Lack of uniformity in data protection laws

When regulators set different rules as to what is insufficient practice, what are the consequences for the marketplace?  Furthermore, what might this say about what players in the marketplace and their priorities, especially regarding privacy and security?

When data breaches occur, there are consequences for the victims who may be directly or indirectly tied to such data, the legal owners of that data, the legitimacy of the systems managing that data, and the companies who manage those systems.  However, the laws regarding data protection are not uniform, and today we may look no further than the recent PlayStation Network data breach to observe this reality.

In the European Union, a number of member states have regulators that monitor and impose duties upon controllers of data, whereas in the United States, there are no such duties, although public opinion would set expectations.  However, while in the European Union the regulators will impose fines upon data controllers for breaches, in the United States the only reasonable recourse is to target the company in class-action litigation.

In a global, interconnected world, where the “cloud” is the future, in which data travels and is stored across multiple jurisdictions at lightning-fast speeds, some form of uniformity regarding duties should be imposed upon any party deciding to engage in activity that deals with data that is expected to be secure.  If a general expectation of privacy and security to be provided by a party exists, a subsequent general duty to meet that expectation for the sake of the consuming party should also exist.  For that reason, continental regulation is not enough.  In the situation in which a party may be breaching laws in one country yet may not be in another is not good enough, especially when the law in question deals with material that is intended either to be used or to be stored from around the world.  In the situation in which a party may be facing a class-action lawsuit yet not a regulatory fine, while the same party may face the latter elsewhere, the law is confusing and counter-productive.

Either everyone should adhere to a system of data protection regulation and incur penalties as necessary, everyone should adhere to civil litigation, or both.  Data controllers should be reminded that their actions have global consequences, but they should also have a reasonable expectation of a consistent penalty regarding those consequences.

Shifting from brick and mortar commerce to electronic commerce

Work in progress, sources to be cited.

Technology dramatically changes markets.  It could be considered both the cause and the effect of economic activity, including recessions.  From the agricultural revolution to the industrial revolution and now the information revolution, business will continue to change, particularly with the exponential increases in technological development.  Rules, regulations, laws, and business methods will undergo modification in suit for the purpose of maintaining market stability.

Structural Adjustment

Structural adjustment policies implemented in countries since the recent global economic recession have come to define the winners and the losers in the marketplace.  Businesses with enough capital will typically acquire these losers, and with such acquisition comes change.  Structural adjustment policies break down trade barriers, and they inevitably open up affected markets to the greater world for competition.  To compete in the global market, the application of the latest technologies applicable for an industry is a must.

Brick and Mortar

Selling goods in the past required general observation of the local marketplace, sometimes traveling around to determine the best suppliers and distributors.  In 2007, when I was taking a class on Intellectual Property and E-Commerce, it was sincerely the first time I heard of the phrase “brick and mortar” as applied to types of businesses.  It is a retronym, signifying the progressive road to redundancy of businesses with simply a physical presence.

Trade Liberalization

With the breakdown of trade barriers and tariff reductions, as done in North America through NAFTA and in the European Union, competition is encouraged and increased.  The World Trade Organization and its members have implemented policies which foster this kind of trade. With the target market now based anywhere delivery services will go, having a store to drive to – or even worse, to fly to – is not what customers want.  They save that kind of traveling for tourism.  Instead, for better or for worse, customers are hooked up to the Internet, and at the convenience of typing a website URL, hitting enter, searching for a product, and clicking ‘buy’, going to the physical store is not helpful.  To be fair, this will not apply so well for the fashion retail market when it comes to handling the fitting room issue, or for large, expensive goods such as boats and cars, but there are stores that do allow for this, whether on digital auction or classifieds websites.  The fashion retail market takes advantage of e-commerce as well, sometimes offering apparel exclusively online.

Why the Change?

What happened to the businesses that failed?  Were they so outdone by their competitors that they had no chance to succeed?  Or were their business methods outdated?  It depends on the market in question, but business methods regularly become outdated.  For video rental services, going to the physical store used to be necessary.  Then it became possible to request videos for delivery, and now it is possible to watch videos on demand via the Internet, entirely removing the need for the physical store.

In the media market, access and convenience is so crucial that media piracy, particularly in the entertainment sector, was ahead of its time, siphoning off what would have been legitimate sales.  Businesses eventually accepted the reality, and many leading businesses have pioneered digital media sales, offering music, television, and film online and at a cheaper cost than physical media.  Production and distribution of media on a physical medium has proven to be inefficient and is certainly out of touch with the market.

If the customer has the convenience of not requiring transportation services to be productive, then the customer will use that convenience, especially if there is little to no hassle in terms of cost and time to achieve that desired productivity.  In some cases, customers are willing to pay for the convenience of staying wherever they are at the time of purchase.

