information rights

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?

Data Protection in Japan

Comprehensive data protection in Japan is fairly recent. Until 2003, data protection was still governed under much two earlier ‘ information society initiatives: firstly, the Act for the Protection of Computer Processed Personal Data Held by Administrative Organisation (1988) and secondly, the Protection of Computer Processed Personal Data Act (1990), which are based on the 1980 OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. These laws were limited an applied only to the state, and within that, only to some national government organisations rather than all of them.

Lawyers and those concerned with privacy within and without government were well aware of these limitations, and in the late 90s, a special Privacy Issues Study Working Group was set upby the Electronic Commerce Promotion Council of Japan (ECom). This committee issued Guidelines Concerning Protection of Personal Data in Electronic Commerce in the Private Sector in March 1998. The Chair of that committee, Professor Masao Horibe, provides an account here.

Subsequently, a Personal Data Protection Legislation Special Committee was established in January 2000 under the Advanced Information and Telecommunications Society Promotion Headquarters (now the IT Strategic Headquarters), a body responsible directly to the Japanese cabinet. This body has issued all the laws and directions regarding IT, e-Japan etc.

The need to “protect personal data” (kojin deta) was mentioned in Article 22 of the Basic Law on the Formation of an Advanced Information and Telecommunications Network Society within the rubric of ‘security’. This was followed up by the e-Japan strategy of January 2001, which under the section on the Facilitation of E-Commerce, recommended that “Necessary legislative measures should be taken to win the confidence of consumers, including submission of a bill to protect personal data to the ordinary session of the Diet in 2001.”

The Bill was introduced in March 2001, but as a result of concerns about its effects on the freedom of the press, was left to fall by 2002. However the Personal Information Protection Bill was passed in 2003, one of five bills with implications for data protections to be passed in that Diet session.The bill came into force in 2005. I’ll discuss the content and operation of the bill later, but there’s a good summary in English from when the Bill was passed here.

The one particularly interesting thing to note here is that it doesn’t designate or establish any one body to oversee the operation of the law or the enforcement of rights, or deal with complaints as in European countries and Canada, for example, Instead it keeps data protection as an internal matter for designated government ministries (and for companies), with legal action an option if all else fails. The law is generally on the side of data flow and commercial / administrative convenience, which is not surprising given its origins in industry-led e-commerce promotion organisations.

Australia gives up net censorship plan

Some good news for once. The Sydney Morning Herald reports that the heinous plans that the Australian government had for surveilling and censoring the Internet have been iced. The plans would have introduced mandatory filtering of the Internet in Australia despite the technical impossibility and political and ethical objections. The fight over these proposals had been vicious with opponents even receiving death threats, but the side of both sense and liberty appears to have won an important victory.

Now, let’s see if similar good sense will prevail in other countries which are advocating similar, if not quite as extreme, China-style net-disabling proposals like the UK and Brazil…

(Thanks to bOINGbOING who’ve been keeping us up to date on this one)

At the Departamento de Policia Federal

Both human rights advocates and the police seem to be strongly in favour of the new RIC system as a means of social inclusion and to replace the chaotic and corrupt identification system based in individual Brazilian states at present, which allows anyone with any other form of ID to get a state Registro Geral card in each different state.

Departemento de Policia Federal, Brasilia — Departamento de Policia Federal, Brasilia

I have just come back from a very productive interview with Romulo Berredo, from the Director-General’s office at the Departamento de Policia Federal (DPF), who are the Brazilian equivalent of the FBI. There was a lot covered and I couldn’t hope to reproduce it all here. There were however a number of immediately interesting aspects.

