Pub Date : 2021-07-27DOI: 10.1080/13600834.2021.1959729
Stephen Penzo, Niloufer Selvadurai
ABSTRACT Over the past decade, public blockchains have emerged as innovative, technology platforms capable of highly secure and sophisticated peer-to-peer online transmission of data between unknown parties. However, public blockchains challenge traditional regulatory models that assume centralised, single points of control facilitated via established intermediaries. In such a context, the present paper analyses the potential liability attaching to blockchain participants and considers how privacy laws apply to blockchain transactions, given the immutable nature of blockchain records. The paper then recommends reforms to strengthen blockchain regulation, including statutory recognition of fiduciary obligations for elite developers with super-user access to allow recourse for loss resulting from hard forks. A ‘hard fork’ is a radical change to a network’s protocol that leads to formerly valid blocks and transactions becoming invalid or vice-versa. Finally, the paper considers changes to privacy laws to permit ongoing consent and cross-border disclosure of data to accommodate blockchain operations.
{"title":"A hard fork in the road: developing an effective regulatory framework for public blockchains","authors":"Stephen Penzo, Niloufer Selvadurai","doi":"10.1080/13600834.2021.1959729","DOIUrl":"https://doi.org/10.1080/13600834.2021.1959729","url":null,"abstract":"ABSTRACT Over the past decade, public blockchains have emerged as innovative, technology platforms capable of highly secure and sophisticated peer-to-peer online transmission of data between unknown parties. However, public blockchains challenge traditional regulatory models that assume centralised, single points of control facilitated via established intermediaries. In such a context, the present paper analyses the potential liability attaching to blockchain participants and considers how privacy laws apply to blockchain transactions, given the immutable nature of blockchain records. The paper then recommends reforms to strengthen blockchain regulation, including statutory recognition of fiduciary obligations for elite developers with super-user access to allow recourse for loss resulting from hard forks. A ‘hard fork’ is a radical change to a network’s protocol that leads to formerly valid blocks and transactions becoming invalid or vice-versa. Finally, the paper considers changes to privacy laws to permit ongoing consent and cross-border disclosure of data to accommodate blockchain operations.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"31 1","pages":"240 - 266"},"PeriodicalIF":1.5,"publicationDate":"2021-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2021.1959729","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47111575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-05DOI: 10.1080/13600834.2021.1950382
S. Kasatkin
ABSTRACT Clear legal content of white papers provides certainty, stability and trust in the relations between all the participants in initial coins offering (ICO) procedures and contributes to the successful introduction of blockchain technologies in business. A white paper defines the relationship and interaction between a regulated social reality and program code, which is by itself not susceptible to legal regulation. This article investigates the legal conditions of the white papers that describe the projects of ICO. The author provides a legal analysis of numerous white papers published during ICO implementation around the world. Based on extensive data on implemented ICO projects, the correlation between the legal content of a white paper and the amount of funds collected as a result of the ICO is considered. Having analysed the determinants of the white paper legal content, the author suggests the legal provisions that any ICO white paper should have.
{"title":"The legal content of a white paper for an ICO (initial coins offering)","authors":"S. Kasatkin","doi":"10.1080/13600834.2021.1950382","DOIUrl":"https://doi.org/10.1080/13600834.2021.1950382","url":null,"abstract":"ABSTRACT Clear legal content of white papers provides certainty, stability and trust in the relations between all the participants in initial coins offering (ICO) procedures and contributes to the successful introduction of blockchain technologies in business. A white paper defines the relationship and interaction between a regulated social reality and program code, which is by itself not susceptible to legal regulation. This article investigates the legal conditions of the white papers that describe the projects of ICO. The author provides a legal analysis of numerous white papers published during ICO implementation around the world. Based on extensive data on implemented ICO projects, the correlation between the legal content of a white paper and the amount of funds collected as a result of the ICO is considered. Having analysed the determinants of the white paper legal content, the author suggests the legal provisions that any ICO white paper should have.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"31 1","pages":"81 - 98"},"PeriodicalIF":1.5,"publicationDate":"2021-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2021.1950382","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43550586","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-21DOI: 10.1080/13600834.2021.1928888
Riccardo Tremolada
Calls for “public utility–style” regulation (and “common carriage,” as the two terms are – erroneously – often used interchangeably) are increasingly expanding into policy debates concerning all la...
