Cyberspace Regulation

'A Genealogy of Digital Platform Regulation' by Elettra Bietti  comments 

In this Chapter, I connect two parallel genealogies into one larger story. I develop a genealogy of the disagreements that have emerged around the notion of digital platform power and the conflicting regulatory proposals these disagreements have led to. I do so by tracing these debates’ roots in earlier 1990s debates about Internet regulation: contestations around the meaning of freedom, law, power and democracy in digital spaces. In particular, I isolate three paradigmatic views, or moments, in early Internet regulation discourse. First, anarcho-libertarian views portray the Internet as an autonomous and utopian sphere of free social interaction immune from external interferences from the state or the law. Second, liberal views include a number of different perspectives. Most notably, Joel Reidenberg and Lawrence Lessig developed the idea that code is law, that law and behavior-modifying regulation exist in digital environments, but that they manifest in different ways, most effectively through architectural and material means. Finally, a small group of critical thinkers questioned prevalent (anarcho-libertarian and liberal) understandings of cyberspace, showing that many of these views eluded the way power and commercial logics manifested and in practice governed the Internet. 

I ask how these three views or moments have influenced and led to a symmetric spectrum of views on how to regulate digital platforms, their power and how to promote freedom and emancipation in digital spaces. The move from an Internet of networks to an Internet of platforms represents a significant shift: from a hybrid decentralized environment where freedom seemed the norm, to a centralized and privately controlled space where the default is enclosure and digital life is dependent on a few commercial actors. In spite of this shift, the three paradigmatic views I identify with regard to platform governance remain surprisingly aligned with earlier 1990s visions. In the digital platform context, anarcho-libertarianism has retreated and morphed into a libertarian aversion to regulation as well as a series of market optimist perspectives; liberal views continue to expand, forming a vast liberal and neoliberal terrain of contestation that has absorbed large parts of anarcho-libertarian ideologies and critical tendencies in directions that include proposals for platform self-regulation, fiduciary obligations, data protection, competition and utility regulation. Finally, the terrain of critique remains fertile and is key to advancing the overall discourse on platform governance, with questions of power and surveillance capitalism now viewed as central. 

In mapping these perspectives, my method is genealogical. The term “genealogy” was first used by Friedrich Nietzsche in the sense I intend it here and was subsequently borrowed and re-adapted by a number of critical scholars and philosophers, importantly Michel Foucault. I adopt a genealogical method to unveil a story about the ways in which conceptions of freedom, law and power have evolved and mutated in response to new infrastructural and material digital conditions. Complacency about freedom and faith in competitive marketplaces and individual preferences has significantly conditioned and allowed the concentrated arbitrary and opaque manifestations of digital power in existence today. To avoid similar trajectories in the future, a genealogical perspective is in order.

Genealogy

'Traditional Laws Meet Emerging Biotechnologies: The Impact of Genetic Genealogy on Indigenous Land Title in Australia' by Elizabeth Watt, Emma Kowal, and Carmen Cummings in (2020) 79(2) Human Organization comments 

The increasing popularity and availability of genetic testing has the potential to play into debates surrounding forms of Aboriginal and Torres Strait Islander land ownership known as “native title.” This paper draws on research with applied anthropologists working in native title, and a review of descriptions of native title holders in existing determinations, to address three key questions: Are native title holders and claimants interested in using genetic genealogy for claiming native title or resolving membership disputes? If so, can this biotechnology offer them the kind of information they seek? And finally, does the legal framework allow or support its use for these purposes? Our findings highlight the importance of disseminating current information about genetic genealogy among Indigenous Australians and having frank conversations about the opportunities and limits of genetic technologies in this context. 