The first was more evidence that the whole basis on which identity cards and database issues are being considered here is entirely different from the UK. Now I know this represents a police, and a state, view, but so far, both Brazilian human rights advocates and the police seem to be strongly in favour of the new Registro de Identidade Civil (RIC) system. This is both as a means of social inclusion and to replace the chaotic and corrupt identification system based in individual Brazilian states at present, which allows anyone with any other form of ID to get a state Registro Geral card in each different state. It is fairly easy to acquire 27 different identities in Brazil at present. And identification is important here. The great fear that many people seem to have – indeed it was called a ‘cultural’ characteristic by Berredo – is not the use of identification by the state as a form of control or intrusion but as a guarantee against the anonymity that would allow abuses by the state or indeed by other malicious persons. It provides a metaphysical and material kind of certainty and stability. The legacy of the last dictatorship was not so much an East German-style nightmare of knowledge and order but of corrupt and arbitrary rule.

It is this latter legacy which also drives the divisions between the different police forces in Brazil. The states-based Policia Militar (Military Police) and Policia Civil are both tainted in different ways by associations with authoritarian rule, and the former particularly with extra-legal execution and torture, and they continue to be regarded with caution, suspicion or even hatred by many Brazilians. The other police forces are also suspicious of the growing role of the DPF, which is often seen in terms of a power struggle not rational subsidiarity. Ironically then it is the states-based police forces that are dragging their heels over plans to create the kinds of national databases of criminal information that the UK has, and not for any libertarian reasons. In fact the DPF seem far more concerned with protecting human rights and defending the idea of citizenship, and because they are tasked with anti-corruption investigations have even arrested Senators and Judges, something unheard of even ten years ago. Of course those very same Senators and Judges are now fighting back, in a manner rather similar to Berlusconi in Italy, trying to alter the law to give immunities and protections. For example, handcuffing of arrested suspects was always normal until it happened to a Senator arrested for corruption. The Senate suddenly became interested in the ‘human rights’ of arrested suspects and passed a law limiting the use of handcuffs! Corruption at every level is still an enormous problem here, though Berredo argued that it was largely associated with those who had retained power from the years of the dictatorship.

The concentration on inclusion and joining-up government where it is clearly much needed does however lead to some gaps in thinking. The creation of new databases brings with it new duties and new potential problems of data-handling. As the privacy and data-protection law expert, Danilo Doneda, pointed out to me the other day, Brazil is in an almost unique position in not having any kind of regulator for privacy and information / data rights. He argued it was because the authorities just don’t see the need. Berredo confirmed this. He claimed that the DPF were trusted by the public – and relative to other police forces, that is certainly true! – and that they had to carry out their duties appropriately or they would lose that trust. It sounds nice, but it isn’t a good-enough (or legally-sound) basis for the protection of data-rights.

It all confirmed once again that Brazil is not yet a surveillance society – the state does not yet have the capabilities. There is no national database of fingerprints (even for convicted criminals) for example. But as Berredo said, it is moving in that direction. He was keen that there should be be limits. I liked the fact that he used this word. ‘Limits’ is a word that I found that the neither the UK government nor the European Commission seem to like, and they seem very unwilling to say what limits might be. However Berredo was quite clear that a technologically-driven surveillance future in which individuals could be tracked – he used the example of Google Latitude – was not one which he wanted to see. He recognised that he was both a policemen (at work) and a private citizen (at home) and that he, as much as anyone else, valued his privacy.

(Thank-you very much to Delegado Romulo Barredo of the DPF, for his openness, time and patience, and also to Agent Alessandre Reis, for his help)

The loneliness of personal data

Surveillance like this harms us all: it makes our lives banal and reveals only the sadness and the pain.

There is something at once banal and heartbreaking about what is revealed through the examination of personal data. The episodic film, I Love Alaska, captures this beautifully. The film by Lernert Engelberts and Sander Plug is based on AOL’s accidental exposure of the search data of hundreds of thousands of its users, and focuses on just one, 711391. The film consists of an actress reading out the (unusually discursive and plain language) search terms of User 711391 like an incantation, with background sound from Alaskan locations and static camera shots that serve to emphasize her boredom, isolation and loneliness.

I was watching episode 5 of the film when two stories popped into my inbox that just happened to be related. The first was from the New York Times business section and dealt with the other side of the recent US sporting scandal over revelations that baseball player Alex Rodriguez has taken steroids. Like User 711391, Rodriguez had given up his data (in this case, a sample) in the belief that the data would be anonymous and aggregated. But it wasn’t.

