David

Spain vs. Google or Freedom of Expression vs. the Right to Be Forgotten

Several outlets are reporting today, the interesting clash between Spanish courts and Google. The argument is over whether Google should carry articles that have been challenged by Spanish citizens as breaching their privacy. An injunction was won in the courts by the Spanish data protection commissioner over publication of material that is being challenged under privacy legislation.

Clearly there are two main issues here. One is the specific issue of whether Google, as a search engine, can be considered as a publisher, or as it claims, simply an intermediary which publishes nothing, only linking to items published by others. This is important for Google as a business and for those who use it.

But the other is a more interesting issue which is the deeper question of what is going on here which is the struggle between two kinds of rights. The right to freedom of expression, to be able to say what one likes, is a longstanding one in democracies, however it is almost nowhere absolute. The problem in a search-engine enabled information age, is that these exceptions, which relate to both the (un)truth of published allegations (questions of libel and false accusation) and of privacy and to several other values, are increasingly challenged by the ability of people in one jurisdiction to access the same (libellous, untrue or privacy-destructive) information from outside that jurisdiction via the Internet.

In Spain, the question has apparently increasingly been framed in terms of a new ‘right to be forgotten’ or ‘right to delete’. This is not entirely new – certainly police records in many countries have elements that are time-limited, but these kinds of official individually beneficial forgettings are increasingly hard to maintain when information is ‘out there’ proliferating, being copied, reposted and so on.

This makes an interesting contrast with the Wikileaks affair. Here, where it comes to the State and corporations, questions of privacy and individual rights should not be used even analogically. The state may assert ‘secrecy’ but the state has no ‘right of privacy’. Secrecy is an instrumental concept relating to questions of risk. Corporations may assert ‘confidentiality’ but this is a question of law and custom relating to the regulation of the economy, not to ‘rights’.

Privacy is a right that can only be attached to (usually) human beings in their unofficial thoughts, activities and existence. And the question of forgetting is really a spatio-temporal extension of the concept of privacy necessary in an information society. Because the nature of information and communication has changed, privacy has to be considered over space and through time in a way that was not really necessary (or at least not for so many people so much of the time) previously.

This is where Google’s position comes back into play. Its insistence on neutrality is premised on a libertarian notion of information (described by Erik Davis some time ago as a kind of gnostic American macho libertarianism that pervades US thinking on the Internet). But if this is ‘freedom of information’ as usually understood in democratic societies, it does have limits and an extreme political interpretation of such freedom cannot apply. Should Google therefore abandon the pretence of neutrality and play a role in helping ‘us’ forget things that are untrue, hurtful and private to individuals?

The alternative is challenging: the idea that not acting is a morally ‘neutral’ position is clearly incorrect because it presages a new global norm of information flow presaged on not forgetting, and on the collapse of different jurisdictional norms of privacy. In this world, whilst privacy may not be dead, the law can no longer be relied on to enforce it and other methods from simple personal data management, to more ‘outlaw’ technological means of enforcement will increasingly be the standard for those who wish to maintain privacy. This suggests that money and/or technical expertise will be the things that will allow one to be forgotten, and those without either will be unable to have meaningful privacy except insofar as one is uninteresting or unnoticed.

Peep Culture

Just a quick post to recommend that you check out Hal Niedzviecki’s website, book and new TV show on ‘peep culture‘, the everyday culture of surveillance. It’s fascinating work, and the TV show involved Hal being under 24/7 observation.

New Year, New Walls

A few years ago the European Union was celebrating the demise of national borders. At the same time, critics were warning that the Schengen Agreement foretold a ‘Fortress Europe’. Up until recently, that fortress was largely composed of information systems and conventional border controls, but now Greece is making it very physical with a new ‘border wall’ with its old enemy, Turkey. Admittedly this wall is not on the same scale as those erected by Israel (in unilaterally establishing a border with Palestine) or the USA (along the border with Mexico), and will be placed at a site near the river Evros in Thrace, described as ‘highly permeable’ to illegal immigration which tends to funnel through Turkey into the EU via Greece.

The EU is making vaguely protesting noises, which are likely almost entirely insincere and will in any case be ineffective (see the similar quickly withdrawn complaints over France’s disgraceful expulsions of Roma and Sinti people last year). The real reasons for the new barrier may be rather more opportunist and cynical in any case: in a time of financial crisis in Greece with the government reeling from popular protest, turning on the ‘Other’, and being seen to be tough in immigration, is a classic populist strategy of diversion.

