腾讯副总裁Brent Irvin：创新和规制

11月23日-24日，“2015北大-牛津-斯坦福互联网法律与政策研讨会”在牛津大学召开，腾讯公司副总裁、总法律顾问Brent Irvin （艾文博）致辞并发表了主旨演讲。

　　首先我想概括介绍腾讯的情况。腾讯开发了社交产品、娱乐产品和网络工具，包括应用程序商店和腾讯安全管家。我在PPT中放了一张表，这张表和我之后涉及的话题息息相关。这张表告诉我们，从市场总值的角度而言，腾讯是全球最大的互联网公司之一。同时，表中大多数榜上有名的互联网公司都来自美国，中国有四家公司上榜。这种情况涉及到一些我之后将会讲到的话题，即治理者应该如何看待法律域外适用和公司的外部效应。世界在不断变化，随着时间的流逝，我们将会看到更多来自其他国家和地区的互联网公司在这个排行榜上出现。

　　下面我将谈谈互联网给我们带来的好与坏。通过互联网，我们可以获取信息，使用智能手机，还能在非洲谈论手机银行。大多数人都意识到，互联网是一个很好的产物，所以互联网是好还是坏并不是一个真正有争议的话题。今天我主要介绍互联网公司的核心业务。 互联网从实质上让我们的生活更加多产和更有效率。想想我们现在的生活比我们5年前的生活更加便利。例如，你可以通过网上转账支付商品。互联网使得外国务工人员汇款回家变得更加快捷。我之后还会继续谈到汇款的问题。这些事例让我们看到互联网极大程度地让我们的生活更加方便和快捷。

社交工具

　　互联网创新的社交通信工具包括，微信、Skype和Facebook。通过微信的小组视频通信功能，我可以在每周日早上和我的父母、姐姐通话，这样他们就可以看到我的女儿。我现在在出差，但是可以马上和我的女儿视频。我可以通过Facebook了解一些不常见到的美国朋友的动态，可以在Facebook放我的照片，也可以看到我朋友放的照片。这些都是互联网为我们的生活带来的真实、有意义的积极改变。人们不会总是这样想，但是对我而言，能够意识到互联网给我们生活带来的重大改变是很重要的。

导航和交通

　　我周五来到伦敦。腾讯今年上半年投资了一家总部设在伦敦的游戏公司-Mini-clip。通过网上叫车，我乘坐uber去该公司的总部开会。开完会后，我打算走路回家。但是由于之前只来过一次伦敦，我对伦敦并不熟悉。但是我利用谷歌地图找准了路线，并且还找到了一个咖啡馆。互联网真正帮助我们生活地更好，我认为很有必要承认互联网给我们带来的便利。

政府服务

　　我们之前谈到了很多关于政府服务的话题。其中有很多关于政府的角色的讨论。不管政府扮演什么样的角色，政府服务都应该尽可能的有效率。互联网促使政府实现高效地服务于民众的目标更进一步。

知识与发现

　　在准备这次演讲时，我可以利用谷歌搜索我想要的信息。人们往往会忽略这一点，但互联网确实让人们能够容易获取、发现信息。而且，人们获取知识的方式多样

贸易

　　我可以很轻松地通过ebay、amazon进行网上购物。如果在中国，则可以使用阿里巴巴和京东进行网络购物。此外，还可以获取到多种网络内容，包括电影、音乐、spotify和QQ音乐。这些网络带来的创新事物让人们的生活更加美好。人们应该认识到，我们生活的提升在大多数情况下都是互联网公司带来的。

　　下面是一个微信功能的具体实例。这些是我手机微信的截图。第一张图是我的联系人，Cherry是我的助手，我经常麻烦她。第二张图是我订阅的一些公众账号，这些账号会发一些新闻给我，我可以选择是否查看。然后是我的朋友圈，我可以看见朋友的照片并且进行评论。我还可以利用微信玩游戏。微信还提供给了一些电子服务。例如，我可以用微信为我的手机充值、支付账单、进行微公益。最后，我还可以用微信进行购物。微信的这些功能虽然不能解决全球的饥荒问题，但是这些功能让人们的生活大大地提高。