So, then we come to how the state deals with this. The Toronto Globe and Mail comments on the way the Canadian federal government is, like so many others, proposing to introduce new legislation to monitor and control Internet use. The comment argues that there is no general need to store personal Internet use data (or Canada will end up like the UK…), and that Internet surveillance should be governed by judicial oversight. Quite so. But, as the NYT article points out, it isn’t just the expanding appetite of the state for data (frequently coupled in the UK with incompetence in data handling) that we should fear but the growth in numbers of, and lack of any oversight or control over, private-sector dataveillance operations.

Some people will argue that any talk of privacy here is irrelevant: User 711391 was cheating on her husband; Rodrguez was taking steroids; there are paedophiles and terrorists conspiring on the Internet. With surveillance the guilty are revealed. Surely, as Damon Knight’s classic short story, ‘I See You’, claimed, with everything exposed we are truly free from ‘sin’? But no. In its revelations, surveillance like this harms us all: it makes our lives banal and reveals only the sadness and the pain. For User 711391, her access to the Internet served at different times as her main source of entertainment, desire, friendship, and even conscience. The AOL debacle revealed all of this and demeaned her and many others in the process. Most of us deserve the comfort of our very ordinary secrets and the ability for things to be forgotten. This is the true value of privacy.

(Thanks to Chiara Fonio for letting me know about I Love Alaska)

Quiet in the Library! Controlling the Internet

For many supposedly liberal politicians and bureaucrats the Internet is just a library of information, and we all know that libraries must be quiet and orderly, used responsibly and under the supervision of trained librarians…

Just a quick one: Boing Boing covered the story of an Australian EFF information rights campaigner, Geordie Guy, who has received a death threat from supporters of the government´s plan to control the Internet – just like so many other states around the world.

Surveillance cameras in Dajuyuan, Shenzhen (Rolling Stone)

It is no accident that the EFF campaign in Australia makes reference to their government´s plan as a ‘great wall’. The first government to do this was, of course, China with its jīndùn gōngchéng (‘Golden Shield’) system which was exposed by Greg Walton.

As Naomi Klein´s more recent investigations have shown, it seems that western governments and companies are not only deeply involved with supplying equipment and expertise to China´s new surveillance state, but also see the development of the combined physical and virtual surveillance infrastructure being built by the authoritarian Chinese government as some kind of model for their own supposedly more liberal nations.

The Internet seems to worry all sorts of otherwise level-headed and well-meaning people. I was invited to speak at a recent conference in Finland on security in the Baltic states, and I got into a small argument with the rapporteur of one of the working groups, who said that one of their conclusions was that ‘we’ must stamp out hate-speech on the Internet. I asked the rapporteur how they would intend to do this without destroying the structures which enabled the creativity and freedom of the Net, and the response was that stamping out hate-speech was too important and just must be done. I suspect this is how a lot of supposedly liberal politicians and bureaucrats are thinking. For them the Internet is just a library of information, and we all know that libraries must be quiet and orderly, used responsibly and under the supervision of trained librarians. If enforcing order destroys everything that makes the Internet so revolutionary and so important, so what? Order must be maintained. There must be quiet in the library!

Top Ten Problems with UK Information Sharing Proposals

Chris Pounder of Amberhawk information consultants sends me his Top Ten Problems with the British government´s new information-sharing proposals that are to be found buried deep in the Coroners and Justice Bill, where perhaps they thought no-one would notice… these are part of much lengthier and more thorough analysis submitted to the Joint parliamentary Committee on Human Rights (JCHR), which explains why the proposals ignore or conflict with the recommendations of 2008´s Data Sharing Review conducted by Richard Thomas and Mark Walport for the Ministry of Justice itself. These are sumarised by me here, and any errors and omissions are therefore my own:

