data protection – ubisurv

On the ‘Right to Be Forgotten’

While Viktor Mayer-Schönberger is arguing today both that there’s really not a lot new to the European Court of Justice decision to order Google to adjust its search results to accommodate the right to privacy for one individual and that it really won’t be a problem because Google already handles loads of copyright removal requests very quickly, the decision has also sparked some really rather silly comments all over the media, usually from the neoliberal and libertarian right, that this is a kind of censorship or that it will open the door to states being able to control search results.

I think it’s vital to remember that there’s really an obvious difference between personal privacy, corporate copyright and state secrecy. I really don’t think it’s helpful in discussion to conflate all these as somehow all giving potential precedent to the other (and I should be clear that Mayer-Schönberger is not doing this, he’s merely pointing out the ease with which Google already accommodates copyright takedown notices to show that it’s not hard or expensive for them to comply with this ruling). State attempts to remove things that it finds inconvenient are not the same as the protection of personal privacy, and neither are the same as copyright. This decision is not a precedent for censorship by governments or control by corporations and we should very strongly guard against any attempts to use it in this way.

Google algorithms already do a whole range of work that we don’t see and to suggest that they are (or were) open, free and neutral and will now be ‘biased’ or ‘censored’ after this decision is only testament to how much we rely on Google to a large extent, unthinkingly. This is where I start to part company with Mayer-Schönberger is in his dismissal of the importance of this case as just being the same as a records deletion request in any other media. It isn’t; it’s much more significant.

You are sill perfectly free to make the effort to consult public records about the successful complainant in the case (or anyone else) in the ways you always have. The case was not brought against those holding or even making the information public. What the case sought to argue, and what the court’s verdict does, is to imply that there are good social reasons to limit the kind of comprehensive and effortless search that Google and other search engines provide, when it comes to the personal history of private individuals – not to allow that one thing that is over and one to continue to define the public perception of a person anywhere in the world and potentially for the rest of their life (and beyond). Something being public is not the same as something being easily and instantaneously available to everyone forever. In essence it provides for a kind of analog of the right of privacy in public places for personal data. And it also recognizes that the existence and potentials of any information technology should not be what defines society, rather social priorities should set limits on how information technologies are used.

Personally, I believe that this is a good thing. However, as the politics of information play out over the next few years, I also have no doubt that it’s something that will be come up again and again in courts across the world…

PS: I first wrote about this back in 2011 here – I think I can still stand behind what I though then!

New Privacy Survey released

Simon Davies, AKA Privacy Surgeon, and the London School of Economics have a great new survey of privacy predictions for 2013 out now. Key quote from the press release:

“More aggressive action by companies to monetise personal information through advertising will inevitably fuel further controversy, while consolidation of markets such as social networking may induce emerging players to engage dangerous privacy practices.”

Whether 2013 is the tipping point in this regard that the survey suggests or not, it is certainly the case that various ‘lines in the sand’ are being crossed on a regular basis at the moment and if the public aren’t as concerned as the experts surveyed for this report, then privacy may even lose even its tactical utility as a way of opposing surveillance, let alone mean the same thing to most people as it used to.

Death to the ICO?

Chris Parsons draws my attention to a blog posting on the very swish and refurbished Privacy International site (nice job BTW – I will check in regularly). Simon Davies argues in this post for the ‘assisted suicide’ of the UK Information Commissioner’s Office (ICO) because it has become a ‘threat to privacy’. The bases for this argument are several, namely that:

“the legislation that underpins the Office is narrow and in places regressive”;
the ICO is “a quasi judicial regulator that sees its role as protecting data rather than people”, which leads to timid decisions;
the ICO is sometimes “ill-informed… and almost always out of step with the more proactive and advanced regulators overseas” especially when it comes to technology;
its complaints procedure is slow and frequently pointless;
there are too many surveillance-related commissioners in the UK (the Surveillance Commissioner, the Interception of Communications Commissioner, the Equality & Human Rights Commission etc.)
it is disconnected from “an information environment dominated by companies which appear to be largely exempt from local protections for citizens.”

Now, I’ve done some work on commission for the ICO, and therefore you might expect me to defend it from these criticisms. But in fact, I find much to agree with here, as well as some points with which I disagree, and much to ponder.

On the side of agreement,the ICO, like much of government, is undoubtedly technologically rather backward. When, in the Report on the Surveillance Society, we wrote about the way in which governments were behind the times, this was as much a message for them as for parliament or the executive. Maybe it is down to funding, maybe to institutional inertia, maybe deliberate choice, but the ICO has still has not taken serious steps to remedy this as Simon points out, and relies largely on occasional external reports, many of which are in any case general rather than specialist, to update it.

I also agree with the charge that the ICO has been relatively powerless in the face of the rise of corporate surveillance. This is not surprising given its origins as an arm’s-length regulator of government, and some of the particular issues of concern – like whether it took the Google wireless hacking episode seriously enough or made the correct decisions – are far from obvious. But one can clearly contrast the relatively activist stance of even quite bureaucratic Privacy Commissioners like the federal Canadian body over Facebook, with the ICO. It has in the recent past taken some serious actions against illegal private sector surveillance – for example the bust of a notorious blacklisting firm – but this direction appears to have fizzled out. Not being privy to internal policy discussions, I am not sure why.

Then there are some areas in which the criticisms are valid, but which may not be directed at the right target.

