Back to the Future – Google Spain and the Restoration of Partial and Practical Obscurity

Arising from the pre-digital paradigm are two concepts that had important implications for privacy. Their continued validity as a foundation for privacy protection has been challenged by the digital paradigm. The terms are practical and partial obscurity which are both descriptive of information accessibility and recollection in the pre-digital paradigm and of a challenge imposed by the digital paradigm, especially for privacy.  The terms, as will become apparent, are interrelated.

Practical obscurity refers to the quality of availability of information which may be of a private or public nature[1].  Such information is usually in hard copy format, may be indexed, is in a central location or locations, is frequently location-dependent in that the information that is in a particular location will refer only to the particular area served by that location, requires interaction with officials or bureaucrats to locate the information and, finally, in terms of accessing the information, requires some knowledge of the particular file within which the information source lies. Practical obscurity means that information is not indexed on key words or key concepts but generally is indexed on the basis of individual files or in relation to a named individual or named location.  Thus, it is necessary to have some prior knowledge of information to enable a search for the appropriate file to be made.

 Partial obscurity addresses information of a private nature which may earlier have been in the public arena, either in a newspaper, television or radio broadcast or some other form of mass media communication whereby the information communicated is, at a later date, recalled in part but where, as the result of the inability of memory to retain all the detail of all of the information that has been received by an individual, has become subsumed.  Thus, a broad sketch of the information renders the details obscure, only leaving the major heads of the information available in memory, hence the term partial obscurity.  To recover particulars of the information will require resort to film, video, radio or newspaper archives, thus bringing into play the concepts of practical obscurity. Partial obscurity may enable information which is subject to practical obscurity to be obtained more readily because some of the informational references enabling the location of the practically obscure information can be provided.

The Digital Paradigm and Digital Information Technologies challenge these concepts. I have written elsewhere about the nature of the underlying properties or qualities of the digital medium that sits beneath the content or the “message”. Peter Winn has made the comment “When the same rules that have been worked out for the world of paper records are applied to electronic records, the result does not preserve the balance worked out between the competing policies in the world of paper records, but dramatically alters that balance.”[2]

A property present in digital technologies and very relevant to this discussion is that of searchability. Digital systems allow the retrieval of information with a search utility that can take place “on the fly” and may produce results that are more comprehensive than a mere index. The level of analysis that may be undertaken may be deeper than mere information drawn from the text itself. Writing styles and the use of language or “stock phrases” may be undertaken, thus allowing a more penetrating and efficient analysis of the text than was possible in print.

The most successful search engine is Google which has been available since 1998.  So pervasive and popular is Google’s presence that modern English has introduced the verb “to Google” which means “To search for information about (a person or thing) using the Google search engine” or “To use the Google search engine to find information on the Internet”.[3] The ability to locate information using search engines returns us to the print based properties of fixity and preservation and also enhances the digital property of “the document that does not die”

A further property presented by digital systems is that of accessibilty. If one has the necessary equipment – a computer, modem\router and an internet connection – information is accessible to an extent not possible in the pre-digital environment. In that earlier paradigm, information was located across a number of separate media. Some had the preservative quality of print. Some, such as television or radio, required personal attendance at a set time. In some cases information may be located in a central repository like a library or archive. These are aspects of partial and practical obscurity

The Internet and convergence reverses the pre-digital activity of information seeking to one of information obtaining. The inquirer need not leave his or her home or office and go to another location where the information may be. The information is delivered via the Internet. As a result of this, with the exception of the time spent locating the information via Google, more time can be spent considering, analysing or following up the information. Although this may be viewed as an aspect of information dissemination, the means of access is revolutionarily different.

Associated with this characteristic of informational activity is the way in which the Internet enhances the immediacy of information. Not only is the inquirer no longer required to leave his or her home of place of work but the information can be delivered at a speed that is limited only by the download speed of an internet connection. Thus information which might have involved a trip to a library, a search through index cards and a perusal of a number of books or articles before the information sought was obtained, now, by means of the Internet may take a few keystrokes and mouse clicks and a few seconds for the information to be presented on screen

This enhances our expectations about the access to and availability of information. We expect the information to be available. If Google can’t locate it, it probably doesn’t exist on-line. If the information is available it should be presented to us in seconds. Although material sought from Wikipedia may be information rich, one of the most common complaints about accessability is the time that it takes to download onto a user’s computer. Yet in the predigital age a multi-contributing information resource (an encyclopedia) could only be located at a library and the time in accessing that information could be measured in hours depending upon the location of the library and the efficiency of the transport system used.

Associated with accessibility of information is the fact that it can be preserved by the user. The video file can be downloaded. The image or the text can be copied. Although this has copyright implications, substantial quantities of content are copied and are preserved by users, and frequently may be employed for other purposes such as inclusion in projects or assignments or academic papers.  The “cut and paste” capabilities of digital systems are well known and frequently employed and are one of the significant consequences of information accessibility that the Internet allows.

The “Google Spain” Decision and the “Right to Be Forgotten”

The decision of the European Court of Justice in Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González, has the potential to significantly change the informational landscape enabled by digital technologies. I do not intend to analyse the entire decision but rather focus on one aspect of it – the discussion about the so-called “right to be forgotten.” The restrictions placed on Google and other search engines as opposed to the provider of the particular content demonstrates a significant inconsistency of approach that is concerning.

