IP: CPT notes from OECD E-Commerce Conference in Ottawa

[Dave Farber <farber () cis upenn edu>]

From: James Love <love () cptech org>

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Info-Policy-Notes | News from Consumer Project on Technology 
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October 19, 1998


          Notes from the OECD October 7-9, 1998
        Ministerial Meeting on Electronic Commerce
                at Ottawa, Ontario, Canada

                     October 9, 1998
               James Love love () cptech org
             Consumer Project on Technology
                 http://www.cptech.org/

     Ottawa, October 9, 1998 -- The following are personal notes
and observations from the OECD Ministerial Conference on
Electronic Commerce that was held from October 7-9 in Ottawa,
Ontario, Canada.
                                                  
     OECD is short for the Organization for Economic Cooperation
and Development (called the OCDE in French).  The OECD has its
roots in the Organization for European Economic Co-operation
(OEEC), which administered U.S. aid to Europe under the Marshall
plan.  In 1961 the OECD was formed by 20 European and North
American countries.  Nine countries have since joined the OECD.
Today the OECD has a somewhat diverse membership, including some
developing countries such as Korea, Mexico and Hungary, but it is
still largely known as a club for rich countries.

     The OECD Ministerial meeting on electronic commerce was a
very high level event, with top trade and industry officials from
Japan, the United States and several other countries present,
plus presentations made by the heads of the World Trade
Organization (WTO), the World Intellectual Property Organization
(WIPO), the United Nations Commission on International Trade Law
(UNCITRAL) and several other national and international bodies.

     In addition to the government representatives, there were
several speakers from business and non-government organizations
(NGO), and there were "parallel" sessions at which businesses and
NGOs made recommendations.


     THE CORE ISSUES

     The OECD meeting is one of several events unfolding that
will define new forms of governance for the Internet.  This
concerns profound issues.  Internet commerce is global, and hence
our entire framework for speech, commerce, censorship, and
communications are being thrust into an environment where
national laws are, some say, no more than a local ordinance on
the information superhighway.
                                                       
     Moreover, the early debate is far broader than issues
regarding harmonization of laws or coordination of enforcement.
It is more than the debate to determine if traditional government
roles in protecting consumers will be abandoned.  It is also a
debate about whether or not governance itself will be privatized,
and whether democratic traditions can survive in cyberspace.

     These issues are being raised in a number of topic areas.

One such topic is privacy protection, and there was much focus on
the showdown over the EU's directive "concerning the processing
of personal data and the protection of privacy in the
telecommunications sector," which is supposed to curtail
transborder data flows with countries that do not protect
personal private at sufficient levels.
(http://www2.echo.lu/legal/en/dataprot/protection.html). There
was also the brave new world presented by White House aide Ira
Magaziner, that is a "deregulated system in which the corporate
world sets the rules and provides the enforcement" on privacy,
consumer protection, governance of domain names and IP addresses,
and many other topics. [see below].

     
     GETTING INTO THE MEETINGS

     You could only attend the sessions of the meetings if you
were a member of a national delegation or if you had some type of
an invitation from the OECD.  The official U.S. delegation was
quite large, officially listed as 63 members, and included many
non-government members, including representives from Microsoft,
Disney, AT&T, EDS, MCI/Worldcom, UPS, Hewlett Packard, Oracle,
Bechtel, and a large number of trade associations.
                                             
     Small businesses were largely invisible in the U.S.
delegation.  For example, while the U.S. Government (USG)
sponsored representatives from Canadian owned West Publishing,
British and Dutch owned Lexis-Nexis, two publishing giants that
dominate U.S. legal publishing, there was no one from the
American Association of Legal Publishers, a trade association
made up of U.S.-owned small businesses that are challenging the
"Wexis" cartel.  Meanwhile, the OECD gave Nigel Stapleton, the
Chairman of Reed-Elsevier (owner of Lexis/Nexis) an opportunity
to address the first plenary session to pitch the controversial
database protection legislation that would further entrench the
West/Lexis cartel.  (See http://www.cptech.org/ip/database/)

     The business funded Center for Democracy and Technology
(CDT) was a member of the U.S. delegation, but no American
consumer or privacy groups were.