Structural Unemployment

Regarding employment in the retail market, what happens to businesses that realize their old business methods required personnel trained in those old business methods?  Typically, unless those exact personnel can be trained to adhere to the new business methods, they will soon become unemployed.  Brick and mortar employees do not carry out the same activities as employees of a digital enterprise, and due to there being typically just one ‘store location’, fewer employees are needed altogether.

On a positive note, the capital raised by companies allows for investment in existing and potentially new sectors, eventually allowing structural adjustment to take place with the retraining of individuals on unemployment benefits to fit the new job sectors and their growth.  In the United States, a push towards renewable energy and high-speed rail infrastructure is taking place, and recognition of structural unemployment encourages investment and lobbying in this area.

Challenges and Opportunities

The information revolution has become so pervasive that profit models have changed along with it.  With the entertainment sector fully aware of the troubles of piracy and its effect on sales, some pioneers have decided to offer music, television, and film entirely free for consumers, though there is one caveat.  The advertising sector will continue to see its profits soar as companies will find easier ways to market their products and services to consumers, and one of the easiest ways is to advertise their products and services on a free product or service itself.  The business benefits from receiving advertisement placement fees, advertising companies increase their competition to provide appropriate advertisements for businesses interested in paying the original business for distributing their advertisements.  This may annoy some consumers who prefer advertisement-free content, but the solution is only part of another profit model, freemium.

Freemium gives an e-commerce business the advantage of offering a free product or service in addition to premium products or services.  Customers who prefer no advertisements will either pay or continue to be unsatisfied.  The freemium model is not highly conducive for tangible products and labor-intensive services as physical materials and actual personnel will have some kind of associated resource cost.  However, it is arguable that businesses offering ‘free consultation’ can now do so online, greatly expanding their market to the entire globe, if that is their desire.  This model also acts as free marketing for a business, informing customers of other products and services they offer without requiring the customer to look for such offers on their own.

Financial and legal advisers to companies will have to focus on these rapid, ongoing market changes to properly advise their clients, determining which business models are applicable and which ones are affordable given potential regulations and laws in effect.


Today, a fruit shopkeeper in a random town or city no longer sells just to customers in the local area.  Today, the sales and distribution will take place anywhere people are willing to pay for delivery.  Today, information is moving from physical media to digital media, and the transition happens to recognize the move towards sustainability and environmental preservation.

Electronic commerce is both cost effective and environmentally friendly.  This may not factor out the resources used or the pollution caused by product allocation and distribution, but such effects alone cannot discount the benefits of advanced commerce.  These negative effects can and will eventually gain the focus required to sustain competition in reducing these negative effects, through the development of more efficient and sustainable energy and transportation infrastructure, further benefiting the economy and society as a whole.

The tipping point for data protection to become the norm

With consumer security becoming highlighted constantly in the wave of online account phishing attacks, consumers becoming further concerned their communications could be compromised, and the PR message that consumers need to “watch what they are doing online” failing to modify consumer behavior on a wide scale, the tide in secure communications is turning.

In January 2010, Google began offering secure authentication access for its search engine.  For the first time in the competitive search market, security in searches became a reality.  Google had already offered HTTPS (Hypertext Transfer Protocol Secure) support through Gmail, which major email player Hotmail added only in November.  Google has also led the way in online collaborative office work through Google Docs, which uses HTTPS to protect confidential materials.  Yahoo! Email in the United States has yet to join the bandwagon, which it ought to as allowing consumer data to flow freely around public wireless hotspots is not preferable, and consumers have been continually gaining awareness about privacy and security.

Facebook, arguably now the world’s most popular website with over 500 million users, has also been using Yahoo!’s strategy in the United States only to allow HTTPS for logging in, to protect the password.  However, and with respect to Privacy Day that passed only yesterday, Facebook has set the stage for HTTPS to become the norm by beginning its roll out of full HTTPS support throughout the Facebook website.  This is data protection compliance at its fullest, as it ensures the consumer is obtaining the highest amount of security based on current consumer and professional standards.

Most e-commerce businesses, including financial services, have an obligation to implement HTTPS onto their websites, as consumer and client information must be kept fully confidential.  With Facebook’s induction into the secure world, commerce has stepped past the tipping point in security, and any company looking to enterprise today cannot only consider security in project management, it must implement that security as well.  This has always been the case for e-commerce, financial services, health services, and generally any service intended to be confidential, but it is clear the the intention today is moving towards guaranteed confidentiality throughout the Internet.

A libertarian take on human rights and intellectual property

Disclaimer: This essay is an intellectual assessment of legislation and judicial decision-making to date from an equal-opportunity competitive point of view, originally written on February 13, 2010. The author’s current opinion would apply a more pragmatic take on human rights and intellectual property given the economic context in which society emerges, taking into account the bigger picture of industry and regulation as it does exist, and working from there to promote economic development.

