’t want to help the most affected.

We’re all scared. We all need the vaccine. But we need to confront the politics at play here. This government is making choices. The PC government is betting that this will be enough to calm people down, so it doesn’t actually have to do what all the experts say it needs to.

To be crystal clear: This is reprehensible because it’s being done in the absence of other needed actions. It’s being done, eg, to avoid or postpone giving workers desperately needed #PaidSickDays. It’s being treated as a (completely unnecessary, entirely political) tradeoff.

It takes a certain type of awfulness to play this type of pandemic brinkmanship. But we should all be aware enough to realize that while all 40-somethings should get their AZ when offered, we’re still being played. And people will still needlessly die because this government thought it could bargain its way out of a pandemic.

So, I’m going to get my shot as soon as I can. But I’m also not going to forget that this government is still refusing to do what it needs to do to keep Ontarians safe, and that it tried to buy me off with a life-saving vaccine. And @fordnation needs to immediately turn over all pandemic planning to actual experts and to stop playing politics with a pandemic that doesn’t care about his poll numbers. Fin.

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Getting the order of operations right: Why the Ford government’s attempts to save the economy won’t work, and what to do about it

TL;DR: To save the economy, first you gotta deal with the pandemic. Muddling around will only weaken the economy’s foundations.

I’m a big fan of academics staying in their lane and sticking to their areas of expertise. Subject expertise in one area doesn’t make someone worth listening to in another; all too often, it just muddies the conversational waters.

Which is why, a few tweets of despair notwithstanding, I’ve tried to limit my comments on the global coronavirus pandemic to things that I actually know something about, such as what sound policymaking looks like, and why Canada’s COVID Alert App did not reflect that. It’s also why I’ve been very careful not to say whether someone should or shouldn’t download the app; I’m not qualified to make that call.

Much better for all of us, I think, to leave that heavy lifting to those medical experts who know what they’re actually talking about, such as Dr. David Fisman, Dr. Andrew Morris, André Picard, the Globe and Mail’s longstanding public-health columnist, and Toronto Star columnist Bruce Arthur, who’s put in the hard work needed to understand the issue. No need for me, or anyone else, to give second-hand medical advice.

What I’m saying is, I’m no epidemiologist. But I do know something about the intersection between the economy and politics. And it’s this understanding that has me increasingly concerned about the backwards approach the Ford government (and, to be fair, most of the rest of the country) to the pandemic. Its recently announced colour-coded strategy, which outlines levels of restrictions linked to COVID prevalence in the community, is designed to keep the economy open as long as possible.

This approach is objectionable for several reasons, not least of which is that it effectively requires consumers to subsidize businesses at the risk of theirs’ and others’ lives. Support by the same consumer/taxpayer through government assistance for these same businesses, would impose merely a financial cost, not a health one.

Beyond that nasty moral quandary, this strategy is doomed to fail, even on its own narrow economic terms. (Although I’d note that actual epidemiologists don’t think too much of this approach in health terms, either.) Ironically, by focusing on keeping the economy open despite a rising number of infections, the Ford government will almost certainly end up hurting the Ontario economy more in the long run.

Putting the economy in its proper place

The Ford government’s policies seem driven by the assumption that there is a health-economic activity tradeoff: If you impose restrictions on economic activity to stop the spread of COVID, the economy will tank. From this perspective, Ford’s actions make sense. If you close the economy, growth stops, people are put out of work: None of this is a good outcome. So we want to keep the economy growing as much as possible.

Beyond the fact that empirical economic studies have shown this to be a myth, there’s also the problem that this view is rooted in some deeply held, but incorrect, beliefs.

Tucked away in the back of this health-economy tradeoff assumption is another widely held assumption, that “the economy” is equivalent to our measures of economic growth, namely the Gross Domestic Product.

The problem with this view, as the Italian economist Mariana Mazzucato discusses in her essential book, The Value of Everything, is that this focus on narrow measures of economic health such as the GDP misses the reality that the market economy – the part of society to which we attach prices – is deeply dependent on the parts of society that aren’t captured by GDP. And if you neglect these parts of society, then your economy will suffer in the long run. Which is my bet about what’s going to happen in Ontario.

