Calls to “do something” about modern digital platforms — Amazon, Facebook, Google, and the like — are endemic today. These companies’ size — among the largest in the world — endows them with the superficial appearance of market power, providing competitors and advocates with the rhetorical basis for antitrust action against them. Moreover, the same high-tech, scale industries that are likely to evoke “big-is-bad” antitrust concerns are also likely to raise important social, legal, and political questions. The telephone and the railroad reshaped society; the computer began a reshaping of society that the personal computer continued and that is still ongoing in today’s Internet era. Such pervasive consequences don’t go unnoticed, nor are they uniformly welcomed.
The urge to treat antitrust as a legal Swiss Army knife capable of correcting all manner of social and economic ills is apparently difficult to resist. Conflating size with market power, and market power with political power, many recent calls for regulation of the tech industry are framed in antitrust terms. Abetted by a growing chorus of scholars on both the left and right, proponents of activist antitrust are now calling for invasive, “public-utility-style” regulation or even the dissolution of the world’s most innovative companies essentially because they seem “too powerful.” Unconstrained by a sufficient number of competitors, the argument goes, these firms impose all manner of alleged harms — from fake news, to the demise of local retail, to low wages, to the veritable destruction of “democracy.” What is needed, they say, is industrial policy that shackles large companies or mandates more, smaller firms.
But this view contradicts the past century’s worth of economic experience and learning. It would require jettisoning the crown jewel of modern antitrust law — the consumer welfare standard — and returning antitrust to an earlier era in which inefficient firms were protected from the burdens of competition at the expense of consumers. And in doing so it would put industrial regulation in the hands of would-be central planners, shielded from any politically accountable oversight.
Adapting to the changes wrought by these industries is one of the defining challenges of the 21st century. But antitrust law is not the proper vehicle for addressing open-ended issues related to social and political values and disconnected from the economic effects of restraints on competition.
Language, Power and Privacy
Surveillance of citizens is a clear manifestation of government power. The act of surveillance is generally deemed acceptable in a democratic society where it is necessary to protect the interests of the nation and where the power is exercised non-arbitrarily and in accordance with the law. In spite of this, the practice of surveillance create stark challenges for the constraining forces of transparency and accountability.
A number of features of surveillance law, surveillance language, and the distribution of power perpetuate the existing surveillance paradigm. Using case studies from the US, the UK, and Ireland, Dr Murphy assesses the techniques used to maintain the status quo of continued surveillance expansion. Though Dr Murphy maintains that the classic principles of transparency and accountability remain the best means available to limit the arbitrary exercise of government power, she evaluates how these principles could be better realised in order to restore power to the people and to maintain an appropriate balance between government intrusion and the right to privacy.
Smart Cities Data Governance - Lessons from Quayside
Smart cities are places in which information technologies and vast quantities of data combine to generate data-driven solutions to a broad range of urban problems. Smart cities initiatives are often conceived of as technology, infrastructure, and/or economic development projects. However, the governance issues raised by smart cities may call for a rethink of the legal and policy infrastructure almost at pace with the emerging and evolving technologies. Drawing from the experience of the still unfolding process around the Waterfront Toronto-Sidewalk Labs Quayside smart city development, this presentation will examine smart cities data governance challenges.
Climate Change Tipping Point: Civil Society Turns to Litigation
Civil society with an interest in fighting climate change understands that we are getting dangerously closely to a tipping point. The IPCC has given us a stark reminder that we have only 12 years left to prevent dangerous climate change for our future generations. With this in mind, people and organisations around the world are losing trust in both the actions of the public and the private sector and are taking the situation in their own hands. Not in the way of a “climate revolution”, although some argue that may be needed at some point, but by putting their attention and their hopes into judges and courts. Against this background, this keynote will discuss climate change litigation in countries where there is little or even no litigation on climate change. It will attempt to understand what constitutes successful climate change litigation and what may need to happen (both from a legal and non-legal perspective) in those countries without or with just very incipient litigation in the field of climate change. This presentation builds on the Climate Change Litigation Initiative (C2LI). The latter is led by the Strathclyde Centre for Environmental Law and Governance in collaboration with the University of Geneva and the National University of Singapore. C2LI has reviewed climate change litigation in over 30 countries using a scenario based methodology and is soon to move into its policy oriented phase by developing an online platform.
The Internet Jurisdiction Tipping Point
In the context of global warming, scientists have suggested that there are certain ‘tipping points’ that, once reached could bring the Earth into a state beyond which human efforts to reduce emissions will be increasingly futile.
A similar reasoning is possible in the context of Internet jurisdiction. It seems clear that if we continue along the current course, we will sooner, rather than later, reach somewhat similar tipping points at which the Internet as we know it ceases to exist, and from which attempts at a reversal is potentially futile.
In more detail, the Internet’s openness, the Internet as an enabler, and protector, of human rights and democratic values are at risk. The same can be said about the Internet as a contributor towards a fairer and more equal world, and the Internet as a global communications medium connecting people so as to bring us closer together; ultimately supporting a peaceful coexistence.
All these important characteristics are currently under threat to varying degrees from developments such as:
In this talk, Professor Svantesson examines the Internet Jurisdiction Tipping Points as well as the developments (the positive feedback loops) that together are taking us towards these tipping points. He also canvasses some possible responses that may prevent the described gloomy prospect from becoming a reality.