Book by Natasha Tusikov
Open Access, 2021
Power and Authority in Internet Governance investigates the hotly contested role of the state in ... more Power and Authority in Internet Governance investigates the hotly contested role of the state in today's digital society. The book asks: Is the state "back" in internet regulation? If so, what forms are state involvement taking, and with what consequences for the future?
The volume includes case studies from across the world and addresses a wide range of issues regarding internet infrastructure, data and content. The book pushes the debate beyond a simplistic dichotomy between liberalism and authoritarianism in order to consider also greater state involvement based on values of democracy and human rights. Seeing internet governance as a complex arena where power is contested among diverse non-state and state actors across local, national, regional and global scales, the book offers a critical and nuanced discussion of how the internet is governed – and how it should be governed.
Power and Authority in Internet Governance provides an important resource for researchers across international relations, global governance, science and technology studies and law as well as policymakers and analysts concerned with regulating the global internet. Available open access!
The Elgar Companion to Intellectual Property and the Sustainable Development Goals, 2024
This chapter examines smart cities to consider how intellectual property may affect the creation ... more This chapter examines smart cities to consider how intellectual property may affect the creation and use of digital technologies to address social problems, particularly climate change. It is guided by the following questions: how might smart cities deliver on the UN’s Sustainable Development Goal 11 of inclusive, safe, resilient, and sustainable cities, and secondly, how might intellectual property affect cities’ use of technologies to strengthen environmental sustainability? The chapter makes a two-fold argument: public officials who plan and operate smart cities require a critical understanding not only of intellectual property (IP) rights, but also how digital data produced by smart city technologies should be collected, used, and governed. This is because companies employ intellectual property to commercialize their innovations, as well as capture economic value from the production and use of their technologies. Data, meanwhile, is not merely a by-product of the smart city but its constituent element, with significant economic and social value accorded to the capture and commodification of data.
To make its argument, the chapter considers the roles of intellectual property and data in the case of Google’s ‘climate positive’ smart city project in Toronto, Canada (cancelled as of May 2020). In this project Google’s urban development company Sidewalk Labs won a bid in 2017 to propose a smart city on formerly industrial land on the eastern waterfront of downtown Toronto. The project had nearly two years of public consultation, which offers a wealth of detail on Sidewalk Labs’ plans, many of them controversial in terms of privacy and the control over economic benefits from IP stemming from smart city technologies created in the project. Toronto’s smart city project, termed ‘Quayside’ after the project area, usefully highlights the central role that intellectual property plays within smart cities, including enabling technology companies to capture and monetize data flowing from smart city technologies.
From the global geopolitical arena to the smart city, control over knowledge—particularly over da... more From the global geopolitical arena to the smart city, control over knowledge—particularly over data and intellectual property—has become a key battleground for the exercise of economic and political power. For companies and governments alike, control over knowledge—what scholar Susan Strange calls the knowledge structure—has become a goal unto itself.
The rising dominance of the knowledge structure is leading to a massive redistribution of power, including from individuals to companies and states. Strong intellectual property rights have concentrated economic benefits in a smaller number of hands, while the “internet of things” is reshaping basic notions of property, ownership, and control. In the scramble to create and control data and intellectual property, governments and companies alike are engaging in ever-more surveillance.
The New Knowledge is a guide to and analysis of these changes, and of the emerging phenomenon of the knowledge-driven society. It highlights how the pursuit of the control over knowledge has become its own ideology, with its own set of experts drawn from those with the ability to collect and manipulate digital data. Haggart and Tusikov propose a workable path…
Precarious Ownership of the Internet of Things in the Age of Data, 2019
The growth of the Internet of Things (IoT)-internet-connected software embedded within physical p... more The growth of the Internet of Things (IoT)-internet-connected software embedded within physical products-has the potential to shift fundamentally traditional conceptions of ownership and the ways people can access, use, and control information. Drawing upon a knowledge regulation framework in uenced by Susan Strange, this chapter argues that the IoT industry exempli es the central role that knowledge governance now plays in the global political economy. The chapter examines how companies that own the knowledge integral to the IoT's functionality (the software) control that knowledge through intellectual property laws, especially copyright, and the ubiquitous surveillance of their customers. These companies retain control over the software even after its purchase, meaning they have a newly expanded regulatory capacity to monitor and control how their products are used. The private post-purchase control that IoT companies exert over smart goods represents a signi cant change in private actors' regulatory capacity to set rules governing knowledge.
The Uses and Abuses of Weaponized Interdependence, 2021
China used its media and technology industries, both state- run and private, as a tool of economi... more China used its media and technology industries, both state- run and private, as a tool of economic retaliation against a major U.S. sporting franchise to condemn a U.S. business leader’s political speech on Hong Kong’s anti-government protests, a topic of high political sensitivity in China. This case is a continuation of China’s global efforts to control political speech in regard to Hong Kong and Taiwan, among other issues. The Rockets’ example illustrates how states can extend their power by enrolling private industry, particularly in this case of enacting choke points to control or block information flows.
Media and Law: Between Free Speech and Censorship, 2021
Purpose -- This chapter examines the role of payment platforms in the United States in sex censor... more Purpose -- This chapter examines the role of payment platforms in the United States in sex censorship in which platforms have a pattern of denying financial services to people and businesses involved in publishing legal sexual content. It answers the following questions: what explains payment platforms’ regulation of lawful sexual content and what are the consequences?
Methodology/Approach -- Drawing from the platform governance literature, the chapter closely examines the corporate policies for PayPal and the credit card companies that prohibit certain types of sexual content and services.
Findings -- The chapter argues that payment platforms’ censorship of sexual expression is shaped by the distinctive nature of and market concentration within the online payment industry. Payment actors’ systematic campaign of sexual censorship disproportionately affects small businesses and individual operators in the sex and adult entertainment industries and amounts to a form of “digital redlining,” a form of financial discrimination.
Originality/Value -- Payment providers’ role in regulating sex online has received considerably less scholarly attention than research on social media platforms. This gap in scholarship is notable as big payment actors have systematically denied services for about a decade relating to sexually oriented goods and services (see Blue, 2015).
Information, Technology and Control in a Changing World Understanding Power Structures in the 21st Century, 2019
Co-edited by Blayne Haggart, Kathryn Henne, and Natasha Tusikov, this book explores the interconn... more Co-edited by Blayne Haggart, Kathryn Henne, and Natasha Tusikov, this book explores the interconnected ways in which the control of knowledge has become central to the exercise of political, economic, and social power. Building on the work of International Political Economy scholar Susan Strange, this multidisciplinary volume features experts from political science, anthropology, law, criminology, women’s and gender studies, and Science and Technology Studies, who consider how the control of knowledge is shaping our everyday lives. From “weaponised copyright” as a censorship tool, to the battle over control of the internet’s “guts,” to the effects of state surveillance at the Mexico–U.S. border, this book offers a coherent way to understand the nature of power in the twenty-first century.