The complaint by Mr Gonzales was this. When an internet user entered Mr Costeja González’s name in the Google search engine of  he or she would obtain links to two pages of the La Vanguardia’s newspaper, of 19 January and 9 March 1998 respectively  In those publications was an announcement mentioning Mr Costeja González’s name related to a real-estate auction connected with attachment proceedings for the recovery of social security debts.

Mr González requested, first, that La Vanguardia be required either to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect the data.

Second, he requested that Google Spain or Google Inc. be required to remove or conceal the personal data relating to him so that they ceased to be included in the search results and no longer appeared in the links to La Vanguardia. Mr González stated in this context that the attachment proceedings concerning him had been fully resolved for a number of years and that reference to them was now entirely irrelevant.

The effect of the decision is that the Court was prepared to allow the particular information – the La Vanguardia report – to remain. The Court specifically did not require that material be removed even although the argument advanced in respect of the claim against Google was essentially the same – the attachment proceedings had been fully resolved for a number of years and that reference to them was now entirely irrelevant. What the Court did was to make it very difficult if not almost impossible for a person to locate the information with ease.

The Court’s exploration of the “right to be forgotten”  was collateral to its main analysis about privacy, yet the development of the “right to be forgotten” section was as an aspect of privacy – a form of gloss on fundamental privacy principles. The issue was framed in this way. Should the various statutory and directive provisions be interpreted as enabling Mr Gonzales to require Google to remove, from the list of results displayed following a search made for his name, links to web pages published lawfully by third parties and containing true information relating to him, on the ground that that information may be prejudicial to him or that he wishes it to be ‘forgotten’ after a certain time? It was argued that the “right to be forgotten” was an element of Mr Gonzales’ privacy rights which overrode the legitimate interests of the operator of the search engine and the general interest in freedom of information.

The Court observed that even initially lawful processing of accurate information may, in the course of time, become incompatible with the privacy directive where that information is no longer necessary in the light of the purposes for which it was originally collected or processed. That is so in particular where the purposes appear to be inadequate, irrelevant or no longer as relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.

What the Court is saying is that notwithstanding that information may be accurate or true, it may no longer be sufficiently relevant and as a result be transformed into information which is incompatible with European privacy principles. The original reasons for the collection of the data may, at a later date, no longer pertain. It follows from this that individual privacy requirements may override any public interest that may have been relevant at the time that the information was collected.

In considering requests to remove links it was important to consider whether a data subject like Mr Gonzales had a right that the information relating to him personally should, at a later point in time, no longer be linked to his name by a list of results displayed following a search based on his name. In this connection, the issue of whether or not the information may be prejudicial to the “data subject” need not be considered. The information may be quite neutral in terms of effect. The criterion appears to be one of relevance at a later date.

Furthermore the privacy rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.

One has to wonder about the use of language in this part of the decision. Certainly, the decision is couched in a very formalised and somewhat convoluted style that one would associate with a bureaucrat rather than a judge articulating reasons for a decision. But what does the Court mean when it says “as a rule”? Does it have the vernacular meaning of “usually” or does it mean what it says – that the rule is that individual privacy rights override economic interests of the search engine operator and of the general public in being able to locate information. If the latter interpretation is correct that is a very wide ranging rule indeed.

However, the Court continued, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.

Thus if a person has a public profile, for example in the field of politics, business or entertainment, there may be a higher public interest in having access to information.

Finally the Court looked at the particular circumstances of Mr Gonzales. The information reflected upon Mr Gonzales private life. Its initial publication was some 16 years ago. Presumably the fact of attachment proceedings and a real estate auction for the recovery of social security debts was no longer relevant within the context of Mr Gonzales’ life at the time of the complaint. Thus the Court held that Mr Gonzales had established a right that that information should no longer be linked to his name by means of such a list.

“Accordingly, since in the case in point there do not appear to be particular reasons substantiating a preponderant interest of the public in having, in the context of such a search, access to that information, a matter which is, however, for the referring court to establish, the Gonzales may, require those links to be removed from the list of results.”

There is an interesting comment in this final passage. The ECJ decision is on matters of principle. It defines tests which the referring Court should apply. Thus the referring Court still has to consider on the facts whether there are particular reasons that may substantiate a preponderant public interest in the information, although the ECJ stated that it did not consider such facts to be present.

Matters Arising

There are a number of issues that arise from this decision. The reference to the “right to be forgotten” is made at an early stage in the discussion but the use of the phrase is not continued. It is developed as an aspect of privacy within the context of the continued use of data acquired for a relevant purpose at one point in time, but the relevance of which may not be so crucial at a later point in time. One of the fundamental themes underlying most privacy laws is that of collection and retention of data for a particular purpose. The ECJ has introduced an element of temporal relevance into that theme.

A second issue restates what I said before. The information about the attachment proceedings and real estate sale which Mr Gonzales faced in 1998 was still “at large” on the Internet. In the interests of a consistent approach, an order should have been made taking that information down. It was that information that was Mr Gonzales’ concern. Google was a data processor that made it easy to access that information. So the reference may not appear in a Google search, but the underlying and now “irrelevant” information still remains.