 The authors state 

On November 8, 2017, the second author of this paper received an unexpected email. It was sent by a lawyer representing three Indigenous citizens of the Australian state of Queensland. They had been dismissed from their roles as cultural officers in the Barada Barna Indigenous Corporation (BBIC) a year earlier. All three were members of one family, who’d been active in the Barada Barna people’s campaign to claim their ancestral lands under the Native Title Act, 1993 (Cth). Shortly after the claim succeeded in 2016, the board of BBIC, the Registered Native Title Body Corporate (RNTBC) set up to hold and manage the group’s native title, suspended their family’s membership — claiming they’d failed to provide evidence of their biological connection to the Barada Barna people. Because group membership was an “inherent requirement” of the cultural officer role, the three were also dismissed from their positions (Roos v. Winnaa Pty Ltd, FWC 3568 [2018]). 

The key questions in the Fair Work Commission case that followed revolved around the origins of the aggrieved family’s ancestor, Kitchener Brown. Authorities had removed Kitchener from Barada Barna land in 1908, along with Barada Barna children that he referred to as his “brothers.” A century later, the descendants of these brothers oversaw the return of Kitchener’s remains to Barada Barna land (Hamilton 2008). However, following the successful native title claim, these presumed relatives changed their position—arguing that Kitchener was in fact an adopted, rather than biological, broth- er. This means Kitchener’s ancestors did not meet the strict RNTBC membership rules, based on the group’s description in their native title determination. To prove otherwise, the Board members had called on Kitchener’s descendants to take DNA tests. They refused, stating the request was “offensive and culturally inappropriate” (personal communication). 

This is where the second author, a medical and cultural anthropologist who has researched the use of genetics in Aboriginal communities since 2007, came in. She was asked to provide an expert testimony about the cultural basis of this re- fusal and whether it was theoretically possible to demonstrate a biological connection between Kitchener’s descendants and their presumed Barada Barna relatives through DNA testing. Ultimately, the testimony was not decisive in the case. The Commissioners found in favor of Kitchener’s family, arguing that the RNTBC did not truly believe they were not rightful members at the time of their dismissal, as their membership had been suspended but not cancelled (Fair Work Commission v. Winnaa Pty Ltd, FWC 3568, C2017/371 [2018]). But the request for expert testimony itself raises broader questions. While there have been informal calls by Aboriginal people to “prove” their identity through DNA tests (Bevilacqua 2002; Noble 2015; Wood 2002), this is the first time (to our knowledge) that such a request has been recorded in a legal case. Is this a sign of things to come? Will the increased availability of genetic ancestry testing in Australia affect Aboriginal people’s access to native title rights in the future? 

In this paper, we address these two broad questions through three smaller ones: Are native title holders and claimants interested in using genetic genealogy for claiming native title or resolving membership disputes? If so, can this biotechnology offer them the kind of information they seek? And does the legal framework allow or support its use for these purposes? To answer these social, scientific, and legal questions, we draw on two primary data sources: a survey of forty anthropologists working in native title and a review of descriptions of native title holders—descriptions that provide the basis for RNTBC membership rules—in 213 of the existing 347 native title determinations. 

Combining and supplementing these two datasets, we offer some insight into the future use of genetics in Aboriginal land claims. Our research suggests that, while there is some interest in using genealogical DNA tests to prove native title, the hopes upon which this interest is built are generally mis- guided. It is highly unlikely that genealogical genetics will offer proof of descent from the original owners for specific regions, and such evidence is not in fact required by courts. But there is a greater—and growing—interest in using these tests to resolve membership disputes, and the scientific and legal scope for this application is potentially much greater. Genetic kinship tests are able to establish biological relation- ships between living people with increasing precision, and the descriptions of native title holders in Federal Court determinations increasingly contain lists of “apical ancestors” (similar to the “base roles” of Native American tribes).

US Personality Rights

'Endorsing After Death' by Andrew Gilden in (2022) 63 William and Mary Law Review comments 

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and increasingly have been embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Marilyn’s name, have successfully brought false endorsement claims under Section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified ‘@marilynmonroe’ page. Marilyn Monroe survives today as a highly-paid celebrity endorser even though she died almost 60 years and her ‘Estate’ is controlled by individuals with zero personal connection to her. 

