Chris Marsden | University of Sussex (original) (raw)

Papers by Chris Marsden

European Journal of Law and Technology, Feb 29, 2012

This is a collaborative submission from a group of academics based in the UK with expertise in in... more This is a collaborative submission from a group of academics based in the UK with expertise in information technology law and related areas.

First Monday, 2015

This paper examines Bitcoin from a legal and regulatory perspective, answering several important ... more This paper examines Bitcoin from a legal and regulatory perspective, answering several important questions.We begin by explaining what Bitcoin is, and why it matters. We describe problems with Bitcoin as a method of implementing a cryptocurrency. This introduction to cryptocurrencies allows us eventually to ask the inevitable question: is it legal? What are the regulatory responses to the currency? Can it be regulated?We make clear why virtual currencies are of interest, how self-regulation has failed, and what useful lessons can be learned. Finally, we produce useful and semi-permanent findings into the usefulness of virtual currencies in general, blockchains as a means of mining currency, and the profundity of Bitcoin as compared with the development of block chain technologies. We conclude that though Bitcoin may be the equivalent of Second Life a decade later, so blockchains may be the equivalent of Web 2.0 social networks, a truly transformative social technology.

Critical Studies in Media Communication, 2014

SSRN Electronic Journal, 2000

SSRN Electronic Journal, 2000

Executive Summary This document is the first formal deliverable from JRA4: Regulation, Governance... more Executive Summary This document is the first formal deliverable from JRA4: Regulation, Governance and Standards. It was written by social scientists: an interdisciplinary legal scholar (Marsden), a political scientist (Merzouki), and two communications scholars with broad socio-political expertise (Powell and Pavan). Background material was provided by economists (Cave), computer scientists (Conti and Passarella, Salamatian), lawyers (Bygrave) and communications experts (Brown: Stockholm). It is a contingent dynamic ...

This paper is a study into some of the regulatory implications of cryptocurrencies using the CAMP... more This paper is a study into some of the regulatory implications of cryptocurrencies using the CAMPO research framework (Context, Actors, Methods, Methods, Practice, Outcomes). We explain in CAMPO format why virtual currencies are of interest, how self-regulation has failed, and what useful lessons can be learned. We are hopeful that the full paper will produce useful and semi-permanent findings into the usefulness of virtual currencies in general, block chains as a means of mining currency, and the profundity of current ‘media darling’ currency Bitcoin as compared with the development of block chain generator Ethereum.
While virtual currencies can play a role in creating better trading conditions in virtual communities, despite the risks of non-sovereign issuance and therefore only regulation by code (Brown/Marsden 2013), the methodology used poses significant challenges to researching this ‘community’, if BitCoin can even be said to have created a single community, as opposed to enabling an alternate method of exchange for potentially all virtual community transactions. First, BitCoin users have transparency of ownership but anonymity in many transactions, necessary for libertarians or outright criminals in such illicit markets as #SilkRoad. Studying community dynamics is therefore made much more difficult than even such pseudonymous or avatar based communities as Habbo Hotel, World of Warcraft or SecondLife. The ethical implications of studying such communities raise similar problems as those of Tor, Anonymous, Lulzsec and other anonymous hacker communities. Second, the journalistic accounts of BitCoin markets are subject to sensationalism, hype and inaccuracy, even more so than in the earlier hype cycle for SecondLife, exacerbated by the first issue of anonymity. Third, the virtual currency area is subject to slowly emerging regulation by financial authorities and police forces, which appears to be driving much of the early adopter community ‘underground’. Thus, the community in 2016 may not bear much resemblance to that in 2012. Fourth, there has been relatively little academic empirical study of the community, or indeed of virtual currencies in general, until relatively recently. Fifth, the dynamism of the virtual currency environment in the face of the deepening mistrust of the financial system after the 2008 crisis is such that any research conclusions must by their nature be provisional and transient.
All these challenges, particularly the final three, also raise the motivation for research – an alternative financial system which is separated from the real-world sovereign and which can use code regulation with limited enforcement from offline policing, both returns the study to the libertarian self-regulated environment of early 1990s MUDs, and offers a tantalising prospect of a tool to evade the perils of ‘private profit, socialized risk’ which existing large financial institutions created in the 2008-12 disaster. The need for further research into virtual currencies based on blockchain mining, and for their usage by virtual communities, is thus pressing and should motivate researchers to solve the many problems in methodology for exploring such an environment.

