Big Brother is watching you - and so are his commercial partners

Today, President Obama unveiled a proposal for an internet 'bill of rights':


“American consumers can’t wait any longer for clear rules of the road that ensure their personal information is safe online,” said Mr. Obama.

In a lot of ways, this is to be applauded. The idea, as reported in the media, is to "give consumers greater online privacy protection", which for privacy advocates and researchers such as myself is of course a most laudable aim. Why, then, am I somewhat wary of what is being proposed? Anyone who works in the field is of course naturally sceptical - but there's more to it than that. There's one word in Obama's statement, repeated without real comment in the media reports that I've read, that is crucial. That word is 'consumers'.

Consumers, citizens or human beings?

The use of the word 'consumer' has two key implications. First of all, it betrays an attitude to the internet and to the people who use it. If we're consumers, that makes the net a kind of 'product' to be consumed. It makes us passive rather than active. It means we don't play a part in the creation of the net - and it means that the net is all about money and the economy, rather than about communication, about (free) expression, about social interaction, about democratic discourse and participation. It downplays the political role that the net can be played - and misunderstands the transformations that have gone on in the online world over the last decades. The net isn't just another part of the great spectrum of 'entertainment' - much though the 'entertainment' industry might like to think it is, and hence have free rein to enforce intellectual property rights over anything else.

That's not to downplay the role of economic forces on the net - indeed, as I've argued many times before, business has driven many of the most important developments on the net, and the vast expansion and wonderful services we all enjoy have come from business. Without Google, Facebook and the like, the internet would be a vastly less rich environment than it is - but that's not all... and treating users merely as 'consumers' implies that it is.

The second, perhaps more sinister side to portraying us all as consumers rather than citizens - or even human beings - is that it neatly sidesteps the role that governments have in invading rather than protecting our privacy. Treating us as consumers, and privacy as a 'consumer right', makes it look as though the government are the 'good guys' protecting us from the 'bad' businesses - and tries to stop us even thinking about the invasions of privacy, the snooping, the monitoring, the data gathering and retention, done by governments and their agencies.

Big Brother is watching you...

The reality is, of course, that governments do snoop, they do gather information, they do monitor our activities on social networks and so forth. What's more, we should be worried about it, and we should be careful about how much we 'let' them do it. We need protection from government snooping - we need privacy rights not just as consumers, but as citizens. Further, as I've argued elsewhere, rights to privacy (and other rights) on the internet can be viewed as human rights - indeed I believe they should be viewed as human rights. From an American perspective, this is problematic - but it should at least be possible to cast privacy rights on the net as civil rights rather than consumer rights.

...and so are his commercial partners

At the same time, however, Obama is right that we need protection from the invasions of privacy perpetrated by businesses. For that reason, his initiative should be applauded, though his claiming of credit for the idea should be treated with scepticism, as similar ideas have been floating around the net for a long time - better late than never, though.

There is another side to it that may be even more important - the relationship between businesses and governments. They're not snooping on us, or invading our privacy independently - in practice, and in effect, the biggest problems can come when they work together. Facebook gathers the data, encourages us to 'share' information, to 'self-profile' - and then governments use the information that Facebook has gathered. Email systems, telephone services, ISPs and the like may well gather information for their own purposes - but through data retention they're required not only to keep that information for longer than they might wish to, but to make it available to authorities when the 'need' arises.

Worse, authorities may encourage or even force companies to build 'back-doors' into their products so that 'when needed' the authorities can use them to tap into our conversations, or to discover who we've been socialising with. They may require that photos on networks are subject to facial recognition analysis to hunt down people they wish to find for some reason or other - legitimate or otherwise. Facebook may well build their facial recognition systems for purely commercial reasons - but that doesn't mean that others, including the authorities, might use them for more clearly malign purposes.

We need protection from both

So what's the conclusion? Yes, Obama's right, we need protection from commercial intrusions into our privacy. That, however, is just a small part of what we need. We need protection as human beings, as citizens, AND as consumers. Don't let's be distracted by looking at just a small part of the picture.

The Internet IS a (Human) Right...

It isn’t often that I find myself disagreeing with something that Vint Cerf, one of the ‘fathers of the internet’ has said, but when I read his much publicised Op Ed piece in the New York Times, I did.

First of all, and perhaps most importantly, I didn’t like the headline, which stated baldly and boldly that ‘Internet Access is not a Human Right’. Regardless of whether you agree or disagree with that statement, the piece said a great deal more than that – indeed, the main thrust of the argument was about the importance of the internet, and of internet access, to human rights. Many people will have just read the headline – or even read the many tweets which stated just that headline and a link – and drawn conclusions very different to those which Cerf might like. The headline, of course, may well have been the choice of the editorial team and the New York Times, rather than Cerf himself, but either he was OK with it or he allowed himself to be led in a particular direction.

