Tech Law Refined

Exploring the ins and outs of modern technology with a legal twist.

[techlawrefined]

Artificial Intelligence and Bias

AI is one of the biggest topic in modern information science. And that for good reason. Due to the advance in programming power, jobs consisting of predictable physical work, data collection, and data analytics have a high probability to be replaced by automated systems within the next decade. Now, it is crucial that we have a proper understanding of the risks and benefits associated with artificial intelligence.

The podcast “Compliance and Legal Risk” does a great job inviting academic and industry experts to map out what issues we should be aware of.

In the episode “Artificial Intelligence and Bias”, they discuss the issue of biases at every step of the progress (from the collection of data, to the algorithms interpreting the data, to the tools used to put the conclusions into practice), the issues of proxies, and the importance of impact assessments.

[techlawrefined]

UK Announces New Landmark Security Bill for the Internet of Things (IoT)

“Every day hackers attempt to break into people’s smart devices. Most of us assume if a product is for sale, it’s safe and secure. Yet many are not, putting too many of us at risk of fraud and theft”, so Julia Lopez, the British Minister for Media, Data, and Digital Infrastructure.

Now, the UK presses ahead to introduce a new bill to improve the security of smart devices. Threatening heavy fines, the regulation will force manufacturers of IoT devices to adhere to a baseline of security measures. Preinstalled, easy-to-guess passwords, such as ‘password’ or ’admin‘ will be banned and manufacturers will have increased information requirements towards consumers and will need to provide a public point of contact for security researchers.

Read more in the recent press release by the UK government:

New cyber laws to protect people’s personal tech from hackers

Consumers will be better protected from attacks by hackers on their phones, tablets, smart TVs, fitness trackers and other internet-connecta

[techlawrefined]

A Contextual-Only Advertising World - Dream or Nightmare?

Online behavioral advertisement (OBA), commonly known as targeted advertisement, has proven to be simultaneously a blessing and a curse for the Internet. On the one hand, it provides an unprecedented access to freely-available services and information. One the other hand, the collection of personal data to feed advertisement algorithms systematically infringes our privacy and has been called a risk for democracy.

The debate about the legitimacy of OBA has now reemerged under the introduction of a new European regulation, the „Digital Services Act“ (DSA). Whereas the DSA is a framework regulation, it does contain some specific provisions aimed at online advertisement. Article 24 and 30 oblige online platforms to ensure a higher level of transparency for online ads.

For some MEPs in the European Parliament, the Greens/European Free Alliance group, transparency is not enough. In a report, they are lobbing for an complete ban on OBA and advocate for a transition to contextual-only advertisement. “Contextual advertising, another form of online advertising that pre-dates tracking-based advertising, is enjoying a resurgence. Case studies have shown that it can be more valuable to publishers than tracking-based ads, with one contextual ad agency demonstrating that advertisers were willing to pay 3.4 times more for contextual.” The efforts are spearheaded by the German MEP Patrick Breyer, who justified his motivations by pointing out the sensitivity of personal data which is used for OBA and the lack of free choice consumers have to escape online tracking.

As every action causes a reaction, it did not take long for proponents of OBA to respond. In a blog post, Townsend Feehan, the CEO of IAB Europe, an European association for the digital marketing and advertising ecosystem, called the debate to ban personalised advertising “both highly emotional and almost completely unproductive”. She continues to elaborate her criticism threefold, by arguing that contextualized advertisement (1) only works in niche situations, such as search engines, and is in no place to replace OBA internet-wide, (2) won’t greatly reduce online disinformation as bad actors can continue to use contextualized advertisement to find users receptive to their disinformation, and (3) will not stop the processing of personal data since even contextualized advertisement will process personal data to measure its effectiveness.

It is highly questionable if a ban for OBA will find its way into the DSA. Examining the proposals and amendments bei the European Parliament, we only find a ban for OBA targeted at minors (see Amendment 262). Also, neither the European Commission nor the the European Council, the two other institutions involved in the drafting of EU legislation, have shown a particular appetite for such a radical proposal.

However, even if an OBA ban won’t be manifested just yet does not mean that it is not a possibility for the future. I definitely do not share Feehan’s observation that the debate is “unproductive”. Quite the opposite. It will be interesting how the discussion develops and what future studies have to say about the effectiveness of contextual advertisement.

[techlawrefined]

Central Bank Digital Currency: The Legal Obstacles of the Digital Euro

  Dr. (Annelieke) Anne Marieke Mooij , Tilburg University The ECB has decided to launch the preparation phase for the digital euro. The

According to the Austrian Minister of Finance, the European Central Bank (ECB) has just recently held a presentation about a “digital euro” to the Ministers of Finance of the 19 Member States in the eurozone. The “digital euro” is one of the more recent projects of the ECB and it has been preparing for it since July of this year.

Interestingly enough however, it is not legally self-evident that the ECB has the competence to introduce a “digital euro”. This blog post by Dr. Anne Marieke Mooij is a fantastic break-down of all the relevant legal considerations that are necessary to question.

Enjoy!

[techlawrefined]

Sailing the Seven Seas on 5G

5G is coming. But I imagine average consumers might ask themselves: Apart from inspiring new conspiracy theories, what is it actually good for? Sure, speed is great and all, but to be fair, personally, I believe network consistency is a far greater issue for consumers than network speed. I have yet to find a use case where 4G wasn’t enough.

What is usually cited are the Internet of Things, better live-streaming and video calls, and automated cars.