UK Control Orders to be replaced by Surveillance Orders

There has been a lot of speculation in the last couple of weeks about the fate of the ‘Control Orders’ that have been placed on various people (largely British Muslims) who are strongly suspected by the authorities of involvement with terrorism, but who have not committed any crime that would likely lead to a successful prosecution. These orders tend to amount to forms of curfewing or house arrest without trial, and banning them from using all forms of telecommunications, and needless to say, have been immensely controversial with civil liberties groups arguing that they subvert the rule of law, and that if there is evidence of terrorist activity people should be investigated and charged with such offenses. This has also been a test case for the willingness of the Conservative- LibDem coalition to take onboard key Liberal Democrat priorities and to go further in rolling back the creeping authoritarianism that characterised the final years of the New Labour regime.

So what will replace them? Speculation had centred around the replacement of the order with a system that allowed suspects to move around relatively freely but placed them under intensified ongoing surveillance. Now the BBC is claiming that it has details of what are likely to be called ‘Surveillance Orders’. These, they say, will give the security services the power to:

Ban suspects from travelling to locations such as open parks and thick walled buildings where surveillance is hard;

Allow suspects to use mobile phones and the internet but only if the numbers and details are given to the security services;

Ban suspects travelling abroad; and

Ban suspects meeting certain named individuals, but limited to people who are themselves under surveillance or suspected of involvement in terrorism.

Some of this is hardly new: those suspected of involvedment in football hooliganism in the UK have been subject to travel bans since the 1980s, and it seems to be from this that precendent is taken for at least this part of the new place. It is also almost funny that certain locales are seemingly specified as being difficult for surveillance – and I know this won’t be in the actual Bill – but, surely it is actually quite useful for real terrorists to know this? 😉

But this is all very interesting not least because it uses ‘surveillance’ as a supposed replacement for ‘control’, or as something synonymous with increased freedom. That may be so in physical terms, but the constant monitoring suggested under these new orders creates something very far from freedom. However in many ways it constitutes simply an intensified version of the kind of low-level constant monitoring or mass surveillance that is characteristic of contemporary surveillance societies. It is not so much that there are the ‘unwatched’ and the ‘watched’ rather there is a spectrum of surveillance between the lightly and heavily monitored. The new ‘Surveillance Orders’ would merely seem to push the dial for an individual into the category of heavy monitoring.

Surveillance and Empowerment

I’ve just spent my Saturday getting the new issue of Surveillance & Society out…

8(2): Surveillance and Empowerment
http://www.surveillance-and-society.org/ojs/index.php/journal/issue/current

edited by Torin Monahan, David J. Phillips and David Murakami Wood

James P Walsh – From Border Control to Border Care: The Political and Ethical Potential of Surveillance.
Katie Shilton – Participatory Sensing: Building Empowering Surveillance
Priscilla M Regan and Valerie Steeves – Kids R Us: Online Social Networking and the Potential for Empowerment
Dean Wilson and Tanya Serisier – Video Activism and the ambiguities of counter-surveillance
Marko M Skoric, Jia Ping Esther Chua, Meiyan Angeline Liew, Keng Hui Wong, and Pei Jue Yeo – Online Shaming in the Asian Context: Community Empowerment or Civic Vigilantism?
Ariane Ellerbrok – Empowerment: Analyzing Technologies of Multiple Variable Visibility
Gwen Ottinger – Constructing Empowerment through Interpretations of Environmental Surveillance Data
Anders Albrechtslund and Louise Nørgaard Glud – Empowering Residents: A Theoretical Framework for Negotiating Surveillance Technologies

+ all the usual book reviews

Coming soon: our forthcoming issues on ‘Surveillance, Marketing and Consumption’, and our ‘Global Surveillance Society?’ Conference specials.

Surveillance & Society | the international journal of surveillance studies
http://www.surveillance-and-society.org/ojs/index.php/

Internet doit être défendu! (4)

I write this addition to my ongoing series of thoughts on the implications of the Wikileaks scandal, en Francais because according to Le Point, the the Assemblée Nationale has passed a bill, Loppsi 2, which, amongst other things, in its Article 4, allows the French government to ban particular websites, and essentially to ‘filter’ the Internet. The Bill of course has ‘good intentions’, in this case, it is aimed at paedophiles, but the wording is such that it allows a far wider use against “la cybercriminalité en général”. Regardless, as the article points out: “Les expériences de listes noires à l’étranger ont toutes été des fiascos,” in other words such bills have generally been a complete failure as in most cases the state’s technology and expertise cannot deliver what the law allows.