A third issue relates to access to historical information and to primary data. Historians value primary data. Letters, manuscripts, records, reports from times gone by allow us to reconstruct the social setting within which people carried out their daily lives and against which the great events of the powerful and the policy makers took place. One only has to attempt to a research project covering a period say four hundred years ago to understand the huge problems that may be encountered as a result of gaps in information retained largely if not exclusively in manuscript form, most of which is unindexed. A search engine such as Google aids in the retrieval of relevant information. And it is a fact that social historians relay on the “stories” of individuals to illustrate a point or justify an hypothesis. The removal of references to these stories, or the primary data itself will be a sad loss to historians and social science researchers. What is concerning is that it is the “data subject” that is going to determine which the historical archive will contain – at least from an indexing perspective.

A fourth issue presents something of a conundrum. Imagine that A had information published about him 20 years ago regarding certain business activities that may have been controversial. Assume that 20 years later A has put all that behind him and is a respected member of the community and his activities in the past bear no relevance to his present circumstances. Conceivably, following the approach of the ECJ, he might require Google to remove search results to those events from queries on his name. Now assume a year or so later that A once again gets involved in a controversial business activity. Searches on his name would reveal the current controversy, but not the earlier one. His earlier activities would remain under a shroud – at least as far as Google searches are concerned. Yet it could be validly argued that his earlier activities are very relevant in light of his subsequent actions. How do we get that information restored to the Google search results? Does a news media organisation which has its own information resources and thus may have some “institutional memory” of the earlier event go to Google and request restoration of the earlier results?

The example I have given demonstrates how relevance may be a dynamic beast and may be a rather uncertain basis for something as elevated as a right and certainly as a basis for allowing a removal of results from a search engine as a collateral element of a privacy right.

Another interesting conundrum is presented for Mr Gonzales himself. By instituting proceedings he has highlighted the very problem that he wished to have removed from the search results. To make it worse for Mr Gonzales and his desire for the information of his 1998 activities to remain private, the decision of the ECJ has been the subject of wide ranging international comment on the decision. The ECJ makes reference to his earlier difficulties, and given that the timing of those difficulties is a major consideration in the Court’s assessment of relevance, perhaps those activities have taken on a new and striking relevance in the context of the ECJ’s decision. If Mr Gonzales wanted his name and affairs to remain difficult to find his efforts to do so have had the opposite effect, and perhaps his business problems in 1998 have achieved a new and striking relevance in the context of the ECJ’s decision which would eliminate any privacy interest he might have had but for the case.

Conclusion

But there are other aspects of the decision that are more fundamental for the communication of information and the rights to receive and impart information which are aspects of freedom of expression. What the decision does is that it restores the pre-digital concepts of partial and practical obscurity. The right to be forgotten will only be countered with the ability to be remembered, and no less a person than Sir Edward Coke in 1600 described memory as “slippery”. One’s recollection of a person or an event may modify over a period of time. The particular details of an event congeal into a generalised recollection. Often the absence of detail will result in a misinterpretation of the event.

Perhaps the most gloomy observation about the decision is its potential to emasculate the promise of the Internet and one of its greatest strengths – searchability of information –  based upon privacy premises that were developed in the pre-Internet age, and where privacy concerns involved the spectre of totalitarian state mass data collection on every citizen. In many respects the Internet presents a different scenario involving the gathering and availability of data frequently provided by the “data subject” and the properties and the qualities of digital technologies have remoulded our approaches to information and our expectations of it. The values underpinning pre-digital privacy expectations have undergone something of a shift in the “Information Age” although there are occasional outraged outbursts at incidence of state sponsored mass data gathering exploits. One wonders whether the ECJ is tenaciously hanging on to pre-digital paradigm data principles, taking us back to a pre-digital model or practical and partial obscurity in the hope that it will prevail for the future.  Or perhaps in the new Information Age we need to think again about the nature of privacy in light of the underlying qualities and properties of the Digital Paradigm.

 

[1] The term “practical obscurity” was used in the case of US Department of Justice v Reporters Committee for Freedom of the Press. 489 US 749 (1989)

[2] Peter A. Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information, (2004)79 WASH. L. REV. 307, 315

[3] Oxford English Dictionary

Towards an Internet Bill of Rights

 

Tim Berners-Lee, in an article in the Guardian of the 12th March 2014, building on a comment that he made that the Internet should be safeguarded from being controlled by governments or large corporations, reported in the Guardian for 26 June 2013,  claimed that an online “Magna Carta” is needed to protect and enshrine the independence of the internet.  His argument is that the internet has come under increasing attack from governments and corporate influence.  Although no examples were not cited this has been a developing trend.  The comments by Nicolas Sarkozy at the G8 meetings in 2011 and the unsuccessful attempts by Russia, China and other nation via the ITU at the 2012 World Conference on International Telecommunications to establish wider governance and control of the internet from a national government point of view provide examples.  Sarkozy’s comments were rejected by English Prime Minister David Cameron and the then Secretary of State for the United States, Hillary Clinton. More recently, on 29 April 2014 Russia’s Parliament approved a package of sweeping restrictions on the Internet and blogging.  Clearly there is an appetite for greater control by governments of the internet and, in the opinion of Berners-Lee, this must be resisted.  He considers that what is needed is a global constitution or a Bill of Rights.  He suggests that people generate a digital Bill of Rights for each country – a statement of principles that he hopes will be supported by public institutions government officials and corporations. I should perhaps observe that what is probably intended is an Internet Bill of Rights rather than a Digital one. I say this because it could well be difficult to apply some concepts to all digital technologies, some of which have little to do with the Internet.