On the other hand, at least according to the guest column by Mark Mark Gillespie in the Variety, the music industry, if anything, should to fear what 5G could mean for copyright-infringing file sharing. After years of playing cat-and-mouse with internet piracy, it seemed like the looming apocalypse of the music industry might finally have been averted by offering consumers a better experience with affordable streaming services. Now, the new network technology could supercharge dezentralised file-sharing systems and make it practically impossible for content owners to enforce their copyrights.

Will 5G and Web 3.0 Usher in a New Copyright Crisis for the Music Industry? (Guest Column)

In the ten years between 1999 and 2009, annual recorded music revenues in the U.S. (the world’s biggest market) collapsed from $14.6 billion

[techlawrefined]

Trump will soon be “Truthing“

Trump just launched his new social media platform „TRUTH social“. Besides the tacky name, it promises to stand up to „Big Tech“ by delivering a hardly moderated free speech zone and „'non-woke' entertainment programming, news, podcasts, and more“.

Instead of say „Tweets“ or „Posts“ users will be sending out „TRUTHS“.

The plan for a Trump platform had been in the making ever since he was booted off Twitter and Facebook. American conservatives have been convinced for a while that social media platforms are rigged against them.

Trump went as far as signing an Executive Order with the idea of limiting the protections which social media platforms have by virtue of Section 230 of the Communications Decency Act. The Section entails a „Good Samaritan“ clause which shields them from liability caused by content moderation done in „good faith“ (the legal certainty to host and moderate content in the EU is btw granted by Article 14 of the E-Commerce Directive, creating liability exemptions for hosting third party content, and Article 16 of the EU Charter of Fundamental Rights „The freedom to conduct a business“.)

Will „TRUTH social“ work? Well, „Big Tech“ is „Big Tech“ for a reason. It is hard to imagine that after behemoths like Google (anyone remember Google+?) failed, Trump will be successful. It‘s also not the first time someone has tried to come up with a “unbiased“, „free speech“ (say conservative) platform. The in 2018 founded platform „Parler“ attempted the same thing. Although it gained some steam after the Capital siege in January, download numbers have been plummeting.

So while you should never say never and it most likely will pick up hype in conservative cycles in the beginning, it is most likely that Trump‘s newest endeavor will be his next entry in a long row of failed projects.

[techlawrefined]

Who owns fan art?

Fan creations are a crucial part of any fandom. It‘s always amazing to see what fan fictions and fan arts communities are able to create and come up with.

But who actually has the ownership - meaning copyright - of the created works? It would seem odd if fan creators would be able to receive enumeration for their „Marvel“ art. However, is the conclusion that IP-owners are able to use and sell fan art - no strings attached? To the surprise of possible many, in practice, apparently so. For example, just recently Disney and Marvel have caused an uproar in the Star Wars community for brazenly copy and pasting fan art into their comic issues.

How is this legally possible and what role do concepts such as “fair use” and “derivative work” play? For anyone looking for answers, I can only highly recommend the following video in Hoeg Law’s “Virtual Legality” series.

[techlawrefined]

Of Facebook Outages and Cybersquatting - A Trademark Story

It’s evident globalization has come a long way when it allows billions of WhatsApp, Facebook, and Instagram users to look at their phones in bewildered and confused in unison. After multiple attempts of switching from cellular connection to Wi-Fi and back, the realization probably slowly dawned for most that (at least this time) their spotty internet connection was not to blame. And indeed, the outage was on a global scale, originating at Facebook’s very headquarters in California. On the 4th of October 2021, Facebook’s services were out for a total of six hours.

As is by now custom for any sudden noteworthy event, the internet was hit with a flurry of speculative mis- and disinformation (such as the analysis by self-declared tech experts that Facebook wasn’t just down but gone for good). There was one claim, which I found to be particularly intriguing: Facebook’s domain was allegedly up for sale. Now, naturally, there wasn’t much to this. However, the idea that someone could technically just buy up the domain name of a big cooperation, if timed correctly, remains fascinating and is not without precedent. It is called “Cybersquatting” and is a well-known malpractice. Just this April a web designer created headlines by buying Google Argentinia’s domain “www.google.com.ar” for the price of a mere coffee (it later turned out that Google’s license for the domain hadn’t run out after all and was only available for purchase due to a glitch).

As Adam Dunn explains in his paper “The Relationship between Domain Names and Trademark”, it is evident that cybersquatting is illegal. In 1999 the US Congress enacted the Anti-Cybersquatting Consumer Protection Act, which enables the owners of trademarks to take actions against someone who registered their trademark as a domain name in bad faith. Other jurisdictions have established a sufficient body of cybersquatting case law or are able to use already pre-existing general provisions. A concrete example for the UK would be the decision “British Telecommunications Plc v One in a Million Ltd.” which provides a remedy against cybersquatting. Under German law, cybersquatting cases would fall under the recent 2019 Trade Mark Law Modernisation Act (Markenrechtsmodernisierungsgesetz) or could be handled by section 12 of the German Civil Code (where “a company’s business function is affected as a result of the use of its mark outside its normal operational area”).

Still, even if the law is clear, legal enforcement in cyberspace can be cumbersome. International dispute resolution mechanisms, like the Uniform Dispute Resolution Policy, exist but only offer limited remedies. National means certainly offer an alternative option. These, however, all have the considerable drawback that jurisdiction has to be established first. And the proceedings can take their time.

Consequently, cybersquatting will most likely remain a digital menace for the foreseeable future. Facebook can count itself lucky that rumor turned out to be a fluke. Given their already tough week, fighting for their own domain would probably have been the last thing they needed.