This chapter explores the regulatory capacity, limitations and techniques of corporations, partic... more This chapter explores the regulatory capacity, limitations and techniques of corporations, particularly how corporate actors can set and enforce rules transnationally. Specifically, the chapter examines the regulation of intellectual property rights. The chapter is part of a freely available book -- Regulatory Theory: Foundations and Applications (Australian National University Press), editor Peter Drahos, 2017.
On January 18, 2012, millions of people participated in the now-infamous “Internet blackout” to p... more On January 18, 2012, millions of people participated in the now-infamous “Internet blackout” to protest the Stop Online Piracy Act and the rights it would have given intellectual property holders to shape how people use the Internet. SOPA’s withdrawal was heralded as a victory for an open Internet. However, as Natasha Tusikov documents in Chokepoints: Global Private Regulation on the Internet, rather than accept defeat, a small group of corporations, tacitly backed by the US and other governments, have implemented much of SOPA via a series of secret, handshake agreements among powerful corporations, including Google, PayPal, and Microsoft. Drawing on extensive interviews with corporate and government officials, Tusikov details the emergence of a new realm of global governance, in which large Internet firms act as global regulators for powerful intellectual property owners like Nike, and raises questions about the threat these new global regimes pose to democratic accountability itself.
Papers by Natasha Tusikov
Information, Technology and Control in a Changing World , 2019
While the control of knowledge is becoming the dominant means by which economic, political, and s... more While the control of knowledge is becoming the dominant means by which economic, political, and social control is exerted globally, the mechanisms through which this is happening—including intellectual property rights, state and commercial surveillance, digitisation and datafication, and a nearly ubiquitous internet mediating human interactions—are often examined separately instead of as part of a larger phenomenon of knowledge governance. This edited volume brings experts in these areas from across the social sciences to explore these areas as forms of knowledge governance, by adopting the understudied (at least from a knowledge-governance perspective) work of the late International Political Economy scholar Susan Strange, notably her concept of a knowledge structure. In this chapter, we present an introduction to and critique of Strange’s theory of the knowledge structure and offer an overview of this volume’s chapters.
Surveillance & Society, 2019
The riot by white supremacists in Charlottesville, Virginia, in August 2017, generated a public d... more The riot by white supremacists in Charlottesville, Virginia, in August 2017, generated a public debate about the role of platforms in policing users involved in violent hate speech. PayPal’s efforts on this issue, in removing services from some designated hate groups while continuing to serve others, highlights the challenges payment platforms face when they act, whether formally or informally, as regulators. This article examines PayPal’s policies and enforcement efforts, both proactive and reactive, in removing its services from hate groups in the United States. It pays particular attention to the surveillance and screening practices that PayPal employs to proactively detect users who violate its policies. The article argues that public calls for PayPal to identify and remove its services from hate groups raise critical questions about ceding broad regulatory authority to platforms and reveal the serious challenges of relying upon commercial enterprises to address complex social problems.
Internet Policy Review, 2019
The United States is shaping Chinese internet governance by embedding US-preferred standards for ... more The United States is shaping Chinese internet governance by embedding US-preferred standards for the protection of intellectual property rights within Chinese platforms. As a result, the China-based Alibaba e-commerce giant has instituted US-drafted rules to deal with the sale of counterfeit goods. To explain this development, the article introduces the concept of compliance-plus regulation, which draws from regulatory theory and socio-legal studies to account for the state coercively pressuring one set of private actors (platforms) to regulate “voluntarily” on behalf of another set of private actors (rights holders). Drawing upon an analysis of documents from the US government, US industry, and Alibaba, the article finds that while economic pressure on Alibaba was a central factor, there are also common economic interests between Alibaba and US and European rights holders.
Internet Policy Review, 2019
Internet-enabled “smart products” operate through networked software that links the devices to th... more Internet-enabled “smart products” operate through networked software that links the devices to their manufacturers’ servers to enable the collection and distribution of data, and, as a result, these products are vulnerable to software disruption. This article examines “regulation by bricking”, which refers to the deliberate impairment or destruction of software with the intention of negatively affecting product functionality. The article argues that companies are employing bricking within a system of private ordering that is reshaping the governance of physical objects, as companies can arbitrarily and remotely affect the functionality of any software-enabled device and even determine product’s lifespan. Further, the article contends that through companies’ post-purchase regulation of internet-connected goods, “Internet of Things” (IoT) firms have an unfair capacity to impose their preferred policies unilaterally, automatically, and remotely. Control over software thus enables control over hardware. This private ordering occurs within a regulatory framework in which IoT companies use restrictive licensing agreements to govern the use of the products’ software. With a focus on the governance of consumer-oriented IoT goods within the United States, the article draws upon the law and technology literature to explain bricking as a form of techno-regulation, which is the deliberate use of technology as a regulatory instrument (Brownsword, 2005), through an analysis of manufacturers’ licensing agreements for smart products.
Internet intermediaries – notably Google, PayPal, and eBay – that facilitate the hosting of infor... more Internet intermediaries – notably Google, PayPal, and eBay – that facilitate the hosting of information and transactions among users have become key actors in online anti-counterfeiting efforts. These intermediaries are valuable regulators not only because of their global platforms and specialized services, but also because of their capacity to set and enforce rules over their users through their contractual terms-of-use agreements. Further, some intermediaries, namely marketplaces, collect significant amounts of personal data on their users to facilitate their business. Marketplaces use this data to identify users selling counterfeit goods on their platforms. They also disclose the data to third parties that act on behalf of rights holders of intellectual property concerned about counterfeit products.
This paper examines the potential effects on Canadians’ privacy from a new regulatory phenomenon, non-legally binding regulatory arrangements that are undertaken by globally operating Internet firms. In particular, the paper explores how intermediaries may disclose their users’ personal data to third parties in relation to online anti-counterfeiting efforts and the potential effects on Canadians’ privacy. The paper speaks to two of the Office of the Privacy Commissioner’s priorities, namely businesses’ collecting, using and disclosing information and companies’ codes of practice relating to privacy.
In addition to examining intermediaries’ terms-of-use contracts and the nonbinding agreements, the paper draws from 18 interviews undertaken between September 2016 and January 2017 with intermediaries, technology-related trade associations, intellectual property-related trade associations, privacy-focused civil-society organizations, and lawyers/scholars focusing on privacy and Internet law (see Appendix A). The paper also draws upon 20 previously unpublished interviews, conducted between 2012 and 2013 as part of my doctoral dissertation, with brand-protection companies, intellectual property-related trade associations, and lawyers specializing in intellectual property rights protection.
