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The Emperor\u27s New Clothes: The Shocking Truth About Digital Signatures and Internet Commerce

This Article critiques a specific set of assumptions about specific application of digital signature technology: that contracts will be formed over the Internet among parties with no prior relationships through reliance on digital signature certificates issued by trusted third parties to establish the identity of the parties. This application for digital signature technology was once seen as both its most ambitious and most promising application because, for parties with no prior knowledge of each other, there is not yet a reliable system of online identities in Internet commerce. Parties with an ongoing commercial relationship can absorb the cost of offline communications such as faxes, telephone calls or face-to-face meetings to negotiate and execute an agreement governing the setting up of a reliable system for online authentication of parties to wholly electronic transactions. Parties that want to rely exclusively on online communications to create the framework for contracting as well as to enter into contracts, however, face a problem of infinite regress: how can the online communications that set up the system for confirming online identities itself be authenticated with nothing more to rely on than online communications? Many supporters of digital signatures believed legislation was essential to cut through this Gordian Knot. Legislation could authorize parties unable to use a prior relationship or offline communications to confirm the validity of online identities to rely on digital signature certificates instead. Much legislation regulating the use of digital signatures is based on an unstated premise: liabilities must be imposed by law because private agreements will not be adequate to the task of regulating this technology. This Article will summarize the original consensus regarding the role of digital signatures in electronic commerce, explain why that consensus was mistaken on many points, describe commercial applications of digital signatures that are gaining market share today and contrast them with the original consensus, and consider the implications of a major misperception of market trends for the future of electronic commerce legislation. A brief description of digital signatures and public key infrastructure is included in the appendix to this article

Emerging Issues in Electronic Contracting, Technical Standards and Law Reform

The explosive growth of electronic commerce transactions in recent years has added fuel to efforts to harmonize international commercial law. Organizations such as the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL) and the Hague Conference on Private International Law are all participating in an emerging global debate concerning the changes that should be made to the form or substance of international commercial law to accommodate innovation in the technology of international trade. Many of the important legal issues raised by cross-border electronic commerce in the 1970s and 1980s have already been successfully addressed by law reform at the national level and by the work of international organizations undertaken in the 1990s. The scope of electronic commerce at that time was narrowly confined to electronic funds transfers or the exchange of data messages, and networked computer systems were massive, complex and highly secure systems. Reforms targeted at this type of electronic commerce included establishing new bodies of private law and government regulation to manage the financial risks created by electronic financial services, and the removal of barriers to the use of electronic media in commercial contracts and communications. But innovation in electronic commerce proceeds at breakneck pace, and it is unclear whether the commercial law reforms of the 1990s will be adequate to promote the rational and orderly development of global markets in the future. It is possible that changes now taking place in the electronic contracting technologies may significantly change the terms of this debate. This is because new, more powerful technologies now under development are intended to convert a considerable range of business customs and practice today performed by people into formal algorithms executed by computers. These technologies are being developed to take advantage of the great advances the Internet has made over old-style electronic commerce technologies: global reach, low barriers to entry, intuitive interfaces, and ubiquitous presence. If such new electronic contracting technologies come into widespread use, then the norms embodied in them may come to have the power to control commercial conduct in a manner normally reserved for law. Efforts to reform international commercial law may need to include mechanisms to ensure that should such economic power arise, it would be exercised in a fair manner

Governance of Global Mobile Money Networks: The Role of Technical Standards

Mobile money has the potential to be an effective policy instrument for financial inclusion in developing countries, but it also has the potential to fuel money laundering and terrorist financing. The 2012 revised Financial Action Task Force standards attempt to strike a workable balance between the goals of financial inclusion and financial integrity in developing countries. Mobile money schemes are mostly based in national markets, however, and are not normally designed to address the need of poor migrants for cheap, effective cross-border remittance services. Demand for such cross-border remittance services may drive the development of technical standards to build global markets from national ones. As in other global governance contexts, regulatory competition among both developed and developing countries is likely to arise, and be shaped by network externalities, the economics of platform markets, and new governance institutions as well as national government strategies. If such standard-setting efforts treat compliance with AML/CTF as requirements, then the growth of global networks might promote both inclusion and the development of “integrity by design” in global mobile money technologies. Co-regulatory mechanisms already in place in the United States and European Union for managing the interface between technical standards and legislation might provide some helpful models for accomplishing this. Ensuring that the governance of global mobile money networks is effective, legitimate, and accountable from the perspective of stakeholders in both developed and developing economies will be difficult, however

Catalytic Impact of Information Technology on the New International Financial Architecture

