Angela Daly

The Legality of Deep Packet Inspection

Deep packet inspection is a technology which enables the examination of the content of information packets being sent over the Internet. The Internet was originally set up using “end-to-end connectivity” as part of its design, allowing nodes of the network to send packets to all other nodes of the network, without requiring intermediate network elements to maintain status information about the transmission. In this way, the Internet was created as a “dumb” network, with “intelligent” devices (such as personal computers) at the end or “last mile” of the network. The dumb network does not interfere with an applications operation, nor is it sensitive to the needs of an application, and as such it treats all information sent over it as (more or less) equal. Yet, deep packet inspection allows the examination of packets at places on the network which are not endpoints, In practice, this permits entities such as Internet service providers (ISPs) or governments to observe the content of the information being sent, and perhaps even manipulate it. Indeed, the existence and implementation of deep packet inspection may challenge profoundly the egalitarian and open character of the Internet. This paper will firstly elaborate on what deep packet inspection is and how it works from a technological perspective, before going on to examine how it is being used in practice by governments and corporations. Legal problems have already been created by the use of deep packet inspection, which involve fundamental rights (especially of Internet users), such as freedom of expression and privacy, as well as more economic concerns, such as competition and copyright. These issues will be considered, and an assessment of the conformity of the use of deep packet inspection with law will be made. There will be a concentration on the use of deep packet inspection in European and North American jurisdictions, where it has already provoked debate, particularly in the context of discussions on net neutrality. This paper will also incorporate a more fundamental assessment of the values that are desirable for the Internet to respect and exhibit (such as openness, equality and neutrality), before concluding with the formulation of a legal and regulatory response to the use of this technology, in accordance with these values.

Socio-Legal Aspects of the 3D Printing Revolution

Additive manufacturing or ‘3D printing’ has emerged into the mainstream in the last few years, with much hype about its revolutionary potential as the latest ‘disruptive technology’ to destroy existing business models, empower individuals and evade any kind of government control. This book examines the trajectory of 3D printing in practice and how it interacts with various areas of law, including intellectual property, product liability, gun laws, data privacy and fundamental/constitutional rights. A particular comparison is made between 3D printing and the Internet as this has been, legally-speaking, another ‘disruptive technology’ and also one on which 3D printing is partially dependent. This book is the first expert analysis of 3D printing from a legal perspective and provides a critical assessment of the extent to which existing legal regimes can be successfully applied to, and enforced vis-a-vis, 3D printing.

Regulating Revolution: An Introduction to 3D Printing and the Law

Additive manufacturing or ‘three-dimensional (3D) printing’ has emerged into the mainstream in the last few years, with much hype about its revolutionary potential as the latest ‘disruptive technology’ to destroy existing business models, empower individuals, and evade any kind of government control. This book examines the trajectory of 3D printing in practice and how it interacts with various areas of law, including intellectual property (IP), product liability, gun laws, data privacy, and fundamental/constitutional rights. Before the detailed examination of law and 3D printing, this opening chapter introduces 3D printing as a technology, along with some of the high-level themes which permeate its interaction with areas of law. A particular comparison is made with the Internet as this has been, legally speaking, another ‘disruptive technology’ and also one on which 3D printing is partially dependent.

Google, online search and consumer confusion in Australia

The legality of the operation of Google’s search engine, and its liability as an Internet intermediary, has been tested in various jurisdictions on various grounds. In Australia, there was an ultimately unsuccessful case against Google under the Australian Consumer Law relating to how it presents results from its search engine. Despite this failed claim, several complex issues were not adequately addressed in the case including whether Google sufficiently distinguishes between the different parts of its search results page, so as not to mislead or deceive consumers. This article seeks to address this question of consumer confusion by drawing on empirical survey evidence of Australian consumers’ understanding of Google’s search results layout. This evidence, the first of its kind in Australia, indicates some level of consumer confusion. The implications for future legal proceedings in against Google in Australia and in other jurisdictions are discussed.

(Big) Data and the North-in-South: Australia’s Informational Imperialism and Digital Colonialism

Australia is a country firmly part of the Global North, yet geographically located in the Global South. This North-in-South divide plays out internally within Australia given its status as a British settler-colonial society which continues to perpetrate imperial and colonial practices vis-à-vis the Indigenous peoples and vis-à-vis Australia’s neighboring countries in the Asia-Pacific region. This article draws on and discusses five seminal examples forming a case study on Australia to examine big data practices through the lens of Southern Theory from a criminological perspective. We argue that Australia’s use of big data cements its status as a North-in-South environment where colonial domination is continued via modern technologies to effect enduring informational imperialism and digital colonialism. We conclude by outlining some promising ways in which data practices can be decolonized through Indigenous Data Sovereignty but acknowledge these are not currently the norm; so Australia’s digital colonialism/coloniality endures for the time being.

The Limits of (Digital) Constitutionalism: Exploring the Privacy-Security (Im)Balance in Australia

This article explores the challenges of digital constitutionalism in practice through a case study examining how concepts of privacy and security have been framed and contested in Australian cyber security and telecommunications policy-making over the last decade. The Australian Government has formally committed to ‘internet freedom’ norms, including privacy, through membership of the Freedom Online Coalition (FOC). Importantly, however, this commitment is non-binding and designed primarily to guide the development of policy by legislators and the executive government. Through this analysis, we seek to understand if, and how, principles of digital constitutionalism have been incorporated at the national level. Our analysis suggests a fundamental challenge for the project of digital constitutionalism in developing and implementing principles that have practical or legally binding impact on domestic telecommunications and cyber security policy. Australia is the only major Western liberal democracy without comprehensive constitutional human rights or a legislated bill of rights at the federal level; this means that the task of ‘balancing’ what are conceived as competing rights is left only to the legislature. Our analysis shows that despite high-level commitments to privacy as per the Freedom Online Coalition, individual rights are routinely discounted against collective rights to security. We conclude by arguing that, at least in Australia, the domestic conditions limit the practical application and enforcement of digital constitutionalism’s norms.