     The Internet Law and Policy Forum (ILPF), which is 
sponsored by a few dozen large corporations
(http://www.ilpf.org/sponsors.htm), appeared to have its own
status to credential delegates, and had at least 5 participants
in the meetings, including Stephen Balkam, the President of the
Recreational Software Advisory Council (RSAC), a content rating
agency that was often touted during the meetings.

     I was never contacted by the U.S. government about the
meetings, but was invited to participate as a member of the Trade
Union Advisory Council (TUAC) delegation, after Roland Schneider,
a German economist working in the Paris TUAC office, ran across
the CPT web page (http://www.cptech.org/). Other TUAC
representatives included Louise Sylvan, the head of the
Australian Consumers Association and Vice President of Consumers
International, and several trade union officials.  Jim Murray,
the Director of the European Consumers Organization and one of
the leaders of the newly formed Trans Atlantic Consumer Dialog
was an OECD invited speaker.  Marc Rotenberg from the privacy
group EPIC was credentialed as an invited speaker, but EPIC's
David Banisar, an internationally recognized expert on privacy
laws, had to spend the two days borrowing ID tags to attend
meetings.


     CONFERENCE MATERIALS

     When participants arrived, we were given a name tag that
hung around our necks on a ribbon that said "EDS*OECD/OCDE `98".
(Marc Rotenberg asked EDS whether this indicated a merger, and
was told that "no, it was an acquisition.")  Our documents were
in a nice briefcase that had a large white IBM logo.  The back
cover of the "Official Agenda" was filled with logos from 19
corporate sponsors, and this pretty much set the tone for the
meetings, which were heavily dominated by commercial interests.
                                                            
     The two major substantive documents passed out were an OECD
staff briefing, the 60-page "Documentation for Participants," and
a 65-page "A Global Action Plan for Electronic Commerce prepared
by Business with Recommendations for Government."  The OECD staff
"Documentation for Participants" devoted five pages to "consumer
protection in the electronic marketplace," including a single
paragraph on "the role of government," which said in part,

     Disparate national policies may impede the growth on
     electronic commerce and, as with many other issues in
     the electronic marketplace, consumer protection can be
     addressed most effectively through international
     consultation and co-operation.

     Elsewhere in the document there was much endorsement of
business self-regulatory plans, including the statement that
"Governments also have an ongoing role in enforcing laws to back
up self-regulatory plans where a business that claims to comply
with the private sector standards fail to do so."  So apparently
the private sector can decide what the consumer protection rules
should be, and government can make sure they are enforced, which
must seem like a good solution to the Chamber of Commerce.
Number of concrete proposals to harmonize consumer protection
laws: zero.
               
     The OECD's "Documentation for Participants" included include
three pages on "protection of privacy," much of which is an
explanation of different approaches that might be followed.
There is a call for governments to "work with the private sector
to develop criteria for effective privacy protection which the
private sector can implement through self-regulatory codes," but
also a recognition that governments can still enact "privacy
legislation," and enforce laws in this area.  But generally,
pretty thin stuff, and there was no plan whatsoever to deal with
cross border privacy issues.

     The Business "Global Action Plan" was more specific in terms
of its recommendations.  On the issues of "Consumer Empowerment/
Marketing and Advertising Ethics," offered these words:
     
     The international legal community has only just started
     reviewing the many complex issues surrounding
     applicable law and jurisdiction in cyberspace.  Any
     premature regulation mandating the law and forum of the
     country of destination for consumer transactions would
     seriously undermine the growth of electronic commerce,
     as compliance would be overly burdensome for all
     businesses and practically impossible for small and
     medium-sized enterprises. ...

     In the borderless global environment of the Internet,
     internationally incompatible national laws on
     advertising and promotions seriously impede cross
     border sales.

     Governments should support self-regulation for Internet
     advertising at the global level based on the existing
     agencies and business self-regulatory bodies for
     traditional advertising at the national level.

