POLITICS & ECONOMICS
TRUTH
Max Stul Oppenheimer1Professor, University of Baltimore School of Law; B.S., Princeton University; J.D., Harvard Law School.
The internet has spawned two major policy debates: the extent and control of protection of personal data privacy, and the impact and control of interference in public policy, most notably elections. On the one hand, there is a concern that social media privacy controls are deficient and that personal data is being shared without informed consent, while the increased speed and reduced costs of data processing has enabled aggregating fragments of personal information into detailed personal dossiers. On the other hand, there is a concern that lack of information about sources of information in social media fosters propagation of false information that can influence elections.
SECURITIES & FINANCIAL REGULATION
RULES FOR PRINCIPLES AND PRINCIPLES FOR RULES: TOOLS FOR CRAFTING SOUND FINANCIAL REGULATION
Heath P. Tarbert2Chairman and Chief Executive, Commodity Futures Trading Commission. The opinions, analyses, and conclusions expressed in this Article are mine and do not necessarily reflect the views of other Commissioners or the Commission itself.
The fundamental objective for any government agency overseeing financial markets and institutions should be sound regulation. And how we regulate is just as important as what we regulate. Every major financial regulator in the world employs, to varying degrees, two primary methods of regulation: principles-based and rules-based. In this article, I discuss the key advantages of each of these forms of regulation. I also offer some considerations for determining when a principles-based, a rules-based, or hybrid approach to regulation is the most appropriate. That is to say, I outline a number of “rules for principles” and “principles for rules” for achieving sound regulation. Finally, I consider some real-world applications of this framework as applied to our modern and increasingly digital markets.
HUMAN RIGHTS & LABOR • ENVIRONMENTAL, SOCIAL, & GOVERNANCE
HUMAN RIGHTS RHETORIC IN GLOBAL INTERNET GOVERNANCE: NEW ICANN BYLAW ON HUMAN RIGHTS
Monika Zalnieriute3Fellow and Lead of “Technologies and Rule of Law” Research Stream, Allens Hub for Technology, Law and Innovation, Faculty of Law, UNSW Sydney, Australia. Justine Nolan, Nicolas Suzor, Angela Daly, Robin Gross, Stephanie Perrin, Felicity Bell and Leah Grolman for their insightful comments on earlier drafts. I am also grateful to ICANN’s Non-Commercial Users Constiuency, in particular Milton Mueller, Farzaneh Badiei, Collin Kurre, Stefania Milan, Niels ten Oever, Vidushi Marda, Aarti Bhavana, Kathy Kleiman and Konstantinos Komaitis, who have worked hard to advocate and promote human rights at ICANN.
As part of a significant institutional reform in global governance of the Internet, the Internet Corporation for Assigned Names and Numbers (“ICANN”)—an internationally organised multi-stakeholder body that secures the operation of the Domain Name System (“DNS”) globally—has recently included a “Core Value” of “respect for internationally recognised human rights” in its Bylaws. Since the DNS is integral for navigating and browsing the Internet, policies governing its operation have enormous human rights implications at the global level. After more than three years of multi-stakeholder deliberations over the appropriate Framework of Interpretation (FOI) for the new Core Value, ICANN Board has finally approved it in November 2019, taking one crucial step forward towards the implementation of its newly pronounced human rights aspirations. This article critically examines ICANN’s latest human rights rhetoric and argues that the new aspirations in the Bylaws are drafted in a way that they carry little, if any, legal weight. I will further show that the new aspirations in the Bylaws are much weaker than the quasi-constitutional, self-imposed commitments in ICANN’s founding documents—the Articles of Incorporation. ICANN has proved to be reluctant to comply with those self-imposed commitments in the past; and I argue that it is, therefore, unlikely to convert its novel human rights rhetoric into practice. This raises questions about the extent of its commitment to human rights values, and whether the new Core Value amounts to little more than a veneer intended to bolster ICANN’s public image and confidence in light of the ongoing institutional reforms in Internet Governance.
