This chapter discusses the implications of predictive analytics for consumer privacy and surveys the existing law that could reach predictive analytics in ecommerce. Part II summarizes the prevailing theoretical accounts of privacy. Some leading theorists define privacy as the individual’s ability to control what others know about him or her, while others identify privacy’s instrumental value for promoting personal dignity and autonomy in ways that are important for individual personality, healthy civic discourse, and democratic governance. Part III introduces predictive analytics and illustrates its potential uses in ecommerce. Predictive analytics predicts future behavior based on patterns of past behavior. Predictive analytics has myriad uses in ecommerce, but they can be grouped into four common categories: (1) targeted advertising; (2) price discrimination; (3) customer segmentation and (4) eligibility determinations. Part IV examines how using predictive analytics in ecommerce affects consumer privacy. Predictive analytics can impair privacy as control because consumers cannot know all of the predictive uses to which merchants will put their information, nor can they anticipate all of the future data that merchants will combine with theirs to build predictive models. Predictive analytics can also harm personal autonomy and dignity by relying on secret data to affect consumers’ participation in the marketplace and by institutionalizing latent societal discrimination. Part V examines how existing state and federal law could reach merchants’ use of predictive analytics in ecommerce, including the Federal Trade Commission Act, Children’s Online Privacy Protection Act, sectoral anti-discrimination laws such as the Equal Credit Opportunity Act and the Fair Housing Act, state insurance laws, and public accommodation laws.
Asma A.I. Vranaki
This chapter draws on qualitative interviews, documentary analysis, and observation data to analyze how European data protection authorities (“EU DPAs”) exercise one of their statutory enforcement powers, namely, investigations to determine the compliance of cloud providers with the relevant data protection laws. The empirical analysis presented in this chapter supports two arguments. Firstly, the investigations of cloud providers by EU DPAs (“Cloud Investigations”) are complex regulatory processes that often involve different co-operative relationships between various actors, such as DPAs. In reality, manifold interactions and practices, such as facilitative instruments, are deployed to form and perform such collaborations which are vital in ensuring the consistent application and enforcement of common data protection principles in an increasingly globalized context. Secondly, Cloud Investigations are also dynamic as they can involve continually evolving regulatory enforcement styles and compliance attitudes. Providers of cloud services can often resist the attempts of the EU DPAs to direct the investigative process in specific ways. How such resistance is resolved is very much context-dependent.
David F. Lindsay
This chapter explains and evaluates the background to current issues in domain name governance. In doing so, it first explains why domain names, and the domain name system (“DNS”), continue to be significant. The chapter then describes the complex global processes relating to Internet and DNS governance, before introducing and analyzing the multi-stakeholder model (“MSM”). Following this, the version of the MSM applied by ICANN is illustrated by the processes for introducing a significant number of new top-level domains (“TLDs”), and especially with controversies associated with the applications for the .wine and .vin domains. Finally, the chapter explains and analyzes issues regarding the future of DNS governance, including the transition from residual U.S. government supervision of ICANN (known as the IANA transition) and the associated process for developing replacement accountability mechanisms. In doing so, the chapter does not engage in a detailed explanation of ICANN’s legal and institutional proposals relating to the IANA transition, but provides a perspective on the context in which the proposals were developed. The chapter concludes with some observations as to why DNS governance is inherently problematical and why debates about Internet governance resist effective resolution. As the chapter maintains, the difficulties in establishing a legitimate DNS governance structure mean that domain name governance will likely remain a site for the generation of competing narratives of legitimacy and governance, and a seemingly perpetual negotiation and re-negotiation of governance structures, for the foreseeable future. To the extent possible, the chapter is accurate to March 2015; but, given the fluid nature of the area, necessarily makes reference to developments since that time.