Government spending is an investment, not a cost

An example, drawn in part from Mazzucato’s book (which everyone in public life should read): As many others have highlighted, child rearing, by parents and teachers, is not fully captured by GDP measures. Household work, including child care, is only included if it’s done by paid nannies or housecleaners, while teachers’ work only shows up as a cost in the national accounts. Treating teachers’ work as a cost helps explain why there is always such pressure to cut spending on schools (something Ford has been very interested in doing). That neither is considered part of the economy, like bars or banquet halls, helps to explain why they have been treated so haphazardly by the Ford and other governments when devising their pandemic response.

Ignoring the role of parents in raising children and treating teaching as a cost to be minimized is a huge mistake, both economically and socially. Instead of treating these activities as costs, we need to think of them (this is one of Mazzucato’s main points) as the basic investments needed to run a functioning society. Productive investments are the foundation of future innovation and economic growth. In other situations, we want to encourage spending on investments (say, in computers, new energy plants or research and development) in order to create a robust economy and society.

The thing is, this is exactly what parents and schools do. Parents and schools are in the business of creating productive and responsible members of society – citizens and workers – upon whom our future economic and social health will depend. In short, you cannot have a well-functioning economy without strong support for families and schools. They are, without exaggeration, the foundation and engine of economic growth, prosperity and innovation.

To save the economy, secure the foundations of the economy

If we recognize that families and schools are investments and not costs, and that the non-economic part of society is the foundation of the entire economy, then we’re left with two main conclusions.

First, any sound economic policy needs to start by securing the foundations of the economy, in this case, families and schools, not just supply chains. Ensuring child care for essential workers, and spending the money needed to allow schools to stay open safely needs to come first in the health-and-economy order of operations. Education spending and family supports need to be seen as essential investments, not as costs to be minimized.

A similar argument can be made to argue for much more comprehensive support for business and workers. This may show up as a cost on the government’s balance sheet, and Conservative governments are particularly sensitive to safeguarding the public purse. But this spending needs to be thought of as an investment in the future health of the entire economy, not as a drain on the taxpayer. Leaving this job to consumers and the marketplace won’t work because to do so encourages disease transmission. Again, the economy can’t get back to normal with this disease running rampant. It’s an investment in future productivity.

Second, because a healthy economy depends on a healthy society, the appropriate health policy, from an economic perspective, is almost certainly a policy of eradication, not mitigation, while providing support to businesses and workers during the curve-crunching period. Countries like New Zealand, Australia and China, it would appear, got it right: COVID has to be stomped to the ground if we want the economy to recover.

Again, this inability to appreciate the importance of the family and of schools to the economy isn’t really a uniquely Ford or Conservative (big- and small-c) blind spot. It is the result of decades spent thinking too narrowly about how value creation happens, focusing exclusively on the private sector at the expense of the role of the family and the public sector as economic burdens, rather than drivers of productivity and innovation.

Addressing this blind spot is necessary to deal with any number of pressing issues, not least of which are promoting innovation and dealing with the climate crisis. For now, however, failure to get the order of operations right – deal with the pandemic, support businesses in the interim, save the economy – will continue to have costs measured not only in dollars, but in lives. The sad irony being that Ford’s policy, undertaken to save the economy will, in the end, almost certainly harm it.

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What copyright scholars can learn from the Harper’s magazine “free speech” debacle

Nicholas Grossman has an excellent oped (h/t Mike Masnick) on that much (and justly) maligned Harper’s letter about cancel culture, free speech and stuff.

Grossman’s key point:

free speech defenders … miscast … their argument as a high-level defense of the principles that undergird a free society rather than what they’re actually doing: debating the parameters of socially-acceptable speech regarding race and gender.

To which I can only reply, precisely so.

The problem with the term “free speech” is that there are always always always rules governing speech. Always. The debate is never between free speech or no free speech because “free speech” is a floating signifier that boils down to “speech I agree with, or at least don’t feel threatened by.”

If people were clearer about this fundamental point – if we could get directly to discussing the parameters of socially acceptable speech – our public discourse could be improved in so many different areas. Not just with respect to political speech, the subject of Grossman’s article, but also in things like internet governance, where “internet freedom” plays the “free speech” role.