Secondly, I think the point that he makes leading to this headline, and to his conclusions, reflects a particularly US perspective on 'human rights' - a minimalist approach which emphasises civil and political rights and downplays (or even denies) economic and social rights amongst others. Most of the rest of the world takes a broader view of human rights: the International Covenant on Economic, Social and Cultural Rights was introduced in 1966, and has been ratified by the vast majority of the members of the UN – but not by the US. The covenant includes such rights as the right to work, the right to social security, rights to family life, right to health, to education and so forth - and it isn't too much of a stretch to see that right to internet access might fit within this spectrum.

That Cerf doesn't see it this way is not surprising given that he is American - but I think his argument is weaker than that. In the piece, Cerf’s gives the example of a man not having a right to a horse. He talks about how a horse was at one time crucial to ‘make a living’, and that means that the ‘human right’ isn’t a right to have a horse, but a right to ‘make a living’. However, even that’s based on assumptions to do with our time and system. Do you ‘need’ to ‘make a living’ if your society isn’t based on capitalism? Non-capitalist societies have existed in the past - and indeed exist on small scales in various places around the world today. Can we really assume that they will never exist in the future? It is a bold assumption to make - but not, I think, one that needs to be made.

We need to be very careful about the assumptions we make about any human right – and that, in practice, many of what we consider to be human rights are instrumental, qualified, or contextual rather than absolute, pure and simple. Another example from the legal field: do we have a ‘right to a free trial’ – or a right to justice? Trial by jury may be the best way we know now of assuring justice, but might there not be other ways?

What does this mean? Well, primarily, to me, it means we need to be less 'purist' about the terms we use, and more pragmatic - and to understand that we live in a particular time, where particular things matter. Moreover, that the language that is currently used in most parts of the world is one in which the term 'human right' has power - and we should not be afraid to use that power. Right now, to flourish in a 'free', developed society, internet access is crucial. Perhaps even more to the point, internet access has shown itself to have a potential for liberation even in places less 'free' and less 'developed. I'm not a cyber-utopian - and I fully acknowledge the strengths of the arguments of Morozov about the potential of the internet for control as much as for liberation - but for me that actually makes it even more important that we look at the internet from a rights perspective: if we have a right to internet access then it's much easier to argue that we have rights (such as privacy rights) while we use the internet, and those rights are critical for supporting the more liberating aspects of the internet.

That's another thing that disappoints me about Cerf's Op Ed piece. He doesn’t mention privacy, he doesn’t mention freedom from censorship, he doesn’t mention freedom from surveillance – I wish he would, because next after access these are the crucial enablers to human rights, to use his terms. I’d put it in stronger terms myself. I’d say we have rights to privacy online, rights to freedom from censorship, and rights to freedom from surveillance. If you don’t want to call them human rights, that’s fine by me – but right now, right here, in the world that we live in, we need these rights. The fact that we need them means that we should claim them, and that governments, businesses and yes, engineers, should be doing what they can to ensure that we get them.

Finally, going back to the headline itself I think Cerf and other seminal figures in the history and development of the internet, have got to be careful about not letting themselves be used by those who'd like to restrict internet access and freedom: there are others with very dubious agendas who would like to push the 'internet access not a human right' point. When one of the fathers of the internet writes that internet access is not a human right, regardless of the details below, there is a significant chance that it will be latched onto by those who would like to restrict our freedoms, whether to enforce copyright, to 'fight' terrorism or online crime, or for other purposes. That is something that we should be careful to avoid.

ADDENDUM (15/1/2012)

There have been a number of other interesting blogs/responses on the subject. Here are links to a few of them:

Adam Wagner's UK Human Rights Blog
Frank Pasquale on madisonian.net
Amnesty International's Scott Edwards blog post on HUMAN RIGHTS NOW
Sherif Elsayed-Ali in Egypt Independent

All well worth a read!

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.

Quality matters!

Momentum seems to be building for the idea that internet access is a universal right - and more than that, that high quality internet access is a universal right. As seems often to be the case in the digital world, the lead is coming from Scandinavia - Finland have made broadband a 'legal' right, according to a report in the BBC. From the 1st of July 2010, every Finn has the right to access to a 1Mbps (megabit per second) broadband connection. As reported by the BBC, Finland's communication minister Suvi Linden sad that "We considered the role of the internet in Finns everyday life. Internet services are no longer just for entertainment."

That much is becoming clearer and clearer. We need internet access for proper access to government services, we need internet access to get the best prices for goods and services - indeed, there are some goods and services that are almost impossible to get without access to the net. We need internet access for access to information and news - and we need information and news if we are to fully participate in our society. What the Finnish government have realised is that it's not just 'access' that matters, but the quality of that access, if some of the 'digital divide' issues are to be dealt with - and that, surely, is what really matters.