The paper focuses on marketplaces’ anti-counterfeiting efforts, especially that of eBay, and the personal data marketplaces disclose to third parties, particularly so-called brand-protection companies that work on behalf of rights holders. These companies, which conduct monitoring and enforcement work, are a critically under-studied area of intellectual property. The paper does so because marketplaces, of all the intermediaries, disclose the greatest amount of users’ personal data to third parties in relation to enforcement of marketplaces’ policies. This information includes sellers’ email and mailing addresses, user names and profiles, and seller histories. Users likely have little knowledge that their information may be disclosed to private security companies working on behalf of rights holders. Further, law-abiding users, both buyers and sellers, may inadvertently be swept up in anti-counterfeiting enforcement campaigns undertaken by brand-protection companies, rights holders, or the marketplace.
The paper finds that intermediaries interviewed for this project – Internet service providers and domain registrars – are under considerable pressure from rights holders to disclose their users’ personal data in the absence of a formal legal order. Intermediaries’ choice in this situation is to disclose information voluntarily or to decline until a formal legal order is submitted. According to these intermediaries, denying informal requests for data can be costly and time consuming, as intermediaries must dedicate legal resources to fighting such requests. Equally, these intermediaries recognize that releasing information informally also can be costly, as they fear being held liable. As a result, users’ privacy is at risk from increased pressure to protect intellectual property rights.
Brand-protection firms are a growing but largely under-studied element of the online regulation of intellectual property rights. These companies amass personal information of people selling goods on online marketplaces in order to identify individuals selling bulk quantities of counterfeit goods, often by comparing user profiles and activities across marketplaces and social networks. In doing so, however, they may capture information on people acting lawfully, as well as store and disclose personal data in ways that risk privacy breaches. Those interviewed have mixed opinions on intermediaries’ participation in non-legally binding enforcement agreements. Intermediaries and trade associations generally support so-called “voluntary” enforcement efforts like non-binding agreements. However, such efforts should adhere to due-process measures and respect privacy rights, which can be a challenge given the lack of accountability and oversight that often accompany voluntary enforcement programs. Representatives from civil-society and privacy groups, in contrast, critique nonbinding enforcement practices in relation to online anti-counterfeiting efforts, highlighting their problems with transparency, oversight, and privacy. Users are concerned about privacy but have little understanding of intermediaries’ privacy policies or how their information may be used in anti-counterfeiting efforts.
To provide a corrective to some of the problems inherent with the non-binding enforcement agreements, the paper then explores Project Chargeback, a public-private partnership operated by the Canadian Anti-Fraud Centre (CAFC), a law enforcement agency in North Bay, Ontario. As the CAFC plays a lead role in coordinating the project, which reimburses victims who purchased counterfeit goods, Project Chargeback minimizes the risks to victims’ privacy. The CAFC’s involvement also instills the project with legitimacy and a degree of oversight and accountability.
The paper concludes with recommendations to strengthen privacy and
transparency in regards to the non-legally binding enforcement agreements and, in doing so, develop a space for public participation. It also recommends that the adoption of standardized enforcement processes and the Manila Principles on Intermediary Liability to address some of the problems inherent in intermediary-facilitated regulation of intellectual property.
This paper examines the risks to Canadians' privacy from online anti-counterfeiting efforts on ma... more This paper examines the risks to Canadians' privacy from online anti-counterfeiting efforts on marketplaces, particularly eBay. Anti-counterfeiting efforts on marketplaces often involve pervasive monitoring practices. The paper argues that these anti-counterfeiting enforcement dragnets have the potential to pose significant risk to marketplace users' privacy, as well as unfairly target and stigmatize those not involved in wrongdoing. Equally problematic – but relatively unknown amongst the general public – is brand-protection companies' practice of amassing consumers' personal data from marketplaces in order to identify and target those selling counterfeit goods. Ordinary eBay users likely have little knowledge that their information may be disclosed to private security companies (i.e., brand-protection firms) working on behalf of rights holders. As well, brand-protection companies that store personal data for intelligence purposes, or for future criminal or civil actions present a risk in the event of a breach of these companies' databases.
A key trend in the online regulation of intellectual property is the shift toward non-legally binding or "informal" regulatory regimes instead of relying upon legislation or judicial remedies. The paper argues that online anti-counterfeiting efforts can be characterized as a form of hybrid governance brings together state and non-state actors, along with hard and soft law measures. To examine this form of hybrid governance, the paper explores two case studies based on non-legally binding agreements between state and corporate actors. The first is a European agreement between the European Commission and eBay. The second is a Canadian program, Project Chargeback, between payment providers and the Canadian Anti-Fraud Centre to address the sale of counterfeit goods on standalone websites. Differences between the European and Canadian programs are exemplified in their approach to protecting consumers. Unlike the privacy problems inherent within marketplaces' anti-counterfeiting efforts, Project Chargeback was designed to respond to consumers' complaints and has built-in protections for privacy. The paper draws from 38 interviews with Intermediaries, brand-protection firms, and rights holders.
This paper argues that the online regulation of intellectual property, specifically enforcement e... more This paper argues that the online regulation of intellectual property, specifically enforcement efforts against websites providing copyright-infringing material and counterfeit goods, constitutes a form of knowledge governance. Rights holders of intellectual property are forming partnerships with (sometimes-reluctant) Internet intermediaries like Google to expand their enforcement efforts to the online realm. By working with intermediaries, rights holders have significantly increased their capacity to monitor and control global flows of information and govern certain types of unwanted behaviour. This paper examines two unusual collaborations between rights holders and intermediaries. First, it examines a program – code-named Project Goliath – run by the Motion Picture Association of America to pressure Google to strengthen its enforcement measures against online infringement. Second, the paper explores a series of secretly negotiated private enforcement agreements struck amongst rights holders and Internet firms from multiple industry sectors to regulate online infringement at the behest of the U.S. government. The paper concludes that rights holders, intermediaries, and the U.S. government, a staunch supporter of ever-stronger protection for intellectual property, have over-lapping interests in extending their control over standard-setting processes on the Internet. These programs operate globally, but they are oriented toward further entrenching American (and, broadly western) preferences in relation to intellectual property, as well as cyber-security policies, that benefit stakeholders’ economic and security interests.
