The Times They Are A-Changin' (Every Six Months)-The Challenges of Regulating Developing Technologies

By Svantesson, Dan Jerker Borje | Forum on Public Policy: A Journal of the Oxford Round Table, Spring 2008 | Go to article overview

The Times They Are A-Changin' (Every Six Months)-The Challenges of Regulating Developing Technologies


Svantesson, Dan Jerker Borje, Forum on Public Policy: A Journal of the Oxford Round Table


1. Introduction

"Imagine there's no countries" is one of the first propositions in John Lennon's immortal classic titled Imagine. (1) For a period of time, the Internet made such a dream seem like a real possibility--we have had a virtually borderless communications medium making it possible to think of a world not divided by geographical, political, cultural or even linguistic borders. However, the Internet is changing rapidly, continuously and substantially. The Internet of today is radically different to the Internet of five, ten or twenty years ago.

This paper examines the challenges associated with the regulation of rapidly developing technologies. More specifically, focus is placed on such challenges in the context of Internet regulation. In highlighting the problems, examples are drawn from the interaction between the law and technologies making it possible for Internet actors to identify the geographical location of those they come into contact with (so-called geo-location technologies).

The paper starts with a brief overview of the geo-location technologies used to illustrate the problems associated with the regulation of rapidly developing technologies. It then proceeds to a discussion of two concepts that the law has developed in an aim to improve the quality of the regulation of rapidly developing technologies; that is, the concepts of finictional equivalence and technological neutrality. Finally, it examines three different problems associated with the regulation of rapidly developing technologies.

2. Overview of geo-location technologies

As the law's attempts to deal with geo-location technologies constitute the lens through which this paper examines the challenges of regulating developing technologies, it is necessary to start with a brief introduction to geo-location technologies.

If a person operating a website could identify the geographical location of those who visit the website (geo-identification), she/he could either (a) adjust the content to the laws of the visitor's country, or (b) block out visitors from certain countries with particularly strict laws. While having gained little attention so far, technologies making possible such geo-identification are already in use. If a person in Australia, for example, accesses the website of US-based radio website Pandora (2), she/he is met with a polite message to the effect that, due to licensing constraints, people outside the US may not access the website.

Typically, the identification is based on the unique Internet Protocol (IP) address assigned to the visitor's computer, and works as follows: As the website visitor's web browser sends a request to access a particular website, it includes amongst other things, the IP address of the computer being used. The server hosting the relevant website passes on the IP address to a provider of a geo-location service, in what can be called a "location request". Having built up a database in which IP addresses are matched to geographical locations, the provider of the geo-location service is able to make an educated guess as to the website visitor's location. This information is passed on to the server hosting the relevant website in what can be called a "location reply", and armed with this information the server hosting the relevant website can determine whether or not it will allow the website visitor to access the website, or e.g. what type of advertisement will be displayed on the website.

The accuracy of these products has been the object of debate. While the providers indicate the potential accuracy to be very high, "over 99% at a country level and approximately 92% at a citylevel" (3), they are after all trying to sell a product, and these impressive figures have been criticised. (4) There is a range of factors affecting the accuracy of geo-location technologies. Due to the dual nature of the geo-location process, these factors can be divided into two categories: 'source problems' and 'circumvention problems'. …

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