How do we unite humanity? How do we maintain honest governance? How will technology be used either for the benefit or for the detriment of society? Questions like these spark in the minds of socially conscious individuals, and while they may not in others due to what could be considered impractical idealism, one thing appears evident: individuals think in many different ways, and they are strongly influenced by their environment. With the rise in the influence of money, individual rights have been pushed second to the pursuit of profit. This has led to cultural acceptance of deliberate social stratification; that others must lose rights in order for others to have more due to scarcity. What has led to this, though? If it is accepted, then this is dependent on the information each individual has; information, whether public or private, has come to define society.

The activists who dedicate their time to various progressive causes understand that appreciation of issues on a wider scale benefits these causes. When it comes to guaranteeing the rights and liberties people desire to maintain, it is the right to privacy and freedom of speech that allow for the persistence of the rest.[i] For better or for worse, technology has hit the core of these liberties. Although easy to generalize in a few pages of writing, the relationship between intellectual property and human rights continues to grow, and it could be argued that the two, in their strongest forms, are antithetical; this is why a balance must be made between the two in order to safeguard societal progression.


It could be argued that privacy and free speech are generalized liberties that do not deserve elaborate protection due to the potential troubles behind having them[ii], but it can be argued that these rights, properly balanced[iii], will progressively enhance society. While money does guide many behaviors people use to survive, creativity has guided society through every progressive change it has endured. The agricultural and industrial revolutions were spawned not only out of a desire to maximize profit, but out of the creative minds of individuals who used existing knowledge and resources to create what people today call inventions, resulting in economic progress irrespective of the desire for profit. That creativity comes from information – without it, society is less susceptible to undergo progressive change.


The attitudes and reflections of individuals in today’s society are borne out of the knowledge they have collected over time, followed by their perceptions in the existing environment. Social psychology aside, the past century has produced a plethora of change, particularly in information technology. Society has applied technology to make business processes more efficient, maintain communication with loved ones, and improve the efficiency of other processes, such as enforcement, military and security. Unfortunately, the latter processes have entrenched on the former, as technology has become sophisticated enough to retrieve and apply information in ways that an everyday regular person would call invasion of privacy and restriction of free speech if he or she knew “what was going on.” Once again, the pursuit of profit[iv] and the consideration of unidentifiable national security issues[v] have come to affect these rights.


While laws have been enacted to protect the rights of individuals who author different works, some of these laws, either in their statutory or case law form, have been interpreted in ways that interfere with the basic individual rights of authors, innovators, and consumers alike – the DMCA is only one in the United States that has caused a great deal of frivolous litigation and threats to the average consumer, such as the RIAA sending subpoenas to university students to pay a fine or face lawsuits that could put them and their families into financial trouble.[vi] Intellectual property is a human rights issue. Academically speaking, intellectual property should be used for not only the benefit of the author or innovator involved, but also for its consumers and even its competitors. Intellectual property rights have been argued as human rights, but this could not be the case if some of them can infringe on other, tangible human rights. The ideal free market individuals desire is affected not only by resource scarcity, but also by political power scarcity – when legislation exists in ways that strengthen parties of differential advantage, it can become too difficult for smaller competitors to compete and even too difficult for disadvantaged consumers to purchase and consume the various kinds of products protected by intellectual property law.[vii]


Intellectual property was meant to exist to protect rights but also benefit the public – for example, with patent protection, innovators are encouraged to disclose their inventions in consideration for a virtual monopoly on the market-control of that product. However, when the few in differential advantage have the capital to acquire patents in order to prevent legitimate competition, a gray area emerges as to the usefulness of the patent construct. For example, technological innovation has freed humanity from simple chores from sewing and cleaning clothes to manufacturing automobiles with minimal to no human effort. Fully automated restaurants have been developed which free humans from working in mundane and boring jobs. However, another gray area emerges when a player in the energy industry patents advanced battery and renewable energy harnessing technologies followed by rarely exploiting the technologies until near the expiration date of the patent, paralyzing technological progress and maintaining profit on an existing, prior art. An example of a prior art here would be in the oil and gas sector, in which advanced technologies have been patented and economically suppressed, leaving the patent owner time to innovate and profit from the prior art of oil production for as long as possible given the scarcity of oil.[viii]


As government has been meant to provide rights to the individuals in society as well as prevent injustice, the economic understanding of elected officials and the degree to which they emphasize these issues will determine just how well they represent the people in these areas. Technological progress becomes economic progress when uninhibited and available for the wider public to enjoy. In distinction to the Felton v RIAA case, powerful copyright holders have unfortunately made their way into stopping “violators” in the United Kingdom, one of which created a device that video game players may install onto their console system to evade copyright protection mechanisms.[ix] This could set an unjust precedent that rights holders may argue should justify the criminalization of using devices on which infringement may occur, such as BitTorrent. While it may sound unreasonable to the average consumer to ban the use of BitTorrent and other seemingly harmless peer-to-peer software applications, several public universities and their accommodation facilities in the United Kingdom already block BitTorrent traffic from their networks with the reasoning “because it can be used for infringing copyright,”[x] even though the same or similar peer-to-peer technologies are used for non-infringing purposes.


