Dr Petros Terzis, Post-doc Research Fellow, UCL Laws and Dr Michael Veale, Associate Professor, UCL Laws—written evidence (DRG0016)

 

 

Reasons for submitting evidence:

 

The proposed Digital Authority and the work of the Digital Regulation Co-operation Forum are both steps in the right direction insofar as they are tasked to build bridges of communication and collaboration among legal practitioners, policymakers, and experts across disciplines. However, co-operation, research and understanding are not enough. There are certain preconditions to be met for the Digital Authority to generate a substantial and transformative effect in the way we design, discuss, and enforce laws in in the digital world. These preconditions are inherently political and touch upon the regulatory mandate and scope of the Digital Authority. The scope and underlying reason for the present response is to highlight the importance of these preconditions and suggest practical steps for their fulfilment.

 

Questions addressed:

 

1.              How well co-ordinated is digital regulation? How effective is the Digital Regulation Co-operation Forum?

5.              What is your view of the Committee’s proposal in Regulating in a digital world for a ‘Digital Authority’, overseen by a joint committee of Parliament?

 

Response:

 

  1. The regulation of the digital world is undergoing a phase of reckoning. We no longer live in a cyberspace of lawlessness and the legal regimes applying to online environments are now far from a Wild West. Instead, there is now a plethora of diverse, supplementary, and often overlapping rules and norms, such as data protection, competition law, consumer protection, intermediary shields, and upcoming platform regulation such as the Online Safety Bill. We have moved from a time where the lack of rules was perceived as the problem to one where a lack of enforcement has taken centre stage. This has been compounded by the political economy of Internet companies and infrastructures which has made enforcement practically challenging for reasons including capacity, jurisdiction, and conflicting policy aims.

 

  1. The proposed Digital Authority is a step in the right direction insofar as it is tasked to build bridges of communication and collaboration among legal practitioners, policymakers, and experts across disciplines. Some of this type of work has already existed, albeit without a statutory footing, such as the Digital Regulation Co-operation Forum (hereinafter the ‘Forum’), as regulators have understood that working in silos allows them to be ‘divided and conquered’ by large technology platforms, who can play off and instrumentalise areas like data protection and competition to achieve their commercial goals, notably regulatory stalemate.

 

  1. However, co-operation, research, and understanding around priority programmes and issues is not enough. There are certain preconditions to be met for the Digital Authority to generate a substantial and transformative effect in the way we design, discuss, and enforce laws in the digital world. These preconditions are inherently political and touch upon the regulatory mandate and scope of the Digital Authority.

 

  1. If the regulator’s job begins and end with co-operation and co-ordination, it risks recycling the existent problems of regulatory inconsistencies and, subsequently, adding another administrative clog to an already overloaded regulatory apparatus.

 

  1. What is missing is an institution with the legal tools and resources to question power structures that may operate outside the existing logics of current statutory regimes. Technology firms have become powerful and indispensable infrastructures with quite abstract goals. They are difficult to dislodge due to their capacity in capturing and extracting value from individuals and communities in all manner of ways, from financial transactions to data collection. As a result of their scalability, programmability, and modularity they are legible and accessible to advertisers or those with other messages, constantly steering the products they buy in order to benefit from purchases of more hardware or software. By determining the conditions and flow of the market dynamics, technology firms ultimately shape the digital environments within which people work, play, socialise, or even understand the physical world through connected devices. During the COVID-19 pandemic, and for all good reasons, we witnessed how a personal device can be transformed into a mechanism for proximity tracing of the general population within just few weeks.

 

  1. While infrastructures we are often used to regulating, such as telecommunications and water have issues which boil down to consumer welfare and reliability, or -at most- ideas of non-discrimination like the net neutrality regulations inspired by the common carriage rules established in English common law, these new digital infrastructures are much more value-laden.

 

  1. It is in this context that an authority needs to escape a mere coordinating role. For this reason, we believe that the Parliament shall resist the temptation of rushing to institutionalise a new supervisory or coordinating mechanism without taking the time to discuss and establish its political foundations and how those relate to understanding, anticipating, and shaping the powers of digital companies and infrastructures.

