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Wednesday, January 2, 2013

Cyberlaw Predictions for 2013

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Year-end stories -- those that take stock of the prior year and those that offer predictions for the next -- are a staple in the news publishing business. Bloomberg BNA is no exception. Each year our reporters and editors go back over the prior year's output and attempt to identify which developments, among the thousands of cases and laws and other policy activity we wrote about, deserve to be singled out and discussed one more time. There is a lot of material to slog through.

The "taking stock" story is the easy one to write. The difficult story is the one that ventures plausible predictions about the future. Which pending judicial disputes will have a lasting impact? Which legal issues will see action in federal and state legislatures? This is the story our subscribers tell us they want to read and, contrary to what our marketing department might have told you, this is the story that produces tangible feelings of inadequacy, in myself certainly.

Over the past 18 years that I have edited BNA's Electronic Commerce & Law Report, we have published so many wrong predictions -- all based on remarks from legislators and very knowledgeable experts -- about imminent congressional action on cyberlaw topics that I almost can't publish them with a straight face any more.

the galaxy

Making predictions, particularly predictions about Congress, is tricky business. There is no privacy cliff or copyright or patent cliff, or domain name cliff, or CFAA cliff, to spur congressional action on cyberlaw problems. Matters some think are pressing may fester a long time before they gain a critical mass of attention on Capitol Hill. When it comes to predicting congressional behavior, the very best prediction is "all talk, no action." Actually, in Washington, "talk" is "action."

So this year we decided to farm out the predictions story to as many cyberlaw experts as we could identify, drawing from our subscriber lists, our advisory board, and our most-frequently consulted legal experts. We hoped that the sheer number of comments collected in this fashion would produce a critical mass of reliable predictions. We asked that the remarks be brief -- something along the lines of a Twitter "tweet" or an elevator pitch. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts responded, producing 307 separate assessments, predictions, or just plain complaints about any topic that fell under the general heading of cyberlaw.

Top 10 Cyberlaw Predictions for 2013

Here are the dominant areas of concern expressed by the contributors to our story, which the rigid rules of blogging require me to arrange in a "Top 10" format.

  1. Trademark owners must adjust their online brand protection strategies as ICANN's new top-level domains program goes live.
  2. Many governments will attempt to exert greater control over the internet despite (or because of) setbacks suffered at the 2012 World Conference on International Telecommunications.
  3.  The Federal Trade Commission--likely under new leadership and with several new key officials--will step up privacy enforcement activities, filling in the policy vacuum created by federal legislators' lack of agreement on the need for, or contours of, a baseline federal privacy regime.
  4.  For much the same reason, states will become more active in regulating online privacy and other online business issues.
  5. Innovators will continue to test the bounds of copyright law with new digital services that deliver creative content such as 2012's Aereo and Dish Network Hopper--resulting in increased copyright litigation.
  6.  The new Congress will renew efforts to write copyright enforcement legislation, notwithstanding the last Congress's inability to advance the controversial SOPA and PIPA measures.
  7.  Class action litigation involving data privacy, targeted advertising, and data breaches will grow.
  8. Businesses will face uncertain, and potentially enhanced, compliance burdens under the new data protection legislation in the European Union.
  9. Blurred lines between employees' use of social media, home and office computers, and mobile devices will result in more regulatory activity and litigation.
  10. The definition of "celebrity" will become increasingly unclear as technology and user-generated content advances, creating uncertainty under state right-of-publicity laws.

Starting today, I will publish most if not all of the comments we received in a series of blog posts. The entire story is already available to subscribers of Bloomberg BNA's Electronic Commerce & Law Report, published last week in some of our online editions and today in our print product.

(photo credit: smithsonian on flickr)

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