The important point that Berners-Lee makes is that there must be a neutral internet and that there must be certainty that it will remain so. Without an open or neutral internet there can be no open government, no good democracy, no good healthcare, no connected communities and no diversity of culture.  By the same token Berners-Lee is of the view that net neutrality is not just going to happen. It requires positive action.

But it is not about direct governmental control of the Internet that concerns Berners-Lee. An example of indirect government interference with the Internet and with challenges to the utilisation of the new communications technology by individuals are the activities of the NSA and the GCHQ as revealed by the Snowden disclosures.  There have been attempts to undermine encryption and to circumvent security tools which face challenges upon individual liberty to communicate frankly and openly and without State surveillance.

What Would An On-Line “Magna Carta” Address

According to Berners-Lee, among the issues that would need to be addressed by an online “Magna Carta” would be those of privacy, free speech and responsible anonymity together with the impact of copyright laws and cultural-societal issues around the ethics of technology.  He freely acknowledges that regional regulation and cultural sensitivities would vary.  “Western democracy” after all is exactly that and its tenets, whilst laudable to its proponents, may not have universal appeal.

What is really required is a shared document of principle that could provide an international standard not so much for the values of Western democracy but for the values and importance that underlie an open Internet.

One of the things that Berners-Lee is keen to see changed is the connection between the US Department of Commerce and the internet addressing system – the IANA contract which controls the database of all domain names.  Berners-Lees’ view was that the removal of this link, if one will forgive the pun, was long overdue and that the United States government could not have a place in running something which is non-national.  He observed that there was a momentum towards that uncoupling but that there should be a continued multi-stakeholder approach and one where governments and corporates are kept at arm’s length.  As it would happen within a week or so after Berners-Lees expressions of opinion the United States government advised that it was going to de-couple its involvement with the addressing system.

Another concern by Berners-Lee was the “balkanisation” of the internet whereby countries or organisations would carve up digital space to work under their own rules be it for censorship regulation or for commerce.  Following the Snowden revelations there were indeed discussions along this line where various countries, to avoid US intrusion into the communications of their citizens, suggested a separate national “internet”.  This division of a global communications infrastructure into one based upon national boundaries is anathema to the concept of an open internet and quite contrary to the views expressed by Mr Berners-Lee.

Is This New?

The idea of some form of Charter or principles that limit or define the extent of potential governmental interference in the Internet is not new. Perhaps what is remarkable is that Berners-Lee, who has been apolitical and concerned primarily with engineering issues surrounding the Internet and the World Wide Web has, since 2013, spoken out on concerns regarding the future of the Internet and fundamental governance issues.

Governing the internet is a challenging undertaking. It is a decentralised, global environment, so governance mechanisms must account for many varied legal jurisdictions and national contexts. It is an environment which is evolving rapidly – legislation cannot keep pace with technological advances, and risks undermining future innovation. And it is shaped by the actions of many different stakeholders including governments, the private sector and civil society.

These qualities mean that the internet is not well suited to traditional forms of governance such as national and international law. Some charters and declarations have emerged as an alternative, providing the basis for self-regulation or co-regulation and helping to guide the actions of different stakeholders in a more flexible, bottom-up manner. In this sense, charters and principles operate as a form of soft law: standards that are not legally binding but which carry normative and moral weight.

Dixie Hawtin in her article “Internet Charters and Principles: Trends and Insights” summarises some of the steps that have been taken:

“Civil society charters and declarations

John Perry Barlow’s 1996 Declaration of Cyberspace Independence is one of the earliest and most famous examples. Barlow sought to articulate his vision of the internet as a space that is fundamentally different to the offline world, in which governments have no jurisdiction. Since then civil society has tended to focus on charters which apply human rights standards to the internet, and which define policy principles that are seen as essential to fulfilling human rights in the digital environment. Some take a holistic approach, such as theAssociation for Progressive Communications’ Internet Rights Charter (2006) and the Internet Rights and Principles Coalition’s (IRP) Charter of Human Rights and Principles for the Internet (2010). Others are aimed at distinct issues within the broader field, for instance, the Electronic Frontier Foundation’s Bill of Privacy Rights for Social Networks (2010), the Charter for Innovation, Creativity and Access to Knowledge (2009), and the Madrid Privacy Declaration (2009).

Initiatives targeted at the private sector

The private sector has a central role in the internet environment through providing hardware, software, applications and services. However, businesses are not bound by the same confines as governments (including international law and electorates), and governments are limited in their abilities to regulate businesses due to the reasons outlined above. A growing number of principles seek to influence private sector activities. The primary example is the Global Network Initiative, a multi-stakeholder group of businesses, civil society and academia which has negotiated principles that member businesses have committed themselves to follow to protect and promote freedom of expression and privacy. Some initiatives are developed predominantly by the private sector (such as the Aspen Institute International Digital Economy Accords which are currently being negotiated); others are a result of co-regulatory efforts with governments and intergovernmental organisations. The Council of Europe, for instance, has developed guidelines in partnership with the online search and social networking sectors. This is part of a much wider trend of initiatives seeking to hold companies to account to human rights standards in response to the challenges of a globalised world where the power of the largest companies can eclipse that of national governments. Examples of the wider trend include the United Nations Global Compact, and the Special Rapporteur on human rights and transnationalcorporations’ Protect, Respect and Remedy Framework.

