Burri, Mira

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International Journal of Law and Information Technology, Vol. 22, No. 2 (2014), pp. 208–214 The Author (2014). Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com.doi:10.1093/ijlit/eat019 Published Advance Access January 17, 2014Book ReviewRegulating Code: Good Governance and Better Regulation in the Information Age,by Ian Brown and Christopher T. Marsden, MIT Press, Cambridge, MA, 2013,ISBN: (978–0–262–01882–1), 267 pages.Digital technologies have had and continue to have profound impact onmultiple facets of societal life. The changes range from the trivial to themomentous—from online shopping, through the emergence of newglobal value chains, to the very ways we work and write, create, distributeand access information—bringing distant geographical points within in-stantaneous reach, millions of people organized within hours, and encyclo-paedias and virtual libraries produced on a collaborative basis.1 Notsurprisingly, these transformations have triggered regulatory responses atall levels of governance. They affect, to varying degrees, the existing re-gimes for media and telecommunications, consumer and intellectual prop-erty rights protection, to mention but a few of the relevant issue-areas.2National policies were the first to be redesigned, but because of the inher-ent ‘globalness’ of the digital environment, some solutions needed to besituated at the international level—either framed as an add-on to existingagreements (such the Internet Treaties adopted in 1996 under the WorldIntellectual Property Organization, WIPO) or as entirely new institutionalsolutions (such as the Internet Corporation for Assigned Names andNumbers, ICANN). It is also to be borne in mind that in cyberspace,local regulatory actions cannot be neatly isolated and often have spilloversbeyond the borders of the nation state.3Contextualizing the impact of the digital (r)evolution, it should beunderscored that whereas it is evident that digital technologies have hadan impact on the economy as well as on social and cultural practices, theyhave at least as strongly affected the law and patterns of governance1 See eg Y Benkler,TheWealth of Networks:How Social Production TransformsMarkets and Freedom (Yale UniversityPress 2006).2 WJ Drake and E Wilson (eds),Governing Global Electronic Networks: International Perspectives on Policy and Power(MIT Press 2008); M Burri and T Cottier (eds), Trade Governance in the Digital Age (CUP 2012).3 J Goldsmith and T Wu, Who Controls the Internet? (OUP 2006).208in general.4 Legal institutions face various challenges, related, amongstother things, to design, enforcement and linkage to social norms.Overall, ‘older’ institutions at all governance levels have grappled andoften failed to master the multi-faceted and multi-directional issues ofthe internet. Regulatory entrepreneurs have yet to discover and fully mo-bilize the potential of digital technologies as an influential factor impactingupon the regulability of the environment5 and as a potential regulatorytool in themselves.6 At the same time, we have seen a deterioration of somepublic spaces and lower prioritization of public objectives, when strongprivate commercial interests are at play, such as most tellingly in thefield of copyright.7 Less tangibly, private ordering has taken hold andcaptured through contracts spaces, previously regulated by public law.8Code embedded in technology often replaces law.9 Non-state action hasin general proliferated and put serious pressure upon conventional state-centred, command-and-control models.10Under the conditions of this ‘messy’ governance, the provision of keypublic goods, such as freedom of information, has been made difficult or isindeed jeopardized.11 The grand question is how can we navigate thiscomplex multi-actor, multi-issue space and secure the attainment of fun-damental public interest objectives. This is also the question that Ian Brownand Chris Marsden seek to answer with their book, Regulating Code, as re-cently published under the ‘Information Revolution and Global Politics’series of MIT Press. In the following, a brief overview of the book’s corearguments is given. It is fair to say from the very outset that the authors do asuperb job in addressing the thorny questions of the appropriate govern-ance mechanisms in the internet age in a well-informed, structured,no-nonsense manner.In a way similar to this review’s introduction, Brown and Marsden arefully aware of the intrinsic fluidity and complexity of the internet4 L Lessig, Code and Other Laws of Cyberspace (Penguin 2000); L Lessig, Code: Version 2.0 (Basic Books 2006);PL Bellia, P Schiff Berman, B Frischmann and DG Post, Cyberlaw: Problems of Policy and Jurisprudence in theInformation Age (4th edn, West Publishing 2011).5 J Zittrain, The Future of the Internet – and How to Stop It (Yale