     On the area of standards, the Global Action Plan says that
"Governments should avoid mandating unnecessary standards that
could be led by Business." On questions of Internet governance,
governments should "continue to support the proposed transfer of
administration of the Internet name and address system to the
private sector," consistent with protection of "existing
trademarks." Governments should "remove existing barriers for
workers to share in the new and different employment generated by
electronic commerce."  On the issue of privacy, governments were
encouraged to "recognize the validity and adequacy of effective
self-regulation augmented by the use of privacy-enhancing
technologies,"
     
     However, on the issue of intellectual property, the
"Business" document takes a 180 degree turn, and harmonization,
lifting of standards and lots of government action are all
recommended.  Indeed, governments are asked to consider "further
measures to secure property rights in the digital networked
environment, including filing the gaps in protection ... left by
the Performances and Phonograms Treaty," and to "work, through
WIPO, towards adequate protection of intellectual property in
databases," and to harmonize trademark law and policy so that
companies can "protect their trademarks in cyberspace."

                    
     THE MEETINGS


     The introductions, welcomes and opening speeches include
comments from three Canadians (the Prime Minister, the Minister
of Industry and the Secretary General of the OECD), plus 
speeches from officials of Andersen Consulting, Telus, CGA 
and IBM, and Renato Ruggiero, the Director General of the WTO 
and William Daley, the U.S. Secretary of Commerce.
                         
     Mr. Daley's statement was short on specifics and long on
boosterism, but there a few points worth quoting.  On the issue
of privacy, he said, "We believe that our self-regulatory
approach can co-exist with approaches taken by other
governments."  On the emerging issue of the status of e-commerce
contracts, Daley said "How can people know that the contracts
they make over the internet will be enforced? ... we have
proposed an international convention... It would assure that
electronic contracts are enforceable."  There was no
acknowledgement of the U.S. debate over the status of
unreasonable "click on" contract terms that is at the core of the
debate over the modifications of Section 2b of the Uniform
Commercial Code (UCC) (See http://www.cptech.org/ucc/), and how
this problem is much more complex in global commerce.

     The first plenary session roundtable was on the subject of
"Building Trust for Users and Consumers: Roles and
Responsibilities."  This included a tough talk by Jim Murray,
head of an association of European consumer groups (Bureau
Europ,en des Unions des Consommateurs), who spoke out against the
notion that self regulation was the answer to all problems of
privacy and consumer protection on the Internet, or that
government should turn over important governance functions to
private corporations.  Mr. Murray indicated that while it was
appropriate to delegate many public interest responsibilities to
non-government entities, it should be done under a framework of
accountability to democratic bodies.  "Governments must remain
the ultimate guarantors of the rights of citizens and not
abdicate their responsibilities in this area," he said.

     As indicated above, Nigel Stapleton, the Chairman of Reed-
Elsevier, made a pitch for new intellectual property laws to
provide new legal rights to control redissemination of non-
copyrighted materials in databases.  Mr. Albert Gidari, Jr. from
the Internet Law and Policy Forum said no one actually knew what
"self regulation" of the Internet meant.  "Does it mean
deregulation?" he asked, or was it something else?

     The "self" in self-regulation normally applies to the
     business sector only.  "This conception of self-
     regulation places too much of the burden on industry to
     solve the legal and policy issues raised by electronic
     commerce and fails to recognize individual users of
     Internet services and participants in electronic
     commerce as independent stakeholders and possible
     administrators in a larger self-regulatory regime."
     [The Ottawa Citizen, October 9, 1998, quoting Mr.
     Gidari].

     The second plenary session was "Building trust and making it
work: case studies in effective implementation."  The session was
moderated by John Sacher from Marks and Spencer, the retailing
giant that is now much more than a good place to buy knickers.
Danny Weitzner spoke representing the World Wide Web Consortium,
his new employer, as did former FTC Commissioner Christine Varney
and lots of others.  I missed much of this session as the various
privacy and consumer groups were trying to draft an NGO
statement, which required a fair amount work. (More on this
below).