{"title":"Common carriers and public utilities in the digital ecosystem: Unravelling the taxonomy on a quest for better regulation","authors":"Riccardo Tremolada","doi":"10.1080/13600834.2021.1928888","DOIUrl":"https://doi.org/10.1080/13600834.2021.1928888","url":null,"abstract":"Calls for “public utility–style” regulation (and “common carriage,” as the two terms are – erroneously – often used interchangeably) are increasingly expanding into policy debates concerning all la...","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"62 1","pages":"35-80"},"PeriodicalIF":1.5,"publicationDate":"2021-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138517722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-25DOI: 10.1080/13600834.2021.1957193
Jiahong Chen, Lachlan D. Urquhart
ABSTRACT Insecure connected devices can cause serious threats not just to smart home-owners, but also the underlying infrastructural network. There has been increasing academic and regulatory interest in addressing cybersecurity risks from both the standpoint of IoT vendors and that of end-users. In addition to the current data protection and network security legal frameworks, for example, the UK government has initiated the ‘Secure by Design’ campaign. While there has been work on how organisations and individuals manage their own cybersecurity risks, it remains unclear to what extent IoT vendors are supporting end-users to perform day-to-day management of such risks, and what is stopping the vendors from improving such support. We interviewed 13 experts in the field of IoT and identified three main categories of barriers to making IoT products useably secure: technical, legal and organisational. In this paper we further discuss the policymaking implications of these findings and make some recommendations.
{"title":"‘They’re all about pushing the products and shiny things rather than fundamental security’:Mapping socio-technical challenges in securing the smart home","authors":"Jiahong Chen, Lachlan D. Urquhart","doi":"10.1080/13600834.2021.1957193","DOIUrl":"https://doi.org/10.1080/13600834.2021.1957193","url":null,"abstract":"ABSTRACT Insecure connected devices can cause serious threats not just to smart home-owners, but also the underlying infrastructural network. There has been increasing academic and regulatory interest in addressing cybersecurity risks from both the standpoint of IoT vendors and that of end-users. In addition to the current data protection and network security legal frameworks, for example, the UK government has initiated the ‘Secure by Design’ campaign. While there has been work on how organisations and individuals manage their own cybersecurity risks, it remains unclear to what extent IoT vendors are supporting end-users to perform day-to-day management of such risks, and what is stopping the vendors from improving such support. We interviewed 13 experts in the field of IoT and identified three main categories of barriers to making IoT products useably secure: technical, legal and organisational. In this paper we further discuss the policymaking implications of these findings and make some recommendations.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"31 1","pages":"99 - 122"},"PeriodicalIF":1.5,"publicationDate":"2021-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2021.1957193","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42896828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-04DOI: 10.1080/13600834.2020.1856025
Mohammad H. Bashayreh, F. Sibai, Amer Tabbara
ABSTRACT This paper critically examines the allocation of liability when autonomous artificial intelligence (AI) systems cause accidents. Problems of applying existing principles of legal liability in AI environment are addressed. This paper argues that the sharing of risk as a basis for proportionate liability should be a basis for a new liability regime to govern future autonomous machines. It is argued that this approach favors the reality of parties’ consent to taking the risk of unpredictable AI behavior over the technicality of existing principles of legal liability. The suggested approach also encourages transparency and responsible decisions of developers and owners of AI systems. A flowchart to clarify possible outcomes of applying the suggested approach is provided. The paper also discusses the need for harmonization of national laws and international cooperation regarding AI incidents crossing national borders to ensure predictability of legal rules governing the liability ensuing from AI applications.
{"title":"Artificial intelligence and legal liability: towards an international approach of proportional liability based on risk sharing","authors":"Mohammad H. Bashayreh, F. Sibai, Amer Tabbara","doi":"10.1080/13600834.2020.1856025","DOIUrl":"https://doi.org/10.1080/13600834.2020.1856025","url":null,"abstract":"ABSTRACT This paper critically examines the allocation of liability when autonomous artificial intelligence (AI) systems cause accidents. Problems of applying existing principles of legal liability in AI environment are addressed. This paper argues that the sharing of risk as a basis for proportionate liability should be a basis for a new liability regime to govern future autonomous machines. It is argued that this approach favors the reality of parties’ consent to taking the risk of unpredictable AI behavior over the technicality of existing principles of legal liability. The suggested approach also encourages transparency and responsible decisions of developers and owners of AI systems. A flowchart to clarify possible outcomes of applying the suggested approach is provided. The paper also discusses the need for harmonization of national laws and international cooperation regarding AI incidents crossing national borders to ensure predictability of legal rules governing the liability ensuing from AI applications.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"30 1","pages":"169 - 192"},"PeriodicalIF":1.5,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1856025","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48116540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-04DOI: 10.1080/13600834.2020.1861714
R. Brown
ABSTRACT This paper adds to the discussion on the legal personhood of artificial intelligence by focusing on one area not covered by previous works on the subject – ownership of property. The author discusses the nexus between property ownership and legal personhood. The paper explains the prevailing misconceptions about the requirements of rights or duties in legal personhood, and discusses the potential for conferring rights or imposing obligations on weak and strong AI. While scholars have discussed AI owning real property and copyright, there has been limited discussion on the nexus of AI property ownership and legal personhood. The paper discusses the right to own property and the obligations of property ownership in nonhumans, and applying it to AI. The paper concludes that the law may grant property ownership and legal personhood to weak AI, but not to strong AI.