From a human rights perspective, what is needed is an infrastructure that allows all people to fully participate in society. Making access to broadband a legal right doesn't just mean giving people the right to download music or watch YouTube videos fast, it means that they have an opportunity to take advantage of the huge benefits that the internet can bring - benefits that those on the 'advantaged' side of the digital divide are already enjoying. Try searching for legal advice as to your rights as an employee when your job is under threat - as so many are in the current economic climate - and you soon discover why broadband is important. If you have to sit there waiting and waiting when you don't even know what you're waiting for, it's all too easy to give up - and hence not to discover what your rights might be.

The Finns have taken the lead - but others will follow, and it is to be hoped that they will follow not just with bland statements or aspirations, but legal rights.

Now we're all at it... especially the good guys...

It's not just the German government who are using illegally acquired data to root out tax evaders - the latest revelation is that both the French and the UK Government are doing it to. A report from the Sunday Times, available online here, has revealed much more detail - and in particular that HMRC in the UK is very enthusiastic about getting hold of this illegally acquired data. A senior tax official is quoted as saying "It’s fair to say that the prospect of getting hold of this information has generated some excitement here."

The whole thing raises a lot of issues - some of which I mentioned in my post of 7th March - but the German, French and UK governments are all seemingly happy to do it, and at least so far there seems to be very little resistance or outcry about their tactics. The ends justify the means, perhaps. Personally, I don't think so, and an experience I had in the classes I teach (Information Technology & the Law) suggested to me why. The class was about surveillance in the digital environment, and we were discussing the nature of enhanced CCTV, and how it, combined with information from systems like Oyster Cards, could allow coordinated tracking of individuals. I teach three classes, with a mix of different individuals with very different backgrounds. In the first class, the reaction to this kind of tracking could be described as general interest, but nothing more. In the second, it might even be described as enthusiastic - with some agreement with the view of a Police CCTV Liaison Officer that "The cameras are there to help the police and to protect the community. There is no way anybody should be afraid of them unless they have something to hide."

The third class was different - the first person to speak had a reaction that I hadn't really heard in the first two classes. His immediate response was that he didn't want the government to be able to track him - and when asked why, he almost laughed, because to him it was so obvious. Why was it obvious to him, and not to the others in the previous classes? Because he happened to have experience of living in a country with what is close to an authoritarian regime. People who live in those circumstances are naturally and appropriately more likely to be suspicious and distrustful of government motives.

Here in the 'safe' West, where the governments are suspected much more of incompetence than evil, we don't really seem to care that much about things like this. Right now, we seem to mostly 'trust' our governments, and imagine that they will only use the powers we grant them (or allow them to take for themselves) for good purposes - like catching tax evaders, or tracking terrorists. We rarely imagine that they might end up using them for entirely different purposes, purposes for which we would have much less sympathy. What would it take to make us realise the risks, let alone take them seriously? It would be nice to think that we could do so before they are taken too far. 

All hail the Internet?

Two stories this week have emphasised the importance of the Internet in today's world.

The most recent, and perhaps the strangest, is the news that the Internet has been nominated for the Nobel Peace Prize, in a campaign mounted by Wired Italy - this is how the English language version of Wired is reporting it. Of course there have been stranger (and much more controversial) nominations over the years, but even so it does seem an unusual, though far from unwelcome suggestion. The Internet can be (and at times has been) a wonderful tool for peace. As said Riccardo Luna, editor-in-chief of the Italian edition of Wired magazine puts it: "The internet can be considered the first weapon of mass construction, which we can deploy to destroy hate and conflict and to propagate peace and democracy. What happened in Iran after the latest election, and the role the web played in spreading information that would otherwise have been censored, are only the newest examples of how the internet can become a weapon of global hope."

The second story comes from the BBC World Service, who commissioned a poll, covering more than 27,000 people in 26 countries across the digital divide which came up with some headline grabbing statistics, the most notable of which was that across the world, almost 80% of people now regard Internet access as a basic human right. There are many highly revealing findings, both on a country-by-country basis and giving more of a global picture, but the headline figure is certainly something about which we should stop and think. Internet access a basic human right, comparable with electricity and water? And this is something believed not just in technologically advanced countries, but right across the digital divide - countries such as Mexico, Brazil andTurkey most strongly supporting the idea of net access as a right.

So, two stories, one suggesting that the Internet should be considered for the Nobel Peace Prize, the other suggesting that access to the Internet is a fundamental human right - and what do we have happening in the UK, and seemingly quite likely to become law, but the idea of restricting or even cutting off internet access for people caught illegally file-sharing, in the shape of the Digital Economy Bill. Cutting off a fundamental human right, for something that, though illegal, is hardly of the most egregious of crimes, doesn't exactly seem proportionate. Though people like Ian Livingston, British Telecom's Chief Executive, who has publicly raised his concerns about the Bill, along with various other industry leaders (including representatives of BT, Virgin Media, Carphone Warehouse and Orange) may have a clear vested interest in opposing these terms within the Bill, it is certainly something that many more of us should be concerned about.