     The third plenary session was chaired by Don Johnston, the
Secretary General of the OECD, and included presentations by
Martin Bangemann, the powerful European Commissioner for
Industrial Affairs, Information Technology and
Telecommunications, Sanzo Hosako, the State Secretary of
International Trade and Industry in Japan, White House official
Ira Magaziner, and Maria Livanos Cattaui, the head of the
International Chamber of Commerce.  I missed Mr. Bangemann's
presentation, but apparently he emphasized public polls
indicating 58 percent of Americans want privacy safeguards for
personal information (I thought the percentages would have been
higher). Mr. Hosako's presentation was quite general.  He did
emphasize the development of e-commerce policy initiatives in the
Asia Pacific Economic Cooperation (APEC) meetings, the idea that
rules should be different for developed and less developed
countries, and that consumer protection was an issue of concern,
and he rattled off a long list of other outstanding "issues"
without much elaboration.  The Chamber of Commerce presentation
contained no surprises.  The most dramatic presentation on this
panel was from U.S. Internet czar Ira Magaziner, whose speech was
accurately described in press accounts as tough and deregulatory.
                         
     Mr. Magaziner [said] . . . the laws and regulatory
     tools used in the industrial revolution could only
     damage the development of electronic commerce. . .Mr.
     Magaziner favors a deregulated system in which the
     corporate world sets the rules and provides the
     enforcement. He envisioned an international code of
     conduct for electronic commerce companies.
     Organizations that agree to protect client privacy
     would be allowed to display a special seal on their web
     pages.  Government could conduct public information
     programs but non-government organizations such as the
     Better Business Bureau would be responsible for dealing
     with violations and conducting audits. [The Ottawa
     Citizen, October 9, 1998]
               
     After Mr. Magaziner described the U.S. approach for self
regulation of privacy and Internet governance, he suggested it
would be a model for consumer protection.   The reaction against
Mr. Magaziner's speech was harsh among consumer and privacy
group.  Mr. Murray described it as the worst of all the
presentations, and Louise Sylvan, the head of the Australian
Consumers Organization said it was "appalling."  The U.S. privacy
groups indicated that years of experience in the U.S. has
demonstrated that self-regulation alone has proved to be
ineffective.

     In a protest outside of the meeting area, Maude Barlow from
the Council of Canadians complained that the meetings would lead
to large changes in financial institutions.  "It's basically
deregulated and is one more huge step to remove the control of
the financial institutions of our society out of the hands of
people," she said.  This reminded me of complaints made by NGOs
during the May 1998 World Trade Organization (WTO) Ministerial
meetings.  The NGOs were concerned that "no Internet tax"
agreements would be used to stop countries from imposing a "Tobin
Tax" on currency speculators.

     Also related were reports in the local Ottawa newspapers
that two Canadians, Thomas Kim Seto and Orest Rusnak of Edmonton,
were charged by the Alberta Securities Commission with illegally
setting up the World Stock Exchange and selling unregistered
securities.  Apparently this new Internet stock exchange was
first established on a web site hosted in Alberta, but was later
moved to ISPs in the Cayman Islands, then Antigua and Barbuda.
An Alberta regulator was quoted as saying "We're breaking new
ground here.  It could set a precedent across Canada," which
seemed like a rather limited way to view the dispute.  John 
Heine from the U.S. Securities and Exchange Commission indicated 
"I'm not aware of any enforcement action we've taken with any 
parties that have operated a stock exchange on the Internet."  
The Alberta case reportedly goes to a hearing on October 22, 1998.
Disputes such as these, as far-reaching as they may appear to
ordinary citizens, were not mentioned by the various trade and
industry officials in the OECD meetings.

     The last plenary session of the first day was "Establishing
the Ground Rules for Global Electronic Commerce: International
Activities and Initiatives."  The featured speakers and
moderators included (please forgive the acronyms) the Deputy
Secretary-General of the OECD, the Director-General of the WTO,
the Director-General of WIPO, the General Manager of the IMF,
Under-Secretary General of the UN representing UNCITRAL, the
chief of the European Free Trade Association and heads of
international organizations for telecommunications, customs and
postal services.

