All Data is Created Equal

 

I must acknowledge the assistance I have received from an excellent unpublished dissertation by Reuel Baptista whose insights into and examinations of potential regulatory outcomes for Net Neutrality are worthy of consideration.

Net Neutrality is an emotive subject for many who are involved in the workings of the Internet and the provision of Internet services and access. It essentially asserts that the transport layer of the Internet – the means by which data moves across the Internet – should be non-discriminatory as to content and treat all data packets equally regardless of nature or origin.

It is a concept that has been developed primarily by Internet engineers but since the Internet went public in the 1990’s it is a concept that has been the subject of challenge, primarily from commercial entities. There are examples, particularly from the US, of data discrimination and preferential treatment of data in certain circumstances.

The location of the concept of Net Neutrality in Internet legal theory has been generally considered as a governance issue  and so it is. Yet despite opportunities to review or address issues of Net neutrality, in the Government’s recent consultation paper on the shape of the delivery of Telecommunications services post 2019 no mention was made of Net Neutrality.

This state of affairs was also referred to by the Commerce Commission in its determination of the application for merger between Sky and Vodafone where it said at para 90:

Unlike in a number of other jurisdictions, New Zealand does not have any specific laws requiring TSPs to treat all internet traffic equally (known as ‘net neutrality’). This means that TSPs can discriminate between different types of traffic,either by:

90.1 not carrying certain types of content; or

90.2 limiting the speed at which certain content is carried (known as ‘throttling’), which impacts the quality of the content.

Despite this for New Zealand providers Net Neutrality is not really as issue – at least not yet.  This doesn’t mean that it won’t become an issue some way down the track and the concern must be, when ISPs start discriminating between content and allocating preferential bandwidth, that by then it will be too late to do anything about it.

But the reality is that there is more to Net Neutrality than treating data equally. It helps address the negative effects of discriminatory practices such as blocking, paid prioritization and zero rating. Competition within the fixed line broadband and content markets, recognition of human rights and a country’s standing in the online economy are all affected by network neutrality. The tension is that there is a need to prevent big or monolithic ISPs from abusing their power but allow them to optimise the Internet for subsequent waves of innovation and efficiency. Other counties have had this debate and have introduced network neutrality into their telecommunications regulatory framework.

It is therefore interesting to read Juha Saarinen’s piece in this morning’s Herald where he suggests that net neutrality no longer matters. He locates his discussion against a background of developing content delivery systems which use geography to enhance speedy delivery. He points out that big services providers can afford to put data centres near customers and cache content there. Others use content delivery networks such as Akamai, Amazon Web Service, and Cloudflare that sit between the customer and the service provider. This, he says, violates Net Neutrality as it makes some sites seem to perform better than others.

With respect, I disagree. That argument is not based on the non-discriminatory treatment of data packets across the Internet but rather is based upon geography and location of data.

Saarinen goes on to dismiss Net Neutrality as an important idea a few years ago but today “we’re probably better off expending our energy elsewhere, like how to keep a diverse and competitive internet provider and Telco market alive in New Zealand.”

So does Saarinen suggest that we kick Net Neutrality to the kerb?

The reality is that in fact, as I have already suggested, it is an essential part of the regulatory and governance processes necessary to ensure a competitive internet provider and Telco market. Net neutrality is an integral part of that activity.

With the Telecommunications Act review in progress, this is the right time for New Zealand to formally adopt network neutrality as part of our telecommunications regulatory framework. Susan Chalmers said in 2015 at a Law Conference

“The thicket of commercial agreements between content and applications providers and ISPs must not be allowed to develop to such an extent that there will be no political will left to clear a path for [network] neutrality.”

The rapid pace of change in the online world means there may not be another opportunity to discuss network neutrality regulation for some time.

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Lawyers and Judges in the Online Court

This post is very much a random “on-the-fly” collection of thoughts about the way in which lawyers and Judges may have to change their working methods on the Online Solutions Court environment. It does not offer a nuanced fully developed systematic set of proposals or thoughts but rather an informal stroll through possible outcomes. It could form the basis for a more formalised study at a later time.

 

The technologically driven transformation of the civil process proposed by Professor Richard Susskind and Lord Justice Sir Michael Briggs are going to require some re-alignment of ways of working by both lawyers and judges.

The English Online Solutions Court proposals have developed in part to answer problems experienced by citizens who may have a legal claim which they wish to have addressed but for who the costs and complexity of the legal and court process present a barrier.

The Susskind\Briggs proposals envision the provision of processes which will allow citizens to directly access information about their potential claims, receive machine based recommendations as to the steps that may or may not be available and offer some suggestions as to probability of success or otherwise. From there the citizen may commence proceedings using online processes and step through the evaluation, dispute containment and hearing tiers as set out in the discussion documents that have developed the thinking behind the online solutions court.

Although the prospective litigant does not have to seek legal advice, the involvement of lawyers in not excluded from the process.

