Illicit Antiquities and the Internet: The Trafficking of Heritage on Digital Platforms

The contemporary internet has become the transnational marketplace for the sale and trafficking of illicit products, from drugs and guns to malware and stolen user information. Given the scale of these activities, these marketplaces have drawn the attention of international and national law enforcement bodies as well as scholars of cybersecurity and criminal activities. As such, these platforms have moved to the ‘dark web’ or other encrypted communication channels and separated from the ‘surface web’ platforms run by global platform companies, which are the increasing focus of both government regulation and scholars of data privacy law. Among such illicit goods, one is often ignored though globally traded via established marketplaces on social media platforms: looted antiquities. Although representing only a portion of an already small global illicit trafficking network, such activities on internet platforms, particularly Facebook, can cause immense damage to archaeological and cultural heritage sites. Such marketplaces on major internet platforms provide a unique case study in global data privacy and cybersecurity law that has largely gone unstudied. This paper analyzes the trafficking of illicitly acquired antiquities on a variety of internet platforms—particularly Facebook—as an illustration of issues with both the current framework of global data privacy law and the moderation and regulation of such transnational criminal activity. This note will review and critique the existing literature on platform moderation and digital infrastructure and propose and examine various solutions to the mechanisms by which illicit activities endure, specifically by focusing on the potential of multistakeholder collaboration to bring effectively targeted moderation to the trade in illicit antiquities online.

Published in the New York University Journal of International Law and Politics, Vol. 54 (2022), pp. 659-698. It received the journal’s award for the best student note published in the spring 2022 edition of the publication.

This paper originated in the Guarini Colloquium: Regulating Global Digital Corporations convened by Thomas Streinz and Joseph Weiler in fall 2020.

Infrastructural Control Does the Trick: Apple’s Privacy Battles with Facebook and Tencent

Jingxian Zeng presents a comparison of Apple’s battles with Facebook and Tencent over advertising data tracking to argue that current notions of privacy law rest on the misconception that the power of digital platforms is derived from their control over data, rather than their control over the infrastructure that collects and processes data. The article targets the assumption behind the mobilization of data protection and privacy to contest platform power: the enormous power of platforms derives from their control over data such that granting individuals rights to their own data is enough to contest platform power. This approach ignores a fundamental source of platform power—control over the digital infrastructure that enables the collection and processing of data. Failing to account for this aspect of platform power runs the risk that data protection and privacy will be mobilized by platforms to safeguard their “walled gardens,” thus running against the “public” expectation of empowering individuals vis-à-vis platforms. The differing implementation of Apple’s privacy-preserving policy in the U.S. and China, through Facebook and Tencent respectively, offers a vivid illustration of the significance of infrastructural control.

This paper was published by the NYU Journal of Legislation & Public Policy. It originated in the Guarini Colloquium: Regulating Global Digital Corporations convened by Thomas Streinz and Joseph Weiler in Fall 2022.

Milling the F/LOSS: Export Controls, Free and Open Source Software, and the Regulatory Future of the Internet

This Note investigates U.S. export controls as they relate to free and open source software (FOSS), arguing that the U.S. government has responded to the challenges of modern software by attempting to force an ill-fitting framework to accommodate FOSS. A contemporary reexamination of the state of export controls over FOSS can help in mapping out the responses generated by national security interests to the challenges of the internet. In particular, the Note offers a detailed account of the ways in which federal export controls have excluded FOSS from their regulatory purview through a powerful public availability exemption. In doing so, regulators have essentially labeled publicly available software as unthreatening to national security, regardless of the potential uses of any particular code.

This paper has been published by the NYU Journal of Legislation & Public Policy, Vol 23, Issue 3 (2021). It originated in the Guarini Colloquium: Regulating Global Digital Corporations and also contributed to the Open Source Software as Digital Infrastructure project.

The Global “Last Mile” Solution: High-Altitude Broadband Infrastructure

This paper explains the reasons for communications infrastructure underdevelopment historically, taking into account the myriad ways governments, usually through national universal service mechanisms, have attempted to correct the underprovision and positing why this opportunity to create global broadband infrastructure has surfaced. In essence, this portion of the paper explains the last mile problem that innovative infrastructure projects purport to solve. It then describes the broadband infrastructure projects, the consequences of multi-jurisdictional regulatory complexities for bringing the projects to market, and the disruptive potential of the infrastructure to change the economics of broadband access and provision. Lastly, it considers whether the companies are indeed solving the last mile problem beyond mere provision. Accordingly, the potential impacts of Internet access are surveyed using Amartya Sen’s capability approach, which seeks to place the individual and his or her freedom at the center of development.

The paper originated in what was then the IILJ Colloquium: “International Law of Google” and is now the Guarini Colloquium: Regulating Global Digital Corporations. It got published in the Georgetown Law Technology Review, Vol. 4 (2019), 47-123.