sou · GQB3112 · 2003-01-01 00:00:00 — The server is seen as an information-tap, where infor- mation flowing through the network can be drawn off. In some sense this is correct, since the information is in fact transmitted from one physical point to another through the physi- cal network in the form of electromagnetic impulses. The prob- lem is that this view sees distribution of information as distribu- tion of physical goods. In the case of physical distribution, an object is transported by physical persons and delivered to other physical persons. The transactions comprise distinct physical components: the object, the persons involved, and the place where the transaction takes place. The relations between the object, the persons and the place are self-evident and uncomplicated. The reason for this is that the transaction involves distinct, physical phenomena, such as human beings. In e-commerce the relations between the parties involved are less clear. The physical infrastructure, computers and cables, is as tangible as the physical infrastructure for distribution of goods. The information is in some sense in the networks, but it forms its own infrastructure, which does not follow the physical infrastructure. Information is not matter that can be pumped through the networks like oil being pumped through a pipeline. The server is not a warehouse where information is stored on a It would be more correct to say that if information is a good, then information is the warehouse as well as the transport workers. Information is the logical infrastructures equivalent of trains and railways, ships and the sea, balloons and the air. One possible strategy from the enforcement point of view is to trace the transaction back to the persons and companies in- volved, thereby bypassing the several middlemen and ambiguous constellations. The problem with that strategy is that it overlooks the specific character of e-commerce, that it blurs traditional structures and makes legal categories irrelevant. The risk is that the taxation will be alienated from the economic reality. You may solve one problem by finding a tax subject, but at the same time create a new one. The purpose of the international tax rules is to mirror the transaction and tax it where it takes place. By connecting taxation to traditional tax subjects, the opposite is ac- complished. The parts of the transaction where value is created are bypassed. 5 Conclusion – The need for a new approach As I have outlined, the discussion so far has been carried on mainly within the current legal framework. The main concern is how to enforce taxes in the digital environment. Some attention is given to the problems of application of traditional concepts to new phenomena. But there is anyone who questions the concepts or the fundamental principles of tax law. The problems I have outlined are of three kinds: N Enforcement problems. N Application problems. N Principal problems. The enforcement problems are obvious. These are the problems that have been most thoroughly analysed. They are also the prob- lems most urgently needing to be solved. The application prob- lems have also been recognised, and received their due share of attention. The principal problems, those concerning the funda- mental principles and assumptions of tax law, have not been thoroughly analysed. In fact they are not recognised as problems. I have tried to show that these problems are more alarming than the problems of enforcement and the problems of application, but that they tend to be overshadowed by these more easily grasped problems. This conservative approach may be justified from the point of view that one should not jump to conclusions. In the long run, however, it will not be tenable. The strain on traditional tax con- cepts will eventually result in the breakdown of the tax system. If we do not address the fundamental questions, but wait and see, we may wake up one day and find that the tax system has been so alienated from the economic and technological reality, that applying the rules is not just hard but downright impossible. The tax system will lose its legitimacy, which will benefit nobody. Such a breakdown could be avoided if the problems are rec- ognised as problems and included in discussions among legisla- tors. The questions that should be addressed include: N Can information be a relevant category in tax law? N If so, how can it be defined in a way that is adequate from a legal, as well as an economic, and technological perspective? N Should traditional taxation-principles be abandoned? N Should the tax system of the future be developed at a na- tional or an international level? N In what ways is the design of tax law dependent on other areas of law? Freedom of Speech and the New Media The value of free speech is like the value of freedom itself, it is independent of context – not just a legal order we find suitable for a limited number of purposes. We have no problem identify- ing purposes, however. A huge majority can agree that free speech is necessary for a people democracy, for a soci- ety where every citizen who wants to improve the world around them and be heard on important public issues can participate in public life with freedom and the right to act on their sense of public responsibility, as , founder of E-Democracy in , exhaustively puts it.1 In such a society, only democratically supervised authorities – national, regional or local – are allowed to use coercion. Legal provisions safeguarding free speech, then, focus on the protection of citizens against authorities using coercion to silence or unduly influence the speech of individuals, organisations or the press. Protection for free speech is protection against the state. If one citizen tries to limit or suppress the speech of another, this is usually dealt with through criminal law. Threatening be- haviour is penalised in most settings, as are unlawful detention, theft or destruction of