(with Lucie Audibert) 'A Principled Approach to Net
Neutrality', SCRIPT-ed, Vol.13.2, 118-143, 2016
'Comparing Surveillance Powers: UK, US, and France' LSE
Law Policy Briefing Papers: SPECIAL ISSUE: The Investigatory Powers Bill
(14/2015)
Both
France and the US operate an extensive signals intelligence network, not
unlike the UK’s, and both have experienced recent terrorist activity and
remain likely targets for terrorist activity in the future, like the UK. At
the same time, the US and France have a divergent approach to the legal
framework for surveillance powers. The US is taking steps to reduce the
legal authority of Federal bodies, including national security bodies, to
intercept and retain communications data and content. France, on the other
hand, has recently substantially extended authorisation and powers for
interception and retention of data. In institutional terms, the United
States operates a judicial authorisation process while France operates a
political authorisation process, which is not unlike the double lock process
proposed in the Investigatory Powers Bill.
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for full text [SSRN]
(with Bernard Keenan) 'Ensuring the Rule of Law' LSE Law
Policy Briefing Papers: SPECIAL ISSUE: The Investigatory Powers Bill
(12/2015)
The Investigatory Powers Bill must reconcile the increase in invasive
surveillance powers with the rule of law. Crucially, Parliament must ensure that
it allows the institutions that play a vital part in its functioning, such as
judicial commissioners and the Investigatory Powers Tribunal, are given the
capacity and autonomy to meet the appropriate standards of transparency and
judicial independence.
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for full text [SSRN]
'The value of analogue educational tools in a digital
educational environment' European Journal of Law and Technology (2015) 6
(1) pp.1-16
There is a powerful rhetoric in all aspects of tertiary education today in favour of the adoption of, and increased role for, digital platforms and virtual learning environments in the design of course curricula. We are told that these tools will have a transformative effect and will lead to a blended learning experience. This paper argues that these platforms may not be the panacea suggested, and may in fact lead to a conflict of pedagogical values between local vocational, or Shulman, values and the wider pedagogical values behind the design of the platform or VLE. Using as a case study an alternative, analogue, supplementary educational platform used in the Cyberlaw class at the London School of Economics in 2013/14, the author argues that pedagogy, and indeed andragogy, must drive curriculum design not the availability of technology platforms or their adoption at institutional level.
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text
'Cyberspace Regulation' in D Levi-Faur(ed), Handbook On
The Politics Of Regulation (Edward Elgar, 2011)
'Transparency, Scrutiny and Responsiveness: Fashioning a
Private Space within the Information Society' (2011) 82 The Political
Quarterly 509
'Nodes and Gravity in Virtual Space' (2011) 5 Legisprudence
195
In 1996 John Perry Barlow made his now infamous Declaration of
Independence for Cyberspace. In this the cyberlibertarian ethos was laid out: We
must declare our virtual selves immune to your sovereignty, even as we continue
to consent to your rule over our bodies. We will spread ourselves across the
Planet so that no one can arrest our thoughts. Since that date much has changed.
The work of a number of US cyberpaternalist philosophers such as Jonathan
Zittrain, Jack Goldsmith, Joel Reidenberg, Yochai Benkler and most famously
Lawrence Lessig has illustrated the fundamental weaknesses in Barlow's (and
therefore cyberlibertarianism's) basic premises. This does not mean though that
because one can be controlled in cyberspace, one ought to be controlled or even
one will be controlled. The distinction is between the ability to control and
the effectiveness and legitimacy of control mechanisms. It is this distinction
which is at the heart of network communitarianism and which is likely to come
more to the fore as the network is replaced with the cloud, always on data,
augmented reality and mobile data communications. The key issue for regulators
now is the strength of the network and the ability of regulators to control
within the network. Building upon previous regulatory designs of the author and
taking account of nodal governance theory as developed by Clifford Shearing and
Julia Black, this paper aims to demonstrate that the key to building effective
and legitimate regulation in the virtual space is to recognise and harness key
nodal connections and key nodes themselves. It will demonstrate how the
cybercommunity functions as both a community and a group of individual nodes and
will seek to develop a theory of regulatory gravity in which the relative
communicative power of various nodes may be modelled to take account of the
effectiveness and legitimacy of a regulatory intervention.