University Press 2008).6 R Brownsword and K Yeung (eds), Regulating Technologies (Hart 2008).7 S Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (CUP 2003); W Patry, MoralPanics and the Copyright Wars (OUP 2009).8 See eg Thomas Schultz, ‘Carving up the Internet: Jurisdiction, Legal Orders, and the Private/PublicInternational Law Interface’ (2008) 19 EJIL 799–839; M Burri, ‘User Created Content in Virtual Worlds andCultural Diversity’ in CB Graber and M Burri (eds), Governance of Digital Game Environment and Cultural Diversity(Edward Elgar 2010) 74–112.9 Lessig (n 4); Joel Reidenberg, ‘Lex Informatica: The Formulation of Information Policy Rules ThroughTechnology’ (1997) 76 Texas L Rev 553–93; M Burri, ‘Controlling New Media (without the Law)’ in M Priceand S Verhulst (eds), Handbook of Media Law and Policy (Routledge 2012) 327–42.10 Scott Burris, Michael Kempa and Clifford Shearing, ‘Changes in Governance: A Cross-Disciplinary Reviewof Current Scholarship’ (2008) 41 Akron L Rev 1–66; D Levi-Faur (ed), Oxford Handbook of Governance (OUP2012).11 See eg E Brousseau, T Dedeurwaerdere and B Siebenhu¨ner (eds), Reflexive Governance for Global PublicGoods (MIT Press 2012).209BOOK REVIEWenvironment, and argue that its interdependence and interoperability areboth its innovative strength as well as its inherent security weakness.12 Theauthors use the now standard in cyber law idea of ‘code as regulation’13 butare not constrained by it and enrich it, as code too can be regulated andindeed, must be regulated so that certain fundamental rights are safe-guarded.14 The authors argue that the growing societal importance ofthe internet demands apt holistic design, which departs from simple‘magic bullet’ solutions based on the study of one discipline, one sectoror one regulatory approach. They advance rather the claim that solutionscan be malleable and combine different tools, such regulation and code,self-regulation and governmental control, so that both efficiency andhuman rights guarantees are given.15 This said, the authors appear toshare strong preferences for multi-stakeholder governance, which involvesboth the state and the citizen, since it stands—in the authors’ opinion—good chances of being able to reconcile market failures and constitutionallegitimacy failures in self-regulation, and they therefore seek to incorporateit as an essential element in regulatory design.16In the first two chapters before setting on to explore the five cases, whichexemplify different types of tensions for the regulatory toolboxes, as theyinvolve different types of institutions, actors and relationships between gov-ernment, business and users, the authors map the specificities of governingthe digital space. They describe the complex interaction between code,regulation and competition, as well as the ultimate justifications for regu-lating, and situate this analysis in existing theoretical frameworks. For thisexercise, they cover a vast amount of interdisciplinary literature and suc-cinctly present it in context in a fairly unbiased manner. The combinationof the skills and experience of an information technology (IT) expert(Brown) and a legal scholar (Marsden) shows well in the fine-grainedunderstanding of the multi-directional relationship between code andregulation, how they influence and constrain each other. This understand-ing is essential to the book’s intended mission as it ‘leads to a better under-standing of how regulation can work toward better code rather than simplyavoiding the worst of code’.17Chapters (3–7) form the core of the book and each present an empir-ically grounded, multidisciplinary case study of five ‘difficult areas’ of gov-erning the internet, to which the authors refer to as ‘hard cases’.18 Thecases focus in turn on (i) privacy; (ii) copyright; (iii) censorship, (iv) social12 I Brown and CT Marsden, Regulating Code: Good Governance and Better Regulation in the Information Age (MITPress 2013) xviii. Unattributed page numbers henceforth refer to this book.13 Lessig (n 4); Reidenberg (n 9).14 At xviii–xix.15 At 1.16 At 2, 3.17 At 21.18 At 4 and passim.210BOOK REVIEWnetworking sites and (v) smart pipes. Each case study has been structuredalong similar lines and seeks to map four key sets of questions and issues.First, the policy environment is mapped by looking at the social impact oftechnology, the existent market failures and the fundamental rights, whichare relevant in the specific setting. Second, the types of code and theregulation of that code are analysed. The studies look in particular atwhich layer of the communication model19 the code is deployed—eg atthe network level (think British Telecom or Verizon), in hardware (thinkApple) or at the application and content layer (think Google andFacebook). What follows is then a mapping of the institutional politicaleconomy specific to each of the cases, and finally, the