Business and Privacy: Evidence and Assumptions?

I came across a couple of stories yesterday that at first glance appeared unconnected, dealing with difference aspects of the current privacy debates concerning the internet. One comes from one side of the Atlantic, the other from the other. One deals with the 'fight' against piracy, the other with the current favourite of the online advertising industry, behavioural targeting. Very different issues - but they do have something in common: an inherent assumption that business success should take precedence over individual rights and freedoms.

The first issue was the revelation, through a Freedom of Information Request by the admirable Open Rights Group, that the Department of Culture, Media and Sport had no evidence to support their strategies to reduce the infringement of copyright by websites - you can see their report on the issue here.

The second came from my following of the House Energy and Commerce Committee hearing in Washington, about consumer privacy and online behavioural advertising - a hearing at least on the surface intended to consider consumer concerns, but which by the sound of it had a lot more to do with industry putting their case to avoid regulation. I followed on twitter, and remember one particular call from a regular and respected tweeter from the US who demanded evidence before regulation is considered. Specifically, he wanted evidence as to how much of the advertising economy depended on behavioural targeting - the underlying suggestion being, presumably, that we shouldn't regulate if it would have too significant an impact on revenue streams.

There are two different ways to look at the two stories. You can look at them as a reflection of the different attitudes to regulation on the two sides of the Atlantic - in England we're rushing to regulate, while in the US regulation is to be avoided unless absolutely necessary.  Alternatively, however, you can look at them as a reflection of the way that business needs are set above individual rights and freedoms.

Copyright and piracy....

The Open Rights Group's request was in relation to the proposals in the Digital Economy Act, but that Act is just one of many measures introduced over the years to combat 'piracy', although the evidence in support of any of them has generally been conspicuous by its absence. That applies both to evidence to suggest that the problem is as bad as the industry suggests and to the efficacy of the measures being proposed to combat it. Does piracy cause a massive loss of revenue to rights holders? Perhaps, but the suggestions over the years that every illegally downloaded song is a lost sale is far from convincing, and the idea that listening to something illegally might even lead to further legal sales seems to have merit too. The massive success of iTunes suggests that carrots rather than sticks might be more effective - indeed, recent reports from Sweden showing that piracy had reduced as Spotify had been introduced adds weight to this idea.

The Open Rights Group's FOI request was about the effectiveness of the proposals - and the DCMS effectively acknowledged that they have no evidence about it. So we have proposals for measures about which there is no evidence, to address an issue about which evidence is scanty to say the least... and yet on that basis we're willing to put restrictions on individuals' freedoms, potentially apply censorship, and even cut off people's internet access as a result. That same internet access that is increasingly regarded as a human right.

The Digital Economy Act is one thing, but there's something else looming on the horizon of even more concern: the Anti-Counterfeiting Trade Agreement (ACTA), whose measures are potentially even more draconian than those in the DEA, and whose scope is even more all-encompassing. The US has already signed it - somewhat against the suggestion that the US prefers not to regulate where possible - and the EU may well sign it soon, though it still needs to pass through the European Parliament, and lobbying of MEPs is underway on both sides.

Behavioural advertising...

Legislation on behavioural advertising has already taken place in Europe, with the notorious 'Cookies Directive', about which I've written before - but the implementation, enforcement and acceptance of that directive has proved troublesome from the outset, and whether it ends up being at all meaningful has yet to be seen. Legislation in the US is what is currently under discussion, and what is being keenly resisted by the advertising industry and others. 'Show us the evidence' is the call - and until that evidence is shown, advertisers should be able to do whatever they want.

Evidence in relation to privacy is a contentious issue in lots of ways. Demonstrating 'harm' from an invasion of privacy is difficult, partly because each individual invasion isn't likely to be significant - particularly in respect of mundane tracking of websites browsed and so forth - and partly because the 'harm' is generally intangible, and far from easily turned into something easily quantifiable. Some people suggest that we should treat our personal information like a commodity, akin in some ways to intellectual property, but for me that fails to capture the real essence of privacy. I don't want to put a 'value' on my personal data, any more than I want to put a value on each of my fingers, or on my relationships with my friends and family. It's something different, and needs protecting as something different. I shouldn't need to prove the 'harm' done by that data being at risk - the loss of it, or loss of control over it, is a harm in itself.

