Human Rights in the Digital Age

April 30, 1998

Privacy and anonymity are concepts that appear to be rapidly fading away into insignificance as networked communications become ubiquitous. This is an issue that is raised, together with the development of human rights, in the recent text Mapping the Global Future A Report of the National Intelligence Council’s 2020 Project NIC 2004-13, December 2004). A significant problem rests with people who insist on using technology in such a way that it impinges on the rights of others. For instance, many elected councillors put great pressure on officials to have their e-mail communications automatically re-directed to their home or work addresses, in contradiction of the data protection legislation. It is not understood that the sender of the e-mail must be made aware that their personal information will be dealt with in this way if they direct an e-mail to the local authority. Where elected councillors successfully insist on the automatic forwarding of e-mails, they become data controllers for the purposes of the Data Protection Act 1998 – yet few councils have notified the Information Commissioner of the change in the way they deal with personal data, and it will be interesting to note how many elected councillors have acknowledged they must become responsible for the personal data (some of which will be highly sensitive) they insist on having sent to them at home or work.

It also seems as if organisations demand increasing amounts of personal data from individuals for no apparent reason. For instance, when you get in touch with Companies House to ask questions about the security and authentication codes relating to the online annual return, they insist on having your name and telephone number: items of information that are neither necessary nor relevant for simple queries. The fault not only rests with organisations, because individuals themselves freely give away personal information, often without questioning whether there was a need for the recipient to have the information to begin with.

In addition, as a glance at any list of actions taken by privacy commissioners across the world demonstrates, some organisations take little care over the personal data in their control. This is demonstrated by the recent investigations by the Office of the Information and Privacy Commissioner in Canada. Three Alberta businesses, Linens ‘N Things, Nor-Don Collection Network Inc., and Digital Communications Group Inc., failed to protect personal information in their care. In November 2004, the Edmonton Police Service notified the Office of the Information and Privacy Commissioner that documents containing personal information from a number of businesses based in Alberta was found during a police investigation. Some of the records were found in a motel room, whilst two individuals subsequently charged with credit card fraud subsequently gave other documents to the police. The documents included return of goods slips, debtor account files from a collection agency, and mobile telephone contracts. Personal information in the records included Social Insurance Numbers, bank account information, credit card numbers, and customer signatures.

This book sets out to consider some the issues that affect us all in the digital environment, within the context of human rights. The goal posts are moving for all of us, as individuals, institutions and for both commercial and public organisations. Andrew Murray points out that the digital network is two-sided: ‘It provides great freedoms, empowering the user to meet virtually with people they would otherwise never encounter, to address large gatherings and to assemble and manage large amounts of data, allowing them to learn, research and direct complex operations. Equally, digital technology can, in an Orwellian fashion, monitor, manage or control the actions of the user.’ The state, in particular, has gained the ability to search, eavesdrop and maintain enormous amounts of data on individuals. However, governments have also seen their control over many aspects of the administrative process wither, against the ease by which individuals can now obtain greater amounts of information than hitherto. In the not too distant past, information was theoretically readily available, but in reality, difficult for many individuals to obtain. One example would be a White Paper. A library might buy a copy if there was sufficient interest from local people, but in the main, few copies would be bought and read by the majority of the population. Now, virtually every government paper and report is posted on the World Wide Web for anybody to download at the cost of an internet connection. This, it is argued, is one of the reasons why governments have begun to focus on image and presentation – the vast increase in news outlets, and the increasing volumes of information readily available at the press of a search engine button, has caused politicians to manage the control of information in proportion to the greater availability of information. The argument is presented that, perhaps, the state should also have a right to privacy, so as to make mistakes in private and without fear.

The maze of rights are addressed through a number of chapters dealing with discreet issues, such as the sex trade and especially how it affects women: in particular how new forms of abuse are manifest as the result of networked communications, and the proposals that are currently under consideration to address the problem at each stage of the chain of exploitation. Bela Bonita Chatterjee highlights the human rights issues in both the international and European contexts, and discusses the structural injustices that some commentators consider cannot be dealt with through human rights legislation. Trafficking is considered to be a significant issue, and consideration is given to domestic law as well as the distinction between those coerced into prostitution and those who enter it without compulsion.

Child sexual abuse is also considered in detail by Marie Eneman, who highlights the problems with the failure to achieve international consensus, especially in relation to cross border actions by the police. For instance, it is necessary for the accused to possess a physical copy of an image in Sweden for a charge to be successful. This is a major problem for the Swedish National Criminal Investigations Department. Research tends to show that the development of the networked infrastructure has led to an increase in the provision of images of child abuse. Two clear trends have emerged, both of which are very disturbing: consumption is no longer underground, expensive or difficult to obtain, and a market has developed in selling abusive images of children at little or no social cost to the buyer, which has increased the demand. This in turn has caused children’s rights to be eroded, and, it is argued, the price paid by children has become relatively high.