Unsettling Transparency
Classified files leaked by ex-security contractor Edward Snowden reveal that the Internet surveil... more Classified files leaked by ex-security contractor Edward Snowden reveal that the Internet surveillance programs operated by the U.S. National Security Agency (NSA) and its allies are heavily reliant upon Internet firms like Google, Microsoft and Facebook. These companies are integral to Internet surveillance because of their global operations and considerable market share. As part of their business models the firms collect, store and data-mine vast troves of personal information from their users (see Mayer-Schönberger and Cukier 2013). As a result, Internet firms enable the NSA and its allies to tap into streams of personal data from hundreds of millions of users globally (Ball, Border, and Greenwald 2013; Schneier 2014). Reaction to the Snowden files continues to reverberate worldwide with anger from political leaders and the public directed toward the NSA and companies that facilitate its surveillance programs (Ball, Border, and Greenwald 2013).
As part of their response to the public outcry, a growing number of Internet firms are producing and publishing “transparency reports” that detail how and under what circumstances they divulge or remove information from their platforms, and track those activities over time. Transparency in this sense is a principle that enables the general public to gain information about the operations, structure and activities of a given entity, such as a company or government (Etzioni 2010: 1; see also Heald 2006: 26). This chapter focuses on transparency in relation to the corporate disclosure of information. In their transparency reports, Internet firms publish requests they receive from governments to release users’ personal information or remove certain types of content from their platforms, such as information that violates copyright. Industry transparency reports thereby make visible, albeit only partially, Internet firms’ often-hidden roles as gatekeepers that have responsibility for policing their users and platforms on behalf of both state and non-state actors.
These reports shine a much-needed light on surveillance and regulatory activities on the Internet, particularly in light of the Snowden files. Regulation refers to the process of setting, implementing and enforcing rules or standards, whether by state or non-state actors (see e.g., Black 2002). Internet firms increasingly play vital roles as gatekeepers because of their capacity to collect and control enormous amounts of data and their provision of essential services such as email, search and data storage (see Organisation for Economic Cooperation and Development 2011). As Internet transparency reports are relatively new, they are largely unexamined in the scholarly literature. However, the reports provide an ideal opportunity to explore the ways in which third parties to regulation — in this case Internet firms acting as gatekeepers — use transparency to disclose regulatory activities they undertake on behalf of states and corporations. The chapter argues that transparency reports provide corporate actors a valuable public forum in which to distinguish their commercial activities from controversial state surveillance programs and to signal to their customers their commitment to due process and the protection of personal data.
To make this argument, the chapter examines Internet firms’ disclosure of their regulatory efforts in two areas. In the first case, the chapter discusses how a growing number of Internet firms record their disclosures of their users’ personal data to governments, particularly in relation to national security-related requests from the NSA. In the second case, the chapter focuses on Internet firms’ removal of copyright-infringing content from their platforms on behalf of rights holders of intellectual property, which are often large multinational corporations. Several Internet firms use transparency reports to track the removal of this content, which typically involves unauthorised downloads of movies, music or software. By examining these two cases, the chapter explores how Internet firms use transparency reports to cultivate public awareness of regulatory activities on the Internet and, at the same time, highlight their commitment to due process and protection of their users’ data. Transparency in these cases is a principle underscored by both pragmatism and ideology as industry transparency reports are public relations tools and fora for Internet firms to stress their opposition to state surveillance practices, particularly by the U.S. government.
Transparency is traditionally considered a principle that can be used to shine a light on the act... more Transparency is traditionally considered a principle that can be used to shine a light on the actions of states. With the rise of transnational corporate actors, it is an open question as to how and to what degree corporate actors can and should be transparent in relation to their regulatory activities. This article examines a transparency mechanism newly popular in the wake of Edward Snowden’s disclosure of state surveillance programs on the Internet – industry transparency reports published by Internet firms like Google, Microsoft, Twitter and Facebook. While the Snowden files continue to receive significant media and academic attention, these transparency reports have elicited little scholarly analysis. Internet firms’ efforts as global regulators on behalf of states, and, in a recent development, other powerful corporate actors, provide an ideal opportunity to examine how third parties to regulation use the voluntary disclosure of information as a transparency measure. The article examines transparency reports published by large U.S.-based companies like Google and Facebook in two areas. First, it explores the way Internet firms use transparency to disclose surveillance activities related to the U.S. National Security Agency (NSA). Second, the article considers transparency in relation to Internet companies’ removal of copyright-infringing content from their platforms on behalf of rights holders of intellectual property. The article finds that transparency is a principle underscored by both pragmatism and ideology in which the disclosure of information may involve both symbolic gestures and meaningful attempts to reform problematic state surveillance practices.
What do Apple’s Supplier Responsibility program, the U.K.-based Internet Watch Foundation, and th... more What do Apple’s Supplier Responsibility program, the U.K.-based Internet Watch Foundation, and the Motion Picture Association of America’s (MPAA) campaign against unauthorized downloads of movies have in common? They are examples of transnational non-state regulatory regimes. This type of regulation encompasses a broad array of regulatory arrangements carried out by corporate actors, non-governmental organizations, and civil-society groups working alone or in collaboration. Regulation in this context refers broadly to the means that guide any activity, individual or institution to behave according to formal or informal rules (Picciotto 2002: 1). Given the diversity of actors and activities comprising this type of regulation, there is no standard definition for transnational non-state regulation. It can be broadly understood as non-state actors making, implementing, and/or enforcing rules and standards across national borders.
Some arrangements may comprise a single company or industry, while others cut across industry sectors or involve multiple business and civil-society stakeholders who represent a range of interests. Actors may employ formal legal mechanisms, such as national or international laws, as well as informal processes like non-legally binding certification programs or codes of conducts. They may have different motivations and interests for becoming involved in the regulatory endeavors and diverse goals. Participants may have profit-oriented goals, such as reducing regulatory duplication to strengthen corporate performance, or efforts may be public-oriented to target problems like pollution or child labour. Apple’s Supplier Responsibility program, for instance, in which the company may terminate its contracts with suppliers that do not comply with its labour and environmental standards, is designed to burnish Apple’s credentials as a good corporate citizen. The MPAA pressures Internet firms, particularly Google, to make it more difficult for people to find and download unauthorized versions of copyrighted movies. In contrast, the Internet Watch Foundation is a non-profit organization that works with Internet firms like Google and PayPal to remove child pornography from websites around the world.
This chapter explores how transnational non-state regulation operates, particularly the ways in which non-state actors can make and enforce rules, and then outlines the challenges raised by this type of regulation. First, the chapter introduces the concept of regimes to provide a way to understand this type of regulation and then describes how non-state actors interact with states. Then the chapter outlines why transnational non-state regulation emerges before turning to discuss how non-state actors draw upon varying forms of authority to regulate. Third, the chapter explores the varying degrees of involvements states may have with transnational non-state regulatory regimes. The chapter then discusses the benefits and challenges of this type of regulation before providing a brief conclusion.