That isn't all - not only does there appear to be an expectation that we should prove harm, but that even if there IS harm, we've got to prove that we wouldn't be damaging the advertisers' businesses too much. If their businesses would be harmed too much, we shouldn't put regulations in place....

Two different situations - but the same assumptions

In the copyright scenario, we're having our freedom restricted and our privacy invaded without real evidence to support what's happening. In the behavioural advertising scenario, we're having our privacy invaded and we're being asked to prove that there's a problem before any restrictions are placed - and, what's more, we're being asked to prove that we wouldn't damage business too much.

In both cases, it's the individuals who lose out. Business takes priority, and individuals rights, particularly in respect of privacy, are overridden. Where businesses perceive there are problems (as in the copyright scenario), they're not asked for proof - but where individuals perceive there are problems, they're asked for proof in ways that are inappropriate and unattainable. Shouldn't the situation be exactly the other way around? Shouldn't individuals' rights be considered above the business models of corporations? Shouldn't the burden of proof work in favour of individuals against businesses, rather than the other way around? Of course that's a difficult argument to make in economically troubled times - but it's an argument that in my opinion needs to be made, and made strongly.

A tale of three conferences...

IT Law certainly seems to be flavour of the month. Even more particularly, it seems to be flavour of the next couple of days. Today and tomorrow there are three conferences on different aspects of the subject, all of which I'd like to be at... if only I could be three places at once.

Starting in Yorkshire...

The place I'll actually be is Leeds, for the Human Rights in the Digital Era Conference: Professors Andrew Murray and Viktor Mayer-Schönberger will be providing the keynote speeches, while I'll be presenting on a topic which I hope to be making a central part of my work in the next year or so, the idea of a right to an online identity (you can find my prezi here). Other excellent speakers include Jim Killock of the Open Rights Group, whose work is of increasing importance - particularly with the current government seemingly following the recent trend of seemingly being in thrall to the copyright lobby, if Jeremy Hunt's suggestions are anything to go by - and my colleague Emily Laidlaw. It should be a fascinating day - and a subject of great current interest.


...and at the same time in London...

...the Society for Computers and Law is having its annual policy forum - with the focus on the 'New Shape of European Internet Regulation'. Chaired by Lilian Edwards, and with contributions from such as Caspar Bowden (newly liberated from Microsoft) and my colleague Daithí Mac Síthigh, it's another event of immense current interest, and one which I'm sad to have to miss. I'll be following it on twitter (probably on #scl) and I'm looking forward to hearing more about it after the event. Daithí's presentation on the App Store should be particularly good!

Meanwhile, in Poland...

...Warsaw is hosting the latest Creative Commons global meeting. At a time when attitudes and approaches to copyrights seem to be getting if anything even more regressive, with the EU Council voting this week to extend copyright on sound recordings from 50 to 70 years, and as noted above, Jeremy Hunt setting out an aggressive and punitive strategy for dealing with online piracy, finding imaginative and effective ways forward for dealing with intellectual property issues is of ever growing significance. Lots of interesting people will be in Warsaw, putting together lots of excellent ideas - and again, I'm looking forward to reading and hearing all about it.

Three conferences - but common themes

Three very different conferences, three very different cities, three seemingly quite different agendas - but they all tie together, and they're all attempting to address issues of crucial current interests. The Leeds conference focusses on human rights, the London conference on regulation, the Warsaw conference on creativity - but the issues all interact with each other, and all impact upon each other. If, as the likes of Jeremy Hunt suggests, we use the twin heavy hands of law and finance to try to 'protect' our 'creative' arts (though the idea that Cliff Richard, one of the figureheads sent out this week to support the extension of copyright, represents 'creativity' is a somewhat difficult to swallow), then it is likely to be human rights that suffer.  Those of us interested in human rights need to be doing everything we can to prevent the focus of regulation - indeed, the new shape of regulation - to be protecting copyright at the expense of those human rights, which, ultimately, is what the copyright lobby is intending to bring about. Human rights, regulation and creativity are all very closely connected - as these timely conferences should do their very best to make clear.