| Editorial |
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| Special Issue on
Privacy |
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Introduction to the Special Issue
Lilian Edwards, pp.265-269
Lilian Edwards introduces this special issue of
SCRIPT-ed, based on
the Workshop on Privacy
and Technology which was convened at Edinburgh in September 2005
under the auspices of the AHRC Centre for Research into
Intellectual Property and Technology Law.
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When personal data, behavior and
virtual identities become a commodity: Would a property rights
approach matter?
Corien Prins, pp.270-303
This article attempts to
grapple with the privacy debate, taking account of both the
philosophical and economic arguments for and against a property
right in privacy, as well as recent court cases such as the
famous Douglas v Hello which arguably veer towards granting such
property rights, albeit paradoxically only in the privacy of
those whose living it is to be public property: namely,
celebrities. The article concludes towards the idea that it is
not enough to simply decide that privacy can or cannot, or
should or should not, be propertised: what is truly important is
to analyse the effect such would have on, for example,
limitation of misuse of personal data, and efficiency of re-use
of data, especially compared to conventional human rights
systems of protection of privacy such as data protection law,
which although good on paper, may in reality in the digitised
trans-national world of the Internet offer less protection than
some property rights systems.
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From Safe Harbour to the Rough Sea?
Privacy Disputes across the Atlantic
Andreas Busch, pp.304-321
Contrary to initial
hopes, the increased economic, social-cultural and political
importance of cyberspace has led to substantial state regulation
of it. Since nation states are still the dominant force here,
the regulation of transborder data flows requires the cooperation
of nation states which encounters many difficulties.
These problems can be analysed along two dimensions. On the one
hand, there are competing interests in the field of transborder
data flows: economic interests centre on issues like
cost-effectiveness; safety interests focus on the reduction of
risk and the prevention of misuse; and civil liberty interests
call for the upholding of privacy and freedom of information. On
the other hand, national environments differ considerably,
especially with respect to the values that inform political
debate; the direction and mobilisation of interests; and the
existence of institutions in relevant areas such as data
protection. This paper uses these two dimensions to analyse two
illustrative cases: one is the “Safe Harbor” agreement between
the US and the EU that was meant to provide a framework for firms
in the face of different standards of private sector data
protection between the two areas; the other is the recent
dispute between the US and the EU about the transmission of
airline passengers’ personal data. The paper argues that these
cases demonstrate that initial expectations for a “policy
transfer” of EU privacy standards to the US did not materialise,
and that differences in institutions and underlying values can
largely account for this.
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Just because you’re paranoid,
doesn’t mean they’re not after you: Legislative
developments in relation to the mandatory retention of
communications data in the European Union
Judith Rauhofer, pp.322-343
In the wake of the
terrorist attacks in New York, Madrid and London the mandatory
retention of communication data by communications service
providers has become a contentious issue between the governments
of nation states and the communications industry and civil
rights campaigners. While the former claim that such retention
is necessary for the purpose of national security and the
detection and investigation of crime, the latter argue that data
retention represents an attack on the rights and freedoms of
individuals without evidence that measures will indeed increase
the security of citizens. This paper explores the legislative
developments, which have taken place in the UK and the European
Union in recent years, focusing in particular on the draft
Directive on data retention which was adopted in February 2006.
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Watching the watcher: recent
developments in privacy regulation and cyber-surveillance in
South Africa
Caroline B Ncube, pp.344-354
This article outlines
developments in privacy regulation in South Africa. The first
part comments on the recently issued draft bill on the
protection of personal information. It pays particular attention
to the provisions on transborder information flows. The second
part comments on the Regulation of Interception of
Communications and Provision of Communication Related
Information Act (70 of 2002) which ushers in a very
controversial cyber-surveillance regime.
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The World Summit on the Information
Society – privacy not found?
Ralf Bendrath and Rikke Frank Jørgensen, pp.355-369
This article will explore
how privacy was dealt with in the United Nations World Summit on
the Information Society (WSIS) process. WSIS was the first time
that information and communication technology was linked to
human rights and development on the global policy agenda. The
article will argue that though the WSIS documents ended up with
a formal commitment to human rights, there was de facto no
recognition of privacy as a human right which is fundamentally
affected by the design and use of technology. On the contrary,
privacy continues to be dealt with as a marginal issue attached
to an overarching agenda of state security. We will conclude
that the post WSIS phase is showing some momentum in favor of
privacy, due to new emerging alliances between civil society and
industry.