 Intergovernmental organisation principles

There are many examples of principles and declarations issued by intergovernmental organisations, but in the past year a particularly noticeable trend has been the emergence of overarching sets of principles. The Organisation for Economic Co-operation and Development (OECD) released a Communiqué on Principles for Internet Policy Making in June 2011. The principles seek to provide a reference point for all stakeholders involved in internet policy formation. The Council of Europe has created a set of Internet Governance Principles which are due to be passed in September 2011. The document contains ten principles (including human rights, multi-stakeholder governance, network neutrality and cultural and linguistic diversity) which member states should upholdwhen developing national and international internet policies.

National level principles

At the national level too, some governments have turned to policy principles as an internet governance tool. Brazil has taken the lead in this area through its multi-stakeholder Internet Steering Committee, which has developed the Principles for the Governance and Use of the Internet – a set of ten principles including freedom of expression, privacy and respect for human rights. Another example is Norway’s Guidelines for Internet Neutrality (2009) which were developed by the Norwegian Post and Telecommunications Authority in collaboration withother actors such as internet service providers (ISPs) and consumer protection agencies”

 

A Starting Point – Initial Thoughts.

So what would be a starting point for the development of an internet or digital bill or rights?

Traditionally the “Bill of Rights” concept has been to act as a buffer between over-weaning government power on the one hand and individual liberties on the other.  The first attempt at a form of Bill of Rights occurred at the end of the English Revolution (1642 – 1689) and imposed limits upon the Sovereigns power.

The Age of Enlightenment and much of the philosophical thinking that took place in the late 17th and early 18th centuries resulted in statements or declarations of rights by the American colonies – the Declaration of Independence – the United States in  Amendments 1-10 to the Constitution (referred to as the Bill of Rights)  and the 1789 Declaration of the Rights of Man and the Citizen following the French Revolution.

An essential characteristic of these statements was to define and restrict the interference of the State in the affairs of individuals and guarantee certain freedoms and liberties.  It seems to me that a Internet Bill of Rights would set out and define individual expectations of liberty and non-interference on the part of the State within the context of the communications media made available by the Internet.

But the function of Charters has developed since the Age of Enlightenment approaches, especially with the development of global and transnational institutions. Hawtin notes that:

“Civil society uses charters and principles to raise awareness about the importance of protecting freedom of expression and association online through policy and practice. The process of drafting these texts provides a valuable platform for dialogue and networking. For example, the IRP’s Charter of Human Rights and Principles for the Internet has been authored collaboratively by a wide range of individuals and organisations from different fields of expertise and regions of the world. The Charter acts as an important space, fostering dialogue about how human rights apply to the internet and forging new connections between people.

Building consensus around demands and articulating these in inspirational charters provide civil society with common positions and tools with which to push for change. This is demonstrated by the number of widely supported civil society statements which refer to existing charters issued over the past year. The Civil Society Statement to the e G8 and G8, which was signed by 36 different civil society groups from across the world, emphasises both the IRP’s 10 Internet Rights and Principles (derived from its Charter of Human Rights and Principles for the Internet) and the Declaration of the Assembly on the Right to Communication. The Internet Rights are Human Rights statement submitted to the Human Rights Council was signed by more than 40 individuals and organisations and reiterates APC’s Internet Rights Charter and the IRP’s 10 Internet Rights and Principles.

As charters and principles are used and reiterated, so their standing as shared norms increases. When charters and statements are open to endorsement by different organisations and individuals from around the world, this helps to give them legitimacy and demonstrate to policy makers that there is a wide community of people who are demanding change.

While the continuance of practices which are detrimental to internet freedom indicates that these initiatives have not, so far, been entirely successful, there are signs of improvements. Groups like APC and the IRP have successfully pushed human rights up the agenda in the Internet Governance Forum. Other groups are hoping to emulate these efforts to increase awareness about human rights in other forums. The At-Large Advisory Committee, for instance, is in the beginning stages of creating a charter of rights for use within the Internet Corporation for Assigned Names and Numbers (ICANN).”

  Part of the problem with the “Charter Approach” is that there may be a proliferation of such instruments or proposals that may have the effect of diluting the moves for a universal approach. On the other hand, charters or statements of principle of a high quality with an acceptance that lends legitimacy may be more likely to attract adoption and advocacy by a growing majority of stakeholders. Some charters may be applicable to local circumstances. Those with a specific international orientation will attract a different audience and advocacy approach. As I understand it Berners-Lee is suggesting a combination of the two – an international statement of principle incorporated into local law recognising differences in cultural and customary norms. In some respects his approach seems to have an air the EU approach whereby an EU requirement is adopted into local law – often with a shift in emphasis that takes into account local conditions.