Moving from the developed countries of the United States and the United Kingdom to developing ones, consideration must be given to how intellectual property and technology affect the world as a whole. Trade does not stop within a country, and with ever-expanding technology comes ever-expanding profitable trading policies[xi], allowing for potential exploitation of developing countries. [xii] When patents and the pursuit of profit slow down the benefit of developing countries, a very clear issue arises in which technology that could be applied to better society is instead paralyzed due to the inability of such countries to afford it. Rights come with responsibility, and reasonably so, they should come with social responsibility.

Treaties: Institutions

Technology improves healthcare, education, and communication systems on a dramatic level, and if international organizations, such as the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), do not take this factor into account, profit pursuits will continue to far surpass the pursuit of human rights. Developments in the WIPO have led to its Development Agenda, showing that there is consideration of developing countries being taken into account. However, the further the world economy moves into intellectual property as the primary competitive market while the lasting tangible commodities such as food, clothing, and shelter are still required to be traded simply for survival, the further capital will spread itself thin at the detriment of the unfortunate. Unfortunately, the WIPO and the WTO, while broadly international, do not prevent the minority of developed countries from entering into agreements such as the Anti-Counterfeiting Trade Agreement (ACTA), which, if unchecked, could paralyze the progress of the WIPO’s Development Agenda. Therefore, as international treaties become further and further binding across the majority of the world’s people, so does the consideration of the effects of all possible intellectual property rights on the same people.

Treaties: Human Rights

Various human rights laws attempt to keep authoritarian and profit-motivated entities from entrenching on various liberties – the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are two examples that have strength in international law, so long as constituent countries give them respect. Articles 12 and 19 of the former detail respect of private life and of freedom of expression, while Articles 17, 19, and 25 of the latter detail respect of private life, freedom of expression and reception, and the right to take part in public affairs.[xiii] The emergence of international bodies such as the European Union must also be taken into account, as the recently ratified Lisbon Treaty affects both human rights and intellectual property rights – the divergence of copyright laws across the twenty-seven member states has in its own right caused interference in international trade[xiv], and arguments for or against harmonization of the laws have their merits. In the case of divergence, it can be said that the divergence shows the sovereignty of each member state, while the other end of the argument would state that convergence promotes efficient international trade and unifies Europe.

Intellectual Property vs Human Rights

Intellectual property rights, although they do promote innovation and protection of such in the monetary world, as a matter of principle, they do not deserve to supersede civil liberties and human rights. If the pursuit of profit becomes so desirable as to neglect consumer privacy in enforcing, for example, copyright holders’ rights, the precedent for the judicial system and for the culture would clearly be an unjust one – ISPs, typically private corporations, could end up becoming indirect law enforcement out of fear of losing sponsorship from copyright holders. This forces the hand of ISPs, which force even harder the hands of consumers, the individuals who should always have a right to use the Internet for lawful purposes. Unfortunately, attempts to pass legislation in France and in New Zealand have set a harmful precedent that may lead to further international support for ACTA, though in both scenarios the legislation was rejected or indefinitely postponed.[xv]


While it is clear that there ought to be corporate social responsibility in consideration of international trade, all too often does the electorate forget that their elected leaders require the government to maintain social responsibility, too, by remaining constitutional in practice. In an increasingly complex world with increasingly complex problems such as terrorism, citizens tend to turn a blind eye to any injustice the government may conduct[xvi] due to the fear they might have over a situation[xvii], real or imaginary. When institutions conduct themselves in ways that are clearly violations of civil liberties and human rights and the government “for the people, by the people” does not actually serve the people, not only does it cause disaffection with the government and an “us versus them” mentality, it reduces general expectations of trust citizens have for their government. [xviii]

If the global perception is ever allowed to persistently believe in fears that can be manipulated into minimizing privacy and free speech, so persistently will the culture be paralyzed from attaining progress. It has always been through general security that an individual feels that he or she has been able to freely express ideas for the benefit of all people – the two rights are intertwined, they promote education, and ultimately promote societal progress. In some cases, a major controversy must be fueled before individuals are aware of their rights.[xix] Therefore, it is in the best interest of individuals and their society to be as aware as possible about the impact of intellectual property on their rights.

That is, if either of these two rights were severely restricted, so easily could other rights be restricted due to how these two freedoms, particularly free speech, allow for democratic participation. Meanwhile, the level of privacy one has can come to dictate the level of free speech he or she decides to apply due to environmental factors.

See Google CEO Eric Schmidt essentially states that if something must be private, it probably should not be done, though BT Chief Security Technology Officer Bruce Schneier has a different opinion, which intertwines privacy and free speech, “For if we are observed in all matters, we are constantly under threat of correction, judgment, criticism, even plagiarism of our own uniqueness. We become children, fettered under watchful eyes, constantly fearful that — either now or in the uncertain future — patterns we leave behind will be brought back to implicate us, by whatever authority has now become focused upon our once-private and innocent acts. We lose our individuality, because everything we do is observable and recordable.”