TECHNOLOGY & INNOVATION • BANKING
THE DEMOCRATIC DIGITAL DOLLAR: A DIGITAL SAVINGS & PAYMENTS PLATFORM FOR FULLY INCLUSIVE STATE, LOCAL, AND NATIONAL MONEY & BANKING SYSTEMS
Robert Hockett4† Edward Cornell Professor of Law and Finance, Cornell Law School; Visiting Professor of Finance, Georgetown McDonough School of Business; Senior Counsel, Westwood Capital, LLC; Co-Founding Director, Digital Fiat Currency Institute; Board Member, Public Banking Institute. The author has drafted legislation that would institute a version of the plan here discussed in the State of New York. This legislation has now been proposed by Assemblyman Ron Kim in the New York State Assembly and Senator Julia Salazar in the New York State Senate. See Empire State Inclusive Value Ledger Establishment & Administration Act, H.R. 8686, 2019 Assemb. Reg. Sess. 2019-2020. (N.Y. 2019), https://assembly.state.ny.us/leg/?default_fld=&bn=A08686&term=2019&Summary=Y&Actions=Y&Text= Y&Committee%26nbspVotes=Y&Floor%26nbspVotes=Y.
Many national and subnational units of government see a need for more inclusive money, payment, and retail banking systems for the capture, storage, and transfer of spendable value among their constituents. Existing and still proliferating payments platforms, most provided by for-profit private sector entities, exclude too many people, and extract too much value in the form of needless transaction charges and other rents, to be up to the task of efficiently affording this essential commercial and financial utility to the full public on sensible terms. This Article sketches a smart-device-accessible platform— the ‘Digital Dollar Platform Plan’—which, thanks to new payment technologies, can easily be put in to place and administered by any unit or level of government with a view to supplying this critical commercial and financial infrastructure to all of its constituents.
CORPORATE LAW & GOVERNANCE • TECHNOLOGY & INNOVATION
HUMAN LEADERSHIP IN A HIGHLY REGULATED AND TECH-RELIANT CORPORATE ENVIRONMENT
Timo Matthias Spitzer, LL.M. (Wellington)5Board Member and Adjunct Professor at the Institute for Law and Finance, Goethe University Frankfurt. The author would like to thank his team, in particular Cedric Liesens, Kajetan Sitko and Lukasz Lorent, as well as Julia Bayón Pedraza for being a role model and true leader. Kudos to the Association of Corporate Counsel, the International Bar Association and The Legal 500 for providing a forum for the global legal in-house community.
We are living in times of drastic change and global legal, economic, and political turmoil, hoping for the best but expecting the worst. A focus on the shareholder may drive managers toward profit maximization, often with limited incentives to include environmental, governance, and social factors into corporate decisions. Crises show the need for human leadership with integrity to realign companies with stakeholders besides the shareholder, including the wider society.
POLITICS & ECONOMICS • TECHNOLOGY & INNOVATION
CYBERSECURITY PROVISIONS IN TRADE AGREEMENTS: THE STATE OF THE ART
Chimène I. Keitner & Harry L. Clark
Virtually without exception, conducting business across borders today means being connected to the Internet. The U.S.-Mexico-Canada Trade Agreement (USMCA), which is awaiting implementation by Congress, would become the first operative United States free trade agreement to include a chapter devoted to “digital trade.”6Office of the U.S. Trade Representative, Agreement between the United States of America, the United Mexican States, and Canada, Nov. 30, 2018; see Roy Blunt, USMCA: Where Things Stand, Senate Republican Pol’y Comm. (Mar. 26, 2019), https://www.rpc.senate.gov/policy-papers/usmca-where-things-stand. The USMCA provisions on digital trade build on the electronic commerce chapter in the Trans-Pacific Partnership (TPP, now CPTPP)—a multilateral trade agreement that the Obama Administration negotiated, but the Trump Administration rejected.7See, e.g., Anupam Chander, The Coming North American Digital Trade Zone, Council on Foreign Rel. (Oct. 8, 2018), https://www.cfr.org/blog/coming-north-american-digital-trade-zone (observing that “the TPP is dead, long live the TPP”). As the United States continues to negotiate the conditions for its bilateral trade relationships, cybersecurity concerns are likely to feature in the discussions.