Too Many Cooks?

March 21, 2012

I hope those of a literal mind will forgive the question mark in my title. Obviously there are too many cooks of the ‘celebrity’ or TV variety. I cannot be the only one who hears the phrase ‘battle of the chefs’ and hopes that they hand out Kalashnikovs instead of frying pans. Equally obviously there are {i}not{/i} too many cooks prepared to make me Chorley cakes and big custard tarts like my mother made, there are none – and, much as I like fillet of sea bass in a fancy sauce and pavlova, they are not known as traditional Lancashire specialities.

But last week’s minor tantrum at Eastham Mansions was not connected to the absence of Chorley cake, it was BEREC’s fault. No, not the US President’s smarter older brother – the Body of European Regulators for Electronic Communications. This is the group through which national regulatory authorities in the EU (like our own Ofcom) exchange expertise and best practice and give opinions on the functioning of the telecoms market in the EU. It is very similar to the more familiar Article 29 Working Party but with a different function and a much catchier name.

BEREC produced a report which came to my attention at the end of last week. The {report covers traffic management practices:} and BEREC states that ‘the most frequently reported traffic management practices are the blocking and/or throttling of peer-to-peer (P2P) traffic, on both fixed and mobile networks, and the blocking of Voice over IP (VoIP) traffic (mostly on mobile networks, usually based on specific contract terms). When blocking/throttling is implemented in the network, it is typically done through deep packet inspection (DPI)’. Less than surprising but interesting enough, I thought, for a news item on the SCL site. Then I discovered that the report had actually been submitted more than a week earlier and the {i}slightly interesting{/i} report lost some of its allure as I realised its true age. (I apologise if you have spent the last fortnight on tenterhooks awaiting SCL coverage of the report.)

The tantrum was not entirely of BEREC’s making. I had begun to feel that it was impossible to keep up with all the regulators when the {Council of Europe published its Internet Governance Strategy:} and my failure to monitor BEREC just pushed me over the edge. With WIPO, ICANN, ASA, OFT, BIS, ICO, EU and 27 other acronyms to worry about, BEREC was the last thing I needed. (It didn’t even help me with my anagram message to regulators – I still need a K and am one F short.)

But mature reflection follows minor tantrums, ideally just behind alcohol, and I now have a different view. Notwithstanding the extreme provocation of APIPG (the All Party Parliamentary Intellectual Property Group) announcing yet another {inquiry into intellectual property matters:} which would cover, inter alia, ‘How IP policy has developed and been co-ordinated within the digital policy environment’, I am inclined to welcome cooks as they enter the kitchen.

Perhaps ‘welcome’ overstates it. Mature reflection has left me with the view that the digital kitchen is so vast that a vast number of cooks will just have to be accommodated. Of course there will be those who cannot boil water without burning it, but most will have something useful to contribute.

The days when the Internet was the Wild West and free of regulation have long gone; indeed the only thing the Internet and the Wild West have in common is a largely mythical past. Data protection issues pervade all manner of transactions. In the commercial world, some aspect of IT law rears its head in every transaction, large or small. I just concluded a contract for a £100 roof repair by e-mail and there is nothing unusual about that – yet five years ago the sort of person who would go up a ladder for £100 wouldn’t have dreamt of operating online.

In short, the multiplicity of regulators is the inevitable corollary of the pervasiveness of IT, and we (OK, I) just have to learn to live with it. What would make life easier would be recognition that, while special rules are of course needed to control new technologies, we cannot treat everything online or everything involving computer data as in need of special control. For example, attacking the trolls who deface Facebook sites or harass all and sundry (which seems to be flavour of the month) does not need a special ‘troll law’. The clamour for such persons to be ‘stopped’ tells us a lot about the continuing lack of awareness about the all-pervasiveness of IT. You cannot stop some people being pathetic and nasty but you can use the criminal law to prosecute and deter imitators.

The regulators need to recognise that they don’t need special sub-bodies that focus on the IT/Internet/data aspect of their main function. It is about integrating (astonishingly, the APIPG has its focus right on that score – ‘astonishingly’ because I don’t have much hope for its wider judgments when it thinks it right to accept secretariat services from the Alliance Against IP Theft). It is about focusing on function and not rearing up in fear at innovative forms of service provision that do not fit the traditional function template. Indeed, regulators need to throw the traditional function template away in most cases.