Tech Law

• Law


  Body of rules with binding legal force which are prescribed, recognized and enforced by a controlling authority
• Technology


  Machines that aid us in our day to day life
• Technology law


  How does the environment over which the law seeks to be effective affect the rule of law?
• Technology law is not a body of law
• Legal disruption


  The effects of the move from industrial to informational society
• Shifts from industrial to informational society


  • Technology is not only a scientific endeavour anymore
  • Shift from the atoms (physical society) to the bits (digital society)
  • Shift from goods to services
  • Shift from industrial economy to information society (information economy)
  • Shift from ownership/control of things to ownership/control over information
  • Shift from rivalrous to non-rivalrous goods
  • Shift from tangible to non-tangible goods
  • New and revolutionary model to market and deliver products or services
• All these shifts lead to a legal disruption because the laws were not created to foresee this. There are serious challenges to traditional legal values and traditional legal rules
• Information is valuable. It is also (almost) infinitely scalable, nonrivalrous and intangible
• When providers may control the traffic, the law must come in at every level
• Net Neutrality


  Data packets on the internet should be moved impartially, without regard to content, destination or source
• Internet service providers (ISPs) treat all online traffic equally and openly, without discrimination, blocking, throttling or prioritisation
• Principles of Regulation (EU) 2015/2120 on Open Internet Access


  • No blocking (of lawful content, applications, services or non-harmful devices)
  • No throttling/limits on the speed
  • No discrimination of online content, applications and services
  • Transparency (and proportionality) of measures– providers must disclose information regarding their network management practices, performance and the commercial terms of service
• These principles are relevant for freedom from monopolies, freedom of online speech, freedom to use any applications and services without interference, and freedom to visit any website at the fastest browsing speed
• Case C-807/18 and C-39/19 Telenor Magyarország

  1. Facts: After you reached the limit of data you had, you could still use certain websites or apps which were part of the zero traffic subscription

  2. Considerations: Article 3 of the Net Neutrality Regulation must be interpreted as meaning that packages made available by a provider of internet access services through agreements concluded with end users, and under which (i) end users may purchase a tariff entitling them to use a specific volume of data without restriction, and services covered by 'a zero tariff' and (ii) once that data volume has been used up, those end users may continue to use those specific applications and services without restriction, while measures blocking or slowing down traffic are applied to the other applications and services available, are incompatible with Article 3(2), read in conjunction with Article 3(1) of the Net Neutrality Regulation, where those packages, agreements, and measures blocking or slowing down traffic limit the exercise of end users' rights, and are incompatible with Article 3(3) of that regulation where those measures blocking or slowing down traffic are based on commercial considerations

  3. Conclusion: The court said that you can have zero traffic rules, but after the data runs out, all websites and apps need to be cut off. They were looking at the reason, the reason was financial consideration, and they were like this is not allowed
• Case C-854/19 Vodafone


  1. Facts: When you were out of Germany, only the zero tariffs options could be used after your data run out

  2. Considerations: Article 3 of the Net Neutrality Regulation and Regulation 531/2012 on roaming on public mobile communications networks within the Union must be interpreted as meaning that a limitation on use when roaming, on account of the activation of a 'zero tariff' option, is incompatible with the obligations arising from Article 3(3)

  3. Conclusion: This is not allowed, the court said. The problem is not the zero tariff subscription, the problem starts when that free access limits the access to other sites. Here they were looking at the legality as a whole. Zero rating agreements are never okay
• Information society


  Society where the driving products are not tangible and rivalrous but rather digital and non rivalrous (information)
• Shift from ownership of things, to control over information


  Information is what now has economic value
• Big data


  Incredibly large data-sets which are then analysed by computers to find patterns and trends. Volume → how large, Velocity → how quickly is the data generated, Variety → diversity of data sources, Veracity → quality and accuracy of the date (the more accurate the data, the more accurate results), Value → value big data can provide to organisations
• Internet of things


  The connectivity and communication between devices and networks. The connectivity of anything that can have a specific number and that allows you to transfer data between systems (devices, pace makers, chips etc.)
• Differences between terms