     Renato Ruggiero, the WTO head, gave a low key talk,
cautioning against the (false) notion that laws don't already
apply in cyberspace.  There are signs the WTO will be slated for
a larger role in Internet governance.  At the May 1998 WTO
Ministerial meeting in Geneva, which I attended, the U.S. pushed
for a new role for the WTO, initially centered on tariff and
customers issues, but with a much broader mandate.  And
circulated at the May WTO meetings was an EU staff document
suggesting the WTO become the arbitrator of disputes over privacy
policies.  Ira Magaziner clearly wants to challenge EU privacy
rules under the theory that they represent barriers to trade.
> From Mr. Ruggiero's prepared comments at Ottawa:

     At our second Ministerial Conference in May this year,
     all WTO Members adopted a Declaration on Global
     Electronic Commerce with two major results: We agreed
     not to impose customs duties on electronic
     transmissions until Ministers reconsider the matter at
     the end of next year. We agreed to launch a future
     programme of work on electronic commerce under which
     the relevant bodies in the organization will examine
     and report back on any trade-related issues arising
     from electronic commerce which Members wish to raise.

     What does this work programme - which will begin this
     month - entail? First we will confirm the rules on
     electronic commerce that already exist in the WTO - to
     avoid undermining existing rights and obligations by
     treating electronic commerce as if it were outside the
     normal trade regime. Second, we will identify any
     weaknesses in the existing legal structures that need
     to be strengthened or clarified. And third, we will see
     if there are any areas not covered by WTO disciplines
     where Members agree that it might be appropriate to
     move forward.

     [His prepared remarks are on the web at:
     http://www.wto.org/wto/speeches/ott.htm]

     The NGO Parallel Track
                                   
     At the end of the first day we separated into three parallel
tracks, one for the trade ministers, one for Business, and one
for the various labor, consumer and privacy groups in attendance.


     I was a speaker in Parallel Session C, "The Meeting of
Labour and NGO leaders: Social Perspectives on Global Electronic
Commerce."  This session was chaired by Mr. Angelo Gennari,
Director of Studies and Research for the Italian Confederation of
Workers Trade Unions, and included ten speakers: trade union
officials Bill Connor (Distributive and Allied Workers), Sid
Shniad (Canadian Telecommunications Workers Union), and Roland
Schneider (TUAC), Marc Rotenberg of EPIC, Louise Sylvan from the
Austrian Consumers Organization and Consumers International,
myself, and two government officials, Mr. David Johnston, a
Special Advisor on the Information Highway to the Canadian
Minister of Industry, and Mr. Jay Naidoo, the South African
Minister for Posts, Telecommunications and Broadcasting.
                    
     The presentations by the trade union officials were highly
critical of the day's proceedings, which they regarded as a
public relations exercise for big businesses, and they discussed
the problems that telecommnicating and flexible work forces
presented for union organizing.  Marc Rotenberg began his talk by
comparing the day's emphasis on self-regulation for privacy and
consumer protection to the calls for self regulation of working
conditions in the 19th century, and later he contrasted the U.S.
government's positions on intellectual property and encryption to
its policies on the EU privacy directive.  Louise Sylvan's talk
concerned the Australian approach to self-regulation, which
seemed much more like a partnership than simple deregulation.
Ms. Sylvan emphasized the need to look at industry enforcement
mechanisms and the ways that the industry codes were maintained
or updated.  Time was limited and there wasn't much talk about
antitrust problems that result from industry-administered
regulatory schemes.

     My own talk began by asking the audience if they were as
appalled as I was at the positions advocated by the United States
government at the meetings. I then asked for a show of hands to
determine how many persons rejected the idea by Ira Magaziner and
others that self-regulation by large corporations would be
sufficient for privacy and consumer projection.  About 2/3 of the
audience raised their hands to reject the self-regulation model,
and 1 person raised his hand to associate himself with the U.S.
position.  I asked the chair to report the result to the full
group.
                                   