The term ‘co-regulation’ encompasses a range of different regulatory phenomena, which have in com... more The term ‘co-regulation’ encompasses a range of different regulatory phenomena, which have in common the fact that the regulatory regime is made up of a complex interaction of general legislation and a self-regulatory body. The varying interests of actors result in different incentives to cooperate or attempt unilateral actions at the various points of the value chain. Without regulation responsive to both the market and the need for constitutional protection of freedom of expression and protection of minors at national levels, Internet co- and self-regulatory measures cannot be sufficiently responsive to economic and cultural environments to be self-sustaining. It has enriched conceptions of ‘soft law’ or ‘governance’ in the literature in the past ten years, but like those umbrella terms, refers to forms of hybrid regulation that do not meet the administrative and statute-based legitimacy of regulation, yet clearly perform some elements of public policy such that it cannot be ascribed to self-regulation, in the absence of the nation-state or European law . It is often identified with the rise of the ‘new governance’ in the late 1990s in environmental and financial regulation, yet its growth can also be traced to the birth of Information Society policy in the mid-1990s. Co-regulation constitutes multiple stakeholders, and this inclusiveness results in greater legitimacy claims. The state, and stakeholder groups including consumers, are stated to explicitly form part of the institutional setting for regulation. However, direct government involvement including sanctioning powers may result in the gains of reflexive regulation – speed of response, dynamism, international cooperation between ISPs and others – being lost. It is clearly a finely balanced concept. The growing gulf between states’ preference for regulatory and self-regulatory solutions, and citizens’ preferences for greater control if not ownership of vital regulated industries, has led to a crisis of legitimacy. This article analyzes co-regulation, by defining and exploring its recent institutional history together with that of Internet self-regulation. It then assesses the legal definitions and taxonomies of co-regulation before constructing a twelve-point scale of self- and co-regulation. It explores the possibility for judicial review of co-regulatory arrangements, recent case law that concerns human rights and Internet co-regulation, and regulatory pronouncements .

Chris Marsden argues that co-regulation is the defining feature of the Internet in Europe. Co-reg... more Chris Marsden argues that co-regulation is the defining feature of the Internet in Europe. Co-regulation offers the state a route back into questions of legitimacy, governance and human rights, thereby opening up more interesting conversations than a static no-regulation versus state regulation binary choice. The basis for the argument is empirical investigation, based on a multi-year, European Commission-funded study and is further reinforced by the direction of travel in European and English law and policy, including the Digital Economy Act 2010. He places Internet regulation within the regulatory mainstream, as an advanced technocratic form of self- and co-regulation which requires governance reform to address a growing constitutional legitimacy gap. The literature review, case studies and analysis shed a welcome light on policymaking at the centre of Internet regulation in Brussels, London and Washington, revealing the extent to which states, firms and, increasingly, citizens are developing a new type of regulatory bargain.

Marsden explains for a general policy audience what the regulatory and governance problems and po... more Marsden explains for a general policy audience what the regulatory and governance problems and potential solutions are for the issue referred to as ‘network neutrality’, unpacking its ‘lite’ and ‘heavy’ elements. Eschewing technical, economic or legalistic explanations which he has previously tackled elsewhere, he explains that increasing Internet Service Provider (ISP) control over content risks not just differentiated pricing and speed on the Internet, but also removing the ‘Three Wise Monkeys’ liability regime for ISPs, replaced by an explicit role as content controller and thus censor. He then argues for a co-regulatory regime that ensures oversight and removes obvious abuses by fixed and mobile ISPs, without preventing innovation, while guarding against government abuse of the censorship opportunities provided by new technologies.