Hoanca, Bogdan. “Freedom of Silence vs. Freedom of Speech: Technology, Law, and Information Security.” The main idea is that silence, or privacy, can be at odds with free speech. Different interest groups may want to communicate their materials freely, but this could come at the expense of the privacy an individual desires. The article argues that improved technological methods to ensure privacy and free speech will work far more efficiently than the repeated failure of legal mechanisms to balance to two, which often result in the restriction of one of the two freedoms more often given the law’s inability to account for technological progress.

17 U.S.C. amendments including the implementation of the Digital Millennium Copyright Act (DMCA), argued by opponents that it “chills free expression […], jeopardizes fair use […], impedes competition and innovation […], and interferes with computer intrusion laws,” per Proponents such as the Recording Industry Association of America (RIAA) have made arguments and conducted questionable practices – for the pursuit of profit; Felton, et al., v RIAA et al., in which the RIAA threatened scientists with legal action for desiring to release legally created methods that could be used to infringe copyright.

50 U.S.C. Ch 36, Subch 1 (Electronic Surveillance). This implementation of the Foreign Intelligence Surveillance Act still provides the government broad sweeping powers over U.S. citizens that may be suspected of aiding and abetting terrorists as “agents of foreign powers.”

See This is one of several examples of university students affected by the pre-litigation strategy of the RIAA.

See Banta, D.H. (2001). “Worldwide Interest in Global Access to Drugs.” Journal of the American Medical Association 285 (22): 2844–46. Patents by default restrict competition in consideration of full disclosure of the patented item’s design. The argument here is that pharmaceutical companies have a direct incentive to bar competitors from providing these medicines to the poor who cannot afford the patented, expensive version.

U.S. Patent Nos. 6,255,015 and 6,969,567 are two examples. A primary reason the patents have been rarely exploited is due to the demand the patent holders have sought in order to supply products. Due to the heavy competition in the oil and gas sector, Chevron, the current patent owner, would argue that fully exploiting the patent would not be in their investment interest. This would be a Catch-22 argument, though, as with most infrastructure-related matters such as telecommunications, a tipping point is necessary to be passed for the product to sustain demand.

R v Gilham [2009] EWCA Crim 2293. is one example, “Please Note: the use of applications which in practice are used almost exclusively in breach of the JANET Acceptable Use Policy [and the University’s IT code of conduct after Acceptable use policy] will be deemed unacceptable, regardless of their actual use. Most notably, the use of peer-to-peer sharing software generally used for the sharing of material in breach of copyright is unacceptable.” While this statement is enforced as is in the License Agreement, the JANET Acceptable Use Policy (, never explicitly states such a restriction on the use of such software, while the “IT code of conduct” does not readily appear to exist.

Trade liberalization, with such treaties such as the North American Free Trade Agreement (NAFTA), the emerging European Union, and other economic agreements, has caused normally closed markets to be exposed to the effects of markets around the globe.

In reference to outsourcing and the poor conditions workers have to deal with, particularly if these workers have no other option; if the appropriate structural adjustments are not made in the outsourced country, then unemployment will be vast due to the technological unemployment that would occur; i.e., the country is not developed enough to handle the influx of technology that affects competition, so a few, privileged set of individuals in that country would benefit greatly by being able to compete in the global marketplace. See Regarding the World Bank, it is stated, “But the bank itself is based on an outdated theory of development economics, which assumes that all Third World economies need for growth is to be provided with capital handouts and modern technology.”

Directly related to ISPs forcing the hands of consumers, detailed in the subsequent paragraph.

See “Oh brave new world! Lisbon enters into force.” EU Focus 2010, 267, 1-14. © 2009 Sweet & Maxwell and its Contributors. The commentary cites TFEU Article 118 which will allow the European Parliament and Council to ensure enforcement of intellectual property rights.


For example, ridicule of underrepresented minorities, torture of “enemy combatants” and surveillance of suspected terrorists.

For example, the “War on Drugs,” the “War on Terror,” and xenophobia. See “More limited support for civil liberties is fed by the interaction of trust in the government and fear of terrorism. A high level of fear compels many people to adopt positions that they might otherwise find unacceptable.”

See Citizens used their right to assembly, met with fierce law enforcement response, causing various civil liberties violations. See also The Joint Committee on Human Rights in the United Kingdom Parliament has accepted that rights have not been respected: “Police have a ‘long way to go’ before they succeed in promoting and protecting human rights in their training and operations, the report concluded.”

E.I.P.R. 2010, 32(3), 99-103. When Facebook modified its terms of use regarding its control and use of data its users communicated to its servers, a public outcry caused Facebook to reinstate original, more protective terms, and since then, users have been more cognizant of their rights over the social networking platform, though the vast majority could still be argued to be unaware of most of what they share online.

