Information Technology and Law

Deconstructing Prevalent Policy One-liners

By: Bert-Jaap Koops (Editor), Corien Prins (Editor), Maurice Schellekens (Editor)

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Hardcover | 27 April 2006

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312 Pages

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23.5 x 15.88 x 1.91

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How does the 'on-line' world relate to the 'off-line' world? Is it different, separate, or even unique compared to the off-line world, or just a part thereof? And when do we need to regulate it, and how? These have become important, but complex questions for legislators, policy-makers, regulators, and politicians who design regulatory frameworks to address fast-moving technologies that change society in intricate ways.

Over the course of time, governments and international organizations have developed regulatory 'starting points', in order to consistently and effectively deal with ICT and Internet regulation. These offer policy one-liners such as 'what holds off-line, must hold on-line' and 'regulation should be technology-neutral'. This book questions these regulatory starting points in detail and systematically explores their application, meaning and value for international e-regulation. It digs deeper than existing literature in trying to find out in which cases the starting points merit attention, and how we should really use them.

This volume is the product of close collaboration and debate between scholars working at the Tilburg Institute for Law, Technology, and Society (TILT), to which international colleagues have added valuable reactions and reflections. The contributions in this volume have been written by TILT researchers Simone van der Hof, Bert-Jaap Koops, Miriam Lips, Sjaak Nouwt, Corien Prins, Maurice Schellekens. and Kees Stuurman, and by guest authors Dan Burk (University of Minnesota), Herbert Burkert (University of St. Gallen), and Yves Poullet (Facultes universitaires Notre-Dame de la Paix, Namur).

This is Volume 9 in the Information Technology and Law (IT&Law) Series

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Non-Fiction Law Laws of Specific Jurisdictions Company Law Commercial Law E-Commerce Law IT & Communications Law Entertainment & Media Law International Law Public International Law International Economic & Trade Law Computing & I.T.