 This paper closely examines the growing body of posthumous endorsement law and sets forth a new framework that better respects both the agency of the deceased as well as the continuing bonds between the deceased, their fans, and their families. Intellectual property scholars have critiqued other forms of postmortem IP, such as copyright and publicity rights, but this article shows that posthumous endorsement rights pose unique and largely unaddressed concerns. First, these rights frequently pose a continuity problem: courts have allowed endorsement rights to shift from the decedent to their heirs to unrelated third parties without acknowledging just how differently situated each of these entities is with respect to the communicated endorsement. Second, these rights pose discursive problems: they allow rightsholders to speak in the ‘official’ voice of the decedent, leveraging the individual’s continuing cultural influence into commercial and political endeavors that emerge long after their death. Third, these rights pose dignitary concerns: individuals are often symbolically brought back from the dead without their consent and forced to speak on behalf of entities that have purchased their goodwill on the open market …

Lex Informatica

'From Lex Informatica to the Control Revolution' by Julie Cohen in (2021) 35 Berkeley Technology Law Journal comments 

Legal scholarship on the encounter between networked digital technologies and law has focused principally on how legal and policy processes should respond to new technological developments and has spent much less time considering what that encounter might signify for the shape of legal institutions themselves. This essay focuses on the latter question. Within fields like technology studies, labor history, and economic sociology, there is a well-developed tradition of studying the ways that new information technologies and the ‘control revolution’ they enabled – in brief, a quantum leap in the capacity for highly granular oversight and management – have elicited long-term, enduring changes in the structure and operation of economic organizations. I begin by considering some lessons of work in that tradition for law understood as a set of organizations constituted for the purpose of governance. Next, I turn the lens inward, offering some observations about techlaw scholarship that are essentially therapeutic. The disruptions of organizational change have affected scholars who teach, think, and write about techlaw in ways more profound than are commonly acknowledged and discussed. It seems fitting, in a symposium dedicated to Joel Reidenberg’s life and work, to use the process of grief as a device for exploring the arc of techlaw scholarship over its first quarter century. The fit is surprisingly good and the takeaways relatively clear: If, as I intend to suggest, the organizational forms that underpin our familiar legal institutions have been in the process of evolving out from under us, we still have choices to make about how legal institutions optimized for the information economy will be constituted. Finally, I identify two sets of important considerations that should inform the processes of organizational and institutional redesign.

TRIPS

'TRIPS Through A Military Looking Glass' by Peter Drahos comments 

 The paper draws on an argument from Hanns Ullrich that the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) suffers for a legitimacy gap. This gap takes the form of an external conditioning of states’ sovereignty over innovation in markets. The paper argues there is a less-discussed and somewhat darker legitimacy gap of TRIPS. This gap relates to the US national security state (NSS) and its use of intellectual property to regulate globally innovation in weapons systems. The paper traces the links between the NSS, intellectual property and weapons innovation from World War II to the present day. TRIPS has lost legitimacy in the eyes of the NSS because it has failed to hold back China’s innovation in defense-sensitive areas such as 5G technology. Drawing on the work of Carl Schmitt, the paper offers a phenomenological reading of the NSS’ view of legitimacy. The paper finishes with an examination of the implications of Schmitt’s friend-enemy distinction for the future of intellectual property and the US-China relationship.

Fantastica

The Guardian reports conviction (and release on parole) of Samantha Azzopardi - who appeared in this blog here and here - after Australia, Ireland and Canada.

Azzopardi has a long history of dishonesty offences. In 2013 she showed up in central Dublin claiming to be a teenage sex-trafficking victim from eastern Europe. It cost the Irish government hundreds of thousands of dollars before her true identity was exposed. 

After being deported she emerged in Canada, where she said she was a victim of sexual assault and torture. 