“Net neutrality” and potential legislative impact

A work in progress, incomplete.

“Net neutrality” legislation has taken on different forms, and it has recently impacted the United States legal framework in telecommunications as of December 2010, with the approval of new rules that govern the Internet.

What is “net neutrality”?

In general terms, net neutrality as a principle means preserving equal access to legal Internet content without bandwidth discrimination, so businesses cannot pay for their content to be delivered faster than other businesses’ content, discriminating market advantage.  Therefore, if customers of an Internet Service Provider have subscribed to a package that offers downloading and uploading of content at a certain speed, all customers using that package plan should be able to access  any content online without any certain content owner’s content having priority to be accessed based on the Internet Service Provider’s preference which could be altered through businesses paying the provider to prioritize them.

What impact can the rules have on business?

Proponents suggest regulation for it will sustain consumer rights over the network so that access to any content will be granted equally and not determined by the content’s priority.  Opponents suggest that regulation will have the negative effect of decreasing service provider competition, thus leaving consumers with the high prices based on the few choices they have to access the Internet.  There are several other points of contention, but these are basics from which we can gain an understanding of the whole debate.

In 2008, a major ISP suffered through expensive litigation over the way it discriminated Internet traffic and bandwidth.  There is no certainty in future legislation, but the ruling made in December 2010 by the FCC on protecting net neutrality sets a precedent.  The European Union has its own legislative framework concerning competition, and Council of Europe member states must protect expression under Article 10 EConvHR, but businesses should consider U.S. markets as it represents about a third of telecommunications market revenue.*

One issue that may be overlooked is the extent to which regulations protect net neutrality.  The rules passed in the U.S. do not cover the mobile network market, legally silent on discriminating market advantage.  Commercial lawyers must consider the global market in telecommunications, as clients are often multinational in nature, and therefore conduct business in multiple jurisdictions where the rules may differ.

What impact can the rules have on general Internet freedom?

Without the rules and with network providers discriminating bandwidth depending on services or websites accessed, the most popular and most commercially successful content providers will be able to fully satisfy their consumers, leaving consumers no need for concern, however, for the other services or websites that may not be as popular, consumers may struggle to have the same kind of quality of service in terms of speed.

With the rules in place, there is a hope that all content, no matter where it comes from, will be afforded the same opportunity for access, of course so long as the hosting providers of these services or websites are reliable, which is separate from the network providers discriminating against how quickly the content is transmitted.

* Source: Telecommunications Industry Association

Privacy and confusion over what deserves privacy

Work in progress, incomplete.

Certain events or trends have proven to be catalysts for major discussion or reform of the laws in place.

The most widely known catalyst to date, is the September 11, 2001 terrorist attacks in New York, Pennsylvania, and Washington, D.C.  The reaction to this catalyst continues in a very direct way with the ongoing military operations of coalition forces in Afghanistan.  In the United States at the very least, this caused a great debate as to when our civil liberties are necessary when it comes to combating international terrorism, with legislation quickly following suit, such as the USA Patriot Act.  With an active, leadership-oriented foreign policy, many other countries have followed suit with regards to counter-terrorism measures.

Issues have arisen in the United States such as the legitimacy of the Foreign Intelligence Surveillance Act to allow warrantless wiretapping, which directly affects the privacy of Internet Service Provider consumers.

However, there is a new catalyst that is emerging as a trend that has major implications for the law with regard to privacy versus expression: the proliferation of confidential materials not authorized and therefore proliferated following a breach of confidence.  Without sounding too complicated, this means there is an emerging trend in using information intended to remain private in a public sphere due to a perceived “public interest” of the private information.  Still too complicated?  Maybe this has to do with the way individuals and organizations all together are flexing their PR muscle.

There is a lack of analysis provided in the rhetoric approving or disapproving of “public interest” breaches of confidence and the proliferation of the confidential material following the initial breach by an original actor before such rhetoric is published, and this is why there are major implications for the law.  What does not help clear up the confusion on how future legislation may proceed is the silence assumed by the owner on the matter of the owner’s confidential material and whether or not the information contained is legitimate, though the silence can be there for a legitimate reason, to protect security.  It is not just because this is an emerging trend that confidentiality is breached, it is because the rhetoric floating around the airwaves may not be focusing on the exact legal and social issues at play here.  Tabloid-style rhetoric is not only unnecessary, but it is irresponsible when a serious matter is the focus of the media, such as confidential material.

What is certain is that with this emerging trend of breaches of confidence that cannot be contained by the traditional injunction, an increasing focus will be set on the consequences for breachers in the criminal justice system as well as the security applied to protect private information.