　　图片中，一个男子在卖烤红薯，图中的标语写到顾客可以选择使用支付宝或者微信支付。微信从社会的顶部到底部改变着许多人的生活。

　　下面是互联网的一些不利因素。首先，会有隐私的问题。随着人们的生活越来越数字化，网络中会有越来越多关于用户的信息。这一问题很有挑战性。另一方面，是关于安全的问题。同时，还涉及政府应该扮演何种合理的角色以及政府能够获取何种信息的问题。这些问题都很棘手。最后，我认为有三种错位。首先，互联网带来了商业错位。其次，互联网还带来了工作错位。互联网吞噬了世界。以律师行业为例，一些软件的搜索能力比第一年的律师还要强。最后，互联网带来了社区的错位。这个是加州湾区的典型问题，但是其他地方也可能会有类似问题。

　　下面是我对于人们应该如何思考上述问题的建议。在进入具体的建议前，需要了解两个门槛问题帮助你评价我的提议的规制原则是否合理。第一门槛问题是如何衡量互联网的好与坏。很显然，我认为互联网给人们带来的好处远远大于不利的因素。如果你不同意我的这点看法，那么你很可能不会认同我的以下的具体建议。第二个门槛问题需要人们考虑文化和经济背景。每个人的文化背景不同，每个国家的发展程度不同，那么不同人看待同样的互联网管理规定就会有不同的想法。例如，德国人可能更加注重保护个人隐私，而中国与其他国家相比处于不同的发展阶段。

　　█ 原则一： 了解技术

　　很多时候，立法者并不理解他们所要立法规制的内容所涵盖的技术，例如加密技术和“后门”。律师、立法者还有其他的法律人都应该尽可能的了解相关的技术，这样他们才能作出正确的决策。

　　█ 原则二： 仔细思考法律的域外适用

　　这是个很难的问题。我不认为“域外适用”是合适的词，但是我可以通过举例来很好地阐释这个原则。首先，美国认为所有领先的互联网公司都来自美国。这就是我在演讲最初放那张“市场总值”图表的原因。以斯诺登和微软的案件为例，美国有意无意的认为他们有一定的主场优势。虽然微软的服务商遍布全球，包括欧洲，但是美国认为微软是美国公司，因为美国需要主场优势。人们总是把目光关注在眼前的情形，而忽略了事件未来的影响。而欧盟则把重点放在他们自己制定的原则上。如果你想进入欧洲市场，那么你必须按照欧盟制定的游戏规则办事。例如，欧盟想让所有人都遵循被遗忘权。我不认为欧盟的立法者发自内心地相信欧洲的互联网公司将会采取行动。如果他们是这样相信的，欧盟的立法也会有所不同。欧盟制定的原则不会帮助欧洲互联网公司在全球竞争中赢得胜利。

　　█ 原则三： 不是所有“破坏”都是坏的

　　总体而言，传统工业之所以被“破坏”是由于它们自身运作有问题。以打车为例，五年前，在北京和纽约打车是一件很痛苦的事情，因为传统的出租车行业并不是一个很有效率的产业。Uber和滴滴的出现改变了这一局面，给人们出行带来更多便利。我之前谈到了汇款，海外务工人员汇回家里的钱的总数是全球援助的两倍。这是一个很大的产业。传统的汇款中，中间服务商会攫取生活在食物链底层的人的财富，但是新科技的出现改变了这一局面。虽然新科技给传统产业带来了冲击，但与此同时也帮助了人们。总体而言，被互联网冲击的传统产业没有很好地考虑用户的需求。我并没有忽略互联网带来的问题，例如互联网导致传统产业的员工失业。但是我们要记住问题的源头是类似出租车的传统产业自身没有很好地运行，这才使得uber和滴滴能够很好地进入市场。

