Week 2 - Technology law

What are the theories of governance of cyberspace?

1. Cyberliberarianism

2. Cyberpaternalism

3. Network communitarism

Generations of the internet, their time periods, and ideologies

1st generation = 90s = cyberlibertarianism

2nd and 3rd generation = 2000’s = Network Communitarianism

4th generation = 2010’s = Intermediary

5th generation = 2020’s

Cyberlibertarianism

• Cyberspace is a separate sovereign space where real-world laws and real-world governments are of little to no effect

• when citizen enters cyberspace, they cross a virtual border to a new sovereign state in which the laws of the old state do not apply

• cyberspace is regulated from within

which generation and time period was cyberlibertarianism?

1st generation

1990’s

what is a weakness of cyberlibertarianism?

1. cyberspace lacks the necessary homogeneity to achieve the necessary levels of internal democratic discourse needed for the creation of cyberspace law, and as a result cannot be effectively regulated from within

2. When one visits cyberspace, they remain physically in the country where they are located

Regulatory arbitrage

if certain content is prohibited in one country but not in the other, individuals would access online the content from the country where it is allowed

cyberpaternalism

• cyberspace is not immune from intervention by real-world regulators

which 2 figures are prominent in cyberpaternalism

1. Reidenberg

2. Lessig

Reidenberg on cyberpaternalism

• what do we need to regulate to control cyberspace?

1. Contractual agreements between various internet service providers

2. Internet architecture which is man-made and within our control

what does internet architecture function as (cyberpaternalism)?

technical standards could function like geographical borders as they establish default boundary rules that impose order in network environments

what shifts away the direct regulation of cyberspace by the gov in cyberpaternalism?

• Focus Shift: From regulating people to influencing architecture.

• Mechanism: Using software, code, and network design to steer user behavior.

• Outcome: Regulation becomes "built-in" to the environment rather than enforced via traditional law.

Lessig ideas in cyberpaternalism

• Code is law = there are 4 modalities that control the activities of individuals on cyberspace

1. Law = threat of punishment

2. Norms = societal sanctions, criticism

3. Market = price signals

4. Architecture = physical constraints

what is the weakness of Lessig’s 4 modalities?

• no role for the individuals

• It views people as "subjects" of power, assuming any change to 4 modalities, the individual will follow

• It ignores "bottom-up" regulation, where individuals organize, protest, or create their own community rules that bypass the four modalities

Network communitarianism

• The relationship between the digital environment and the real world is a fluid affair

How does Lessig’s model of 4 modalities change in network communitarism?

• 4 modalities are the starting point, but the indiviudal is not isolated but part of a wider community

• 3 of the modalities are a proxy for community based control

1. Laws = are passed by lawmakers elected by the community

2. Markets = are a reflection of value, demand, supply and scarcity reflected by the community in monetary terms

3. Norms = are a codification of community values

what is the consequences of Lessig’s model of 4 modalities in network communitarism?

• The power to regulate cyberspace does not rest with the regulator alone

• Regulation is a process of discourse and dialogue between the individual and and society

what is the weakness of Lessig’s 4 modalities in network communitarism?

the role of internet service providers and intermediaries is not taken into account

why is there a need for regulatory intervention on behavioural regulation?

• individuals face information asymmetry and have limited time to make decisions

• individuals are not always rational in their decisions

• therefor people do not always make the best choices for themselves

what are the 2 ideas on regulatory intervention of behaviour?

1. Paternalism

2. Libertarian Paternalism

what does paternalism state about behavioural regulation?

the individual is powerless

what does libertarian paternalism state about behavioural regulation?

• Individuals are nudged towards the right decision by laws or other regulatory techniques

• In cyberspace you nudge via architecture

nudging

a regulatory technique that directs individuals towards the best decision is allowed

dark patterns

• deceptive methods of nudging to get a user to make certain decision, that the user would not make had this not been in place

• dark patterns do not have the interest of the individual as their stating point

which legislation and art. startates that dark patterns are banned

• Digital services act

• art. 25

fixed algorithms

fixed points of architecture that present a core-based control

learning algorithms

continuous learning via feedback loops

what is black box AI

• A system where the internal logic and decision-making process are invisible or too complex for a human to understand

• Problem: Because you can only see the input and the output but not the "why," it is difficult to detect bias, errors, or violations of fundamental rights

what is white box AI

• A system where the logic is clear, traceable, and understandable to a human observer

what is the aim of the AI act?

• The Act essentially forces developers of high-risk systems to move toward a "white box" model by requiring:

  • Technical Documentation: Explaining how the system was built

  • Logging: Automatically recording events to track how decisions were made

  • Transparency: Providing instructions so users understand the system's limitations