The first of these is the proliferation of Commissioners of various kinds – and incidentally, we have thankfully been spared the birth of yet another one with the cancellation of the ID Cards scheme. I have also been arguing for the merging of all the various surveillance-related quangos for a long time. The reason so many of them exist is partly because of the piecemeal way in which British legislative process occurs. There are rarely comprehensive Acts covering broad areas, instead existing institutions, however inappropriate to the job needed, are often merely supplemented or modified. The other reason is of course the ongoing effort to protect certain parts of the state from serious scrutiny, in particular the intelligence services and political police.

The second is that, fundamentally, it seems clear that British data protection and privacy legislation is generally archaic and not up to the job. Neither is its Freedom of Information legislation, even though it was a massive advance on the culture of secrecy that preceded what in retrospect may have been one of New Labour’s most important measures.

However, I am not sure that either of these points are in themselves a criticism of the ICO but rather of the legislation which created it, and the governance environment in which it has to operate. The way in which the ICO came about, through a rough fusion of old Data Protection and newer Freedom of Information functions produced a lumbering Frankenstein’s monster made of parts and bits, kept going on a drip-feed of limited funding, something that was never going to be capable of what campaigners expected of it. The same could be said partially of the critique of the complaints procedure, itself is a widely shared opinion and one with which I would not take issue. However, how much of this is down to the limited funding and staffing, and once again, the foundational legislation which hampers as much as empowers the ICO to do much of what we outsiders would want them to do?

Then, some of the criticisms are more personal opinion, with which I am sure many in the ICO would disagree, particularly the idea that the ICO does not care about people. Both Simon and I know many people in the ICO personally and whatever our political differences with them, the idea that they are heartless data bureaucrats with no interest in people is a rather unhelpful and hyperbolic caricature, as is the idea that the ICO is an ‘enemy of privacy’. The ICO had a legally mandated job to do first and foremost and it needn’t, legally, go beyond that at all. Yet it has. The interventions that the previous Information Commissioner, Richard Thomas, made on surveillance in particular were absolutely vital in adding a new level to a debate that had previously, despite the best efforts of activists, campaigners and researchers, been of more marginal concern. One could argue that surveillance and privacy would never have become such a topic parliamentary debate, let along an election issue, without his advocacy. Certainly it hasn’t gone far enough, but is has hardly, during this period at least, acted as a stereotypically uncaring bureaucracy.

So what of the solutions?

Simon advocates only one: that the government “scrap the data protection functions of the ICO and building a new Privacy Act that creates a true watchdog with a broad mandate.” It is hardly surprising that Privacy International see the ‘privacy’ element as the most important one here. Simon will also not be surprised to discover that I disagree with him on this. In fact, my argument for a while has been that privacy cannot justifiably be prioritised over other forms of human informational rights. In addition, the concept of ‘human rights’ in general does not deal with everything about information relationships, positive or negative, and the many elements of those information relationships between state, citizen and corporation cannot be so arbitrarily separated.

I would therefore argue that a comprehensive Information Act, which covered citizens’ rights to information (their own, and that generated by government and corporations), their rights of privacy and the more general parameters of what the state and companies may know of those who information this is and how they are allowed to do so (i.e the limits of surveillance). I agree that ‘data protection’ is an out-of-date concept. But ‘privacy’ does not, and cannot, replace it, at least not alone. Privacy Commissioners, where they exist, find themselves dealing with a lot more than privacy and end up becoming ‘surveillance’ or ‘information commissioners’ in practice or by stealth, and in some cases an emphasis on privacy over all else can hamper legitimate needs to know (as has been true in the case of family members of elderly patients with dementia in Canada for example).

My conclusion about what a new Information Act would contain in terms of the regulatory bodies has something in common with Simon’s view, but I have two options. One is the creation of a single mega-regulator – a real Information Commissioner that covered all the areas of our information relationships with the state and corporations that would be able to go after corporations, local and national government over issues of their secrecy, transparency and accountability, and our privacy and informational needs. It wouldn’t just merge the existing ICO, Surveillance Commissioner, Interception of Communications Commissioner and so on), but start with new legislation and a new structure.

The other option would be a merge all the existing bodies but create two new ones to replace them: a Surveillance and Privacy Commissioner, to cover all of the areas of state and corporate intrusion into the lives of citizens, but also a Freedom of Information Commissioner, to cover the equally vital areas of state and corporate transparency and accountability. Privacy without FoI, whether together in one organisation or separate, is altogether too defensive an approach to what we can expect from the state.

And whichever route one took, the organisation(s) should have a wider range of powers built in and required – research (including technological foresight), advocacy, assessment, response and enforcement functions – with protected funding and legally binding decision-making capability. I think we would all be in agreement on that…

Facebook learns nothing

Having been strongly criticised over its ‘Places’ feature for its lack of understanding of the concept of ‘consent’ in data protection, and why ‘opt-in’ is better for users than ‘opt-out’ when it comes to new ‘services’ (i.e: ways they can share your data with other organisations), Facebook is doing it again.

Between today and tomorrow, the new Facebook feature called “Instant Personalization” goes into effect. The new setting shares your data with non-Facebook sites and it is automatically set to “Enabled”.

To turn it off: Go to Account>Privacy Settings>Apps & Websites>Instant Personalization>edit settings & uncheck “Enable”.

(Or of course, you can just ‘Turn Off All Platform Apps” too!)

The really important thing is that if your Facebook Friends don’t do this, they will be sharing info about you as well. So, copy this and repost to yours…

(Thanks to Lorna Muir for this alert)

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.