outcomes of thegovernance developments so far. The evolution that has been tracedthroughout all the case studies is with regard to the key question ofwhether governments have moved from ‘sledgehammer’ ban-based, en-forcement-oriented regulation towards ‘smarter regulation that works tech-nically, with some degree of outcome legitimacy in terms of goals’.20Case 1, on privacy and data protection, is to be sure one of the majorregulatory challenges presently, with potentially even growing significance.It is a poster child example of the clash between essential individual rights,broader public interests and markets, which fall short of delivering thesocially optimal level of privacy. Greater regulatory intervention may bewell justified, as the authors argue—also through code regulation inwhat has become known as ‘privacy by design’. Case 2, on copyright andthe challenges it faces due to the affordances of digital technologies relatedabove all to perfect copying and instantaneous distribution to many, hasnow become a conventional topic in cyber law enquiries. Brown andMarsden rightly map all the salient issues, such as technical protectionmeasures and intermediary liability, and point out at the existing pathdependencies and biases. They see a tendency in policy towards protectingthe rights of creators at the expense of freedom of expression and privacybut also observe increased public awareness and mobilized action (such asin the cases of the SOPA/PIPA legislation in the USA and ACTA inEurope). Case 3 on censorship is another ‘classic’ cyber law topic, whichdeserves attention. Governments, and only oppressive ones, exercise con-trol on the information flows and limit both active and passive freedom ofexpression. The technological means are now much more sophisticated incomparison to the early days of internet filtering and key industry playersdrawn to participate (as the PRISM case, which was only exposed after thebook’s publication vividly illustrates). There is a conflicting publicinterest in preserving free speech versus for instance minors protection.19 Yochai Benkler, ‘From Consumers to Users: Shifting the Deeper Structures of Regulation TowardSustainable Commons and User Access’ (2000) 52 Fed Comm LJ 561–79; Kevin Werbach, ‘A LayeredModel for Internet Policy’ (2002) 1 J Telecomm High Tech L 37–67.20 At 45.211BOOK REVIEWCase 4 discusses problems of lack of transparency about corporate policiesand consumer lock-in in social networking sites (SNS). As the societal roleof Facebook and the like increases and as private ordering proliferates,there is an urgency attached to the debates on new and more appropriateregulation for SNS. User-generated regulation in social media seems not towork well in the face of commercial pressures to reduce privacy for third-party advertiser use and the related financial benefits. The last case on‘smart pipes’ is an area well known to the authors as they have previouslyand aptly discussed net neutrality.21 The analysis is nuanced and shows wellthe trade-offs involved in this highly technical area and the dangers ofpermitting technology development without any privacy and expressionoversight. Architecting an internet with relatively low barriers to entrythat supports fundamental rights remains a key policy challenge.Chapter 8 compares the five hard cases and maps the common featuresand the divergences. This meta-mapping is extremely useful as it exposesthe challenges of regulating for the public interest in diverse areas ofinternet governance and extracts some emerging best practices. All casestudies demonstrate that code and law are interdependent and smarterregulation must provide ‘nudges and tweaks to coders, users, and compa-nies, as well as us[e] market incentives, standards, and governmentprocurement policies’.22On the basis of the case studies as well as their cross-sectional compari-son, Brown and Marsden build their normative idea of the so-called ‘pro-sumer law’,23 as what is needed ‘to square the circle of Internet regulationin the broader public interest for all Internet users, not the fortunate few orthe even more fortunate and fewer dominant corporations’.24 A key elem-ent of the prosumer framework is ensuring interoperability (also throughadditional regulation), so that the internet remains open to innovation anddenies dominant actors the mean to reinforce their position throughunfair means and users can effectively exercise freedom of choice. Thisalso necessitates introducing greater transparency and a healthy dialoguebetween consumer groups and other civil society stakeholders and stand-ard experts. At the same time, the benefits of rapid standard-making mustnot be compromised by the additional multi-stakeholder arrangements.These key, and admittedly not straightforward, tasks need to be fulfilledin the midst of a complex governance architecture, where economic inter-ests