Lack of scrutiny. There is no provision for the JCHR to scrutinise this (or any other) wide-ranging statutory power which impacts on Article 8 of the European Convention on Human Rights (ECHR), nor any attempt to explain how this provision is consistent with human rights legislation.
The extension of information sharing beyond personal data. The use of “any person” in the Bill means that it applies to information sharing by any public or private body or individual. “Information sharing” powers are not limited to personal data and the person who receives the shared information might be a foreign government or organisation. [for example the FBI´s proposed Server in the Sky]
The “exceptional” may become the routine The Data Sharing Review recommended that the sharing of personal data should be legitimised in exceptional circumstances. However, in the Bill there is instead a legitimation of general information sharing, whenever it falls within a “relevant policy objective” [which is basically anything a Minister decides].
The generality of an Information Sharing Order. There is no limit as to how “person”, “purpose” and “information class” are specified in an Order. There is no explicit requirement for the purpose of the information sharing to be one of those specified in Article 8(2) ECHR.
The prospect of unlimited data sharing from large Government databases. The Bill appears to facilitate data sharing from any Government database without Parliament being explicitly informed of this sharing when an Order is before Parliament. The prohibition in the clause only relates to Part 1 of the Regulation of Investigatory Powers Act (RIPA). By implication, sharing from other national databases (e.g. the national identity register of the ID Cards Act) does not need to be explicitly mentioned in an Order. This means that unlimited data can be shared from these other national databases by means of a general order-making provision.
The exclusion of critical comment on the purpose of the processing. In the Bill, the Information Commissioner is not allowed to comment on whether “the sharing of information enabled by the order is necessary to secure a relevant policy objective”. The effect is to inhibit the Commissioner from commenting on the purpose of the processing, which is the main purpose of the Information Commissioner! Plus, because this applies to more than personal information, much of the proposed sharing is outside his remit.”
The range of the powers. The powers are widely drawn and their application is very broad. There is no explicit provision in the main sharing provisions which would facilitate data subject rights and freedoms (e.g. right to object ; need to obtain consent). Instead, these provisions can “modify” the application of any law (including the Data Protection Act and the Human Rights Act) which will weaken the protection afforded to data subjects.
The lack of transparency. There is no obligation to disclose to the Information Commissioner or Parliament any background document or legal advice about a proposed Information Sharing Order. There is no obligation to answer any formal request for information from the Commissioner. There is no obligation to engage the public on the subject of a draft Information Sharing Order.
The irrelevance of the proposed Code of Practice. There is nothing in these information sharing clauses which expressly states that the sharing of personal data has to be consistent with the proposed non-statutory Code of Practice. The Code is not subject to approval by Parliament; rather, it is subject to approval by the Secretary of State (SoS).There is no provision which sets out what happens if there is a disagreement between SoS and Information Commissioner about the content of a Code. There is no active role for Parliament in relation to the content of a Code.
Orders can be implemented to achieve purely administrative objectives. For example, suppose Ministers are told by civil servants that the problems associated with one of the Government’s big database projects would be resolved if they used criminal convictions from the Police National Computer. The Bill allows the Minister to argue that the sharing was necessary to secure a policy objective, it was proportionate as there was no other way of securing the policy objective (abandoning a large IT project is not an option), and it was in the public interest to secure the policy objective (given the amount of money committed to the project). This means that sharing which could be excessive and disproportionate in terms of Article 8 becomes necessary and proportionate in terms of realising a policy objective.

Previously, I commented that No2ID were overstating their case that this proposal was the greatest threat to information rights after the ID Register. After reading Chris´s analysis, I think they might be underestimating its importance. The creation of a generalised and weakly accountable ability for the state to share information of any kind with any one they wish, is a far greater threat than the creation of any single database, however extensive. I disagree with their views on the Data Sharing Review, but No2ID’s data sharing site still has the best summary of proposals and action people can take…

Internet Surveillance in Brazil (2)

I’ve been catching up with what has been going on in Brazil in terms of Internet surveillance over the past few months. The good news is that the opposition has had some success in persuading several members of Brazil’s lower house, the Chamber of Deputies, to take their criticisms seriously.