David J. Shakow
This chapter details some of the tax issues arising from ecommerce and the commercial provision of digital resources. It focuses particularly on the problems confronting tax administrators in dealing with operations in the cloud. The chapter first provides a nontechnical explanation of operating in the cloud, to help the reader appreciate the tax issues raised by those operations. With the benefit of that explanation, the chapter identifies some of the difficulties that must be confronted when older tax principles are applied to new technologies. These new technologies make it difficult to fit what businesses do now into conventional tax categories. What kind of benefit does a user of digital content and cloud resources receive from the provider: is it a service, a rental of software, a rental of space on a server? And where is the benefit provided? Is it where the customer is located or is it where the provider’s hardware is situated? And if the latter, how does the tax system deal with the reality that, in a cloud configuration, that location may be changing? When a transaction is effected over the Internet, which jurisdiction has the right (and power) to tax it? These questions are of great importance in applying local, federal, and foreign tax laws to operations both local and global. The chapter briefly reviews how local tax administrators have dealt with new technologies in the past (such as the sale of software for personal computers) to suggest that the determination of a proper approach to taxing those transactions is likely to evolve as judges and administrators gain a greater appreciation of the reality of new technologies. It examines some of the current attempts by tax administrators to deal with issues raised by ecommerce and points out some of the weaknesses in current solutions. The chapter also reviews approaches that have been taken by tax administrators in foreign countries to reflect the diversity of approaches that currently exist in the tax treatment of ecommerce and digital resources.
John A. Rothchild
Vanessa Mak, Eric Tjong Tjin Tai and Anna Berlee
This book deals with one of the most important scientific developments of recent years, namely the exponential growth of data science. More than a savvy term that rings of robotics, artificial intelligence and other terms that for long were regarded as part of science-fiction, data science has started to become structurally embedded in scientific research. Data, meaning personal data as well as information in the form of digital files, has become available at such a large scale that it can lead to an expansion of knowledge through smart combinations and use of data facilitated by new technologies. This book examines the legal implications of this development. Do data-driven technologies require regulation, and vice versa, how does data science advance legal scholarship? Defining the relatively new field of data science requires a working definition of the term. By data science we mean the use of data (including data processing) for scientific research. The availability of massive amounts of data as well the relatively cheap availability of storage and processing power has provided scientists with new tools that allow research projects that until recently were extremely cumbersome if not downright impossible. These factors are also often described with the term ‘big data’, which is characterized by three Vs: volume, velocity and variety.The term data science is nonetheless broader, because it can also refer to the use of data sets that are large but still limited—and therefore, unlike big data, of a manageable size for processing.
This chapter aims to give an overview of the contractual issues that have arisen in relation to the use of data. Since the use of data has far-reaching consequences for consumer markets, the chapter focuses on issues that have arisen in those markets and the regulatory responses that have emerged, or are emerging, in consumer law. It considers in particular what effects the use of data has on the autonomy of contracting parties and on the balance of contractual fairness, and examines three more specific issues for consumer contract law, namely transparency, payment with data, and the question whether the ‘consumer’ concept needs adjusting. The focus of this chapter is mainly on the EU, with occasional references to the US, seeing that Europe has developed a fairly coherent regime of harmonised consumer contract law that in many aspects already applies to data-related contracts.
This chapter aims to give an overview of the contractual and non-contractual remedies related to loss of data. Different exoneration clauses in relation to data loss are looked at more closely for services such as Twitter, Google, Facebook. The chapter furthermore discusses not only the loss of non-personal data, but also touches upon the problems of the case of loss of personal data. Several topics are discussed further, including the difficulties with affixing liability when it is unclear who ‘owns’ the data and what the value of the lost data is (i.e., how to quantify the damages).
Eric Tjong Tjin Tai
Liability for robots and algorithms is at present unclear. A comparative overview shows that while several grounds for liability may apply, depending on the jurisdiction, there are still significant gaps, in particular regarding liability for algorithms. Several changes would be required to provide effective protection of interests that may be harmed by defective autonomous systems. By careful regulation a proper balance may be obtained between allowing innovation without undue harm for society.
This chapter aims to give an overview of the issues related to consumer contracts that have arisen due to the rapid emergence of the Internet of Things (IoT). It indicates the challenges for the traditional concepts and rules of private law posed by the development of ‘smart’ devices. It analyses in particular the consequences of personalisation of Internet-enabled devices, the dependency of the user on continuous provision of services by the manufacturer or a third party, the problem of conformity of a ‘smart’ device with the contract, the issues related to replenishment services as well as the relevance of traditional notions of sale and ownership in the context of the IoT. The chapter examines the question of data as counter-performance in contracts concerning ‘smart’ devices. Furthermore, it investigates the potential of the IoT to increase the risk of digital market manipulation and the corresponding regulatory responses.