seem to have over time found a higher level of institutionalization atthe international level with more binding dispute settlement mechanismsand stronger influence on domestic policy-making.2521 CT Marsden, Net Neutrality: Towards a Co-Regulatory Solution (Bloomsbury 2010).22 At 165.23 As in producer and consumer.24 At 183.25 J Braithwaite and P Drahos, Global Business Regulation (CUP 2000).212BOOK REVIEWThe authors fully realize the challenges behind their call for prosumer-ism and its integration into digital media policies and see the need formore transdisciplinary research that would make this possible by (i) assess-ing the impact of different market structures and their dynamics; (ii) de-veloping the international political economy work for the internet, as thishas been done for the energy, transport, health care and pharmaceuticalssectors;26 (iii) predicting how the emergence of new players and ‘gorilllas’(such as Facebook) is likely to affect regulation in discrete areas (such asdata protection); and (iv) assisting governments in effective impact assess-ment for policy- and law-making in the IT field.Summing it up, one can clearly say that Regulating Code provides anexcellent and sophisticated overview of the most critical internet policydevelopments. The mapping of issues and problems is well-structuredand done by experts, who can easily zoom in and out on the issues dis-cussed, giving the readers the necessary information on some details, whilekeeping the ‘big’ governance picture in sight too. One can nonethelesscriticize the book. One major line of criticism has to do with the apparentmismatch between the book’s ambition and amount of pages devoted toelaborating on it. The book’s objective is to advance design of better regu-lation and code, which is capable of steering towards the attainment of keypublic interest objectives in the information age but it does so only from abird’s eye view and may be so missing important analytical elements. Thecase studies tackle very complex issue-areas in only some twenty pages each,thus often presenting stylised narratives, which may miss some of the coun-ter arguments. This is true in particular for the two key concepts used inthe proposed normative framework of prosumer law, namely the notions of‘multistakeholderism’ and of ‘interoperability’. The actual experience withthe former, despite the initial praise in the literature, has remained some-what limited in yielding actual results and there has been increased criti-cism as to the democratic legitimization of this participation, itsaccountability and sustainability.27 Interoperability has been generally ac-cepted as an important functional principle in IT governance but it wouldhave been valuable for the reader to know that it only works and trulycontributes to innovation under some circumstances. It may very well bethat under others, interoperability actually impedes innovative leaps andmay distort market mechanisms, also to the detriment of the consumer.28We should also be aware that there is no such thing as level of ‘optimalinteroperability’ that can be set in advance and there is constant experi-mentation and learning in highly complex and fluid environments as26 ibid.27 See eg IM Hoofd, Ambiguities of Activism: Alter-Globalism and the Imperatives of Speed (Routledge 2012).28 J Palfrey and U Gasser, The Promise and Perils of Highly Interconnected Systems (Basic Books 2012).213BOOK REVIEWthe internet. Foreclosing these processes may be in fact disadvantageous.29As a final critical remark, one is somewhat surprised to see that the authorsseek to match pro-innovative regulation with human rights, while takinghuman rights as a bulk. Human rights experts are usually more careful ashuman rights encompass various and often conflicting fundamental rights,which have developed differently historically and have been accordinglydifferently embedded in constitutional and international human rightsprotection regimes.30Despite these drawbacks, which arguably relate to the intrinsic trade-offbetween depth and breadth and the clarity of the message that authorsface, Regulating Code provides an excellent contribution to the scholarlyliterature and an invaluable resource for policy-makers who need to under-stand the key elements of a forward-looking public policy agenda for theinternet age, as well as for other stakeholders participating in the delibera-tive process.Mira BurriUniversity of BernE-mail: Mira.Burri@wti.org29 A Thierer, ‘What Is “Optimal Interoperability”? A Review of Palfrey & Gasser’s “Interop” ’, TheTechnology Liberation Front, 11 June 2006, <http://techliberation.com/2012/06/11/what-is-“optimal-interoperability”-a-review-of-palfrey-gasser’s/“interop”/> accessed 26 August 2013.30 See eg O De Schutter, International Human Rights Law (CUP 2010).214BOOK REVIEW

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