This paper examines how private institutions use civil and criminal law, as well as non-legal str... more This paper examines how private institutions use civil and criminal law, as well as non-legal strategies such as educational campaigns, to counter trademark infringement. It focuses on the role played by private security companies in the investigation of this issue on behalf of brand owners, a critically under-examined area in the criminological and policing literature.
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Book by Natasha Tusikov
The volume includes case studies from across the world and addresses a wide range of issues regarding internet infrastructure, data and content. The book pushes the debate beyond a simplistic dichotomy between liberalism and authoritarianism in order to consider also greater state involvement based on values of democracy and human rights. Seeing internet governance as a complex arena where power is contested among diverse non-state and state actors across local, national, regional and global scales, the book offers a critical and nuanced discussion of how the internet is governed – and how it should be governed.
Power and Authority in Internet Governance provides an important resource for researchers across international relations, global governance, science and technology studies and law as well as policymakers and analysts concerned with regulating the global internet. Available open access!
To make its argument, the chapter considers the roles of intellectual property and data in the case of Google’s ‘climate positive’ smart city project in Toronto, Canada (cancelled as of May 2020). In this project Google’s urban development company Sidewalk Labs won a bid in 2017 to propose a smart city on formerly industrial land on the eastern waterfront of downtown Toronto. The project had nearly two years of public consultation, which offers a wealth of detail on Sidewalk Labs’ plans, many of them controversial in terms of privacy and the control over economic benefits from IP stemming from smart city technologies created in the project. Toronto’s smart city project, termed ‘Quayside’ after the project area, usefully highlights the central role that intellectual property plays within smart cities, including enabling technology companies to capture and monetize data flowing from smart city technologies.
The rising dominance of the knowledge structure is leading to a massive redistribution of power, including from individuals to companies and states. Strong intellectual property rights have concentrated economic benefits in a smaller number of hands, while the “internet of things” is reshaping basic notions of property, ownership, and control. In the scramble to create and control data and intellectual property, governments and companies alike are engaging in ever-more surveillance.
The New Knowledge is a guide to and analysis of these changes, and of the emerging phenomenon of the knowledge-driven society. It highlights how the pursuit of the control over knowledge has become its own ideology, with its own set of experts drawn from those with the ability to collect and manipulate digital data. Haggart and Tusikov propose a workable path…
Methodology/Approach -- Drawing from the platform governance literature, the chapter closely examines the corporate policies for PayPal and the credit card companies that prohibit certain types of sexual content and services.
Findings -- The chapter argues that payment platforms’ censorship of sexual expression is shaped by the distinctive nature of and market concentration within the online payment industry. Payment actors’ systematic campaign of sexual censorship disproportionately affects small businesses and individual operators in the sex and adult entertainment industries and amounts to a form of “digital redlining,” a form of financial discrimination.
Originality/Value -- Payment providers’ role in regulating sex online has received considerably less scholarly attention than research on social media platforms. This gap in scholarship is notable as big payment actors have systematically denied services for about a decade relating to sexually oriented goods and services (see Blue, 2015).
Papers by Natasha Tusikov
This paper examines the potential effects on Canadians’ privacy from a new regulatory phenomenon, non-legally binding regulatory arrangements that are undertaken by globally operating Internet firms. In particular, the paper explores how intermediaries may disclose their users’ personal data to third parties in relation to online anti-counterfeiting efforts and the potential effects on Canadians’ privacy. The paper speaks to two of the Office of the Privacy Commissioner’s priorities, namely businesses’ collecting, using and disclosing information and companies’ codes of practice relating to privacy.
In addition to examining intermediaries’ terms-of-use contracts and the nonbinding agreements, the paper draws from 18 interviews undertaken between September 2016 and January 2017 with intermediaries, technology-related trade associations, intellectual property-related trade associations, privacy-focused civil-society organizations, and lawyers/scholars focusing on privacy and Internet law (see Appendix A). The paper also draws upon 20 previously unpublished interviews, conducted between 2012 and 2013 as part of my doctoral dissertation, with brand-protection companies, intellectual property-related trade associations, and lawyers specializing in intellectual property rights protection.
The paper focuses on marketplaces’ anti-counterfeiting efforts, especially that of eBay, and the personal data marketplaces disclose to third parties, particularly so-called brand-protection companies that work on behalf of rights holders. These companies, which conduct monitoring and enforcement work, are a critically under-studied area of intellectual property. The paper does so because marketplaces, of all the intermediaries, disclose the greatest amount of users’ personal data to third parties in relation to enforcement of marketplaces’ policies. This information includes sellers’ email and mailing addresses, user names and profiles, and seller histories. Users likely have little knowledge that their information may be disclosed to private security companies working on behalf of rights holders. Further, law-abiding users, both buyers and sellers, may inadvertently be swept up in anti-counterfeiting enforcement campaigns undertaken by brand-protection companies, rights holders, or the marketplace.
The paper finds that intermediaries interviewed for this project – Internet service providers and domain registrars – are under considerable pressure from rights holders to disclose their users’ personal data in the absence of a formal legal order. Intermediaries’ choice in this situation is to disclose information voluntarily or to decline until a formal legal order is submitted. According to these intermediaries, denying informal requests for data can be costly and time consuming, as intermediaries must dedicate legal resources to fighting such requests. Equally, these intermediaries recognize that releasing information informally also can be costly, as they fear being held liable. As a result, users’ privacy is at risk from increased pressure to protect intellectual property rights.
Brand-protection firms are a growing but largely under-studied element of the online regulation of intellectual property rights. These companies amass personal information of people selling goods on online marketplaces in order to identify individuals selling bulk quantities of counterfeit goods, often by comparing user profiles and activities across marketplaces and social networks. In doing so, however, they may capture information on people acting lawfully, as well as store and disclose personal data in ways that risk privacy breaches. Those interviewed have mixed opinions on intermediaries’ participation in non-legally binding enforcement agreements. Intermediaries and trade associations generally support so-called “voluntary” enforcement efforts like non-binding agreements. However, such efforts should adhere to due-process measures and respect privacy rights, which can be a challenge given the lack of accountability and oversight that often accompany voluntary enforcement programs. Representatives from civil-society and privacy groups, in contrast, critique nonbinding enforcement practices in relation to online anti-counterfeiting efforts, highlighting their problems with transparency, oversight, and privacy. Users are concerned about privacy but have little understanding of intermediaries’ privacy policies or how their information may be used in anti-counterfeiting efforts.