Sérgio Amadeu, who is an Professor at the Faculade Cásper Líbero in São Paulo, a self-described ‘militant for free software’, and one of the originators of the ‘NÃO’ campaign against the proposed bill of Senator Azeredo, reported in December on the outcome of a public consultation on the bill and a flashmob protest against it in São Paulo in November. The outcome has been that a new counter-proposal is being developed by various activist organisations and individuals together with Deputy Julio Semeghini favouring Internet freedom. In fact, the proposal would recast Azeredo’s proposed law on the basis of net citizenship rather than cybercrime.

Professor Amadeu claims that now the Ministry of Justice is in contact with the campaign and that the Secretary for Legislative Affairs at the Ministry, Pedro Abramovay, has apparently shown that he is rather more interested in an appropriate balance between Internet freedom and security. I am always rather suspicious about talk of ‘balance’ in these contexts, and we still don’t know who these impressions will be transformed into action or how many lower house legislators share Deputy Semeghini’s view, but it sounds like there is some reason to be positive – that and the fact that as of today, 134494 people have signed the petition against Azeredo’s bill.

New UK government attack on information rights

… a blatant attempt to gut the already inadequate safeguards in the Data Protection Act…

Time for some news from back home in Airstrip One… I’ve argued since our Report on the Surveillance Society came out back in 2006, that two of the biggest problems with information rights in Britain are:

the lack of any constitutional protection for personal information and the consequent contingency of any laws on data protection; and
the apparent belief on the part of the state that it has information rights over the personal information of citizens (or subjects, in reality).

Thus the state can demand information for the ID card scheme under threat of fines or even imprisonment, yet it is entirely the individual’s fault if information is incorrect.

Now, the ever-vigilant NO2ID campaign has noticed something that few others have, that hidden in a new criminal justice bill, the Coroners and Justice Bill is a measure to amend the Data Protection Act to enable government ministers to issue so-called ‘Information Sharing Orders’.

The clause (152, in Part 8, if you’re interested) reads as follows:

152 Information sharing

(1) After section 50 of the Data Protection Act 1998 (c. 29) insert—

“Part 5A Information Sharing

50A Power to enable information sharing

(1) Subject to the following provisions of this Part, a designated authority may by order (an “information-sharing order”) enable any person to share information which consists of or includes personal data.

(2) For the purposes of this Part—

“designated authority” means—

(a) an appropriate Minister,

(b) the Scottish Ministers,

(d) a Northern Ireland department;

“appropriate Minister” means—

(a) the Secretary of State,

(b) the Treasury, or

(3) For the purposes of this Part a person shares information if the person—

(a) discloses the information by transmission, dissemination or otherwise making it available, or

(b) consults or uses the information for a purpose other than the purpose for which the information was obtained.

(4) A designated authority may make an information-sharing order only if it is entitled to make the order by virtue of section 50C and it is satisfied—

(a) that the sharing of information enabled by the order is necessary to secure a relevant policy objective,

(b) that the effect of the provision made by the order is proportionate to that policy objective, and

(c) that the provision made by the order strikes a fair balance between the public interest and the interests of any person affected by it.

(5) An information-sharing order must—

(a) specify the person, or class of persons, enabled to share the information;

(b) specify the purposes for which the information may be shared;

(6) An information-sharing order may not enable any sharing of information which (in the absence of any provision made by the order)”

Whilst this is not necessarily “as grave a threat to privacy as the entire ID Scheme” as NO2ID claim, the clause is written so broadly (a characteristic of New Labour’s approach to legislating) that it could mean that a Minister with the will could authorise any kind of personal information from any source to be used for as yet unspecified purposes for which it was never intended to be used. It is a blatant attempt to gut the already inadequate safeguards in the Data Protection Act, albeit in particular (ill-defined) instances and at Ministerial level, rather than a blanket provision applying to almost all public authorities (like say, the Regulation of Investigatory Powers Act(RIPA) which enabled local authorities to spy on people for tiny suspected infractions).

However, we shouldn’t allow the precedent to be set at any level…

Check the No2ID site for what you can do to stop this clause.