'Net Neutrality' is a very heated and contested United States policy principle regarding access f... more 'Net Neutrality' is a very heated and contested United States policy principle regarding access for content providers to the Internet end-user, and potential discrimination in that access where the end-user's ISP (or another ISP) blocks that access in part or whole. The suggestion is that the problem can be resolved by either introducing greater competition, as for instance in certain Western European nations under the Telecoms Framework 2002 (as proposed for amendment 2007), or closely policing conditions for vertically integrated service, such as VOIP. This assumes that competition in the 'local loop' or 'last mile' to the end-user subscriber provides a choice of platform, and therefore rigorous telecoms competition regulation resolves the issue in Europe. However, that may not be the whole story. The question this paper aims to answer is: Are Internet Service Providers motivated to require content providers to pay for superior service via lower levels of service for the same price (e.g. blocking or 'throttling' content) or higher price for higher Quality of Service? Can abusive discrimination take place even where an ISP does not have dominance? I consider market developments and policy responses in Europe and the United States, conclusions and regulatory recommendations.

Mobile is a rapidly growing and potentially major element of the future Internet, and its environ... more Mobile is a rapidly growing and potentially major element of the future Internet, and its environment cannot be sensibly considered in isolation from fixed networks. A note on terminology: Europe uses the term Mobile Network Operators (MNOs) while the United States uses ‘wireless’ Internet Service Providers (ISPs). ‘Wireless’ is somewhat more open in the United States. In Europe, mobile has always made special pleading for forms of self-regulation, as we will see. The article introduces mobile broadband, then considers net neutrality in the fixed environment including the new laws passed in November 2009 in the European Parliament, before considering the mobile net neutrality debate, the degree of price control regulation exerted on European mobiles and the MNOs’ vigorous rear-guard anti-regulation defence. Finally, I look at the effects of this regulatory asymmetry and whether MNO calls for mobile to be treated differently from other ISPs can be justified. I conclude by examining what the effect of price and content control on mobile is likely to be for incentives for fixed ISPs and produce a result that I describe as the ‘fixed’ strategy.

European Journal of Law and Technology, Feb 29, 2012

This is a collaborative submission from a group of academics based in the UK with expertise in in... more This is a collaborative submission from a group of academics based in the UK with expertise in information technology law and related areas.

First Monday, 2015

This paper examines Bitcoin from a legal and regulatory perspective, answering several important ... more This paper examines Bitcoin from a legal and regulatory perspective, answering several important questions.We begin by explaining what Bitcoin is, and why it matters. We describe problems with Bitcoin as a method of implementing a cryptocurrency. This introduction to cryptocurrencies allows us eventually to ask the inevitable question: is it legal? What are the regulatory responses to the currency? Can it be regulated?We make clear why virtual currencies are of interest, how self-regulation has failed, and what useful lessons can be learned. Finally, we produce useful and semi-permanent findings into the usefulness of virtual currencies in general, blockchains as a means of mining currency, and the profundity of Bitcoin as compared with the development of block chain technologies. We conclude that though Bitcoin may be the equivalent of Second Life a decade later, so blockchains may be the equivalent of Web 2.0 social networks, a truly transformative social technology.

Critical Studies in Media Communication, 2014

SSRN Electronic Journal, 2000

SSRN Electronic Journal, 2000

Executive Summary This document is the first formal deliverable from JRA4: Regulation, Governance... more Executive Summary This document is the first formal deliverable from JRA4: Regulation, Governance and Standards. It was written by social scientists: an interdisciplinary legal scholar (Marsden), a political scientist (Merzouki), and two communications scholars with broad socio-political expertise (Powell and Pavan). Background material was provided by economists (Cave), computer scientists (Conti and Passarella, Salamatian), lawyers (Bygrave) and communications experts (Brown: Stockholm). It is a contingent dynamic ...

