"Understanding Online Surveillance"- Chris Conley, Berkman Fellow

Abstract

Where the last century saw the dismantling of barriers to trade in goods, the new century will see the dismantling of barriers to trade in services. Once theorized as nontradable, services now join goods in the global marketplace because of advances in telecommunications technologies. This is the rapidly growing phenomenon of net-work—information services delivered remotely through electronic communications systems. Net-work encompasses not just the services outsourced to Accra, Bangalore or Manila, but also the online services supplied by Silicon Valley to the world. Apple, eBay, and Yahoo too are exporters of information services, revealing the Internet to be a global trading platform. Half of Google’s earnings is now generated overseas. But trade law has lagged behind, lacking any theory for Trade 2.0. The WTO and regional arrangements such as the EU, CAFTA, and ASEAN all commit nations to liberalize barriers to trade in services, but these broad mandates have found little elaboration to date.This Article begins to develop a theory of trade for cyberspace. It demonstrates how such trade alters the organization of production, as technology shifts the calculus determining the boundaries of the firm and spurs firms to buy services crossborder. The Article reviews five flashpoints in cyberspace trade: Antigua’s WTO challenge to U.S. rules barring online gambling; the outsourcing of radiology to India; French orders to Yahoo to desist from trafficking Nazi materials; Brazil’s demands to Google to identify perpetrators of hate speech; and an Alien Torts Statute suit charging Yahoo with abetting torture in China. These cases reveal how the footloose nature of net-work might imperil law itself. Can we remove legal obstacles to net-work, yet retain the power to regulate services? This Article offers principles to free trade but protect law. It argues for freeing trade through a parity principle that rejects attempts to stifle network by demanding stricter compliance with regulatory goals for net-work than for services supplied in person. The Article prods states to dematerialize the services infrastructure—that is, to make physical presence unnecessary for authentication, notification, certification, inspection, and even dispute resolution. To avoid any race to the bottom in global services, I argue for legal glocalization—requiring a global service to conform to local rules. Glocalization navigates between the Scylla of protectionism and the Charybdis of laissez faire. But glocalization does not require respect for local rules that violate human rights. The final principle thus requires net-work companies to do no evil. Alongside mergers and acquisitions counsel and privacy lawyers, Silicon Valley companies should add human rights lawyers and trade counsel.

"Trade 2.0" -  Anupam Chander, Yale Law School Visiting Professor

Abstract

Where the last century saw the dismantling of barriers to trade in goods, the new century will see the dismantling of barriers to trade in services. Once theorized as nontradable, services now join goods in the global marketplace because of advances in telecommunications technologies. This is the rapidly growing phenomenon of net-work—information services delivered remotely through electronic communications systems. Net-work encompasses not just the services outsourced to Accra, Bangalore or Manila, but also the online services supplied by Silicon Valley to the world. Apple, eBay, and Yahoo too are exporters of information services, revealing the Internet to be a global trading platform. Half of Google’s earnings is now generated overseas. But trade law has lagged behind, lacking any theory for Trade 2.0. The WTO and regional arrangements such as the EU, CAFTA, and ASEAN all commit nations to liberalize barriers to trade in services, but these broad mandates have found little elaboration to date.

This Article begins to develop a theory of trade for cyberspace. It demonstrates how such trade alters the organization of production, as technology shifts the calculus determining the boundaries of the firm and spurs firms to buy services crossborder. The Article reviews five flashpoints in cyberspace trade: Antigua’s WTO challenge to U.S. rules barring online gambling; the outsourcing of radiology to India; French orders to Yahoo to desist from trafficking Nazi materials; Brazil’s demands to Google to identify perpetrators of hate speech; and an Alien Torts Statute suit charging Yahoo with abetting torture in China. These cases reveal how the footloose nature of net-work might imperil law itself.

Can we remove legal obstacles to net-work, yet retain the power to regulate services? This Article offers principles to free trade but protect law. It argues for freeing trade through a parity principle that rejects attempts to stifle network by demanding stricter compliance with regulatory goals for net-work than for services supplied in person. The Article prods states to dematerialize the services infrastructure—that is, to make physical presence unnecessary for authentication, notification, certification, inspection, and even dispute resolution. To avoid any race to the bottom in global services, I argue for legal glocalization—requiring a global service to conform to local rules. Glocalization navigates between the Scylla of protectionism and the Charybdis of laissez faire. But glocalization does not require respect for local rules that violate human rights. The final principle thus requires net-work companies to do no evil. Alongside mergers and acquisitions counsel and privacy lawyers, Silicon Valley companies should add human rights lawyers and trade counsel.

About Anupam

Anupam Chander is Professor of Law at the University of California, Davis, and is currently a Visiting Professor at Yale Law School. In 2008-2009, he will be a Visiting Professor at the University of Chicago Law School.

A graduate of Harvard College and Yale Law School, he clerked for Chief Judge Jon O. Newman of the Second Circuit Court of Appeals and Judge William A. Norris of the Ninth Circuit Court of Appeals. He practiced law in New York and Hong Kong with Cleary, Gottlieb, Steen & Hamilton, representing foreign sovereigns in international financial transactions.

He has been a visiting professor at Stanford Law school and Cornell Law School. He began teaching at Arizona State University in 1999, before joining the UC Davis faculty in 2000.

His publications include: Everyone’s a Superhero: A Cultural Theory of Mary Sue Fan Fiction as Fair Use, Cal. L. Rev. (2007) (with M. Sunder); Flying the Mexican Flag in Los Angeles, Fordham L. Rev. (2007) (symposium); Is Nozick Kicking Rawls’s Ass? Intellectual Property and Social Justice, U.C. Davis L. Rev. (with M. Sunder) (symposium 2007); Exporting DMCA Lockouts, Clev. St. L. Rev. (2006) (symposium in honor of M.J. Radin); Homeward Bound, NYU Law Review (2006); Globalization and Distrust, Yale Law Journal (2005); The Romance of the Public Domain, California Law Review (2004); Minorities, Shareholder and Otherwise, Yale Law Journal (2003); The New, New Property, Texas Law Review (2003); Whose Republic?, University of Chicago Law Review (2002); and Diaspora Bonds, N.Y.U. L. Rev. (2001) (Ass'n of American Law Schools Scholarly Paper, Honorable Mention).