To provide a corrective to some of the problems inherent with the non-binding enforcement agreements, the paper then explores Project Chargeback, a public-private partnership operated by the Canadian Anti-Fraud Centre (CAFC), a law enforcement agency in North Bay, Ontario. As the CAFC plays a lead role in coordinating the project, which reimburses victims who purchased counterfeit goods, Project Chargeback minimizes the risks to victims’ privacy. The CAFC’s involvement also instills the project with legitimacy and a degree of oversight and accountability.
The paper concludes with recommendations to strengthen privacy and
transparency in regards to the non-legally binding enforcement agreements and, in doing so, develop a space for public participation. It also recommends that the adoption of standardized enforcement processes and the Manila Principles on Intermediary Liability to address some of the problems inherent in intermediary-facilitated regulation of intellectual property.
A key trend in the online regulation of intellectual property is the shift toward non-legally binding or "informal" regulatory regimes instead of relying upon legislation or judicial remedies. The paper argues that online anti-counterfeiting efforts can be characterized as a form of hybrid governance brings together state and non-state actors, along with hard and soft law measures. To examine this form of hybrid governance, the paper explores two case studies based on non-legally binding agreements between state and corporate actors. The first is a European agreement between the European Commission and eBay. The second is a Canadian program, Project Chargeback, between payment providers and the Canadian Anti-Fraud Centre to address the sale of counterfeit goods on standalone websites. Differences between the European and Canadian programs are exemplified in their approach to protecting consumers. Unlike the privacy problems inherent within marketplaces' anti-counterfeiting efforts, Project Chargeback was designed to respond to consumers' complaints and has built-in protections for privacy. The paper draws from 38 interviews with Intermediaries, brand-protection firms, and rights holders.
As part of their response to the public outcry, a growing number of Internet firms are producing and publishing “transparency reports” that detail how and under what circumstances they divulge or remove information from their platforms, and track those activities over time. Transparency in this sense is a principle that enables the general public to gain information about the operations, structure and activities of a given entity, such as a company or government (Etzioni 2010: 1; see also Heald 2006: 26). This chapter focuses on transparency in relation to the corporate disclosure of information. In their transparency reports, Internet firms publish requests they receive from governments to release users’ personal information or remove certain types of content from their platforms, such as information that violates copyright. Industry transparency reports thereby make visible, albeit only partially, Internet firms’ often-hidden roles as gatekeepers that have responsibility for policing their users and platforms on behalf of both state and non-state actors.
These reports shine a much-needed light on surveillance and regulatory activities on the Internet, particularly in light of the Snowden files. Regulation refers to the process of setting, implementing and enforcing rules or standards, whether by state or non-state actors (see e.g., Black 2002). Internet firms increasingly play vital roles as gatekeepers because of their capacity to collect and control enormous amounts of data and their provision of essential services such as email, search and data storage (see Organisation for Economic Cooperation and Development 2011). As Internet transparency reports are relatively new, they are largely unexamined in the scholarly literature. However, the reports provide an ideal opportunity to explore the ways in which third parties to regulation — in this case Internet firms acting as gatekeepers — use transparency to disclose regulatory activities they undertake on behalf of states and corporations. The chapter argues that transparency reports provide corporate actors a valuable public forum in which to distinguish their commercial activities from controversial state surveillance programs and to signal to their customers their commitment to due process and the protection of personal data.
To make this argument, the chapter examines Internet firms’ disclosure of their regulatory efforts in two areas. In the first case, the chapter discusses how a growing number of Internet firms record their disclosures of their users’ personal data to governments, particularly in relation to national security-related requests from the NSA. In the second case, the chapter focuses on Internet firms’ removal of copyright-infringing content from their platforms on behalf of rights holders of intellectual property, which are often large multinational corporations. Several Internet firms use transparency reports to track the removal of this content, which typically involves unauthorised downloads of movies, music or software. By examining these two cases, the chapter explores how Internet firms use transparency reports to cultivate public awareness of regulatory activities on the Internet and, at the same time, highlight their commitment to due process and protection of their users’ data. Transparency in these cases is a principle underscored by both pragmatism and ideology as industry transparency reports are public relations tools and fora for Internet firms to stress their opposition to state surveillance practices, particularly by the U.S. government.
Some arrangements may comprise a single company or industry, while others cut across industry sectors or involve multiple business and civil-society stakeholders who represent a range of interests. Actors may employ formal legal mechanisms, such as national or international laws, as well as informal processes like non-legally binding certification programs or codes of conducts. They may have different motivations and interests for becoming involved in the regulatory endeavors and diverse goals. Participants may have profit-oriented goals, such as reducing regulatory duplication to strengthen corporate performance, or efforts may be public-oriented to target problems like pollution or child labour. Apple’s Supplier Responsibility program, for instance, in which the company may terminate its contracts with suppliers that do not comply with its labour and environmental standards, is designed to burnish Apple’s credentials as a good corporate citizen. The MPAA pressures Internet firms, particularly Google, to make it more difficult for people to find and download unauthorized versions of copyrighted movies. In contrast, the Internet Watch Foundation is a non-profit organization that works with Internet firms like Google and PayPal to remove child pornography from websites around the world.
This chapter explores how transnational non-state regulation operates, particularly the ways in which non-state actors can make and enforce rules, and then outlines the challenges raised by this type of regulation. First, the chapter introduces the concept of regimes to provide a way to understand this type of regulation and then describes how non-state actors interact with states. Then the chapter outlines why transnational non-state regulation emerges before turning to discuss how non-state actors draw upon varying forms of authority to regulate. Third, the chapter explores the varying degrees of involvements states may have with transnational non-state regulatory regimes. The chapter then discusses the benefits and challenges of this type of regulation before providing a brief conclusion.
The volume includes case studies from across the world and addresses a wide range of issues regarding internet infrastructure, data and content. The book pushes the debate beyond a simplistic dichotomy between liberalism and authoritarianism in order to consider also greater state involvement based on values of democracy and human rights. Seeing internet governance as a complex arena where power is contested among diverse non-state and state actors across local, national, regional and global scales, the book offers a critical and nuanced discussion of how the internet is governed – and how it should be governed.
Power and Authority in Internet Governance provides an important resource for researchers across international relations, global governance, science and technology studies and law as well as policymakers and analysts concerned with regulating the global internet. Available open access!
To make its argument, the chapter considers the roles of intellectual property and data in the case of Google’s ‘climate positive’ smart city project in Toronto, Canada (cancelled as of May 2020). In this project Google’s urban development company Sidewalk Labs won a bid in 2017 to propose a smart city on formerly industrial land on the eastern waterfront of downtown Toronto. The project had nearly two years of public consultation, which offers a wealth of detail on Sidewalk Labs’ plans, many of them controversial in terms of privacy and the control over economic benefits from IP stemming from smart city technologies created in the project. Toronto’s smart city project, termed ‘Quayside’ after the project area, usefully highlights the central role that intellectual property plays within smart cities, including enabling technology companies to capture and monetize data flowing from smart city technologies.