This paper is a study into some of the regulatory implications of cryptocurrencies using the CAMP... more This paper is a study into some of the regulatory implications of cryptocurrencies using the CAMPO research framework (Context, Actors, Methods, Methods, Practice, Outcomes). We explain in CAMPO format why virtual currencies are of interest, how self-regulation has failed, and what useful lessons can be learned. We are hopeful that the full paper will produce useful and semi-permanent findings into the usefulness of virtual currencies in general, block chains as a means of mining currency, and the profundity of current ‘media darling’ currency Bitcoin as compared with the development of block chain generator Ethereum.
While virtual currencies can play a role in creating better trading conditions in virtual communities, despite the risks of non-sovereign issuance and therefore only regulation by code (Brown/Marsden 2013), the methodology used poses significant challenges to researching this ‘community’, if BitCoin can even be said to have created a single community, as opposed to enabling an alternate method of exchange for potentially all virtual community transactions. First, BitCoin users have transparency of ownership but anonymity in many transactions, necessary for libertarians or outright criminals in such illicit markets as #SilkRoad. Studying community dynamics is therefore made much more difficult than even such pseudonymous or avatar based communities as Habbo Hotel, World of Warcraft or SecondLife. The ethical implications of studying such communities raise similar problems as those of Tor, Anonymous, Lulzsec and other anonymous hacker communities. Second, the journalistic accounts of BitCoin markets are subject to sensationalism, hype and inaccuracy, even more so than in the earlier hype cycle for SecondLife, exacerbated by the first issue of anonymity. Third, the virtual currency area is subject to slowly emerging regulation by financial authorities and police forces, which appears to be driving much of the early adopter community ‘underground’. Thus, the community in 2016 may not bear much resemblance to that in 2012. Fourth, there has been relatively little academic empirical study of the community, or indeed of virtual currencies in general, until relatively recently. Fifth, the dynamism of the virtual currency environment in the face of the deepening mistrust of the financial system after the 2008 crisis is such that any research conclusions must by their nature be provisional and transient.
All these challenges, particularly the final three, also raise the motivation for research – an alternative financial system which is separated from the real-world sovereign and which can use code regulation with limited enforcement from offline policing, both returns the study to the libertarian self-regulated environment of early 1990s MUDs, and offers a tantalising prospect of a tool to evade the perils of ‘private profit, socialized risk’ which existing large financial institutions created in the 2008-12 disaster. The need for further research into virtual currencies based on blockchain mining, and for their usage by virtual communities, is thus pressing and should motivate researchers to solve the many problems in methodology for exploring such an environment.

The term ‘co-regulation’ encompasses a range of different regulatory phenomena, which have in com... more The term ‘co-regulation’ encompasses a range of different regulatory phenomena, which have in common the fact that the regulatory regime is made up of a complex interaction of general legislation and a self-regulatory body. The varying interests of actors result in different incentives to cooperate or attempt unilateral actions at the various points of the value chain. Without regulation responsive to both the market and the need for constitutional protection of freedom of expression and protection of minors at national levels, Internet co- and self-regulatory measures cannot be sufficiently responsive to economic and cultural environments to be self-sustaining. It has enriched conceptions of ‘soft law’ or ‘governance’ in the literature in the past ten years, but like those umbrella terms, refers to forms of hybrid regulation that do not meet the administrative and statute-based legitimacy of regulation, yet clearly perform some elements of public policy such that it cannot be ascribed to self-regulation, in the absence of the nation-state or European law . It is often identified with the rise of the ‘new governance’ in the late 1990s in environmental and financial regulation, yet its growth can also be traced to the birth of Information Society policy in the mid-1990s. Co-regulation constitutes multiple stakeholders, and this inclusiveness results in greater legitimacy claims. The state, and stakeholder groups including consumers, are stated to explicitly form part of the institutional setting for regulation. However, direct government involvement including sanctioning powers may result in the gains of reflexive regulation – speed of response, dynamism, international cooperation between ISPs and others – being lost. It is clearly a finely balanced concept. The growing gulf between states’ preference for regulatory and self-regulatory solutions, and citizens’ preferences for greater control if not ownership of vital regulated industries, has led to a crisis of legitimacy. This article analyzes co-regulation, by defining and exploring its recent institutional history together with that of Internet self-regulation. It then assesses the legal definitions and taxonomies of co-regulation before constructing a twelve-point scale of self- and co-regulation. It explores the possibility for judicial review of co-regulatory arrangements, recent case law that concerns human rights and Internet co-regulation, and regulatory pronouncements .