　　█ 原则四： 谨慎使用竞争法

　　我所说的谨慎使用竞争法并不代表竞争法不适用于互联网公司。我认为人们很多时候都过于坚持自己的看法，许多人很坚定地认为他们能够解决问题，他们会告诉你这家公司有市场支配地位，并且告诉你如何使用用户界面解决问题。但是如果回顾历史，以微软为例，问题都是由市场调节解决的，而不是被治理者解决的。人们之前担心IE浏览器的支配地位，但是后来移动电话和chrome的出现冲击了IE的支配地位。历史告诉我们，面对此类问题，应该更加谦虚谨慎的思考这个公司是否真的具有支配地位。再以google为例，管理者担心的google的市场支配地位，但是与此同时，移动网络的出现对google造成了很大的冲击。总而言之，市场会自动调节竞争，我们应该更加小心谨慎的使用竞争法解决问题。

　　█ 原则五： 别让政策吞噬法律

　　这个问题很难，我的观点可能有些过时。但是人们在谈及隐私权等问题时没有考虑到合同可履行性这一基本问题。在数字时代，人们很容易忘记基本的法律原则，然后仅仅谈论如何才能达到最理想的结果。人们不能只是单单考虑他们需要制定的政策，当你在谈论市场经济如何运作时，虽然存在不履行合同的例外，但请记住合同自治原则应该受到尊重。互联网公司可以做他们想做的事情，而不是被告知他们应该如何提供服务。

附：演讲英文原文

Innovation and Regulation

　　You know what I am gonna talk about today. To be honest, it is always a little constrained, because you a general counsellor for a public company. You don’t completely speak all your views. I would not say it is that constrained, but I would say it is a little bit challenge. People would say the general counsellor of tencent say that. When you are in a different setting, and say controversial stuff, you can take positions. I am trying to get into a little bit substance this time. The topic I want to talk about is innovation and regulation. All these amazing things the internet company are doing really have big impact on these people. Traditionally, there is honey-moon period. But now there is nuance, there is good and bad. People try to figure out how to respond to those problems. But I don’t have the answers either. Neither do you. People seem to be confident about how these problems could be solved, such as politicians, regulators and academics. However, I think people should be more humble when talking about these issues. I am not giving the answers, neither suggestions.

　　I have a quick overview about Tencent. We have, of course, social products, entertainment products and tools like app store, security and etc. I don’t want to spend a lot of time on this, but I just want to include this for those who may not be familiar with what we do. I want to include this chart. It has some relevance to some of the topics I am gonna touch upon later. Tencent is the biggest internet company in the world by market capital. As you can see here are companies you all know, mostly American companies. But you can see four of them are Chinese. I think that touches a little bit of something I want address later about the way national regulator should think about the externality or external effects that some of them are trying to do. And the world is changing. I think you are gonna see more and more companies from different part of the world later this year and in the future.

　　I would like to talk about the good and bad of the internet today. There are a lot of things we have discussed, especially in the early panel. You have smart phone, and people could talk about mobile banking in Africa. These are all very good things. Most people know that internet is good stuff, there is not the true controversial issue in most of the cases. I am gonna talk about the core businesses of what an internet company do. Even in the developed market, it may kind of rebut defensively that it is really in a material way making people’s life more productive and more useful. You know payment and banking. I am not gonna spend lots of time on this. But you think about the way we live today. It is so much better and different than five years ago. You know if I want to pay for something, I can easily transfer money online. It is not a problem. You can rent home from people working in other countries. It is so significant that these are more convenient and efficient than it used to be. And I think that is a really important thing.

Social Media

　　There are many social communication tools, such as WeChat, Skype and Facebook. I have been lived in China in the 90s. I can get on WeChat group video to call my sisters and parents every Sunday morning so that they can see my daughter. I can do travelling now and say, hi, here is daddy. I can go on Facebook to see friends in the US who I could not get to see so much. I can post pictures and I can also see pictures of my friends and family. And these are actually meaningful and important things that at a very real level make your life better. People don’t always think that way, but for me, you just have to start with the understanding that this is important and it makes your life better.

Navigation and Transportation

　　I came to London on Friday. We have a game company mini-clip we bought earlier this year. They have headquarter in London. When I got out of the hotel, I just called an Uber and went there to attend the meeting. I don’t know people at London at all, you know I have just been there once before. I googled map and walked around, and found a coffee shop. I mean this is really a meaningful way that your life is better than it is used to be. I think it is important to recognize this.

