State Sovereignty and Cyberspace: What Role for International Law?


Does international law apply in cyberspace?

The meeting last June of the “2016-2017 UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security” (GGE) reached a dead end. The GGE failed to endorse even the simple premise that international law applies to cyberspace. The Group, which had been given the mandate by the UN General Assembly to study “how international law applies to the use of information and communications technologies by States” will not be able to fulfill its mission.

This disappointing development surfaces a debate that has been lurking for quite a while. Continue reading

Big Corporations, Big Data, Big Responsibility


This post was first published in Berkeley Technology Law Journal, 2017 Online Forum: Platform Law

Do large corporations own the data given to them by their users? Or are corporations obliged to share the data with the public and not-for-profit academics?

eBay launched its first big data lab in Israel and provided selected researchers with access to some 70 million gigabytes of its data two years ago. eBay’s valuable data provide a comprehensive picture of the transnational online product market, and as such enable the study of market dynamics and the behavior of sellers and buyers. In other words, eBay’s data can inform us about social interaction and our nature as human beings.

Researchers during the first lab cycle studied how natural disasters affected people’s shopping behavior and how product imitations shaped the demand for original products. Two of us (Tamar Kricheli-Katz and Tali Regev) even found that women tend to receive 80 cents for each dollar men receive, when selling the exact same new product in auctions on eBay. This startling result suggests that we should consider further regulating our market interactions to generate more equal outcomes.

Many companies hold invaluable “big data.” Several of them, like Google, Facebook, Apple, and eBay, have amassed more data about people and their behavior, health, markets and networks than many governments around the globe. If shared with researchers, the data could enlighten us about ourselves, and instruct us on matters like how to improve our health, avoid car accidents, or design more accessible and efficient markets. The data could also suggest areas for attention and perhaps regulation, which may be a reason why many corporations prevent access to the data even when there is no risk of infringing trade secrets or user privacy. The immense social benefits that can accrue from scientific research of this data remain unfulfilled.

Often, when corporations refuse to share their data with external entities, corporations cite users’ consent to their retention and disclosure policy, which often prohibits such sharing. Indeed, users who register for the services of eBay and other big data corporations are usually required to consent to the corporation’s policy of collection, use, disclosure, retention, and protection of personal information.

But how much weight is such consent due? Because many of these corporations hold considerable market power, potential users do not have real alternatives to obtain such services elsewhere, and therefore their consent cannot be viewed as freely given nor can it justify withholding the data. This consent merely reflects the skewed market relations between the individual user and the mighty service provider.

More importantly, corporations with a large market share become the market maker, architect, and regulator. Google, for instance, is not a mere player in the search engine market, but rather the gatekeeper of people’s daily access to knowledge.

With corporations’ huge influence comes the responsibility to investigate the effects of their services on their users, and to enlighten the public about their research. Just as we want tobacco companies to assess the risks and health hazards of smoking and to keep the public informed, we should expect big corporations to be engaged in risk assessment of the effects of their services on their users’ welfare.

Obviously, sharing this information and investigating it in-house would entail costs to big corporations. They would have to screen researchers’ applications and provide them with resources and training. They would also risk negative media coverage. Although these costs are not negligible, these should be weighed against the potential public good unleashed with the release of such data.

The corporations who provided the vessels in which the data was accumulated are obviously entitled to use it for their commercial purposes. But they should not deprive humanity of the unique opportunity to learn more about ourselves. eBay and other big data corporations have accumulated and profited from information supplied to them by all of us. Incrementally, all of us participate in writing the story of the human race. This story belongs to us all.

Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights in the Buchmann Faculty of Law at Tel Aviv University.

Tamar Kricheli-Katz is an Assistant Professor in the Buchmann Faculty of Law at Tel-Aviv University.

Tali Regev is a Lecturer at the School of Economics, Interdisciplinary Center Herzliya.

“Inclusive Multilateralism” as the response to Rising Nationalism

The rising tide of nationalism has reached new peaks in 2016. The continued ascent of anti-immigrant parties throughout Europe was eclipsed by Brexit and the nomination of Donald Trump as the Republican candidate for the U.S. presidency. Before making a series of uncouth remarks, Trump was leading in most of the polls. Experts were baffled by the unanticipated popularity of these stark anti-globalization sentiments that cut across the traditional political divide between left and right and united Trump voters with Sanders followers. Continue reading

The FIFA Bribery Scandal and the Applicability of the United States’ RICO Act Abroad: Possible Implications for Private Global Governance Bodies

The governance of the global sport industry has thus far remained in private hands. Practically all major sport events including the Olympics have been regulated by private associations registered under domestic law (Swiss law being the most accommodating). Fearing the adverse consequences of intervention, governments refrained from attempting to discipline that industry, despite continuing accusations of mismanagement, corruption, and infringements of the rights of athletes – a classic example of a collective action failure.

But persistent allegations of corruption at the Fédération Internationale de Football Association (FIFA) ultimately provoked states’ reaction.

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Who Trusts the Trustees? (Answer: No One Should)

The concept “trustees of humanity” has attracted repeated criticisms since my 2013 Article appeared. Several commentators brought to mind numerous historical precedents for the disingenuous uses of “trust,” and drew attention to the particular danger of combining it with the concept of “humanity.” These concepts have been invoked to rationalize colonialism and foreign domination. As is well known, the European powers apportioned Africa among them ostensibly for “furthering the moral and material well-being of the native populations,” the League of Nations used trusteeship to justify a new form of colonialism, and the problematic relationship between occupier and occupied under the law of occupation has been referred to as trusteeship.

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