 

  1. There is a bigger picture here that needs to be politicised. This is not in the sense of party politicisation. This is in the sense of “what is the Internet we want?”. This debate is hard to have – it needs expert and evidence-based analysis that goes all the way up and down the “stack” of technologies; from material spaces of control and influence such as the underseas cables and the services that ISPs and other entities interact with behind the scenes, to the systems and applications that consumers and businesses use every day and the standards and algorithms underpinning them.

 

  1. The core of this much-needed infrastructural regulatory logic is a synthesis of the principles of power, democracy, and legitimacy. Currently deflected by a narrow, and compliance-focused regulatory rationale and a primarily economic understanding of power, these principles are usually obscured by, or scrappily translated into more ‘efficient’ and ‘operational’ ethical and legal principles. Contrary to these dynamics, we suggest that the institutional endeavours to coordinate and converge the regulation of the digital world through the Digital Authority and the Forum need to be part of a broader enquiry on the organisational, infrastructural, and legal-institutional power that digital platforms have managed to accumulate; an enquiry premised on the political axis of power, democracy, and legitimacy.

 

  1. In this direction, alongside, within, or for the purpose of the establishment of the new Digital Authority, we propose a parallel parliamentary enquiry to discuss a new regulatory logic that will grant the Digital Authority more norm-shaping competences for the regulation of the digital world. In the past, parliamentary reviews and government white papers have investigated similar aspects of infrastructural power[1]. Drawing on these regulatory approaches and centred on the power and programmability of the modern digital infrastructures, the scope of this parliamentary enquiry will be to scrutinise, map, and analyse the latter’s power capabilities and affordances as well as to empirically explore material changes in software production and their impact on citizens’ and consumers’ rights[2]. This theoretical and empirical analysis will then form the basis for the institutional mandate of the Digital Authority. As such, the Digital Authority will be transformed from another multistakeholder body of inter-institutional collaboration to a democratically accountable regulatory mechanism, with a clear mandate and scope that will enable it to question and interrogate power structures rather than merely coordinate and monitor business practises.

 

  1. We believe that such an institutional mandate can materialise a broader regulatory shift from the regulation of content to the regulation of infrastructures. Such a turn is consistent with extensive literature and empirical research from Science and Technology and Media studies[3], and we regard it as an essential condition for any attempt to regulate the inherently malleable, scalable, and modular digital world. Unless certain political and institutional safeguards are put in place, the infrastructural programmability of our modern digital world will keep generating challenges and problems for the regulator, regardless of how organised and streamlined the communication and convergence among the various administrative institutions and authorities are.

 

  1. Equipped with this new infrastructural regulatory logic and a democratic mandate, the Digital Authority will be able to strengthen the ties of accountability and legitimacy that connect the private architects of the digital world with the Parliament and subsequently with the public. As such, the Digital Authority will be able to serve as a safety valve for the public interest when interrogating and coordinating the actions and orientations of the institutions that sustain and mediate our individual and collective lives.

 

 

October 2021

4

 


[1]              See for example Department of Enterprise, Competition and Choice; Telecommunications Policy for the 1990s’, Cm1461, March 1991 and the Report of the Post Office Review Committee, Cmnd 6850, July 1977

[2]              Seda Gürses and Joris van Hoboken, ‘Privacy after the Agile Turn’ in Evan Selinger and others (eds), The Cambridge Handbook of Consumer Privacy (Cambridge Law Handbooks, Cambridge University Press 2018).

[3]              See for example Laura DeNardis, The Global War for Internet Governance. (Yale University Press 2014); Francesca Musiani and others, The Turn to Infrastructure in Internet Governance (Palgrave Macmillan 2016); Bart Cammaerts and Robin Mansell, ‘Digital Platform Policy and Regulation: Toward a Radical Democratic Turn’ (2020) 14 International Journal of Communication 0, 20; Tarleton Gillespie, ‘The Politics of “Platforms”’ (2010) 12 New Media & Society 347 Sage UK: London, England.