However, what must be remembered is the difficulty with power imbalances where economically and political powerful groups may drive a local (or even international) process. What is required is a meaningful multi-stake-holder approach that recognises equality of arms and influence. Hawtin also observes that with the proliferation of charters and principles, governments and corporates may “cherry pick” those standards which accord with their own interests. Voluntary standards have difficulties with engagement and enforcement.

A Starting Point – A Possible Framework

Because the Internet is primarily a means of communication of information – it’s not referred to as ICT or Information and Communication Technology for nothing – what is being proposed is an extension or redefinition of the rights of freedom of expression guaranteed in national and international instruments such as the First Amendment to the United States Constitution, section 14 of the New Zealand Bill of Rights Act 1990,  Section 2 of the Canadian Charter of Rights and Freedoms and Article 19 of the Universal Declaration of Human  Rights, to mention but a few. Thus an Internet Bill of Rights would have to be crafted as guaranteeing aspects or details of the freedom of expression, although the freedom of expression right also has attached to it other collateral rights such as the right to education, the right to freedom of association (in the sense of communicating with those with whom one is associated), the right to full participation in social, cultural and political life and the right to social and economic development. Perhaps a proper focus for attention should be upon the Internet as a means of facilitating the freedom of expression right.

This approach was the subject of the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank LaRue, to the General Assembly of the United Nations, in August 2011.

In that Report he made the following observations

14. The Special Rapporteur reiterates that the framework of international human rights law, in particular the provisions relating to the right to freedom of expression, continues to remain relevant and applicable to the Internet. Indeed, by explicitly providing that everyone has the right to freedom of expression through any media of choice, regardless of frontiers, articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights were drafted with the foresight to include and accommodate future technological developments through which individuals may exercise this right.

 15. Hence, the types of information or expression that may be restricted under international human rights law in relation to offline content also apply to online content. Similarly, any restriction applied to the right to freedom of expression exercised through the Internet must also comply with international human rights law, including the following three-part, cumulative criteria:

(a) Any restriction must be provided by law, which must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and must be made accessible to the public;

(b) Any restriction must pursue one of the legitimate grounds for restriction set out in article 19, paragraph 3, of the International Covenant, namely (i) respect of the rights or reputation of others; or (ii) the protection of national security or of public order, or of public health or morals;

 (c) Any restriction must be proven as necessary and proportionate, or the least restrictive means to achieve one of the specified goals listed above.

The issue of the potential human right of access to the Internet was covered in this way:

61. Although access to the Internet is not yet a human right as such, the Special Rapporteur would like to reiterate that States have a positive obligation to promote or to facilitate the enjoyment of the right to freedom of expression and the means necessary to exercise this right, which includes the Internet. Moreover, access to the Internet is not only essential to enjoy the right to freedom of expression, but also other rights, such as the right to education, the right to freedom of association and assembly, the right to full participation in social, cultural and political life and the right to social and economic development.

 62. Recently, the Human Rights Committee, in its general comment No. 34 on the right to freedom of opinion and expression, also underscored that States parties should take all necessary steps to foster the independence of new media, such as the Internet, and to ensure access of all individuals thereto.

 63. Indeed, given that the Internet has become an indispensable tool for full participation in political, cultural, social and economic life, States should adopt effective and concrete policies and strategies, developed in consultation with individuals from all segments of society, including the private sector as well as relevant Government ministries, to make the Internet widely available, accessible and affordable to all.

In locating an Internet Bill of Rights within the concept of the freedom of expression, one must be careful to ensure that by defining subsets of the freedom of expression right, one does not impose limitations that may impinge upon the collateral rights identified by Mr. LaRue

Having made that observation, it is important to recall that an Internet Bill of Rights could guarantee the independence and neutrality of the means of communication – the Internet – and prohibit heavy handed secretive surveillance and intrusive interference with that means of communication.  Whilst it is acknowledged that there is a need for meaningful laws to protect the security of citizens both individually and as a group – and Mr LaRue recognises justified limitation on the freedom of expression in areas such as child pornography, direct and public incitement to commit genocide, Advocacy of national, racial or religious hatred that constitutes incitement to  discrimination, hostility or violence, and incitement to terrorism –  such laws cannot be intrusive into areas such as privacy or private activity and communication.

One of the problems about regulating the Internet or indeed preventing the regulation of the internet is to understand how it is used by end users.  In the United States Representatives Issa (R-Ca) and Senator Wyden (D-Or) developed an idea for a Digital Bill of Rights based upon ten principles:

  1. Freedom – The right to a free and uncensored Internet.
  2. Openness – The right to an open, unobstructed Internet.
  3. Equality – The right to equality on the Internet.
  4. Participation – The right to gather and participate in online activities.
  5. Creativity – The right to create and collaborate on the Internet.
  6. Sharing – The right to freely share their ideas.
  7. Access – The right to access the Internet equally, regardless of who they are or where they are.
  8. Association – The right to freely associate on the Internet.
  9. Privacy – The right to privacy on the Internet.
  10. Property – The right to benefit from what they create.

 

The Issa\Wyden categories are helpful in some respects, again as a starting point. One of the most significant things about their observations lies not so much in their categorisation but in the observation that the way that the Internet is used within the wider activity of communication and social activity must be understood.