In Australia, she convinced a Perth family she was a Russian gymnast named Emily whose entire family had been killed in a murder-suicide in France. 

In Sydney she passed herself off as a schoolgirl more than half her age. 

Azzopardi has criminal convictions for dishonesty offences in Queensland, Western Australia and New South Wales, as well as for Commonwealth offences. 

Explanation? A psychiatrist reportedly referred to 'a highly traumatic upbringing including emotional neglect and physical abuse', characterising Azzopardi as having 'a severe personality disorder and pseudologia fantastica' - a '“rare but dramatic” psychiatric disorder involving an “extreme type of lying”'.

Another footnote for my forthcoming book on identity crime.

A 2017 SMH piece noted her conviction on fraud charges after Azzopardi posed as a 13-year-old Sydney high school student named Harper Hart, using a fake Californian birth certificate and pretending to be a child sex-trafficking victim. 

The piece is interesting as a quantification of crime costs, stating 

 Her lies cost NSW charities and government departments more than $155,000, a figure updated from an initial calculation of $20,000. ... 

Hornsby Local Court heard that Irish authorities spent more than $400,000 trying to establish who she was and where she had come from. ... 

Canadian authorities spent $150,000 on their investigation before realising she was the same woman at the centre of the Dublin saga. Azzopardi was charged with public mischief in Calgary and faced a maximum sentence of five years in prison but, after pleading guilty, she was sentenced to the two months she'd already served in custody. Again she was sent home to Australia. ... 

The Sydney court heard she had to trick NSW authorities into thinking she was still a teenager. She was given an iPad, a phone and Opal card from the not-for-profit Burdekin House, an ambulance transfer paid for by Good Shepherd Australia and medication from the NSW Department of Family and Community Services. The $155,000 cost of her frauds included counselling costs and wages. 

LGBTIQ Kids

'Is the UN Committee on the Rights of the Child Doing Enough to Protect the Rights of LGBT Children and Children with Same-Sex Parents?' by  Paula Gerber and Aaron Timoshanko in (2021) Human Rights Law Review comments

 Children often face discrimination, bullying and even violence because of their sexual orientation or gender identity, as do children raised by parents who are lesbian, gay, bisexual or transgender (LGBT). This article considers what the UN Committee on the Rights of the Child is doing to protect the rights of LGBT children and children with LGBT parents. To make such an assessment, this article critically analyses the Committee’s Concluding Observations over a 10-year period, its General Comments and its Views on Individual Communications. The conclusion reached is that while the Committee has made encouraging progress in recent years when it comes to addressing LGBT related issues, there is still room for improvement in the way the Committee seeks to protect children from discrimination on the basis of sexual orientation and gender identity. 

 The authors argue 

 Lesbian, gay, bisexual and transgender (‘LGBT’) children and children with LGBT parents can face significant challenges growing up in a heteronormative world. LGBT children, and children being raised by same-sex parents, especially in their adolescent years, are likely to experience higher rates of discrimination, bullying and violence, particularly in the school environment. The school playground is often the first place that children experience the hurt and humiliation that comes from not conforming to heteronormative standards. A United Kingdom study in 2007 found that 65 per cent of lesbian, gay and bisexual students had been bullied at school due to their sexual orientation, with more than a quarter also being physically abused. Outside of the UK, LGBT students experience similar levels of abuse. As a result of homophobic and transphobic bullying, LGBT students can experience a ‘loss of confidence, low self-esteem, anxiety, depression and social isolation, and it can often result in reduced school attendance, early school dropout, and poorer academic performance and achievement’, which can have long lasting consequences for the child. At times, LGBT children and children with same-sex parents are also refused admission to, or are expelled from, school due to their sexual orientation or gender identity (‘SOGI’), or that of their parents. 