     I then talked about the U.S. policies on intellectual
property, where the U.S. and other OECD countries had pushed for
new international treaties, new forms of property rights,
requirements for harmonization of laws, rising standards of
protection, and the outlawing of new technologies that undermined
these new rights, plus international tribunals and sanctions to
ensure enforcement.  This was then compared with the assertions
often heard at the Ottawa meetings that enforcing any privacy or
consumer rights would simply be too difficult.

     I then turned to the issue of Internet governance, and in
particular, the U.S. plan to turn over Internet domain names and
IP numbers, plus an undermined number of other issues, to a
private corporation.  The USG has indicated that it will be
vesting this new authority with a group now called the Internet
Assigned Numbers Authority (IANA).  The IANA's October 2, 1998
letter to Secretary of Commerce William Daley, described the
proposal as follows:

     This organization will be unique in the world - a non-
     governmental organization with significant
     responsibilities for administering what is becoming an
     important global resource.

The October 2, 1998 letter promised it would preserve "as much as
possible, the tradition of bottom-up governance of the Internet,"
and that it would be an "open, inclusive and transparent
organization."  However, upon closer inspection, there are no
democratic foundations for the organization, just a private
corporation with lots of authority and power but no
accountability.  Initially, it would be run by a self-selected 19
member board of directors.  This would be made be up of the
president, nine "at large" members and nine board members chosen
by three committees created by the board.  The three committees
would be on IP addresses, domain names and a an undefined
"protocol supporting organization" that would make
recommendations on "the operation, assignment and management of
protocol parameters...[and] other technical parameters and
related subjects."

     The IANA proposal promised that Internet users could
"nominate" board members, but there was no provision for 
Internet users to vote.  At the NGO meetings, I compared this 
unfavorably to the founding of the United States, where at least 
white, male property owners were permitted to vote.  (For more on 
this topic, see some of the papers written by Harvard Professor 
Larry Lessig from Harvard Law school, such as
http://cyber.harvard.edu/works/lessig/cpsr.pdf).

     The IANA model is important, because if the proposed
authority were created, it might be asked to assume ever greater
authority on a wide range of matters.  As a self-appointed group,
with the ability to change its bylaws or elect whoever it wants
to its own board, it would be given enormous power to control
essential Internet resources, without being accountable to any
government or any group of users.  If this is the future of
Internet "self" governance, one might ask who is the "self" that
is governing, and how did they obtain this much power and from
whom?

     I also spend some time explaining that there were many
efforts underway to elevate the legal status of various contracts
of adhesion, and that these were quite controversial in the
United States, particularly in the proceedings on changes to
section 2b of the U.S. Uniform Commercial Code (UCC).  (See
http://www.cptech.org/ucc/ or http://www.badsoftware.com/).
Presently various "shrink wrapped" and "click on" contracts for
software and web pages contain numerous objectional clauses, such
as the elimination of the right to seek legal redress for
non-performance, non-compete clauses, clauses prohibiting public
criticisms or negative reviews of products, and prohibitions
against reverse engineering.

     There is, I said, a movement to replace a wide range of
current privacy, consumer protection and copyright measures with
an approach based upon contracts.  This is being pitched as
easier to implement than harmonization of national laws.
However, in practice, it would permit firms to write their own
laws, eroding or eliminating many hard-fought rights under
current law.  This has been a major issue in copyright matters,
as many of the contracts would eliminate consumer rights under
current fair use exemptions, for example.

     I discussed also a number of other topics, including current
restrictions on parallel imports.

     As we were beginning our session, we learned that the OECD
staff had already circulated a draft of our "conclusions," which
none of us had even seen, and which apparently were written
before our meeting took place.  Then we had a long discussion
about who would present the findings from our group the plenary
session the following day.  We were told that David Johnson, an
advisor to the Canadian Government, would present our results.
Several persons thought it would be more appropriate for an NGO
to present our position, particularly since the business group
was speaking for itself.  We were told that we basically had no
choice, and that the U.S. and some others didn't even want the
NGO parallel session to begin with, and we had to be careful or
we wouldn't be invited back to another OECD meeting.  This didn't
go over too well with some of the NGOs, but in the end we folded.
The objections had nothing to do with David Johnson, who was a
wonderful guy, and very smart and articulate, and who did an
excellent job of presenting in general terms the results of the
group on Friday.

