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This work is protected by copyright and other intellectual property rights and duplication or sale of all or part is not permitted, except that material may be duplicated by you for research, private study, criticism/review or educational purposes. Electronic or print copies are for your own personal, non- commercial use and shall not be passed to any other individual. No quotation may be published without proper acknowledgement. For any other use, or to quote extensively from the work, permission must be obtained from the copyright holder/s. ‘Lowering your standards’?: assessing the procedural legitimacy of the World Wide Web Consortium (W3C) Scott Mason Ph.D. Politics and International Relations June 2019 Keele University Abstract Today technical web standards have become one of the most important mechanisms of internet governance, impinging on a wide range of areas of public policy from privacy and to freedom of speech. Despite their importance, however, the processes through which web standards are developed are not well understood, and to date, very little empirical research has been conducted to examine the procedural legitimacy of web standards consortia. To address this gap in the literature, this thesis develops and applies an analytical framework inspired by deliberative democratic theory to assess the procedural legitimacy of the World Wide Web Consortium in the context of its development of the highly controversial Encrypted Media Extension specification. In doing so, the thesis argues that the W3C is characterised by a lack of procedural legitimacy. Specifically, it will be shown how the framing of the W3C as a purely coordinative and technical organisation acted to marginalise principle based objections to the EME proposal and undermine participant’s attempts to engage fully with the public policy questions raised by the specification. The thesis also raises concerns about the consortium’s diversity and outlines several practical recommendations for how the procedural deficits identified by the research might be addressed. i Table of contents List of table and figures…………………………………………………………………………........ iii List of abbreviations………………………………………………………………………………...... iv Introduction……………………………………………………………………………………………. 1 1. “Code is Law”: Standards as technologies of internet governance………………………… 13 2. “Rough consensus and running code”: Conceptualising the legitimacy of web standards consortia…………………………………………………………………………………………… 37 3. Analytical Framework……………………………………………….…………………………….. 74 4. Methodology………………………………………………………………………………............. 109 5. World Wide Web Consortium (W3C)……………………………………………………………. 146 6. Case Study: Encrypted Media Extensions……………………………………………………… 166 Conclusion……………………………………………………………………………………............. 240 Annex A: List of key words………………………………………………………………………….. 250 Bibliography…………………………………………………………………………………………… 253 ii List of tables and figures Figure 1.1 Layer model of internet governance…………………………………………….. 21 Table 3.1 Indicators of deliberative procedural legitimacy………………………….…….. 78 Figure 3.1 Analytical framework……………………………………………………..……….. 80 Figure 4.1 Summary of the methodology……………………………………………………. 116 Figure 4.2 A visualisation of the sampled web corpus…………………………………… 120 Figure 4.3 Example of mailing list message structure……………………………………… 136 Table 4.1 Summary of classifications and attributes for mailing list messages………… 143 Table 4.2 Summary coding scheme for mailing list messages…………………………... 144 Table 4.3 Summary of data analysis………………………………………………………... 145 Figure 5.1 Summary of the W3C standards development process………………………. 159 Figure 6.1 Posters produced by the FSF as part of their campaign against EME……… 190 Figure 6.2 Timeline of EME’s development…………………………………………………. 192 Figure 6.3 Scenes from demonstration against EME, March 2016………………………. 195 Figure 6.4 W3C Members by stakeholder group, 2016……………………………………. 200 Figure 6.5 W3C member list analysis by region, 2016…………………………………..… 202 Figure 6.6 Mailing list participants by gender……………………………………………….. 204 Figure 6.7 Mailing list participants by region………………………………………………... 205 Figure 6.8 Mailing list participants by stakeholder group………………………………….. 206 Figure 6.9 Discursive inclusion by issue node……………………………………………… 208 Figure 6.10 Constructiveness by issue node…………………………………………………. 212 Figure 6.11 Deliberativeness by issue node………………………………………………….. 221 Figure 6.12 Respect by issue node……………………………………………………………. 227 Figure 6.13 Post to the W3Cmemes Tumblr page ………………………………………….. 229 Figure 6.14 Justification by issue node………………………………………….................... 