Justifying justiciability of economic and social rights

When David Beetham claims that economic and social rights, even the seemingly fundamental ones, “cannot in principle be definable in justiciable form,” what he is explaining is not the theoretical possibility of making it justiciable, rather, he is stating the historical, legislative, and the cultural context for why it is not realistic for them to be justiciable.  With regard to the variables, Professor Beetham’s declaration is that of a realist.  What he states is directly relevant to the context that has emerged through time, and given that economic and social rights are struggling to exist in impoverished regions even more than a decade since he made such a declaration, the realism has not faded.  This has to do with the distinction between negative and positive obligations of institutions, and that the idealism sought in human rights within an attempted democratic society always puts human wellbeing second to other stated aims – maintaining a democracy seems to be the aim.

In analyzing the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which take their spirit from the Universal Declaration of Human Rights (UDHR), it begins to make much more logical and indeed economic sense that the ICCPR is given more respect than the ICESCR – at least for a democracy.  Guaranteeing economic freedom is not part of the democratic equation.  This has to do with the standard of politics pronounced in a so-called democracy where monetarism is pronounced, and inevitably the individuals working in institutions of power exist due to social and economic influence in the first place.  However, it is not the individuals that are to be judged, it is the social and economic environment itself, and it is from that understanding that change should emerge.  Indeed, whether power, wealth, or property, the acquisition of such things in a democratic society is considered normal given the civil and political standards constantly adhered to – having these civil and political standards are at odds with having the economic, social, and cultural standards that may be desired, yet may not be justiciable.  Civil and political rights are justiciable and easily so because they are negative obligations.  It is simple to refrain from doing certain acts in comparison to setting up institutional strength in enforcing economic and social rights – this requires a great deal of bureaucracy.  Critics may contend that it requires a great deal of idealism in the likes of socialism which faces constant opposition across the world, making it inherently unsustainable in international affairs so long as it has opponents which inevitably it will since it creates an inordinate amount of competition for multinational corporations to handle.  This is the difficulty in removing the distinction between the two sets of rights, for having the economic and social rights justiciable is directly at odds with the right to freedom, which is, unfortunately, another stretched term just as is democracy.

Having the economic and social rights would require heavy taxing and big government, currently a major issue being discussed in the United States as has been for over a century as the government can never find a way to decrease in size whether either major party in the two-party system is in power, where one of them has as one of its core principles to reduce the size of government so that it is limited.  The issue at hand currently is with a universal healthcare system, something impoverished countries could only dream of having so long as the economic and social rights are not justiciable – they simply do not have the resources to make this happen.  Indeed, even with the ICCPR, some countries more notorious for defying international law, such as the United States, have made reservations as to what applies to them and what does not – with the United States also not ratifying the ICESCR due to political pressure.  Indeed, this is the major reason for all human rights seeming inability to ascend into the forefront of the law.  There are organizations that attempt to regulate and pronounce the implementation of the ICESCR goals such as the World Health Organization for health purposes, UNICEF for children’s rights, FAO for food profiling, UNESCO for educational purposes, UNDP for aiding undeveloped and developing countries, and the ILO for labor rights.  However, the lack of political will and indeed the political ignorance of international law not just from the United States but also the United Kingdom and their economic competitors such as China is what forces ICESCR to be not globally relevant in comparison to the ICCPR.

Even the rhetoric of the ICESCR makes it clear that it was never intended to be justiciable.  It makes references to “taking steps,” and any state may take this to mean anything they wish so long as it can make the excuse of taking steps.  Clearly, for economic and social rights to be realized, it would require a direct effect on existing laws, conventions, and monetary policy, but this would 1) affect the sovereignty of that state, and 2) it would require a redistribution of wealth, power, and property not just within a state, but also across states, given the suggestion of international cooperation.  However, the international economy behaves differently than international government – in fact, there is a constant redistribution of wealth from the poor to the rich both in advanced and in basic economies.  Since the end of the Cold War, re-establishing United States as the world leader, politics has branded anything not capitalist in nature as a failure, and therefore, with the United States also most opposed to any economic or social obligation, making any greater ascension of these rights worldwide fairly difficult if not infeasible.  This causes other states to rely more heavily on the fact that their resources are constrained, justifying their lack of “taking steps,” while millions face a vast range of vulnerability.