Copyright and the (non-existent) state of nature

And copyright, too. I’m writing an overview of copyright for a reference book and Grossman’s article articulated an uneasiness I’ve had about copyright scholarship that I’ve been trying to express for a while. In trying to explain what copyright is to neophytes, I’m struck, and not for the first time, how almost every analysis of copyright begins with the assumption that copyright imposes an artificial (state-created legal) restriction on the creation and dissemination of ideas, the corollary being that without copyright, ideas would be able to flow, well, freely.

The pithy apotheosis of this view is Lawrence Lessig’s comment praising “free culture,” not as in “free beer,” but as in “free speech.” Which should be our first hint that the state-of-nature understanding of knowledge and copyright just might have exactly the same problems as the “free speech” position.

Both the Lessig and the mainstream legal view of copyright is based on the assertion that knowledge is a public good (i.e., non-rival/non-excludable) in its natural state. As a former practicing economist, I understand the appeal of this approach, and it’s not like it’s 100% wrong, but I think it misstates the fundamental nature of knowledge – the thing being regulated here – in a way that has significant consequences for our understanding of copyright.

The thing is, just like political speech, commercial or creative speech is always governed by rules that determine who should be allowed to create, what they should be allowed to create, and who should be allowed to disseminate and access these works. There is no state of nature for creative speech, or knowledge for that matter. “Chewbacca” does not exist in the state of nature. Our favourite Wookie, and knowledge generally, are human creations. Creative speech, like all knowledge, is constituted by rules. Rules define. They set parameters. They include and exclude.

What I wonder is whether what we take as knowledge’s supposedly non-rival and non-excludable nature is actually an expression of a situation in which there are very loose limits on the controls that society is either willing or able to impose on the creation, dissemination and use of creative works. Stated in another way, there are always rules and norms at work in the constitution, dissemination and use of knowledge.

This is not just a twee academic exercise: it has real implications for how we consider knowledge regulation. Framing copyright as something imposed on otherwise “free” knowledge sets up a false dichotomy between restrictions and freedom. This false dichotomy, I think, accounts for much of why copyright debates, when they flare up, descend so easily into ideological grudge matches. Why do you hate artists? Why do you want to criminalize creativity? (Although the obscene amounts of money at stake also likely has something to do with it.)

Just as with Grossman’s “free speech” debate, strong-copyright proponents and copyright critics are not actually arguing about respect for artists versus cultural freedom, but about the parameters of socially acceptable commercial and creative speech. Which is how these things usually play out: the best writers highlight the role of balance between owners and users in copyright. And of course copyright law is all about dictating winners and losers. But that assumption about the state of nature is always there, lurking in the background.

Ditching the state of nature starting point in our copyright discussions would allow for a more honest, straightforward discussion and frank assessment of the stakes at play, rather than hiding behind empty platitudes such as “respect for the creator” or “free culture.” It would highlight that the choice is not between freedom and restriction, but between different rules.

This approach would start by asking the questions, What parameters – that is, permissions, limits and restrictions – should we place on creative and commercial speech? And, what groups, norms and forms of creative expression do we wish to favour, recognizing that there are always tradeoffs?

No monopoly on virtue

Starting our analyses from the acknowledgement that there are always rules, and that these rules will always advantage and disadvantage certain groups, norms and forms of creative expression, would hopefully force both strong-copyright proponents and copyright critics to realize that neither has a monopoly on virtue. It would recognize that even our insanely overprotective copyright regime – seriously, there’s not a person who has ever lived who ever made a decision about what to create based on whether their descendants will get a payout in 150 years – does not destroy creativity. It shapes it. It rewards some creators and punishes others.

Does the current copyright regime shape creativity in a positive or negative way? You can probably guess my overall position. But I’ll also acknowledge that “overly” (from one perspective) restrictive sampling rules pushed hiphop overall in a direction that it might not otherwise have gone (relying more on unidentifiable samples, some artists switching to live instrumental music). Is that a win or a loss?

There isn’t a definitive answer to that question, which must be worked out politically. Answering the question of where we should set the parameters of “socially acceptable speech” when it comes to creativity raises the same questions, with lower social stakes, as the current debates over race and gender. And like that debate, it’s highly political. But just as with the debate over political speech, it would be helpful if we could confront the real issues head-on in a way that recognizes that there are no optimal solutions, just trade-offs that will always favour some people and ideas over others.

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