The sudden emergence of the Internet as a global network threatens to eclipse the importance of the global information infrastructure painstakingly built by financial institutions and their regulators over the past three decades. The open public nature of the Internet threatens the value of the closed proprietary networks developed by financial institutions that now face serious problems in integrating their legacy systems and new Internet systems. Information system security, once a dreary back office matter, is now central to the success of e-commerce business plans. Before financial institutions can capitalize on their expertise in information system security, they will have to overcome problems that have recently emerged in security of their existing legacy systems and translate their existing expertise into terms that are relevant to e-business security. The challenges posed to regulated financial markets by the sudden democratization of the global information architecture may be offset by competitive opportunities only if regulated institutions can adapt quickly and effectively to the rigors of this new environment. Regulators will have to find a middle path between stifling regulated entities, permitting unregulated competitors to steal the show, and not maintaining the necessary prudential oversight of financial markets within which investors are exposed to rapidly rising levels of risk

Crafting a License to Know from a Privilege to Access

Recognizing a defense to a claim of trespass in Internet cases based on a finding of constructive consent provides a doctrinal basis for privileging some forms of access while acknowledging a right to exclude certain other forms of access. Focusing attention on the public character of the Internet and assigning a clear legal significance to the equipment owner\u27s deliberate choice to participate in that arena provide a more secure legal foundation for such a privilege to access than the functional impairment standard offered by the California Supreme Court. The contours of such a doctrine of constructive consent to Internet access are suggested by the terms of the license eBay offered to Bidder\u27s Edge as discussed below-access by individual Internet users or its functional equivalent. This Article suggests that a defense based on constructive consent can complement the limitation imposed by the California Supreme Court to further limit the scope of trespass doctrine in Internet arenas, increase the predictability of the doctrine\u27s application in new disputes, and help to protect important public interests in free and open access to Internet resources

The Secession of the Successful: The Rise of Amazon as Private Global Consumer Protection Regulator

In 2005, the Americans for Fair Electronic Commerce Transactions (“AFFECT”) coalition issued a list of 12 principles it hoped would contribute to a new consensus about what constitutes fairness in online consumer transactions. A decade later, a cursory review of different jurisdictions indicates that, while there has been little discernable progress in the direction of the principles in the United States, other jurisdictions such as the European Union have made more progress. However, the one jurisdiction in the world that comes closest to implementing all 12 principles across the full spectrum of consumer transactions is not a government at all, but Amazon acting as a private regulator. Amazon’s status as a regulator arises out of its ownership of a “multi-sided platform” that acts as a global retail marketplace. The rise of global platforms such as Amazon, Google, Apple, Facebook, and Microsoft that own global online marketplaces and simultaneously act as their primary regulators calls to mind the “Secession of the Successful” described by Robert Reich in 1991—the withdrawal from civil society of the wealthy and powerful into private gated communities. Amazon’s status as the primary de facto regulator of the marketplace it owns combined with its single-minded pursuit of customer satisfaction contributes to relations with its employees and suppliers that are often profoundly problematic. When a platform operator is also the primary regulator of the market it creates, negative spillover effects may occur: squeezing employees and suppliers to insure that consumers get whatever they want merely pushes conflict from one part of the platform “ecosystem” to another. When this occurs, it does not make online commerce fairer overall, which was the implicit goal of the 12 principles. Although transaction-level norms such as those found in the 12 principles cannot ensure that all stakeholders in online marketplaces are treated fairly, other forms of regulation might be more effective in contributing to that goal

Globalization and Standards: The Logic of Two-Level Game

The emergence of a global information architecture has fueled regulatory competition among nations and regions to set information and communication technology (“ICT”) standards. Such regulatory competition can be thought of as a two level game: level one is competition to set ICT standards within a nation or region; level two is competition to set the global ICT standards with reference to local standards. The United States and the European Union are global leaders in setting ICT standards, and compete to set global ICT standards based on different local regulatory cultures: the U.S. is a “liberal market economy” (“LME”) within which informal standard developing processes are perceived as legitimate, while formal standard developing processes are perceived as legitimate within the “coordinated market economies” (“CME”) that tend to dominate EU regulation. In recent decades, informal ICT standard setting organizations (“SDOs”) known as consortia, which are more narrowly focused and less transparent than traditional SDOs have emerged in the U.S. and have come to dominate global ICT regulatory competition. Standards for Radio Frequency Identifiers (“RFID”) provide an example that illustrates this trend. EU regulators now are considering what changes may be needed in the EU system of harmonizing standards and EU regulation in order to reverse this trend. If EU regulators succeed in engaging with selected ICT standards consortia, this might permit CME regulation to prevail over LME regulation in competition to set global ICT standards