Government Service

　　And about government services, I think we have talked a lot about it. I am not going into it here. The panel this morning addressed it.  Efficiency of services is obvious. You know there can be lots of political debates on right role of government all of that. What the government does, they should do it as efficiently as possible. Internet is bringing that into reality closer than it was before.

Knowledge and Discovery

　　Another good aspect of the internet is knowledge and discovery. When I prepare for the speech, I can go online and google anything. I think that is a really big deal that people sometimes forget. You have the ability to access to and discover information. These are different options, such as Wikipedia.

　Commerce

　　The good of the internet also includes online commerce. I can buy stuff easily on eBay and Amazon, and on Alibaba and JD.com if I am in China. I can have access to content, movies, music, Spotify, QQ music and things like that. These are the things that really make my life materially better.

　　However, I think if you look at the way people live today, there are downsides, and I am gonna getting into those. But I want to start with my personal belief today that people should recognize that really important improvements of our life today are primarily driven by internet companies.

　　This is a little example of the functions of WeChat. Jason kind of showed a bit before. This is sort of a concrete example on how much you can do with just one app actually. These are screenshots from my WeChat day of my life. I got my chat right there. Cherry is my assistant, and I am always bugging her for stuff. And public accounts, media can send news to me. I can choose whether I want to read it. I can have a social feed there. I can see my friends’ pictures and I can comment. I can play video games. I can use the e-services provided by government. I can charge my cellphone, pay bills, I can get to charity and all sorts of things, just by clicking the button. Finally, there are shopping I can all do. This is not like solving world-hunger, but I do think these things that at a real level make people’s life much better. This is relevant to the regulations and policy which I am gonna get to.

　　This is an example from China, this is a guy who is selling sweet potato on the street. You got a little sign there, he basically say that you could us wexin payment or alipay. All in all, it is bringing improvements to lots of people. There are the good.

　　█ Bad Aspects of Internet

　　There is bad too. There is no doubt about it. There is certain complexity. What are the problems? You got privacy issues. As your life becomes more and more digital, there is more and more information about you out there. There are really tough issues on how to handle that. There are also security issues. I am gonna talk about it a bit.

　　There are companies that are got hacked, and things like that. There are also issues about what the proper role the government should play and what kind of access the government should have to your information. So those are some of the very tough issues as well. Finally, I think there are three big dislocations. You know there is dislocation of traditional business that have been impacted by internet companies. There is dislocation of jobs and market entry, sort of the idea that internet is eating the world. For example, software starts to take lawyers’ jobs. Finally, dislocation of communities. This may come a bit from the Bay area, but I think it is true in other places. So much wealth has been created by some of the companies. It is changing the community. You have to realize that those are the bad things that I came up with at a broader level.

　　So we’ve got good and bad. I don’t get the answers, but I don’t know everybody got the answers either. I do have some suggestions that people could think about as they are thinking about these issues. Before I got into the details of these principles, I think there are two threshold questions. Clearly you weigh whether the good and bad are gonna influence whether you think the principles are good or bad. I am clearly on the side that the good outweighs the bad. I think the good is much greater than the bad. If you don’t agree with that, you are probably not gonna agree with most of my principles. Also, I have my cultural background. Countries are at their own level of development. Maybe Germans care much more about privacy than others. China is at a different level of development than other countries. There are differences. So again, it is gonna influence whether you think my principles are good or bad. You know I think it is just important to get those concepts out there. So what are my principles?

　　█ Principle I: Get to Know Technology

　　In some cases, the people involved in legislation process don’t really know what they are talking about in terms of technology and things like that. Maybe that is a little bit stronger when you look at the debate about “encryptions” and “backdoors”. The people who are trying to pass the law are terribly sophisticated about what “backdoors” mean. Therefore, lawyers and rule makers should know the underlying technology as much as they can, so they could make smart decisions.