Beyond ‘Hipster Antitrust’: A Critical Perspective on the European Commission’s Google Decision

This contribution offers a critical socio-legal perspective on the European Commission’s Decision in the Google Shopping investigation. In particular, three outstanding issues, concerning Google’s data collection, algorithmic transparency and the beneficiaries of the Decision are explored. The Decision does not address all the problems associated with Google’s platform power. However, it is argued that competition law, even modified from the current More Economic Approach as the antitrust hipsters suggest, is not able to do this alone, but has to be part of a multi-regime response involving regulation and consumer law.

Don't Believe the Hype? Recent 3D Printing Developments for Law and Society

Additive manufacturing or ‘3D printing’ has emerged into the mainstream in the last few years, with much hype about its revolutionary potential as the latest ‘disruptive technology’ to destroy existing business models, empower individuals and evade any kind of government control. This contribution will examine recent developments in 3D printing’s interaction with law and society in order to determine the extent to which 3D printing’s trajectory is conforming to these idea(l)s of revolution. It seems that despite the theoretical potential for 3D printing to be highly disruptive to various areas of regulation, the practical experience is telling a different, less socio-legally transformative story. This is because other government and corporate actors, and not just empowered ‘prosumers’, have also seen the potential of 3D printing for achieving their own goals, tied to consumer take-up of 3D printers being less than predicted.

Energy Prosumers and Infrastructure Regulation: Some Initial Observations from Australia

This paper will present some initial reflections about the rise of ‘energy prosumers’ and the implications for the regulation of energy infrastructure. With the decentralized micro-production of energy becoming increasingly available through the declining price of photovoltaic technology (solar panels) and, to a lesser extent, wind turbines, the idea of the ‘prosumer’ - developed in relation to ‘disruptive’ media and communications technologies, free software and 3D printing - has also become relevant to energy, since individuals now have the ability and means to produce energy as well as consume it. Individuals or community groups can sell excess energy that they have generated back to the grid or opt to go ‘off-grid’ entirely. In addition, going off-grid or being part of a small-scale energy network may have further benefits in terms of promoting energy localisation, resilience and sustainability, which may be of particular appeal to communities or individuals in remote areas living far from large population centres. Since these small-scale energy generation technologies usually involve the generation of renewable energy there are additional social benefits to this energy production in terms of contributing towards the reduction of carbon emissions and the promotion of clean and sustainable energy. The digitization of energy grids and smart meters, and the development of household battery storage cross-fertilise this decentralized micro-production of energy and enhance the ‘prosumer’ experience.However, the emergence of energy prosumers stands in stark contrast to the centralized model of energy production in developed economies, which forms the paradigm on which existing energy regulation is built. Yet prosumers in other areas of production, such as the Internet and 3D printing contexts, have also proved ‘disruptive’ to existing laws. Prosumers in the guise of ‘user’ are recognised to some extent by copyright law but other areas such as competition law have been less willing to acknowledge productive individuals. While the forthcoming net neutrality regulation might go some way to acknowledging and integrating prosumers into EU telecoms regulation the concept would still seem to be disruptive for other areas of existing utilities regulation. Energy would appear to be among these, experiencing only recently issues of decentralization which have characterized and transformed communications since the advent of digitization and the Internet’s widespread take-up. This paper will critically examine the development of energy prosumers and provide some initial reflections on their trajectory within current infrastructure regulation, and what might need to be changed to better accommodate them, particularly in the Australian context. The issue of renewable energy has become highly politicized in Australia, despite the country having some of the best natural resources for this kind of production. Yet Australia’s ‘tyranny of distance’ characterising many remote communities makes small-scale renewable energy production an even more resilient and attractive option for individuals and small communities. The paper will then identify some developing flashpoints for energy prosumers around issues such as: • consumer network charges; • disadvantageous energy pricing – both for household-produced electricity being sold to the grid and centrally produced electricity being bought from the grid by household producers;• attempts to stop household producers selling electricity back to the grid.In light of these flashpoints, some observations will be offered on energy prosumers’ trajectory under existing Australian regulation, and what insights this may offer to regulators in other jurisdictions, especially the EU, where similar ‘disruptive’ trends can be observed. Examples from other areas of infrastructure regulation, especially telecommunications where digital-led disruption has created prosumers, will also inform these observations.

Replicating Ruin: Printing Dangerous Objects

This chapter will consider the possibilities of using 3D printers to print dangerous or otherwise undesirable objects. Such objects lie along a spectrum of severity, from the printing of firearms and other weapons to the printing of objects which may pose mild product liability or health and safety concerns. The decentralised nature of production via 3D printing thus raises novel problems in this area, since in the previous era of mass production there have been certain ‘gatekeepers’ which regulate the production and circulation of these productions and accordingly can themselves be regulated, such that the products produced and transited adhere to certain standards, and that objects such as weapons are subject to strict controls regarding sale, possession, and use.