The rising dominance of the knowledge structure is leading to a massive redistribution of power, including from individuals to companies and states. Strong intellectual property rights have concentrated economic benefits in a smaller number of hands, while the “internet of things” is reshaping basic notions of property, ownership, and control. In the scramble to create and control data and intellectual property, governments and companies alike are engaging in ever-more surveillance.
The New Knowledge is a guide to and analysis of these changes, and of the emerging phenomenon of the knowledge-driven society. It highlights how the pursuit of the control over knowledge has become its own ideology, with its own set of experts drawn from those with the ability to collect and manipulate digital data. Haggart and Tusikov propose a workable path…
Methodology/Approach -- Drawing from the platform governance literature, the chapter closely examines the corporate policies for PayPal and the credit card companies that prohibit certain types of sexual content and services.
Findings -- The chapter argues that payment platforms’ censorship of sexual expression is shaped by the distinctive nature of and market concentration within the online payment industry. Payment actors’ systematic campaign of sexual censorship disproportionately affects small businesses and individual operators in the sex and adult entertainment industries and amounts to a form of “digital redlining,” a form of financial discrimination.
Originality/Value -- Payment providers’ role in regulating sex online has received considerably less scholarly attention than research on social media platforms. This gap in scholarship is notable as big payment actors have systematically denied services for about a decade relating to sexually oriented goods and services (see Blue, 2015).
This paper examines the potential effects on Canadians’ privacy from a new regulatory phenomenon, non-legally binding regulatory arrangements that are undertaken by globally operating Internet firms. In particular, the paper explores how intermediaries may disclose their users’ personal data to third parties in relation to online anti-counterfeiting efforts and the potential effects on Canadians’ privacy. The paper speaks to two of the Office of the Privacy Commissioner’s priorities, namely businesses’ collecting, using and disclosing information and companies’ codes of practice relating to privacy.
In addition to examining intermediaries’ terms-of-use contracts and the nonbinding agreements, the paper draws from 18 interviews undertaken between September 2016 and January 2017 with intermediaries, technology-related trade associations, intellectual property-related trade associations, privacy-focused civil-society organizations, and lawyers/scholars focusing on privacy and Internet law (see Appendix A). The paper also draws upon 20 previously unpublished interviews, conducted between 2012 and 2013 as part of my doctoral dissertation, with brand-protection companies, intellectual property-related trade associations, and lawyers specializing in intellectual property rights protection.
The paper focuses on marketplaces’ anti-counterfeiting efforts, especially that of eBay, and the personal data marketplaces disclose to third parties, particularly so-called brand-protection companies that work on behalf of rights holders. These companies, which conduct monitoring and enforcement work, are a critically under-studied area of intellectual property. The paper does so because marketplaces, of all the intermediaries, disclose the greatest amount of users’ personal data to third parties in relation to enforcement of marketplaces’ policies. This information includes sellers’ email and mailing addresses, user names and profiles, and seller histories. Users likely have little knowledge that their information may be disclosed to private security companies working on behalf of rights holders. Further, law-abiding users, both buyers and sellers, may inadvertently be swept up in anti-counterfeiting enforcement campaigns undertaken by brand-protection companies, rights holders, or the marketplace.
The paper finds that intermediaries interviewed for this project – Internet service providers and domain registrars – are under considerable pressure from rights holders to disclose their users’ personal data in the absence of a formal legal order. Intermediaries’ choice in this situation is to disclose information voluntarily or to decline until a formal legal order is submitted. According to these intermediaries, denying informal requests for data can be costly and time consuming, as intermediaries must dedicate legal resources to fighting such requests. Equally, these intermediaries recognize that releasing information informally also can be costly, as they fear being held liable. As a result, users’ privacy is at risk from increased pressure to protect intellectual property rights.
Brand-protection firms are a growing but largely under-studied element of the online regulation of intellectual property rights. These companies amass personal information of people selling goods on online marketplaces in order to identify individuals selling bulk quantities of counterfeit goods, often by comparing user profiles and activities across marketplaces and social networks. In doing so, however, they may capture information on people acting lawfully, as well as store and disclose personal data in ways that risk privacy breaches. Those interviewed have mixed opinions on intermediaries’ participation in non-legally binding enforcement agreements. Intermediaries and trade associations generally support so-called “voluntary” enforcement efforts like non-binding agreements. However, such efforts should adhere to due-process measures and respect privacy rights, which can be a challenge given the lack of accountability and oversight that often accompany voluntary enforcement programs. Representatives from civil-society and privacy groups, in contrast, critique nonbinding enforcement practices in relation to online anti-counterfeiting efforts, highlighting their problems with transparency, oversight, and privacy. Users are concerned about privacy but have little understanding of intermediaries’ privacy policies or how their information may be used in anti-counterfeiting efforts.
To provide a corrective to some of the problems inherent with the non-binding enforcement agreements, the paper then explores Project Chargeback, a public-private partnership operated by the Canadian Anti-Fraud Centre (CAFC), a law enforcement agency in North Bay, Ontario. As the CAFC plays a lead role in coordinating the project, which reimburses victims who purchased counterfeit goods, Project Chargeback minimizes the risks to victims’ privacy. The CAFC’s involvement also instills the project with legitimacy and a degree of oversight and accountability.
The paper concludes with recommendations to strengthen privacy and
transparency in regards to the non-legally binding enforcement agreements and, in doing so, develop a space for public participation. It also recommends that the adoption of standardized enforcement processes and the Manila Principles on Intermediary Liability to address some of the problems inherent in intermediary-facilitated regulation of intellectual property.
A key trend in the online regulation of intellectual property is the shift toward non-legally binding or "informal" regulatory regimes instead of relying upon legislation or judicial remedies. The paper argues that online anti-counterfeiting efforts can be characterized as a form of hybrid governance brings together state and non-state actors, along with hard and soft law measures. To examine this form of hybrid governance, the paper explores two case studies based on non-legally binding agreements between state and corporate actors. The first is a European agreement between the European Commission and eBay. The second is a Canadian program, Project Chargeback, between payment providers and the Canadian Anti-Fraud Centre to address the sale of counterfeit goods on standalone websites. Differences between the European and Canadian programs are exemplified in their approach to protecting consumers. Unlike the privacy problems inherent within marketplaces' anti-counterfeiting efforts, Project Chargeback was designed to respond to consumers' complaints and has built-in protections for privacy. The paper draws from 38 interviews with Intermediaries, brand-protection firms, and rights holders.