Chris Marsden argues that co-regulation is the defining feature of the Internet in Europe. Co-reg... more Chris Marsden argues that co-regulation is the defining feature of the Internet in Europe. Co-regulation offers the state a route back into questions of legitimacy, governance and human rights, thereby opening up more interesting conversations than a static no-regulation versus state regulation binary choice. The basis for the argument is empirical investigation, based on a multi-year, European Commission-funded study and is further reinforced by the direction of travel in European and English law and policy, including the Digital Economy Act 2010. He places Internet regulation within the regulatory mainstream, as an advanced technocratic form of self- and co-regulation which requires governance reform to address a growing constitutional legitimacy gap. The literature review, case studies and analysis shed a welcome light on policymaking at the centre of Internet regulation in Brussels, London and Washington, revealing the extent to which states, firms and, increasingly, citizens are developing a new type of regulatory bargain.

Marsden explains for a general policy audience what the regulatory and governance problems and po... more Marsden explains for a general policy audience what the regulatory and governance problems and potential solutions are for the issue referred to as ‘network neutrality’, unpacking its ‘lite’ and ‘heavy’ elements. Eschewing technical, economic or legalistic explanations which he has previously tackled elsewhere, he explains that increasing Internet Service Provider (ISP) control over content risks not just differentiated pricing and speed on the Internet, but also removing the ‘Three Wise Monkeys’ liability regime for ISPs, replaced by an explicit role as content controller and thus censor. He then argues for a co-regulatory regime that ensures oversight and removes obvious abuses by fixed and mobile ISPs, without preventing innovation, while guarding against government abuse of the censorship opportunities provided by new technologies.

'Net Neutrality' is a very heated and contested United States policy principle regarding access f... more 'Net Neutrality' is a very heated and contested United States policy principle regarding access for content providers to the Internet end-user, and potential discrimination in that access where the end-user's ISP (or another ISP) blocks that access in part or whole. The suggestion is that the problem can be resolved by either introducing greater competition, as for instance in certain Western European nations under the Telecoms Framework 2002 (as proposed for amendment 2007), or closely policing conditions for vertically integrated service, such as VOIP. This assumes that competition in the 'local loop' or 'last mile' to the end-user subscriber provides a choice of platform, and therefore rigorous telecoms competition regulation resolves the issue in Europe. However, that may not be the whole story. The question this paper aims to answer is: Are Internet Service Providers motivated to require content providers to pay for superior service via lower levels of service for the same price (e.g. blocking or 'throttling' content) or higher price for higher Quality of Service? Can abusive discrimination take place even where an ISP does not have dominance? I consider market developments and policy responses in Europe and the United States, conclusions and regulatory recommendations.

Mobile is a rapidly growing and potentially major element of the future Internet, and its environ... more Mobile is a rapidly growing and potentially major element of the future Internet, and its environment cannot be sensibly considered in isolation from fixed networks. A note on terminology: Europe uses the term Mobile Network Operators (MNOs) while the United States uses ‘wireless’ Internet Service Providers (ISPs). ‘Wireless’ is somewhat more open in the United States. In Europe, mobile has always made special pleading for forms of self-regulation, as we will see. The article introduces mobile broadband, then considers net neutrality in the fixed environment including the new laws passed in November 2009 in the European Parliament, before considering the mobile net neutrality debate, the degree of price control regulation exerted on European mobiles and the MNOs’ vigorous rear-guard anti-regulation defence. Finally, I look at the effects of this regulatory asymmetry and whether MNO calls for mobile to be treated differently from other ISPs can be justified. I conclude by examining what the effect of price and content control on mobile is likely to be for incentives for fixed ISPs and produce a result that I describe as the ‘fixed’ strategy.