Perhaps the first major cultural shift will be to change from the adversarial stance that characterises litigation to a more problem solving focus. The emphasis of the Online Solutions Court is to find a solution to a problem and the larger part of the resource and process is dedicated to that end. The hearing before a decision maker, where the parties delegate the outcome to a Judge is the least acceptable outcome. Although the Fisher and Ury “Getting to Yes” model is well embedded in problem solving thinking, this type of approach is going to have to be one of the major shifts in emphasis for lawyers.

The Online Solutions Court models as proposed by Susskind/Briggs shifts the emphasis from lawyer control of the process of litigation to client or litigant control. The model also envisages a complete change of focus for the process, the objective being a solution or resolution rather than getting the case before a decision maker (Judge) to determine the matter. Thus if and when lawyers are involved in a matter in the Online Solutions Court they will not drive or direct what is happening. This relinquishment of control (subject to client’s instructions) means that the dispute is not lawyer driven. Letting go of that mind set will be significant.

Rather the involvement of the lawyer may well be on an “as needed” basis. For the first phase – case evaluation – the lawyer’s role will be minimal. Online evaluation, predictive analytics and other AI tool will provide that initial “advice” and potential outcomes. A lawyer may be asked for a second opinion, but as the term suggests, lawyer involvement will be secondary to the litigant controlled matter.

In this respect, given that the litigant interaction with the OSC will have been through an online process, any lawyer involvement may be accessed by the litigant\client remotely as well. This model of ”on demand” lawyering is not new. Models exist in BLP’s Lawyers on Demand (LOD) Evershed’s Agile and Allen & Overy’s Peerpoint. In New Zealand the McCarthy service offered by Minter Ellison Rudd Watts is another example.

Although the examples given are offerings by large law firms, the agile lawyer in the OSC environment should be able to provide a form of advice service for OSC litigants, recognising that the nature of the query and the scope of the advice may be quite restricted and will not be part of an ongoing matter. Thus the role of the lawyer may well be segmented in the particular proceeding, reflecting some of Susskind’s predictions in Tomorrow’s Lawyers and The Future of the Professions.

In addition to providing the service online the agile OSC lawyer may consider deploying a number of communications platforms for providing advice or information. The 140 character limitation of Twitter may preclude its use, but the use of chatbots for routine enquiries or other forms of voice recognition software may be deployed as well as virtual face to face systems such as Skype or online chat services – encrypted of course.

So it is clear that the lawyer in the OSC space is going to have to be tech savvy and attuned to the cultural shift that will be required. The OSC lawyer will need to be able to shift from the office desk model of advice to the mobile smartphone always on 24\7 model perhaps with an integrated application for the calculation and online bank transfer payment of the modest fee that the commoditised advice will justify.

The Susskind\Briggs model is aimed towards minimal judicial involvement although that said it is inevitable that Judges will be involved as disputes will reach them. One of the ways in which decisions will be made is “on the papers” although the papers will be digital. Judges will have to become more acclimatised to taking text and illustrative material from a screen. The OSC model would discourage the urge to print the material out and deal with it in the tradition “on the papers” way. One advantage with the digital on screen process is that the snagging of a finger or thumb on an errant staple will be avoided. But deciding matters on the basis or written or file based information is quite common for Judges.

Adaptation to an online hearing will require a shift on the part of lawyers and judges. The current paper based model has been underpinned by the oral hearing which requires all participants to be in the same place at the same time. Place doesn’t matter with a hearing in the OSC. The big difference will be getting used to communicating via Skype or some other form of audio-visual link process. Susskind suggested that online hearings could be conducted by teleconference but my view is that there is little technological difference if an AVL solution were deployed and would give a “human” element albeit via a screen rather than a disembodied voice across a conferenced  phone connection.

However it is this absence of “physicality” that is likely to require the biggest cultural and behavioural shift on the part of judges and lawyers. My own experience is that there is an initial phase of apprehensiveness in using AVL but as one uses it more frequently one becomes used to it so that ultimately it becomes routine. One is able to make the necessary adjustments of visual focus and oral clarity and it isn’t long before what appears to be the odd scenario of a person sitting in a room talking to a computer screen vanishes as the desire to address and deal with the problem in hand comes to the fore.

These are just a few brief thoughts about some of the skills and cultural changes that may be required by lawyers and Judges in the OSC space. The comments and observations by Richard Susskind and Sir Michael Briggs in their various reports provide some signposts for where lawyers may need to adapt. What is important to remember is that although the OSC provides a novel way of addressing litigation, the objective – an accessible, user friendly, litigant controlled system that will provide a resolution based on the law – fundamentally remains the same.

New News Opportunities

In the newspaper this morning there were a couple of articles that caused me to reflect on the level of understanding of the Digital Paradigm. The first by respected business journalist Fran O’Sullivan was about the consequences of the refusal of the Commerce Commission to approve a merger of media giant Fairfax and NZME. But the real focus of the article was about the effects that digital businesses are having on established organisations and the inroads that are being made to traditional funding models. The second was about Margarethe Vestager, the head of the Directorate General for Competition. That article was about the importance, at least to the EU, of the philosophy that a well-policed economy yields the largest and most widespread benefit for society. Some of the examples of steps that were taken involved digital economy giants like Apple, Google and Amazon.