As a postscript to the coverage of crime on the internet, Mathias Klang demonstrates how authoritian governments have responded disproportionately to on-line acts of civil disobedience, such as denial of service attacks. Activities by civil libertarian groups have been the subject of legislation that categorises such behaviour as terrorism, thereby rendering such acts of expression and virtual assembly as criminal behaviour. This response, it is argued, acts to limit civil rights, especially because there is no evidence to demonstrate that cyber terrorism is a serious threat.

It has never been easier for individuals to broadcast their opinions to the world, and the problems with the dissemination of hatred and defamation as between individuals, their rights and internet service providers, are considered in five loosely inter-related chapters by Douglas Vick (to whose memory the book is dedicated), Diane Rowland, Gavin Sutter, Brian Esler and Ronald Deibert and Nart Villeneuve. The central point that stands out in the debate is centred on the different legal and philosophical views taken between states in relation to free speech and, to a certain extent, censorship. The chapter by the late Douglas Vick compares the various approaches to free speech, and sets out the position in the United States of America with clarity. The European experience of the 1930s, culminating in the horrors of the industrial murder of millions of Jews, amongst millions of others, shaped the philosophical debate and legislation in Europe after the Second World War. In contrast, the laissez-faire view approach adopted by the United States, predicated on the underlying philosophical dimensions of the revolution against an obtuse monarchical Britain and the first amendment, creates a tension across the Atlantic that may never be resolved. This discussion is worthy of careful consideration in its widest context, and explains a great deal of the differences between the approaches to free speech and the effect legislation has on defamation, hate speech and the obligations of internet service providers.

Censorship has begun to have an effect, at both the national and local level. A number of nations actively filter web sites on the internet, especially sites offering pornographic images, news and political discussion that are not approved by incumbent politicians. Software can be added to filter and block content, and the debate continued in the case of United States v American Library Association Case No 02-361, US (2003); 2003 US Lexis 4799. In this instance, the provision of the Children’s Internet Protection Act, by which public libraries are required to install filtering software on computers made available to the public as a condition for the receipt of public funding, were challenged unsuccessfully. This decision by the Supreme Court is perceived to be the beginning of a ‘slippery slope’, according to Eisner, because the provisions of section 215 of the Patriot Act expand the federal government’s authority to search under the Foreign Intelligence Surveillance Act, thus enabling the authorities to monitor internet activity in public libraries. By putting the debate into a wider perspective, the writers help to demonstrate why battles will continue to take place over jurisdiction.

A series of three essays by Rebecca Wong, David Christie and Mathias Klang consider the issues surrounding privacy and its development; the surveillance of employees (in the context of the UK) and how surveillance by the thousands of close circuit television cameras across the world may begin to affect the practical recognition of our human rights. Human rights are everywhere proclaimed, but nowhere enforced. The methods include: the automatic recognition of number plates, close circuit cameras in public places, automatic face recognition software, and pattern recognition software (where an incident on London Underground, for instance can be recognised as being dangerous because of suspicious behaviour). Unfortunately, system error is never or rarely considered – once an information technology system is in place, it is assumed to be infallible: a mistake made by the present government over the introduction of a national registration card. In addition, Klang demonstrates how function creep occurs, giving a graphic example from Sweden, the first country in the world that enacted privacy legislation in the eighteenth century. Since 1975, hospitals have taken DNA samples from every child that has been born. The DNA was taken for the specific purposes of medical treatment, quality control, education, research, clinical testing and development work as regulated under the Swedish law overseeing DNA databases, Lag (2002:297) om biobanker i hälso-och sjukvården m.m. It transpires that the police have increasingly been given access to this database, contrary to the provisions of the law. The point made, is that the linking of databases and material from surveillance is one of the greatest concerns surrounding privacy today.

In four unrelated chapters, Daniel Paré, James Couser, Jon Bing and Roger Brownsword consider issues that will begin to affect us in the future. Couser considers the nature of property in the cyber world, especially the approach to copyright and the competing tensions between allowing those who have created intellectual property to control it, and the blanket ‘one-size-fits-all solution’ that is considered to be over protective of the initial creation, especially in respect to the development of software. Bing looks at the concept of automated decision making, whilst Brownsword takes a look into the not-too-distant future where biotechnology and information technology interact with each other and, perhaps, begin to form a powerful alliance based on the utilitarian pragmatic theme of carrying on with developments, without regard for the protectionist approach taken by the human rights lobby.

Interestingly, although an early chapter in this text, the essay by Paré puts the entire text of the book into context. There is a digital divide, but in ways that politicians in particular are not aware of, or have no wish to address. The failure of the education system to teach people how to read, write and develop a critical consciousness will be the major limiting factors for any failure to ensure the majority of people can take part in the information revolution. It might be possible for people that are barely literate to use the technology in a basic way: that is, to press a mouse to gain access to the internet, but the question then becomes whether they have he ability to use it effectively and critically. Therein lies the rub.

© Stephen Mason, 2005