231 iii List of abbreviations API Application Programming Interface APA WG Accessibility Platform Architecture Working Group CDA Communications Decency Act CDM Content Decryption Module CDT Centre for Democracy and Technology CEN European Committee for Standardisation Cfc Call for Consensus CSS Cascading Style Sheet DMCA Digital Millennium Copyright Act DQI Deliberative Quality Index DRM Digital Rights Management EFF Electronic Frontier Foundation EME Encrypted Media Extensions EU European Union FOSS Free and Open Software Movement FPWD First Public Working Group FSF Free Software Foundation HTML HyperText Markup Language IAB Internet Architecture Board ICANN The Internet Corporation for Assigned Names and Numbers ICCPR International Covenant on Civil and Political Rights IEEE Institute for Electrical and Electronics Engineers IETF Internet Engineering Task Force IGF Internet Governance Forum IMF International Monetary Fund IRTF Internet Research Task Force ISO International Standards Organisation ISOC Internet Society ITU International Telecommunication Union MAUR Media Accessibility User Requirement MPAA Motion Picture Association of America MPTF Media Pipeline Task Force MPTF Media Pipeline Task Force NSF National Science Foundation OSI Open System Interconnection P3P Privacy Preference Project PING Privacy Interest Group RFC Request for Comments iv RIAA Recording Industry Association of America SCOT Social Construction of Technology SDO Standards Development Organisation SSK Sociology of Scientific Knowledge STS Science and Technology Studies TAG Technical Architecture Group TCP/IP Transmission Control Protocol/Internet Protocol TPWG Tracking Protection Working Group UDHR Universal Declaration of Human Rights W3C World Wide Web Consortium WIA Web Accessibility Initiative WIPO World Intellectual Property Organisation WTO World Trade Organisation v Introduction How the code regulates, who the code writers are, and who controls the code writers—these are the questions on which any practice of justice must focus in the age of cyberspace. The answers reveal how cyberspace is regulated. Lawrence Lessig (2009, p. 182) Choice manifests itself in society in small increments and moment-to-moment decisions as well as in loud dramatic struggles… [H]e who does not see choice in the development of the machine merely betrays incapacity to observe cumulative effects until they are bunched together so closely that they seem completely external and impersonal." Lewis Mumford (1934, p. 6) Today standards are ubiquitous to almost all aspects of modern life. From railway gauges and AC power to plugs and MP3s, standards provide technicians and engineers with the technical blueprints required to ensure interoperability and compatibility between heterogeneous technological products, generating economies of scale and achieving the kinds of efficiencies necessary to produce sustained economic growth. Though commonly perceived as a mundane and esoteric aspect of global governance, the ways in which standards are designed and implemented, play a critical role in the modern economy, enabling the integration of large-scale technical systems, and facilitating the development and maintenance of increasingly complex networks of socio-economic activity (Bowker & Starr, 2000; Hanseth & Monteiro, 1998). Nowhere is the role of standards more evident than on the web 1. Whether users are aware of it or not, even the simplest of online tasks, such as sending an email, watching a video on YouTube or making a purchase on Amazon, involves engagement with myriad 1 A note on terminology: This thesis uses the term “standard” synonymously with “protocol”. Protocols are usually used to refer to a subset of standards which deal principally with networking. “Specification” and “recommendation” are other terms used to refer to standards at the W3C. 1 technical standards and protocols. Some like Wi-Fi, enable devices to connect to the internet, others such as HTML and CSS pertain to the structure and appearance of web pages, while standards such as TCP/IP facilitate the exchange of data packages across the network. Regardless of their specific application, all web standards ultimately seek to provide a common set of rules by which software and hardware developers can build open and accessible systems, ensuring the interoperability of devices and providing common platforms for the exchange of information (DeNardis, 2011). Simply put, web standards are the technological artefacts that enable two users on opposite sides of the world, using devices produced by different manufacturers, and running different types of software and operating systems to communicate and share information. Standards are as such, a fundamental component of the web’s technical infrastructure, without which the notion of the web as a decentralised global information network, open and accessible to all, would be simply inconceivable. In addition