By way of a very brief background, the New Zealand Commerce Commission has made a few waves lately by refused approval for two significant attempts by large media companies to merge. The first was Sky and Vodafone – a broadcaster and a communications company. The benefits of the merger for both companies were obvious. Access to a large well developed Internet provider (Vodafone) by Sky. Ability to enhance an established content delivery service with an established customer base (Sky, albeit content delivery methods are outdated but the merger would have changed that) by Vodafone. But no, said the Commerce Commission. For reasons expressed in a 140 + page decision, this was not a good idea.

The second attempt was a proposed merger between news media companies Fairfax (an Australian company) and NZME (publisher of the NZ Herald). Not a good idea, said the Commerce Commission once again, failing to see the dire state of the news media market but concerned that one company might have too much control over content, especially in an election year – conceptually, a lack of diversity in the news media market.

So that is the background. What Fran O’Sullivan complains about is the fact that the Commerce Commission overlooked or understated the impact of digital players like Google and Facebook on advertising revenue, and the effect that this is having on the viability of news media operations. And of course, a viable Fourth Estate is an important and critical feature of a modern democracy – prepared to hold authority to account, prepared to ask to hard questions, prepared to investigate and uncover malpractice of any sort in the corridors of power.

The focus of the article of the EU Directorate for Competition (EUDC) is mistrust of large corporates and one wonders whether or not that mistrust is the starting point or develops from an evidential foundation. Although there is a hat-tip to the market, it seems to me that the EUDC is about policing and control.

But common to both articles and especially to that of Fran O’Sullivan is a concern about the disruptive effects that new technologies are having on commercial activity. From the news media perception the concern is palpable. The old model is under threat. The solution, according to O’Sullivan is to regulate what she described as the oppressive behaviour of the digital corporates. She suggests that it is time that politicians woke up to the problem and cites steps that are being taken in Australia to examine the impact on public interest journalism of search engines and social media as well as an investigation into “fake news”.

The disruptive effects of new technologies have been going on for some time. We are well into the Digital Paradigm, but not so far out of the old pre-digital paradigm to be concerned that the past ways of doing things may not continue. We anchor ourselves in a comfortable past and really do not like change – especially when there are those who have the foresight and initiative to profit from disruptive change.

The news media provides an interesting model because in fact it is the child of the first communications technology paradigm shift – the printing press. I have suggested elsewhere that the Digital Paradigm is at least as significant, especially in the field of communications, as the printing press. And for some time it has been having a disruptive effect. Initially news media answered the new technology by putting news content online. Some providers set up paywalls for content – an attempt to continue to monetise what they were publishing. This is not a bad thing. You have to pay to buy a “kinetic” newspaper. Why not do the same online?

Convergence posed its own challenges as newspapers online began to include video content and broadcasters included text articles among their offerings. The question arises as to which standards apply to whom. Are broadcasters who make text available subject to the Press Council? Are traditional print media who make video available via a website subject to the Broadcasting Standards Authority? Since the Online Media Standards Authority (OMSA) was absorbed into the Press Council it would seem that the Press Council may be the answer to the regulatory convergence problem. The Government missed the opportunity presented to it by the Law Commission in 2013 to have a single media regulatory body – a very bad call in my opinion.

But the regulatory bodies that have been set up deal with content. The Press Council and the Broadcasting Standards Authority don’t deal with struggling or failing business models. The Commerce Commission could indirectly have done so but didn’t.

One option is to try and maintain the existing business model. As O’Sullivan suggests, bring the digital corporates to heel in the same way as the EUDC does. In this way they may not pose such a threat to the established model which may just manage to hang on for just a little while longer. But in preserving the existing model it is necessary to call on the coercive power of government. A protectionist perpetuation of a model that has had its day.

Another option is to recognise that the business models that underpin the news media and so-called public interest news media is the child of a paradigm that no longer exists. Unless the news media adapts it will die. And if this sounds like a call for evolution in the face of revolution – a sort of economic Darwinism – that is exactly what it is. The Digital Paradigm is so fundamentally different from what could be called the print or kinetic paradigm that news media companies are going to have to examine more than just content delivery but realise that they must examine, understand and utilise the underlying qualities of the new paradigm to develop their business models. And that takes a lot of thinking outside the box and a willingness to start again from scratch.

The result may be an entirely different method of news dissemination – not local but global. Multinational media companies are not unknown, even now but the business model and the way that business is conducted may be radically different from, say, Newscorp.

The third way may be based on the adage “if you can’t beat’ em, join ‘em” One of the targets of the EUDC has been Amazon. Amazon’s founder and CEO is Jeff Bezos. And Jeff Bezos bought the Washington Post for $250 million – and turned a legacy news media organisation around. Perhaps those who are concerned that the digital corporates are posing a threat to current news media business models should rather view them as an opportunity for change.