  • Goods v Informational goods: Goods are tangible (atoms) products which have economic value while informational goods are non-tangible digital products such as files, movies, songs etc which have economic value because of the information it contains
  • Rivalrous goods v Non rivalrous goods (informational goods, they are digital): Rivalrous goods are goods whose consumption by one consumer prevents simultaneous consumption by other consumers. Non rivalrous goods are goods whose consumption by one consumer does not prevent simultaneous consumption by other consumers
  • Tangible goods v Intangible goods: Tangible goods are goods which can be touched, seen, exist in the non-digital world, while intangible goods are goods which only exist in digital form/not palpable
  • Internet v World Wide Web: The internet is the network which connects devices and computers while the world wide web (higher level network) is the network which is made up of the sites and services available. Everything that is in the WWW uses the internet, but not all internet networks use the WWW
• Theories of cyberspace governance

  • Cyberlibertarianism
  • Cyberpaternalism
  • Network communitarianism
  • Intermediary and Platform regulation
  • Behavioural regulation
  • Algorithmic regulation
• These theories are descriptive not prescriptive. They don't try to tell us how to regulate, but they try to just capture the reality
• Generations of the internet

  • 1st Generation (90s) - Cyberlibertarians
  • 2nd & 3d Generation (2000) - Cyberpaternalism
  • 4th Generation (2010) - Network Communitarianism
  • 5th Generation (2020…) - Intermediary & Platform regulation, Behavioural regulation, Algorithmic regulation
• The internet was a scientific endeavour which became accessible to the people
• Cyberlibertarianism


  The incorporeal and borderless nature of the digital environment would render traditional lawmakers powerless, and would empower the community within cyberspace to elect its own lawmakers and to design its own laws tailored to that environment
• Cyberlibertarianism is problematic because you are still a subject of a state in real life
• Weaknesses/consequences of cyberlibertarianism


  • Cyberspace lacks homogeneity and internal democratic discourse, thus it cannot be effectively regulated from within
  • You still have a real life location
  • Regulatory arbitrage as a consequence of cyberlibertarianism – If certain content is prohibited in one country but not in the other, individuals would access online the content in the country it is allowed
• Cyberpaternalism


  Command and control by government - what needs to be regulated is contractual agreements between various internet service providers and the new internet architecture which is manmade and within our control
• Lex Informatica


  The primary sources of default rule-making are technology developers and the social processes through which customary uses of technology evolve
• Weaknesses/consequences of cyberpaternalism


  • It gives too much power to the state
  • It goes against the idea of internet that it is supposed to be free
• Lessig introduced a different way (from Reidenberg) to regulate the internet: Lessig's modalities which regulate actions that individuals make
• Network communitarianism


  The relationship between the digital environment and the real world is a more fluid affair. Users also influence the internet because everything is interconnected. We are not a pathetic dot, we are a community.
• Intermediaries and platform regulations

  In the past: E-Commerce Directive -> safe harbour principles (Art. 12) + (Art. 15) - providers should not be held liable and Member States shall not impose a general obligation on them

  Now: Digital Services Act (came into force in 2024) -> restates safe harbour principles but adds responsibilities - clear terms and conditions, transparency, more obligations for very large online platforms (VLOPs)
• Behavioural regulation - Libertarian paternalism


  Humans are not rational and thus regulation comes from a higher authority, but it does not come from a command and control perspective, but it gives us a choice. It is designed in a way that most of us go towards the 'right' choice. Nudging- You are given a choice between certain options but the entity (usually the state) nudges you towards the right decision (benevolent, what is best for you). Dark patterns- You are given a choice between certain options but the entity (usually a company) coerces you towards the 'wrong' decision.
• The Digital Services Act (DSA) introduces obligations for providers (because what they do is out of our control)
• Obligations for providers under the DSA

  • Clear terms and conditions
  • Transparency
  • Even more obligations for very large online platforms (VLOPs)
• Behavioural regulation - Libertarian paternalism


  The state telling us what to do, but it does not come from a command and control perspective, it gives us a choice and is designed in a way that most of us go towards the 'right' choice
• Nudging


  You are given a choice between certain options but the entity (usually the state) nudges you towards the right decision (benevolent, what is best for you)
• Dark patterns


  You are given a choice between certain options but the entity (usually a company) coerces you towards what is best for them
• Art. 25 of the DSA prohibits dark patterns, but allow nudging