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'Volume Litigation: More Harmful than Helpful?' Computers
and Law 2009, 20(6), 43-45
'Symbiotic Regulation' Vol.26 (2) The John Marshall
Journal of Computer & Information Law 207 (October 2009)
In this paper the author examines the development and design of
regulatory structures in Cyberspace. The paper considers and models how all
forms of control – including design and market controls, as well as traditional
command and control regulation are to be applied within the complex and flexible
environment of Cyberspace. Drawing on the work of Cyber-regulatory theorists
such as Yochai Benkler, Joel Reidenberg and Lawrence Lessig and matching it with
an examination of social ordering from the English Peasant’s Revolt to the more
modern theories of Jurgen Habermas and Nicklaus Luhmann this paper suggests a
model of Cyber-regulation which acknowledges its true complexity. It further
suggests how this model may be utilized by both regulators and regulatory
theorists in our attempts to design a more comprehensive regulatory strategy for
Cyberspace.
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[select Services — Westlaw
International - search for title of journal, then by
article title and author]
'The Reclassification of Extreme Pornographic Images' (2009)
72 Modern Law Review, 73-90
Legal controls over the importation and supply of pornographic
imagery promulgated nearly half a century ago in the Obscene Publications Acts
have proven to be inadequate to deal with the challenge of the internet age.
With pornographic imagery more readily accessible in the UK than at any time in
our history, legislators have been faced with the challenge of stemming the
tide. One particular problem has been the ready accessibility of extreme images
which mix sex and violence or which portray necrophilia or bestiality. This
article examines the Government’s attempt to control the availability of such
material through s.63 of the Criminal Justice and Immigration Act 2008, which
criminalises possession of such images. It begins by examining the consultation
process and concludes that an underlying public policy objective was the root of
the new offence despite the lack of a clear mandate for such a policy. The
article then examines whether this weakness in the foundations for the proposed
new offence caused the proposal to be substantially amended during the Committee
Stage of the Criminal Justice and Immigration Bill: to the extent that the final
version of s.63 substantially fails to meet the original public policy
objective. The article concludes by asking whether s.63 may have unintended
consequences in that it fails to criminalise some of the more extreme examples
of violent pornography while criminalising consensual BDSM images, and questions
whether s.63 will be enforceable in any meaningful way.
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'Conceptualising the Post-Regulatory (Cyber)state.', 287-315 in Brownsword R. &
Yeung K. (eds) Regulating Technologies : Legal Futures, Regulatory Frames and
Technological Fixes, Hart, Oxford, 2008.
As our understanding of the mechanisms of control in Cyberspace
evolves we see that that previously simplistic view which imagined Cyberspace as
a place of rigid regulatory structures where environmental (or code-based)controls
would rule supreme fails to account for the complexity of social and cultural
transactions in Cyberspace.In this paper Murray seeks to combine theories of
decentred or multi-nodal regulation with social network theory to explain more
fully how regulation succeeds or fails in the digital environment. This leads to
a proposal for a new way of looking at regulatory settlements in Cyberspace
which rely upon symbiotic regulation rather than command and control regulation.
click here for publisher's site
‘Contracting Electronically in the Shadow of the E-Commerce Directive’ in
Edwards (ed), The New Legal Framework for E-Commerce (Oxford: Hart,
December 2005)
The E Commerce Directive Dir.2000/31/EC
provides for harmonization of electronic contracting in
the European Union. Central to this programme is
equivalence for electronic communications and
harmonization of the contractual trigger. Articles 9-11
are the key provisions dealing with these issues. In
this paper Andrew Murray examines the effectiveness of
these provisions and the United Kingdom’s adoption of
these provisions through Electronic Commerce (EC
Directive) Regulations 2002 SI 2002/2013). In particular
he challenges the assumption of the DTI that Section 8
of the Electronic Communications Act 2000 meets the
requirements of Article 9.