manuscripts, recordings, technical equip- ment etc – and basically all other ways of preventing someone from speaking or publishing. Thats the theory. For more than 200 years, it has served and other democratic societies well. Certainly, speech has been suppressed many times, in many places – and still is – but suppression has never become broadly accepted. Even the most benevolent state must present strong motives, and have its actions critically monitored, to be allowed to disturb the free flow of information. . is a freelance author and journalist who has written numerous works on issues of fundamental rights and freedoms in the IT so- ciety, among them books on e-voting and electronic democracy. He is also involved in research activities with partners such as (). I will now argue that this model for the protection of speech needs rethinking, or at least supplementing. There are two rea- sons for this. The Internet has emerged as an important mass me- dium for which no nation, body or institution is responsible. Some of its qualities – being interactive and multijurisdictional – have caused much legal and political confusion. Special interest- lobbyists, not least the ones working for intellectual property- holders, have been extremely successful at the expense of ordi- nary citizens. (For an in-depth analysis of how and why this is happening in the US, see book Digital Copy- right. If the Internet today can be char- acterised as free, this describes qualities inherent in the techno- logical design rather than a legally defined order. There is virtu- ally nothing given about this technological structure. In fact it is continually redesigned – under pressure from security and busi- ness interests. Yesterday the largest multinational corporations could use their lobbyists, lawyers and media consultants to strongly influence the media. Today they are the media. Com- mercial and technological strategies – they can be sepa- rated – of companies like AOL/Time , Microsoft, and , will affect the very structure and qualities of the arena where citizens are supposed to speak out and do politics. There is nothing particularly Swedish about these issues. We have, however, a strong press freedom tradition and constitu- tional free speech guarantees since 1766. Swedes may therefore be particularly sensitive to emerging legal and technological structures that tend to undermine free speech guarantees. So far, though, and this may also stem from tradition, our focus has been on national legislation and protection only from the state. The in- ternationalisation of free speech issues is rarely discussed. There- fore, a number of the references here will be to literature and conditions in the US, where societal, media-related trends often appear some time before they are visible in Europe. 2 The power of money The problem is as old as society itself: with money comes power. In the information society, the source of power is, to a large ex- tent, the control of information. If a company is big enough somewhere along the chain of production-distribution-sale of media-products, its decisions will undoubtedly affect how reach- able – from a practical point of view – some speech will be and how invisible other. In the US, the possibility of being exposed in major stores depends on whether your magazine or video production is, or looks to be, within the boundaries of family values – not ex- plicitly sexy, not politically provocative, etc. Companies like , , and most other supermarket chains in the US have, claims in her book No Logo, a policy refusing to carry any material that could threaten their image as a retail destination for the whole family. In , the dominating media company is . It owns not only many newspapers and magazines but also (to- gether with and , two large competitors) Tidsam, a company with a de-facto monopoly of the distribution of papers and magazines to kiosks, department stores and other important outlets. Tidsam has, not surprisingly, been heavily criticised for favouring the products of its owners over independent papers and magazines, thus refusing the latter access to the market.2 Then there is what calls censorship in synergy. The huge media corporations systematically exploit cultural artefacts (be it , Pokemon or ) from their introduc- tion to a myriad follow-up products (films, books, computer games, collectors items, T-shirts, etc) carrying the names, logos or symbols. Furthermore, the media giants also own the papers and magazines whose journalists are supposed to report, critically and independently, on the cultural sphere where , Pokemon and appear. Although many editors may try to defend the integrity of their staff, it is naive to think that a major media corporation would, in the long run, allow one com- pany within the group to seriously criticise or otherwise hurt a product in which another has invested heavily. There is also the commercially motivated political suppres- sion of speech. Strategies applied by media companies eager to enter the Chinese market offer clear examples of this. (, pp. 168-174) The commercial logic is quite clear. Why would a businessman like risk a multibillion-dollar satel- lite communication contract with by having one of his me- dia companies doing the kind of journalism that is likely to anger Chinese leaders? stresses that most of the damage is done by self-censorship – by editors and producers second-guessing, everywhere and all the time, the wishes of top executives, and in doing so having every reason to steer clear of the commercially and politically controversial. , När ska du ta ditt ansvar? One aggressive strategy applied by many powerful companies is harassment of critics – under the cloak of copyright and trade- mark protection. The continuous strengthening of intellectual property laws, aimed primarily at regulating the Internet, is, ac- cording to law professor , a growing problem from the free speech perspective.3 One of