{"title":"Property ownership and the legal personhood of artificial intelligence","authors":"R. Brown","doi":"10.1080/13600834.2020.1861714","DOIUrl":"https://doi.org/10.1080/13600834.2020.1861714","url":null,"abstract":"ABSTRACT This paper adds to the discussion on the legal personhood of artificial intelligence by focusing on one area not covered by previous works on the subject – ownership of property. The author discusses the nexus between property ownership and legal personhood. The paper explains the prevailing misconceptions about the requirements of rights or duties in legal personhood, and discusses the potential for conferring rights or imposing obligations on weak and strong AI. While scholars have discussed AI owning real property and copyright, there has been limited discussion on the nexus of AI property ownership and legal personhood. The paper discusses the right to own property and the obligations of property ownership in nonhumans, and applying it to AI. The paper concludes that the law may grant property ownership and legal personhood to weak AI, but not to strong AI.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"30 1","pages":"208 - 234"},"PeriodicalIF":1.5,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1861714","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41854264","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-04DOI: 10.1080/13600834.2020.1860460
Benjamin Wong
ABSTRACT Article 22 GDPR imposes a prima facie prohibition on certain forms of automated decision-making. It has been suggested that Article 22 GDPR may prohibit online personalised pricing, as online personalised pricing involves the making of automatic pricing decisions based on customers’ personal data. However, this paper will argue that Article 22 GDPR should not be relied upon to constrain online personalised pricing. Two main reasons are given in support of this argument. First, Article 22 GDPR does not in fact pose a significant obstacle to online personalised pricing. Second, there are good reasons why a prohibitory stance against online personalised pricing should not be adopted, and a transparency-centric approach should be preferred instead.
{"title":"Online personalised pricing as prohibited automated decision-making under Article 22 GDPR: a sceptical view","authors":"Benjamin Wong","doi":"10.1080/13600834.2020.1860460","DOIUrl":"https://doi.org/10.1080/13600834.2020.1860460","url":null,"abstract":"ABSTRACT Article 22 GDPR imposes a prima facie prohibition on certain forms of automated decision-making. It has been suggested that Article 22 GDPR may prohibit online personalised pricing, as online personalised pricing involves the making of automatic pricing decisions based on customers’ personal data. However, this paper will argue that Article 22 GDPR should not be relied upon to constrain online personalised pricing. Two main reasons are given in support of this argument. First, Article 22 GDPR does not in fact pose a significant obstacle to online personalised pricing. Second, there are good reasons why a prohibitory stance against online personalised pricing should not be adopted, and a transparency-centric approach should be preferred instead.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"30 1","pages":"193 - 207"},"PeriodicalIF":1.5,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1860460","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48853065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-04DOI: 10.1080/13600834.2020.1850174
J. Truby, R. Brown
ABSTRACT This article explores the legal and ethical implications of big data’s pursuit of human ‘digital thought clones’. It identifies various types of digital clones that have been developed and demonstrates how the pursuit of more accurate personalised consumer data for micro-targeting leads to the evolution of digital thought clones. The article explains the business case for digital thought clones and how this is the commercial Holy Grail for profit-seeking big data and advertisers, who have commoditised predictions of digital behaviour data. Given big data’s industrial-scale data mining and relentless commercialisation of all types of human data, this article identifies some types of protections but argues that more jurisdictions urgently need to enact legislation similar to the General Data Protection Regulation in Europe to protect people against unscrupulous and harmful uses of their data and the unauthorised development and use of digital thought clones.