‘Should States Have a Right to Informational Privacy?’ in
Klang & Murray (eds.), Human Rights in the Digital Age (London:
Glasshouse, January 2005)
Individual privacy protection is an
important issue in the digital age, but questions also
need to be asked about whether states should have a
right to privacy. As the Internet spreads, there are
increasing calls for informational transparency on the
part of the state, but as government services go online,
the author suggests that there are strong arguments in
favour of more, rather than, less state privacy. The
convergence of digital technology is providing numerous
outlets for digital media. The author suggests that the
growing capacity for information gathering and
transmission means that the ‘State is paralysed by fear’
and its response is ‘spin’. Arguing from Edward Shils’
contention that modern democracy depends upon a ‘state
of political civility’, he indicates that it is becoming
more and more difficult for the State to manage its
relationship with the media. Individuals who embody the
precepts of the State may benefit from a greater
emphasis on personal autonomy, emotional release,
self-evaluation, and protected communication. In the UK
much emphasis is given to media management and the
co-ordination of information as a result of unrelenting
media coverage of the government’s actions. As a result
the author argues in favour of an open debate about the
feasibility of providing privacy protection for the
State as an antidote to the politics of ‘spin’.
'La Regulacion de Los Contratos Electronicos: Una
Comparación Entre La Posicion Europea y Norteamericana' [2004] 2 Foro de
Derecho Mercantil Revista Internacional 75-97 (Reprinted [2005] 1 Revista de
Derecho de la Empresa 119-140)
The development of on-line retailing (or e-tailing) is an
essential element of the commercial development of Cyberspace and has
provided the foundation of a flourishing online business community. The
ability to enter into and perform contracts online is at the heart of this
development. Without the certainty offered by a legal obligation to supply
goods or services consumers may feel exposed, leading to faltering consumer
confidence in electronic commerce with potentially harmful economic
consequences. This paper compares how the two leading e-commerce trade
blocs, the European Union and the United States have dealt with these
challenges. It will highlight the advantages and disadvantages of each and
will make recommendations which may benefit Latin American nations in
developing an e-contracting regime.
‘Regulation and Rights in Networked Space’(2003) 30 Journal of
Law and Society 187-216.2
The Internet is often described as
inherently free from regulation; a space where freedoms
and liberties are guaranteed by the design of the
network environment. The naivety of this view has,
however, been exposed by commentators such as Shapiro,
Reidenberg, and Lessig who have clearly demonstrated the
inherent regulability of networked space. The question
no longer is: can networked space be regulated? but
rather, how and by whom is it regulated? This paper
examines the regulation of rights in networked space.
Property rights and rights to free speech, or free
expression, are examined in relation to a number of
issues that have emerged in the networked environment,
or cyberspace. Its aim is to examine whether the
embryonic regulatory structure of cyberspace, which has
the advantage of starting with a completely clean slate,
is sufficiently sympathetic to the unique qualities of
this fledgling jurisdiction.
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‘Controlling the New Media: Hybrid Responses to New Forms
of Power’ (2002) 65 Modern Law Review 491-516 (with Colin Scott)
The development of new media
industries, stimulated by the technology of
digitalisation, has thrown up an important literature on
mechanisms for regulation and control. In this article
we elaborate on and develop Lawrence Lessig’s
‘modalities of regulation’ analysis. As we reconceive
them the four basic control forms are premised upon
hierarchy, competition, community and design and can be
deployed in fifteen pure and hybrid forms. This analysis
is enriched through elaborating on the essential
elements of control systems (standard–setting,
monitoring and behaviour modification) to demonstrate
the importance and variety of hybrid forms that
real–world control systems take in the new media
domains. Although the article does not provide any
universal prescriptions as to which control forms are
likely to be most appropriate in particular domains, it
does provide a richer analytical base both for
understanding existing control mechanisms and the
potential for using greater variety. The development of
regulatory regimes which are both legitimate and
effective in any given domain is likely to require
sensitivity to the particular context and culture of
both the domain and the jurisdiction within which it is
located.
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‘The Use of Trade Marks as Meta Tags: Defining the
Boundaries’ [2000] 8 International Journal of Law and Information
Technology 263-284.
Top ranked returns on popular search
engines such as Yahoo and Lycos could become the virtual
equivalent of a prime time television advert. The value
of judicious meta tagging could therefore be
substantial. This paper examines the emerging meta
tag/trade mark jurisprudence. It suggests that following
the decision of Playboy Enterprises v. Welles (SD Cal.
Filed 1 December 1999) a ‘fair use’ loophole may have
emerged allowing competitors to legally exploit their
competitor's trade name or mark when meta tagging their
web site. This paper examines this potential loophole
and evaluates whether the practice of competitive meta
tagging may emerge.
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Email: a.murray@lse.ac.uk
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