Information Technology General Issue Legal Aspects of IT

Preface	p. V
Summary of contents	p. VII
Abbreviations	p. XV
Introduction	p. 1
Introduction: The Complexity of Designing Regulation for 'On-Line' Activities	p. 1
The Mutual Influence of Technological, Societal, and Regulatory Developments	p. 2
New Regulatory Questions, Dilemmas, and Options in a Networked Society	p. 4
Traditional regulatory frameworks, technical characteristics and societal transformations	p. 4
Alternative regulatory options	p. 7
Developments Towards Regulatory Starting Points	p. 7
Exploring Regulatory Starting Points: Methodological Justification and Contents of the Book	p. 10
Inventory of General ICT Regulatory Starting Points	p. 13
Introduction	p. 13
US ICT Regulatory Starting Points	p. 15
European Starting Points for ICT Regulation	p. 19
Asian and Pacific ICT Regulatory Starting Points	p. 24
Singapore	p. 24
Japan	p. 28
Australia	p. 34
ICT Regulatory Starting Points of International Organizations	p. 36
Organization for Economic Co-operation and Development (OECD)	p. 36
G7/G8	p. 37
United Nations Commission on International Trade Law (UNCITRAL)	p. 40
World Intellectual Property Organization (WIPO)	p. 40
World Trade Organization (WTO)	p. 41
International Telecommunications Union (ITU)	p. 41
Preparations of the World Summit on the Information Society (WSIS)	p. 42
General ICT Regulatory Starting Points: Some First Observations	p. 47
What Holds Off-Line, Also Holds On-Line?	p. 51
Introduction	p. 51
Where Does It Come From?	p. 51
What Does It Mean?	p. 55
On-line and off-line	p. 55
What holds off-line, also holds on-line	p. 56
How Does It Apply?	p. 59
When Should It Apply?	p. 65
How Can It Be Applied?	p. 72
What Should It Mean?	p. 74
Should ICT Regulation Be Technology-Neutral?	p. 77
Introduction	p. 77
Where Does It Come From?	p. 77
What Does It Mean?	p. 79
'ICT'	p. 79
'Regulation'	p. 81
'Technology'	p. 81
'Neutral'	p. 82
'ICT regulation should be technology-neutral'	p. 83
How Does It Apply?	p. 91
Electronic signatures	p. 91
The constitutional right to secrecy of communications	p. 94
Misuse of devices	p. 96
When Should It Apply?	p. 98
How Can It Be Applied?	p. 104
What Should It Mean?	p. 107
Should Self-Regulation Be the Starting Point?	p. 109
Introduction	p. 109
Where Does It Come From?	p. 110
International initiatives	p. 110
European Union	p. 110
OECD	p. 112
UN/ITU	p. 114
National initiatives	p. 115
Australia	p. 115
The Netherlands	p. 116
United Kingdom	p. 117
United States	p. 118
What Does It Mean?	p. 119
Key characteristics	p. 119
Typology and the relation to government regulation	p. 120
Advantages and disadvantages of self-regulation	p. 123
Self-regulation in practice: How does it apply?	p. 126
Codes, guidelines, and assessment schemes for on-line activity	p. 126
Standards	p. 128
Netiquette	p. 129
Public watchdogs and hotlines	p. 130
Technology as self-regulation	p. 131
When Should It apply?	p. 132
Criteria in policy documents	p. 133
Main criteria	p. 136
How Can It Be Applied?	p. 140
What Should It Mean?	p. 148
Should ICT Regulation Be Undertaken at an International Level?	p. 151
Introduction	p. 151
Where Does the Starting Point Come From?	p. 152
What Does International Regulation Mean?	p. 158
'International level'	p. 159
Regulation	p. 163
How Does Regulation Apply?	p. 165
Copyright	p. 166
Domain names and Internet governance	p. 168
Personal data protection	p. 170
Cross-border law enforcement	p. 173
Why Strive for Harmonization?	p. 175
Legal certainty	p. 176
Balanced competition on markets	p. 178
Administrative burden	p. 180
The race to the bottom	p. 181
No room for nationally oriented perspectives	p. 182
A minimum level of legal security or protection	p. 184
Effective enforcement	p. 185
Interests of developing countries	p. 187
Infrastructure is a global thing	p. 188
Code as international law	p. 189
Boundaries and Limitations of International Rule-Making	p. 189
Formal and recognized limits of international rule-making	p. 190
The nature of the issue at stake	p. 192
The nature of differences between national solutions	p. 193
Different mechanisms in realizing harmonization	p. 194
Relevance of the Starting Point	p. 195
Conclusion	p. 200
Code As Law?	p. 203
Introduction	p. 203
The Meaning of 'Code As Law'	p. 205
Content	p. 205
The origin of 'code as law'	p. 208
Implications of 'code as law'	p. 210
How Does 'Code As Law' Apply?	p. 213
Digital Rights Management (DRM)	p. 213
Privacy enhancing technologies	p. 215
'Code As Law' in a Broader Perspective	p. 217
Code: Rules or rules of law?	p. 217
Code as law: A new phenomenon?	p. 219
Technological developments as a source of 'rules'	p. 219
The enforcement of rules by means of technology	p. 219
Internet-related decision-making v. other forms of standardization	p. 223
'Code as law' in a changing world; The Internet in transition	p. 224
'Code as law': How to solve the problem	p. 226
Concluding Remarks	p. 226
Conclusion	p. 229
Introduction	p. 229
The Starting Points: Advantages and Drawbacks	p. 229
Can the Starting Points Be Used?	p. 233
The starting points as a procedural checklist	p. 234
Making the starting points more concrete	p. 235
Future Outlook	p. 237
Selected Comments on Themes Developed in this Volume	p. 239
Four Myths About Regulating in the Information Society - A Comment	p. 239
Introduction	p. 239
The myth of technological neutrality	p. 240
The myth of internationalization	p. 242
The myth of 'Code as Code'	p. 244
The myth of 'Self-Regulation'	p. 245
Final observation	p. 246
ICT and Co-Regulation: Towards a New Regulatory Approach?	p. 247
Comment on 'Should ICT Regulation Be Undertaken at an International Level?'	p. 261
Introduction	p. 261
Law as a product	p. 262
Law as a standard	p. 268
Conclusion	p. 272
Literature	p. 273
About the editors and authors	p. 289
Index	p. 291
Table of Contents provided by Ingram. All Rights Reserved.

Information Technology and Law

Deconstructing Prevalent Policy One-liners

At a Glance

Hardcover

Shipping

How to return your order

Defective items

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