{"title":"Human digital thought clones: the Holy Grail of artificial intelligence for big data","authors":"J. Truby, R. Brown","doi":"10.1080/13600834.2020.1850174","DOIUrl":"https://doi.org/10.1080/13600834.2020.1850174","url":null,"abstract":"ABSTRACT This article explores the legal and ethical implications of big data’s pursuit of human ‘digital thought clones’. It identifies various types of digital clones that have been developed and demonstrates how the pursuit of more accurate personalised consumer data for micro-targeting leads to the evolution of digital thought clones. The article explains the business case for digital thought clones and how this is the commercial Holy Grail for profit-seeking big data and advertisers, who have commoditised predictions of digital behaviour data. Given big data’s industrial-scale data mining and relentless commercialisation of all types of human data, this article identifies some types of protections but argues that more jurisdictions urgently need to enact legislation similar to the General Data Protection Regulation in Europe to protect people against unscrupulous and harmful uses of their data and the unauthorised development and use of digital thought clones.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"30 1","pages":"140 - 168"},"PeriodicalIF":1.5,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1850174","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60090944","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-04DOI: 10.1080/13600834.2021.1849953
L. Abdulrauf
ABSTRACT That international organizations have always played a pivotal role in the development and advancement of data privacy norms is now beyond doubt. With regard to advancing compliance specifically, the role of international organizations cannot be overemphasized. Although data privacy is no longer new to Africa, compliance with data privacy norms has been significantly lower compared to other jurisdictions. A (possible) explanation for this is that the primary regional organization on the continent – the African (AU) – has played an insignificant role in this regard. Related to this explanation is the usual contention that the absence of a settled normative standard is a reason for the low level of compliance. Since there is now a continental data privacy standard in Africa - the AU Data Protection Convention - the question remains why is compliance still low. Therefore, using insights from the normative and institutional theories of state compliance with international norms, the article examines why there is still a low compliance rate. The article then suggests how to strengthen the AU towards advancing compliance with data privacy norms on the continent.
{"title":"Giving ‘teeth’ to the African Union towards advancing compliance with data privacy norms","authors":"L. Abdulrauf","doi":"10.1080/13600834.2021.1849953","DOIUrl":"https://doi.org/10.1080/13600834.2021.1849953","url":null,"abstract":"ABSTRACT That international organizations have always played a pivotal role in the development and advancement of data privacy norms is now beyond doubt. With regard to advancing compliance specifically, the role of international organizations cannot be overemphasized. Although data privacy is no longer new to Africa, compliance with data privacy norms has been significantly lower compared to other jurisdictions. A (possible) explanation for this is that the primary regional organization on the continent – the African (AU) – has played an insignificant role in this regard. Related to this explanation is the usual contention that the absence of a settled normative standard is a reason for the low level of compliance. Since there is now a continental data privacy standard in Africa - the AU Data Protection Convention - the question remains why is compliance still low. Therefore, using insights from the normative and institutional theories of state compliance with international norms, the article examines why there is still a low compliance rate. The article then suggests how to strengthen the AU towards advancing compliance with data privacy norms on the continent.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"30 1","pages":"87 - 107"},"PeriodicalIF":1.5,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2021.1849953","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42750843","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-04DOI: 10.1080/13600834.2021.1849954
Henry Pearce
ABSTRACT Previous contributions to the literature have highlighted the disconnection between the ‘release and forget’ disclosure model of the (UK) Freedom of Information Act 2000 (FOIA) and the practical realities of anonymisation. This article builds on this literature, and proposes an alternative approach to disclosing anonymised data under the FOIA that operates on a context-dependant and risk-aware basis, and is designed to reconcile the law with the practical realities of anonymisation whilst striking a balance between the need to make public sector data more ‘open’ and protecting the privacy and data protection interests of individuals whose personal data might be contained in public sector datasets.
{"title":"A proposal for a new risk-based licensing approach to disclosing anonymised data under the (UK) Freedom of Information Act 2000","authors":"Henry Pearce","doi":"10.1080/13600834.2021.1849954","DOIUrl":"https://doi.org/10.1080/13600834.2021.1849954","url":null,"abstract":"ABSTRACT Previous contributions to the literature have highlighted the disconnection between the ‘release and forget’ disclosure model of the (UK) Freedom of Information Act 2000 (FOIA) and the practical realities of anonymisation. This article builds on this literature, and proposes an alternative approach to disclosing anonymised data under the FOIA that operates on a context-dependant and risk-aware basis, and is designed to reconcile the law with the practical realities of anonymisation whilst striking a balance between the need to make public sector data more ‘open’ and protecting the privacy and data protection interests of individuals whose personal data might be contained in public sector datasets.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"30 1","pages":"108 - 139"},"PeriodicalIF":1.5,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2021.1849954","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41322529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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