As part of their response to the public outcry, a growing number of Internet firms are producing and publishing “transparency reports” that detail how and under what circumstances they divulge or remove information from their platforms, and track those activities over time. Transparency in this sense is a principle that enables the general public to gain information about the operations, structure and activities of a given entity, such as a company or government (Etzioni 2010: 1; see also Heald 2006: 26). This chapter focuses on transparency in relation to the corporate disclosure of information. In their transparency reports, Internet firms publish requests they receive from governments to release users’ personal information or remove certain types of content from their platforms, such as information that violates copyright. Industry transparency reports thereby make visible, albeit only partially, Internet firms’ often-hidden roles as gatekeepers that have responsibility for policing their users and platforms on behalf of both state and non-state actors.
These reports shine a much-needed light on surveillance and regulatory activities on the Internet, particularly in light of the Snowden files. Regulation refers to the process of setting, implementing and enforcing rules or standards, whether by state or non-state actors (see e.g., Black 2002). Internet firms increasingly play vital roles as gatekeepers because of their capacity to collect and control enormous amounts of data and their provision of essential services such as email, search and data storage (see Organisation for Economic Cooperation and Development 2011). As Internet transparency reports are relatively new, they are largely unexamined in the scholarly literature. However, the reports provide an ideal opportunity to explore the ways in which third parties to regulation — in this case Internet firms acting as gatekeepers — use transparency to disclose regulatory activities they undertake on behalf of states and corporations. The chapter argues that transparency reports provide corporate actors a valuable public forum in which to distinguish their commercial activities from controversial state surveillance programs and to signal to their customers their commitment to due process and the protection of personal data.
To make this argument, the chapter examines Internet firms’ disclosure of their regulatory efforts in two areas. In the first case, the chapter discusses how a growing number of Internet firms record their disclosures of their users’ personal data to governments, particularly in relation to national security-related requests from the NSA. In the second case, the chapter focuses on Internet firms’ removal of copyright-infringing content from their platforms on behalf of rights holders of intellectual property, which are often large multinational corporations. Several Internet firms use transparency reports to track the removal of this content, which typically involves unauthorised downloads of movies, music or software. By examining these two cases, the chapter explores how Internet firms use transparency reports to cultivate public awareness of regulatory activities on the Internet and, at the same time, highlight their commitment to due process and protection of their users’ data. Transparency in these cases is a principle underscored by both pragmatism and ideology as industry transparency reports are public relations tools and fora for Internet firms to stress their opposition to state surveillance practices, particularly by the U.S. government.
Some arrangements may comprise a single company or industry, while others cut across industry sectors or involve multiple business and civil-society stakeholders who represent a range of interests. Actors may employ formal legal mechanisms, such as national or international laws, as well as informal processes like non-legally binding certification programs or codes of conducts. They may have different motivations and interests for becoming involved in the regulatory endeavors and diverse goals. Participants may have profit-oriented goals, such as reducing regulatory duplication to strengthen corporate performance, or efforts may be public-oriented to target problems like pollution or child labour. Apple’s Supplier Responsibility program, for instance, in which the company may terminate its contracts with suppliers that do not comply with its labour and environmental standards, is designed to burnish Apple’s credentials as a good corporate citizen. The MPAA pressures Internet firms, particularly Google, to make it more difficult for people to find and download unauthorized versions of copyrighted movies. In contrast, the Internet Watch Foundation is a non-profit organization that works with Internet firms like Google and PayPal to remove child pornography from websites around the world.
This chapter explores how transnational non-state regulation operates, particularly the ways in which non-state actors can make and enforce rules, and then outlines the challenges raised by this type of regulation. First, the chapter introduces the concept of regimes to provide a way to understand this type of regulation and then describes how non-state actors interact with states. Then the chapter outlines why transnational non-state regulation emerges before turning to discuss how non-state actors draw upon varying forms of authority to regulate. Third, the chapter explores the varying degrees of involvements states may have with transnational non-state regulatory regimes. The chapter then discusses the benefits and challenges of this type of regulation before providing a brief conclusion.
Section reprinted in Trends in Organized Crime
September 2008, Volume 11, Issue 3, pp 301-308
https://link.springer.com/article/10.1007/s12117-008-9040-2#page-1
Despite these limitations, corporate transparency reports represent a valuable, yet under-explored tool to cultivate public awareness of regulatory activities on the Internet. This paper argues that transparency reports enable Internet firms to serve pragmatic and ideological goals. The firms use the reports to showcase their commitment to transparency, due process, and protection of users’ data, thereby repairing corporate reputations damaged by revelations in the Snowden files. As well, the firms can express their opposition to state surveillance practices on the Internet, particularly by the U.S. government. Although transparency in this context is partial, the reports can enable critics of certain online regulatory practices to push for greater transparency and accountability. The paper draws upon interviews with Internet firms and policymakers in the U.S. and U.K. and textual analysis of Internet firms’ transparency reports.
In particular, this paper argues that the transnational, non-state regulatory regime responsible for addressing infringing sites is particularly problematic in terms of its legitimacy and accountability. It explores the extent to which the Internet gatekeepers (specifically, payment providers) and rights holders can and should be held accountable for enforcement actions undertaken to address sites offering counterfeit goods. Moreover, it critically examines how legitimacy is constructed – and reconstructed – within the regime and the varying counter-claims voiced by the Internet gatekeepers and critics of rights holders’ enforcement practices. In doing so, this paper attempts to contribute to our theoretical understanding of how such regimes create – and exploit – legitimacy claims, and to our empirical understanding of how transnational, private regulatory regimes construct – and sometimes sidestep – accountability mechanisms.
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I will present a case study of a program run by a U.S. trade association that is working with payment providers like PayPal, Visa, and MasterCard to terminate the online merchant account of rogue websites. Similar programs to establish chokepoints to address rogue websites are expanding around the world but these programs remain largely unknown to the general public. My research covers corporate anti-counterfeiting efforts in Australia, the United States, the United Kingdom and Canada.
There is a distinct spatial configuration to the private enforcement agreements. Actors in the United States and Europe create the agreements and export rules worldwide through mostly U.S.-based Internet firms to shape standard-setting practices in other countries, particularly China, which is a major producer of counterfeit goods. The agreements focus on illicit sites located outside the United States that target the lucrative U.S. and European markets. Considerably less attention is paid to the consumption of counterfeit goods in China, although this is changing. Several recent non-binding agreements, backed by the U.S. government, target the China-based Taobao marketplace. These agreements point to deeply interwoven corporate-state interests in regulation on the Internet.