his examples is the notice and take down provision for web sites of the US 1998 Digital Millennium Copyright Act (DMCA). Increasingly, according to Lessig, companies trying to protect themselves from criticism have used the notice-and-take- down-provision to silence critics. He tells the story of a British pharmaceutical company that got tired of complaints from an animal rights organisation. In 2001 the company invoked the DMCA in order to force the company providing the Internet connection (the ISP) to shut down the animal-rights site. The ISP stated publicly that Its very clear [the British company] just wants to shut them up. It had no incentive to resist the claims, however – it could be liable if in fact there was a violation – and thus closed the site. (Lessig also tells the story in Foreign Affairs, November-December-issue 2001, but chooses, both in the maga- zine article and in the interview, not to name the British pharma- ceutical company.) has an Electronic Bulletin Boards Liability Act (1998:112) with similar provisions. So far, there has been no re- port of efforts to use it to silence critics, but as long as an ISP can be made responsible for what publish, the risk is obvi- ously there. 3 Free speech and privacy In Code and Other Laws of Cyberspace, a book that has at- tracted much attention, Lessig stresses that the Internet is in many ways more effectively regulated by computer code than by law. Although a number of, to most people, unknown Internet organisations with names like ISOC, ICANN, IAB, IETF and W3C work – or so they claim – to promote safety, openness and maximised accessibility on the net, there is no democratic struc- ture or constitution for the technical development of the Inter- net. This development, then, takes place very much under pres- Personal interview with Lessig , at , He expands on the subject, and provides more practical exam- ples, in his latest book: The Future of Ideas, : 2001. sure from powerful political and commercial actors who feels no responsibility for the promotion of free speech. The issue of free speech and Internet code is immensely complex. It involves exercising power over speech both directly and indirectly. Indirectly in this context relates to identification as deterrent. Citizens are likely to abstain not only from speaking but from seeking/receiving/forwarding controversial information on the net if whatever they do will be registered and possibly monitored by others. As demonstrated by , this is a problem not just for citizens with extreme or unusual convictions. Using cookies, online donation forms and political lists, campaigns can tremendous amounts of information about citizens political preferences. The creation and sale of detailed voter profiles raises one of several serious questions about the fu- ture of political privacy and the democratic process.4 Filtering is but one aspect of the broader problem of speech regulation through code, highlighted here because it usefully demonstrates how private institutions can suppress speech. Filtering is automatic blocking of information. It can be done at the PC level, allowing the individual Internet-user to avoid having some particularly nasty (pornographic or otherwise offensive) material downloaded. It can also, however, be done at a higher (server/router) level in a way that leaves the individual with no way of understanding or controlling the functions of the filter. Filtering-software can operate in different ways, but today it seems unrealistic to achieve precise filtering – blocking what is intended and nothing else – without precise rating (classification) of Internet content. The questions of how to rate and who should do the rating are still unresolved among filtering supporters, but the demand for solutions is strong in both Europe and the US. The EU Commission, to mention just one important actor, has a Safer Internet Action Plan with a budget of . As one of three action lines it has Developing filtering and rating , Political Privacy and Online Politics: How E- Campaigning Threatens Voter Privacy. systems, facilitation of international agreement on rating sys- tems. (underlined in the original).5 The general problem with rating is that even though a sys- tem may have been created for the most noble purposes – i.e. protecting children from hardcore-pornography – there is no way of assuring that it wont be used for others. The more precisely communicated Internet-content is classified, the easier it will be for authoritarian states (or ISPs whose owners care more about lucrative contracts with those states than free speech-principles) to filter unwanted content in servers at jurisdictional borders. It may also, in the US and Europe, be a commercially sound policy for ISPs to block, in the name of political responsibility or decency, Internet-speech that is legal but offensive to a major- ity of . In a perfect world, a sufficient majority of nations would agree on an international free speech-convention for the IT-era, with technical as well as legal provisions, and enforcement mecha- nisms effectively blocking attempts by both states and private sector-actors to unreasonably limit or influence citizens speech. In that world, media companies that did not safeguard the integ- rity of its journalists and other content-producers would see its turn elsewhere for fair and balanced information. Our world is far from perfect, however. At present, we seem to have a choice between the devil and the deep blue sea. EITHER no regulating of any importance is done on the international level to safeguard free speech, which would leave the arena open for governmental agencies, multinational corpora- tions and resourceful special-interest groups to control or block mass media content in their own interest. OR some kind of regulation is negotiated, where the nature of international politics is likely to cause the agreement to be, not a free-speech guarantee but rather the