　　█ Principle II: Think Carefully about Extraterritoriality

　　This is a tricky one. I don’t think extraterritoriality is the right word. I can speak of it best through an example. US regulation seems to presume on the idea that leading internet companies are always Americans. That’s why I should chart about the market capital. So if you look at the Snowden or Microsoft case, it seems to be an underlying principle. I see Microsoft servers all over the world even users are in Europe and Ireland, but they just assume that they are all American companies. They start to take that advantage. You got some Scandinavian and Chinese companies, Brazilian companies.

　　By contrast, look at EU, I am an American, I work in China, and don’t know much about the EU, but we do follow things as professionals. It seems to me that EU is so focused on their principles, and you know they have this big market, if you want to play, you have to follow their rules. But what if European companies want to start to act outside of Europe, and you actually start to have European internet companies. They have the right to be forgotten, and they are gonna make the whole world to follow it. What if Thailand does that with their less majestic law? I just don’t believe that European regulators really believe in their heart that European companies are gonna ever do anything. In my belief, if they did believe, they might regulate differently.

　　Because the principles they are establishing are not gonna help European companies become truly successful on a global basis.   I think in all cases, regulators should think of how to play a long game and think what they really trying to get into. Each country seems to be fixated on certain issues, maybe true today, may not true tomorrow. If we think more from the long term perspectives, we might come to different answers.

　　█ Principle III: Not All Disruptions Are Bad

　　We are talking about the three disruptions. There are clear problems, the cost of housing in the bay area, and there are lots of things. They are not insignificant. Some industries are getting replaced, and some people lose jobs, which needs to be addressed. In general, traditional industries that get disrupted are poorly operated industries. Getting a taxi in Beijing five years ago was a mess or in New York. I mean taxi is not an efficient business. There are reasons why Uber and DiDi are doing so well, because the traditional industry is very poorly run. The new services are much better, and make lives much easier and people are just happier because they have it. You know that’s a very obvious example, I talked about remittance before, that’s a huge industry. I think the number of money your workers remitting back to their home country is twice the level than global exchange .This is a huge thing, but it is a ripe-off. Traditionally, it is a ripe-off, where intermediary are taking huge cuts out of it, and taking money away from people at the lowest level of economic food chain. So now you have fin-tech companies and things that are coming in, they are disrupting traditional industries and they are also helping people. You know there are less controversies surrounding this one. In general, the industries that have been disrupted have been performed poorly at addressing the needs and wants of the consumers. Again, it does not mean you ignore that taxi drivers are losing their jobs. But you have to remember the starting point is that the taxi industry is really bad, and there were poor services, and there is a reason that Uber and DiDi were able to come in.

　　█ Principle IV: Modest Application of Competition Law

　　There is a little controversial one. I am not saying that competition law should not apply to internet companies. Clearly it should. For example, UK, as part of the EU has its own issues as well in China in terms of abuse of market power. All I am saying is that I have the principles, but I am not having the answers. People sometimes are so confident that they have the answers here, they say that this company clearly has a dominant market position, and know how to solve it, and now I am telling you how to do your user interface and all the stuff. If you look at the history of how these things play out, you know market solves it, not the regulators. I mean people are so worried about IE and its dominant position on desktop. When it comes to mobile, it is Chrome, not IE. Look at the history, be a little bit humbler here on how aggressive we are, and how certain we are. The market will make a decision. I don’t have an answer.

　　█ Principle V: Don’t Let Policy Overwhelm the Law

　　This is a trick one. Maybe I am a bit antiquated. But there are core principles of market economy which we all operate in. I feel like we have all the debate about privacy where people just think it is a simple issue. We are gonna make companies do that. Basically, when they provide services, they have the right to decide the terms.

　　But there are some exceptions. I don’t hear anybody talking about the simple fact of user agreements in terms of services. They are welcome to try something else. I am very clear that there are all sorts of laws that people don’t give enough weight when they are talking about those issues, because at the end of the day, you cannot vote with your feet or wallets. You are gonna give users and consumers a little bit credit, and if you really got them wrong, people won’t use that product. In the digital space, people are very quick to put that product aside. When you talk about policies and the way market economy works, please keep in mind that contract are generally respected, and there are exceptions. So don’t let policy overwhelm the law.