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Implementing Pseudonymity
Miranda Mowbray, (Published in Issue 3-1)
I will give an
overview of some technologies that enable pseudonymity -
allowing individuals to reveal or prove information about
themselves to others without revealing their full identity. I
will describe some functionalities relating to pseudonymity that
can be implemented, and some that cannot. My intention is to
present enough of the mathematics that underlies technology for
pseudonymity to show that it is indeed possible to implement
some functionalities that at first glance may appear impossible.
In particular, I will show that several of the intended
functions of the UK national ID could be provided in a
pseudonymous fashion, allowing greater privacy. I will also
outline some technology developed at HP Labs which ensures that
users’ personal data is released only to software that has been
checked to conform to their preferred privacy policies.
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Penetrating the Zombie Collective:
Spam as an International Security Issue
Andrea M. Matwyshyn, pp.370-388
Since the mid 1990’s,
spam has been legally analyzed primarily as an issue of
balancing commercial speech with consumers’ privacy. This
calculus must now be revised. The possible deleterious
consequences of a piece of spam go beyond inconvenient speech
and privacy invasion; spam variants such as phishing and
“malspam” (spam that exploits security vulnerabilities) now
result in large-scale identity theft and remote compromise of
user machines. The severity of the spam problem requires
analyzing spam foremost as an international security issue,
expanding the debate to include the dynamic impact of spam on
individual countries’ economies and the international system as
a whole. Spam creation is becoming a flourishing competitive
international industry, generating a new race to the bottom that
will continue to escalate. Although the majority of spammers
reside in the United States and a majority of spam appears to
originate in the U.S., spam production is being increasingly
outsourced to other countries by U.S. spammers. Similarly, as
U.S. authorities begin to prosecute, spammers are moving
offshore to less regulated countries. Therefore, spam presents
an international security collective action problem requiring
legislative action throughout the international system. A
paradigm shift on the national and international level is
required to forge an effective international spam regulatory
regime. Spam regulation should be contemplated in tandem with
the development of data security legislation and closing
pre-existing doctrinal gaps in contract, computer crime and
jurisdiction law, harmonizing all these bodies of law
simultaneously across the international system to form a
coherent international data control regime.
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Squeezing Information out of the
Information Commissioner: Mapping and measuring through online
public registers
Philip Leith, pp.389-411
Access to public
registers has to date been primarily through physical
observation of the printed record, thus allowing only the most
basic searching and recording of that information. This is
clearly changing with, for example, property sales information
being commodified and made available over the internet, and a
more open attitude to the re-use of government data. Is this
‘open data’ path the one that all registration agencies that
handle publicly accessible records should follow? Or are there
limitations – self imposed perhaps – that the agencies should
rely upon to constrain the use of such data for any number of
reasons? How far should this access be allowed – an online
version of the printed register, or should something more
powerful be offered to the public? In this article I look to one
register which is particularly relevant to this discussion –
principally because the register is held by the organisation
with a responsibility for making public information accessible
to the UK public – the UK Information Commissioner’s Office (ICO).
I will argue that an extended right of access to public
registers should be enabled which allows processing and analysis
of the data contained within the register. In terms of the ICO,
this ‘right to process public information’ is essential that we
may better understand the privacy and data protection debate.
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| Peer-reviewed articles |
- Electroconvulsive therapy (ECT) -
The imposition of ‘truth’?