opposite. No international body will be able to reach consensus about free speech – except concerning trivialities – because in all nations there is some speech which is considered unacceptable. All the representatives in such negotiations will demand exceptions which are necessary in order to get the agreement approved by their parliaments or, in 5 /index_en.htm less democratic states, politically dominant forces. How much free speech the world needs will obviously be, at best, a secon- dary issue. Thus, to successfully negotiate an international free speech-agreement, it would have to contain or at least allow for restrictions on pornography, defamation, hate-speech, instigation to terrorism or other criminal acts, sharing of copyright-protected works, denying of the holocaust, communist propaganda, anti- Christianity, anti-Islam and anti-anything that some influential portion of a people consider sacred. The devil or the deep blue sea? I opt for the deep blue sea. My argument for an international free-speech treaty is that it would, after all, make the issues visi- ble to ordinary citizens in many countries. As long as the prob- lems are not discussed publicly, the actors manoeuvring to limit and control speech can fight with far fewer scruples. Before the /MP3 controversy, citizens of the US did not know they had a copyright problem. Because of the publicity, people opposing the new, strongly control-oriented copyright legislation could suddenly be heard, loud and clear. The more citizens who understand that they are stakeholders in such a con- flict, the more likely that a legislative process will result in a bal- anced and reasonably fair law. IF free speech is put on the international agenda – within the United Nations or elsewhere – and IF journalists manage to cover the issues, then it is more likely that a treaty will come to include at least some decent provisions. Even a thoroughly bad treaty, however, would put the issues on the table. A treaty would in it- self confirm that international decision-making is necessary, and when the practical consequences of a bad treaty became apparent, it would get increasingly difficult for leaders in Europe and North to avoid responsibility. Im sure that most hackers will disagree with me. They seem to instinctively oppose regulation and prefer to fight it out on a technological level, confident that they, in co-operation, will have the upper hand in an arms race against the forces of control. That may be true. Hackers will keep cutting fences in cyber- space, hack access-control systems and circumvent new, yet to be invented, technological defence mechanisms. They will more of- ten than not be able to speak, find and share information – but the 98 per cent or so of Internet-users lacking their skills will not. And free speech for two per cent is insufficient. Self-employed – The Problem of Societal Development and Adequate Legal Concepts 1 or employed? Within the IT , several hearings have taken place over the years discussing the phenomenon of self- employed. The main focus of these hearings has been the ques- tion of whether a separate legal institution is needed for this cate- gory of workers. From a practical point of view there are two dif- ferent kinds of self-employed: those who are self-employed of their own volition and those who have self-employment more or less forced upon them. The first group consists of the strategic persons that companies want to hire. These people can choose their own jobs. The work of the other group is less central jobs that companies try to get rid of by placing a contract for them, so-called outsourcing. Most of the discussions have been about self-employed in this second case. The focus is on the need for protection of this more or less vulnerable group. An aspect which has not been discussed all that much is the relation between self- employed and the new information society. Is there a need for a legal institution covering the self-employed for the sake of stimu- lating the new economic structures? We are said to be moving from a hierarchically organised society to a horizontal network-society.1 The majority of the la- bour force in the advanced economies is under salaried condi- tions. But the diversity of the levels, the unevenness of the proc- ess, and the reversal of the trend in some cases call for a differen- tial view of the patterns of evolution of the occupational struc- ture. When networking and flexibility become characteristic of the new economic organisation, and as new technologies make it possible for small business to find market niches, we witness a resurgence of self-employment. The occupational profile of the information society will be far more diverse compared to the in- dustrial society. The data show a growing proportion of the la- is a member of the IT . tion in 1. , The of the , : Blackwell . 1996/2000. bour force tending to leave salaried status in most countries be- tween 1983 and 1993. Different data sources seem to indicate an accentuation of this trend in the late 1990s.2 The trend was par- ticularly intense in , with approximately of the labour force, and in the UK. It appears that economies in various coun- tries try different forms of flexibility in working arrangements, depending on their labour legislation, social security, and tax sys- tems. The new system is people working for themselves. In the 33 million people make their living as free agents today.3 Thus, one American worker in four is already a free agent. There are different work values behind this development, such as hav- ing freedom, being authentic, i.e. doing your own job, putting yourself on the line and defining your own success. Instead of up-and-down loyalty, free agents practise a new side-to-side loy- alty. Seen from an economic point of view, free agency is, in ef- fect, a form of just-in-time staffing, where companies are hiring the exact number of people they need for a project or job.