Many of the Issa\Wyden principles are in fact subsets of the right to free expression.  Within the right to free expression there is a right not only to the means of expressing an opinion – described in s. 14 of the New Zealand Bill of Rights Act  as the right to impart information – but also the right to receive it.

The wording of the concept of “participation” in the Issa\Wyden proposal is important and in some respects reflects the LaRue concept of association within the Internet space. One must be careful, as Issa and Wyden have been to ensure that concepts applicable to the Internet space as a means of communication remain.

Expressions in favour of an Internet Bill of Rights have been put forward on the basis that the digital economy requires a reliable set of laws and procedures whereby individuals and corporations may do business and promote innovation.  It is suggested that an Internet Bill of Rights could well establish a nation that enacted and guaranteed such rights as being an innovative place within the digital environment which would guarantee a citizen privacy and promote a digital It may support a vision for a country as a data haven where people and businesses can have confidence that they have sovereignty over and unfettered ownership of  their data and that it will be protected.

Stability and certainty, particularly within the commercial environment, are necessary prerequisites for flourishing commercial activity.  I wonder, however, whether or not the concept of an Internet Bill of Rights fits comfortably within the “nation state” model of a secure, predictable and certain place where people can do business.

The Internet Bill of Rights ideally would guarantee certain national and minimum standard for Internet activity that could be mirrored worldwide.   Examples of digital paradigm legislation which attempt to harmonise principles transnationally may be found in New Zealand in the Electronic Transactions Act which has its genesis in international Conventions and the Unsolicited Electronic Messages Act where the principles applied in similar legislation in Australia favour a particular opt-in model for the continued receipt of commercial electronic messages. Legislation in the United States (The CAN-SPAM Act) favours an opt-out approach  based upon constitutional imperatives surrounding the First Amendment. Differing approaches to Spam control  based on local legal or cultural imperative provide a good example of the difficulty in achieving international harmonisation of national laws.

It was suggested by Issa and Wyden that it was necessary for there to be an understanding of the Internet and how it is used. I suggest that in considering a Internet Bill of Rights the enquiry must go further.  Not only must there be an understanding of how the Internet is used but also of how it works and essentially this involves a recognition of the paradigmatic differences between models of communications media and styles that existed before the Digital Age and understanding the way in which the qualities, properties or, as one writer has put it, the affordances of digital technologies work.

One of the present qualities of digital technologies and particularly of the internet is that of “permissionless innovation” – the ability to “bolt on” to the Internet backbone an application without seeking permission from any supervising or regulatory entitly.. This concept is reflected in items 2, 5, 6 and 10 of the Issa/Wyden list of rights   Permissionless innovation is inherent within digital technologies only because it is in existing default position and one which could well change depending upon the level of government interference.  Thus if one were to maintain net neutrality integrity and the importance of innovation the concept of permissionless innovation would have to be endorsed and protected.

A further matter to be considered is the way in which these various characteristics affordances properties or qualities impact upon human behaviour and upon expectations of information.  Our current expectations relating to information, its use, availability, dynamic quality, accessibility and searchability all impact upon our behaviours and responses within the context of the act of communication.  “Information now” – an expectation of an immediate  reply, an expectation of immediate access 24/7 – has developed as the result of the inherent and underlying properties of digital communication systems enabled by the Internet, email, instant messaging, internet telephony, Skype, mobile phone technology or otherwise.

The problem with the Issa\Wyden proposal is that it is cast within the very wide framework of guarantees for individual liberties. In this respect it reflects traditional “rights” instruments as being a definition of the boundaries between the individual and the State. In addressing the Internet – a medium of communication – there are some difficulties in this approach.  Of the items that they identify those of openness, freedom and access are those that might be the focus of attention of an Internet Bill of Rights. The other aspects deal with issues that inhabit the content layer, yet the technological layers are the ones that are really the subject of potential threat from the State. The objective is summed up by InternetNZ who seek an open and uncapturable Internet. This objective recognises the medium rather than the message that it conveys. But by the same token, the medium is critical as a means of fostering the guarantee of freedom of expression.

Moving Forward

It seems to me that the proper focus of an Internet Bill of Rights is that of the technology that is the Internet. Berners-Lee recognises this when he refers to “net neutrality” which is a term that is capable of a number of meanings. What must be guaranteed and recognised by States is that the means of communication must be left alone and should not be the subject of interference by domestic legal processes. An open and uncapturable Internet cannot be compromised by local rules governing technical standards which have world wide application. It is perhaps this global aspect that confounds a traditional approach to Internet regulation in that although it is possible for there to be local rules that interfere with Internet functionality, there cannot be given that such rules may impact upon the wider use of the Internet. Local interference with engineering or technical standards may have downstream implications for overall Internet use by those who are not subject to those local rules.

Recent efforts by the ITU to establish some form of regulatory or governance structures allowing government restriction or blocking of information disseminated via the internet and to create a global regime of monitoring internet communications – including the demand that those who send and receive information identify themselves would have wide ranging implications for Internet use. The proposal would also have allowed governments to shut down the internet if there is the belief that it may interfere in the internal affairs of other states or that information of a sensitive nature might be shared.  Although some of the proposals suggested less US control over the Internet, which is forthcoming is the disengagement of the US Department of Commerce from involvement with ICANN, nevertheless it is of concern that wider interference with Internet traffic should be seriously proposed under the umbrella of an agency whose brief is essentially directed towards the efficient functioning of communications networks, rather than obstructing them.