     THE NGO STATEMENT
               
     A fair amount of Thursday was spent drafting a joint NGO
statement.  Jim Dempsey from the CDT wrote an initial draft which
was hacked up and expanded some.  Debra Hurley from the Harvard
Information Infrastructure Project (HIIP), Pippa Lawson from the
Public Interest Advocacy Centre (in Canada), Marc Rotenberg,
myself and several others worked on various sections.  In the end
the document was pretty good, but also very short - less than two
pages.  This could be contrasted to the 65-page business groups'
document circulated earlier.  But it was a start.  The document
is on the web at:
http://www.ottawaoecdconference.org/english/announcements/e_tuac.pdf

     I worked on three sections of the NGO statement.  The
Intellectual property section read:

     Intellectual property: The framework for intellectual
     property protection should be based upon mechanisms
     that are least intrusive to personal privacy, and least
     restrictive for the development of new technologies.

This could have been much more detailed if we had more time.
Efforts to put in a fair use section, for example, were
unsuccessful because the concept goes by different names in
different countries, and we did not have time to draft a section
based upon exceptions and limitations of copyrights.

     On the issue of Internet governance, the NGO statement says:

     Internet governance: Governments should foster Internet
     governance structures that reflect democratic values
     and are transparent and publicly accountable to users.
     Standards processes should be open and should foster
     competition.

This was fairly minimalist, and had not even been in the first
draft of the statement.

Mark Rotenberg drafted most of the consumer protection section,
which was expanded a bit to deal with the UCC2b type issues.

     Consumer protection: The OECD should support the
     establishment of minimum standards for consumer
     protection, including the simplification of contracts,
     means for cancellation, effective complaint mechanisms,
     limits on consumer liability, non enforceability of
     unreasonable contract provisions, recourse at least to
     the laws and courts of their home country, and
     cooperation among governments in support of legal
     redress. Such minimal standards should provide a
     functional equivalence to current safeguards, offering
     at least the same levels of protection that would be
     afforded in the offline world.

     On Friday, we heard another round of speeches by various
parties, and reports of the different parallel sessions.  At one
point the floor was permitted to ask questions, I believe for the
first time.  I was permitted an intervention, where I described
the meetings as somewhat detached from reality.  The various "we
can get by with self regulation" speeches were really statements
that the OECD had its head in the sand, and had no idea
whatsoever how to deal with difficult cross-border problems.  I
mentioned our interest in four areas of electronic commerce where
self regulation was not an attractive solution.  These were the
sale of unregistered securities over the Internet, the regulation
of "truth in advertising" for credit practices, restrictions on
unethical advertising of pharmacueticals and medical devices and
unsolicited commercial announcements, known as junk mail.

     I indicated that once people got down to specifics, it was
clear the problems were complex, and that it was generally the
case that in the areas where the government had been compelled to
act before, there were major drawbacks to turning regulation and
enforcement over to unelected private cartels.  It was time to
"pull our heads out of the sand" and begin to deal with real
thorny problems, I suggested.  I think I was the first person to
mention the word cartel during the two days of plenary sessions.
A few minutes later, Joanna R. Shelton, the Deputy Secretary
General of the OECD, responded to my intervention, saying the
OECD did not have its head in the sand, and that no one believed 
self regulation was the answer to all the problems.  She also said 
the OECD would be issuing consumer protection guidelines.
                              
     There were many additional speeches on the final day,
including some that I missed.  There are a number of documents
about the meeting on the web at:
http://www.ottawaoecdconference.org/.

     Closing comments

     E-commerce is a term now used by several international
bodies to describe a wide range of policy issues and
controversies.  Much of this has to do with the future of
governance and democratic government in an era of disappearing
national borders.

     These issues are generally too important to be left up to a
handful of trade officials and corporate lobbyists.  One would
hope the debate itself over governance in cyberspace will become
more democratic than was evidenced at the OECD's Ottawa meetings.


        Jamie Love  <love () cptech org>
        http://www.cptech.org/


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