While the European Union has grown to be a legitimate force in the respect of human rights given its focus on some positive obligations, it too is still limited by what is “necessary in a democratic society.”  There will be the opponents of economic and social rights who claim a dictatorial power is attempting to reduce individual liberties, but this a sheer cry of help unfounded in comparison to the millions and indeed over a billion undergoing starvation (“It is unacceptable in the 21st century that almost one in six of the world’s population is now going hungry,” Josette Sheeran, UN World Food Programme executive director).  Europe has managed to guarantee some positive obligations regarding labor rights for children (Siliadin v France [2005] regarding Article 4 ECHR).  A right to education in Protocol 1 Article 2 has been supported in the Belgian Linguistics case (1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64), but it did not go as far as creating a positive obligation on the language used for education. Indeed, case law has shown positive obligations with regard to civil and political rights, but Europe has still been resistant with regard to certain aspects of economic and social rights.  The European Social Charter of 1961 serves as the foundation for these rights, but like with the ICESCR, simply makes recommendations when states fail to take action on a decision – political speak.  Additionally, not all member states have been consistent with incorporating all of the charter’s protocols.  It does have a minimum obligation based on human dignity, but the argument against these economic and social rights is that they are indeed political in nature, and courts do not have the competency to determine resource allocation (though one may argue that the very concept of such protocols existing is that they ought to or be able to refer to a competent agency).  However, with the EConvHR incorporating different qualified rights such as freedom of expression in Article 10 and freedom of assembly in Article 11, it is possible to see economic and social rights existing in the same manner.  Europe has done quite a progressive job in achieving both negative and positive obligations of the state in guaranteeing human rights, but Europe is not the world, and while the European Union may serve as a model to be taken seriously, this does not answer the whole question let alone even address it.  The real question is what constitutes human rights, and what will it take for economic and social rights to be taken seriously on the world stage of politics?

The current rhetoric established for economic and social rights do not define in a specific manner the minimum and the maximum rights (dictated by the states with the best internal economic and social rights) states should be afforded with the force of law.  Currently, there is the notion that human rights as a concept is only an aspiration, something which needs to be viewed upon as a bar that needs to be reached.  In order to be justiciable, however, there needs to be international agreement on what a minimum standard is – the recent UN Climate Change Conference in Copenhagen has shown a test on the world stage as to what a minimum is, but even for what it is tackling as a third generation set of rights (where civil and political rights are first generation and economic and social rights are second generation), minimum is not explicitly defined, but goals do exist.  Rather than setting goals, there needs to be an international agreement to set a minimum standard of decent living, unequivocally.  With the amount of resources and wealth hoarded by corporations which have GDPs in the top 50 of the world’s highest GDPs more so than states themselves, there is no question as to the amount of resources that do exist, but they are not managed in a sustainable manner.

Regarding justiciability, international governmental organizations like the United Nations are simply not given enough respect, but this is due to states refusing to take on the leadership of having the world agree on common causes, as to fight for a common cause worldwide would simply reduce profits.  To make these rights justiciable, there needs to be a starting point, a minimum.  It is obvious that all humans require food and shelter at a minimum, but with the continuous spread of globalization there is no reason that this minimum should not also include clothing, basic education, basic healthcare, and even basic telecommunications services.  For example, with the cost of computers becoming ever more affordable as products become obsolete every three months, along with high speed satellite Internet, it is not impractical to allow people to be able to participate on that platform in a meaningful economic manner – it can be argued that it is in fact cheaper and more sustainable to use the Internet in impoverished countries than it would be to use telephone landline or mobile services because the cost of other infrastructure.  The International Telecommunication Union (ITU), the longest lasting organization of the UN in existence since 1865, would be the most reasonable organization to oversee that development.

It is the set of services like telecommunications that support both public and private institutions of education, healthcare, and truly all aspects of business in the most economically efficient manner.  Indeed, following the terrorist attacks of September 11, 2001, an increased caution has been placed on telecommunications networks with regard to security.  Clearly, the services like any can be used for destructive means, but the economic efficiency behind the technology proliferating worldwide is inevitable, and it is therefore clear that the level of available technology will indeed dictate what a worldwide minimum is.  Again, what is lacking is political will to make these rights justiciable, but there needs to be a minimum, and if a minimum is not established, then it is just as well true that human rights is merely rhetoric.  The aspiration of human rights is not just a negative obligation upon member states to respect certain rights, but states exist because they are different, and that they are to provide positive rights for their citizens.  The level and extent to which these are provided require more than just a utopian goal, these require a solid minimum.   A reasonable expectation would be that the “taking steps” rights would become guaranteed minimum rights worldwide within the ICCPR and ICESCR for a select number of rights every five years (e.g. 2010, 2015, 2020 and so on).  An agreed upon minimum that may exist within economic sustainability is justiciable. The scientific reality is that a lack of resources will inevitably prevent economic and social rights from existing in a region, and they certainly degrade civil and political rights just as well.  South Africa is a great example of human rights with the right idea: its state constitution explicitly states rights concerning housing, healthcare, food, water, social security and education (Sections 26, 27, and 29).  Where the rights cannot be met due to lack of resources, it is still imperative upon the state to meet these obligations, as they are constitutional rights, giving the state more than the legitimate right to state “South Africa’s Constitution is one of the most progressive in the world and enjoys high acclaim internationally” on the South African Government Information website. The hope for human rights is that it not require the constant boom-and-huge-bust cycles of the world economy in order to point out basic flaws that have basic solutions.

Dealing with intellectual property is expensive – for everyone

A work in progress.

Whether protecting works or trying to defend oneself from infringement proceedings, dealing with intellectual property is expensive for all parties involved.  The legal advice, the filing procedures involved, and the potential court expenses all factor into what could be far too expensive for either a lone creator or an infringer lacking resources to deal with.