Because of the discrimination they face, LGBT children are at higher risk of developing problems with alcohol and substance abuse, when they reach adolescence.10 LGBT children are also vulnerable to involuntary or coercive sexual orientation change efforts (commonly referred to as ‘conversion therapy’), which may cause ‘treatment-related anxiety, suicidal ideation, depression, impotence, and relationship dysfunction.’ LGBT youth also face increased risk of homelessness if they are rejected by their parents because of their SOGI. Once on the streets, LGBT youth are more vulnerable to sexual exploitation, abuse and risky sexual behaviours, which may increase their chances of contracting a sexually transmitted disease. LGBT youth are also at a significantly higher risk of suicide. Approximately 30 per cent of LGBT youth around the age of 15 have attempted suicide, with suicide the leading cause of death among gay and lesbian adolescents in the United States. The disproportionately high rate of suicide among LGBT youth is not due to their SOGI, but rather, the persistent discrimination, harassment and social exclusion they experience. 

Bisexual youth may face biphobia, which is ‘prejudice, fear or hatred directed toward bisexual people’ and/or ‘bi erasure’, in which bisexual people are ‘excluded or rendered invisible’ in the LGBT community.  Transgender children experience their gender differently to their biological sex. 

There are limitations associated with using an acronym, like LGBT, to reflect the rich diversity of individuals’ lived experiences, which can be lost with the use of the ‘umbrella’ term, LGBT. Specifically, it encourages the perception that the LGBT community is homogenous and susceptible to a ‘one-size-fits-all’ approach. Whilst acknowledging these limitations, LGBT is still the most appropriate term to use in this research, since it is one of the terms consistently used by the United Nations (‘UN’) Committee on the Rights of the Child (‘Committee’) and is widely used in scholarly literature. ... 

 There has been little scholarly attention paid to the work of the Committee in relation to LGBT children and children with same-sex parents. Indeed, there appears to have been only five studies that relate to the rights of LGBT children under the Convention on the Rights of the Child (‘CRC’), and none of them involved any empirical analysis of the Committee’s work relating to LGBT children and children with same-sex parents. This article seeks to make a modest contribution to filling this gap. This article analyses the major outputs of the Committee, including Concluding Observations (from 1 January 2010 to 1 January 2020), General Comments and Views on Individual Communications, in order to assess the extent to which the Committee is promoting and protecting the rights of LGBT children and children with same-sex parents. This analysis reveals that while the Committee’s awareness of SOGI issues is growing, there is still room for improvement. 

Part 2 of the article begins with an examination of the historical context of the CRC. This helps to explain why the Committee has been slow to consider the vulnerability of LGBT children and children with same-sex parents. This historical analysis is followed by a critique of the text of CRC, in order to identify the provisions that are most relevant to a consideration of the rights of LGBT children and children with same-sex parents. Part 3 reviews the Committee’s Concluding Observations, noting the Committee’s increasing use of SOGI terminology and a greater level of precision when using different terms. This indicates a growing awareness and sensitivity by the Committee to the rights of LGBT children and children with same-sex parents. Nevertheless, the Committee’s work in this space would be improved by refraining from ‘bundling’ minorities together, when making recommendations. 

Part 4 examines the 25 General Comments published by the Committee, to determine the extent to which issues relating to LGBT children and children with same-sex parents have been addressed. This analysis reveals that LGBT related issues were briefly discussed by the Committee in its General Comments in 2003 and then not again until 2011. Since that time, both the quantity and quality of the Committee’s engagement with LGBT issues has improved. However, there is still significant scope for improvement, and this is highlighted in the comparison of levels of engagement of other UN treaty committees with these issues in their General Comments. Part 5 examines the Committee’s Views on Individual Communications. As the Committee has only had the power to receive complaints alleging violations of the CRC since April 2014, and there are only 46 State Parties to this latest Optional Protocol, it is not surprising that there have only been 39 Views published by the Committee. None of these communications related to the rights of LGBT children or children with same-sex parents. 

The conclusions are set out in Part 6, along with recommendations for how the Committee could better promote and protect the rights of LGBT children and children with same-sex parents.