Philip Ruthen, pp.412-436
Within the contemporary
psychiatric setting where the controversial operative procedure
Electroconvulsive therapy (ECT) is applied, the identity of the
person to be ‘treated’ is positioned at a convergence point of
competing disciplines. ECT’s contradictory existence is
additionally quantifiable through analysis of official
statistical data, where omissions and inconsistencies obscure
the contexts and activity of ECT’s administration. Whilst a
number of other states have either banned its usage, or applied
increasing restrictions, it is proposed bio-medical frameworks
in this arena of UK healthcare inhibit rights based policy
initiatives. Such frameworks further limit the admission of
alternate socio-legal method which is are coupled with evidence
bases from service user/survivor experience. The article
recognises the need for genuinely collaborative research –
rather than research done by consumers for consumers and by
clinicians for clinicians. It is positioned to produce a
transitional domain between differing perspectives of ECT from
evidence based research. The contemporary socio-legal debates
about safeguards for excessive treatments, consents, legal
status, and the questioning of a person’s capacity also find
convergence in ECT’s administration processes, as care becomes
interchangeable with authority through its outreach, and
intrusion. The article intends to inform further research, and,
in the context of the Mental Health Bill [HL]2006, offers
recommendations toward the implementation of equality in NHS
service delivery. These include proposing structural changes in
the clinic accreditation regimes, and the promotion of
rights-based measures for inclusion in changes to the Mental
Health Bill [HL]2006 from the comparative perspective of the
Mental Capacity Act 2005.
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Las licencias de uso de bienes
digitales: El difícil equilibrio entre los titulares de los
derechos y los usuarios
(Licences for Use of Digital Works: The Difficult Balance
Between Right-holders and Users)
Aurelio Lopez-Tarruella Martinez, pp.437-462
This article examines the
new legal figure of licensing of use of digital works from the
perspective of Spanish doctrine and jurisprudence, attempting to
find the elusive balance between users and right-holders. Of
particular interest is the existence of extra-contractual
obligations arising from the use of the licensed work, and how
that may generate conflict and imbalance to users. The article
analyses the problems of contract formation for Civil
jurisdictions present in the practice of shrink-wrap and
click-wrap agreements, and seeks solutions in
consumer-protection legislation at European level.
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| Analysis |
- The Spanish Tax Administration and the
Internet
Ana María Delgado García & Rafael Oliver Cuello, pp.463-472
The application of new
technologies in relations between the Spanish Tax Administration and the
taxpayer is of particular importance in terms of the administrative duty
of information and assistance, and also in tax procedures, especially in
those such as administrative procedures. In this context, the principle
manifestations of new technologies applied to tax procedures occur in
the presentation and payment of tax declarations, tax notification and
the lodging of appeals against tax decisions. This communication channel
with the Tax Administration offers the following benefits: reduced
indirect tax pressure, as it is a more comfortable system for the
taxpayer for processing their declarations; reduced workload for the
Administration which avoids recording and processing tasks, and,
generally, paperwork; shorter declaration processing times; and less
time needed for processing and detecting the evolution of economic
variables, which allows for improved monitoring of the global collection
and by sector.
- La France v. Apple: who’s the dadvsi in
DRMs?
Nicolas Jondet, pp.473-484
On August 1, 2006 the French
Parliament passed the law on copyright and related rights, known as
DADVSI (loi relative au Droit d'Auteur et aux Droits Voisins dans la
Société de l'Information), which implements the European Copyright
Directive of 2001. The main feature of the law is the legalisation of
technical protection measures for copyrighted works (also known as TPMs
or DRMs) and the introduction of legal mechanisms to protect and enforce
these technical measures. Such steps, aimed at combating digital piracy,
should have been welcomed unreservedly by all involved in the media
industry, from artists and producers to distributors, especially online
content distributors such as Apple and Sony. However, the legalisation
and protection of technical measures came with a few twists from French
lawmakers. These twists have unnerved Apple, the market leader in music
media players and online content distribution with its iPod player and
iTunes distribution platform respectively. The DADVSI law introduces the
requirement of interoperability for technical measures meaning that all
DRM-protected music file must be playable on any device, irrespective of
its brand or of the software used to read it. Such requirement of
compatibility between competing DRMs threatens Apple’s exclusive DRM
technology. In doing so, the law threatens the umbilical cord between
the iPod player and the music sold on iTunes, and thus Apple’s dominance
in both markets. This paper will describe how French lawmakers have
managed to put in place an original and, so far, unique legal framework
based around a new independent body in charge of implementing DRM
interoperability and of ensuring that technical measures do not upset
the balance between the interests of the rightholders and those of the
consumers.
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| Book Reviews |
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