However, I am left wondering what makes this any different from what China does, and what moral right the French state now has to criticise Chinese censorship or indeed any other regime that is repressive of information rights. And of course, what other very reasonable ‘good intentions’ could be drawn upon for closing the Net – opposing ‘information terrorism’, par example?

Facebook face-recognition

Reports are that US users can now use an automated face-recognition function to tag people in photos posted to the site. To make it clear, this is not the already dubious practice of someone else tagging you in a photo, but an automated service – enter a picture and the system will search around identifying and tagging.

As a Facebook engineer is quoted as saying:

“Now if you upload pictures from your cousin’s wedding, we’ll group together pictures of the bride and suggest her name… Instead of typing her name 64 times, all you’ll need to do is click ‘Save’ to tag all of your cousin’s pictures at once.”

Once again, just as with Facebook Places, the privacy implications of this do not appear to have been thought through (or more likely just disregarded) and it’s notable that this has not yet been extended to Canada, where the federal Privacy Commissioner has made it very clear that Facebook cannot unilaterally override privacy laws.

Let’s see how this one plays out, and how much, once again, Facebook has to retrofit privacy settings…

The New North American Perimeter

Canadians have been angered to discover recently that a deal to create a new US-Canada perimeter security initiative has been going on behind their backs. This plan has been some time in the making, as we uncovered during our current research on border security. In particular, alliances of major corporations and US and Canadian government organisations have been planning together in the Security and Prosperity Partnership (SPP) and the North American Competitiveness Council (NACC) – who back in 2007 produced a document, Building a Secure and Competitive North Anerica (pdf), that seems to prefigure exactly what this ‘new’ soon to be announced plan will contain.

And already the state public relations machines have rumbled into place to prevent dissent. The government clearly has nothing but contempt for the Canadian Charter rights that this deal will damage (most notably those around information and privacy). And there seems to be no doubt that this deal will further embed US security priorities in Canadian-US relations, and effectively add an inner core of security to the economic layer of NAFTA (excluding Mexico, of course… no doubt the perimeter will continue exclude them, even while we exploit their cheap labour and resources). Indeed the ‘success’ of NAFTA (read: the success of NAFTA for business elites) is one of the reasons given for supporting this so-far unseen plan by five former Canadian ambassadors to Washington in an Opinion piece in the Globe and Mail today.

This first volley from the big guns seems to have come straight from the Ottawa PR stategy. There are references to ‘common sense’ and the ‘reassertion of sovereignty’ and attacks on ‘bellyaching’ and ‘knee-jerk anti-Americanism’. Indeed it is worth quoting the final paragraph in full because it is a masterpiece of old-fashioned continentalist propaganda combined with post-9/11 fear-stoking:

“Knee-jerk anti-Americanism is an indulgence without purpose in today’s interconnected, interdependent world. Our future economic prosperity relies on an efficient border, and we should welcome any agreement that smoothes the way for jobs and growth while toughening up our borders to security threats against both our countries.”

In this worldview, asserting sovereignty means giving it up, ‘interconnected and interdependent’ means allied with the USA rather than all the other multiplicity of friendships Canada had carefully crafted around the world prior to the Harper era, and security threats to the USA are seen as one and the same as those to Canada. In other words, we should hitch our wagon more firmly to Washington and prevent any return to that ‘indulgent’ Canadian emphasis on global security, peace-building, human development and human rights – you know, the values that once gained Canada respect around the world.

It’s quite eye-opening in a way to see former representatives of the Canadian state to the USA openly acting as US assets in Canada, clearly trying to educate the Canadian public in how to think and how to behave towards their rulers (sorry, slip of the tongue, of course I meant ‘neighbours’), and trying to preempt and predefine reaction to a plan that we haven’t even seen yet not least because people like this seem to think that Canadians don’t deserve to have a say in something that amounts to nothing less than the future sovereignty of their country.

(thanks to Harrison Smith for the NACC document and David Lyon for pointing out the Opinion piece)