That there is such an appetite for regulation and control present at an international forum is a matter of concern and probably underscores an increased urgency for a rights-based solution to be put in place.

There are two main areas where the Bill of Rights for the Internet could be explored. One is through the Internet Society operating as an umbrella for those that make up the Internet Ecosystem including:

Technologists, engineers, architects, creatives, organizations such as the Internet Engineering Task Force (IETF) and the World Wide Web Consortium(W3C) who help coordinate and implement open standards.

 Global and local Organizations that manage resources for global addressing capabilities such as the Internet Corporation for Assigned Names and Numbers(ICANN), including its operation of the Internet Assigned Numbers Authority(IANA) function, Regional Internet Registries (RIR), and Domain Name Registries and Registrars.

 Operators, engineers, and vendors that provide network infrastructure services such as Domain Name Service (DNS) providers, network operators, and Internet Exchange Points (IXPs)

 The other is the Internet Governance Forum where its mission to “identify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations” ideally encompasses discussions and recommendations around an Internet Bill of Rights. It seems to me that the development of a means by which the technical infrastructure of the Internet and the standards that underlie it – which have been in the hands of the ITEF and the W3 consortium – remain open, free and uncapturable should have some priority.

These are organisations that could properly address issues of how to maintain the neutrality and integrity of the engineering and technical aspects of the Internet – to ensure a proper means of ensuring from a principled position an identification and articulation of the technical aspects of the Internet that require protection by a statement of rights – which would be a non-interference approach – couple with the definition of the technological means that can be employed to ensure the protection of those rights.

The objection to such a proposal would be that all power would rest with the engineers, but given that the principle objective of an engineer is to make things work, that can hardly be a bad thing. Maintaining a system in good working order would be preferable to arbitrary and capricious interference with the mechanics of communication by politicians or organs of the State.

This is a project that will have to be developed carefully and analytically to ensure that what we have now continues and is not subverted, damaged or the potential that it may have for humanity in the future as a means of relating to one another is not compromised. It seems to me that protection of the technology is the means by which Berner-Lee’s goal of net neutrality may be maintained.

 

David Harvey

12 May 2014

E-Discovery and Asia Legal Big Data

I had the privilege of being invited to take part in the Asia Legal Big Data Symposium held at the Conrad Hotel in Hong Kong on 29 – 30 April 2014, and to share a place on a panel which included Registrar Lung Kim Wan of the Hong Kong High Court, Senior Assistant Registrar Yeong Zee Kin from the Singapore Supreme Court and Stephen Yu from Alix Partners. The focus of the Conference was upon the imminent release of a Practice Direction for the Hong Kong Courts addressing E-Discovery. Although the present Hong Kong Rules are sufficiently wide to deal with E-Discovery in a broad sense, and more focussed approach is proposed.

The panel in which I participated dealt with existing rules and how they work in Singapore and New Zealand, and how the general shape of the Hong Kong direction may appear. Stephen Yu was able to bring valuable technical knowledge into the mix in considering some of the tools and technological solutions that may be utilised in the E-Discovery process.

The Symposium itself was an abundance of riches and as is so often the case, there were times when a difficult choice had to be made between which session to attend. Some of the sessions on data and information management within organisations were very interesting and helpful, emphasising the importance of how proper information management systems and policies can be helpful when a litigation hold is notified. Of particular interest was the way in which such policies may be used to resist spoliation allegations. A proper, principled inmjformation management policy may offer a reasonable explanation for why data is not immediately available or why it is no longer in existence.

It was also a pleasure to meet again Chris Dale from the E-Disclosure Information Project. I first met Chris in Singapore at a Conference a couple of years ago and we have kept in touch. Indeed I owe a debt to Chris for it was he who recommended my participation to the Conference organisers. Chris, as always, played a valuable part of the Hong Kong Conference, sharing his experiences and insights in the E-Discovery field and often was able to point out some of the shortcomings in the way in which E-Discovery Rules are working. One observation that he made was in the context of E-Discovery as a process.

The process starts often before litigation actually begins – when in fact it is contemplated. Parties should start considering their E-Discovery obligations at this time. The various stages of the process (reflected in the EDRM diagram – EDRM means Electronic Discovery Reference Model) continue through the the presentation of documents at Court. I think I should point out that I do not consider the E-Discovery process to be of the “tick the boxes” type of process, nor one which involves a slavish adherence to a set step by step approach. In my view the process is in the form of a journey which carries on throughout the life of the litigation and which involves a number of steps or stages together with an on-going obligation on the part of counsel to meet, confer and co-operate and a requirement by the Court by way of Case Management Conferences to ensure that discovery is reasonable and proportionate. The Court can keep a steady guiding hand on the wheel as the parties continue on the E-Discovery journey. Chris’s criticism of “E-Discovery as a process” was in the context of a slavish adherence to a step by step “plan” and I agree with that. But my view is that a process may have within it a certain flexibility. For example, a staged approach to electronic review may mean that different options become apparent as the review continues, allowing for modifications as review continues.

A copy of my paper delivered to the Symposium may be found below, along with a copy of my presentation.

 

 

Presentation