Category Archives: Guest post

Steve Goodrich: FOI is under attack when it should be strengthened

stevegoodrichIn this guest post, Transparency International UK’s Steve Goodrich considers UK citizens’ right to access information, arguing that public money should be put towards examining how the Freedom of Information regime can be improved, not weakened

The right to access information held by the state, public officers and providers of state services is an essential part of a functioning democracy. It provides citizen-led checks and balances on concentrations of power, without which corruption would be allowed to thrive; allows citizens to make informed judgements about the efficacy of governments and elected representatives; and helps hold institutions and officials to account for their actions. It is, therefore, perplexing why the UK Government – with its welcome and newfound interest in tackling corruption – appears intent on watering down the Freedom of Information Act.

In July this year, Lord Hodges announced that the UK Government was establishing an ‘independent Commission’ to review whether the Act provided ‘safe space’ for Ministers and civil servants to develop and discuss policy. This might sound very well and reasonable – why shouldn’t a law be reviewed after it’s been in operation for a decade – however, the announcement missed out some important pieces of detail.

Firstly, there has already been post-legislative scrutiny of the Act. The Justice Select Committee did a thorough job back in 2012, which involved taking 140 pieces of written evidence and oral evidence from 37 witnesses during 7 evidence sessions. After talking to a range of individuals and organisations, the Committee concluded that there are sufficient protections for deliberation within public bodies. The Information Commissioner and Information Tribunal are both mindful of the need to ensure this ‘safe space’ exists – which is already provided for in the Act – and Cabinet minutes are not routinely outed. Considering this, it’s slightly baffling why the government wants this looking at again, and so soon after the last review.

Secondly, one of the reasons cited for re-examining the Act is the Supreme Court’s recent decision in the case of the Prince Charles ‘spider memos’. After the Upper Tribunal had ordered the government to disclose these documents the Attorney General, Dominic Grieve, tried to issue the Ministerial veto – something intended for rare and limited circumstances. However, on appeal the Supreme Court ruled that the veto could not apply because it was never intended to be an executive override for a judgment of the judiciary. As the Supreme Court’s judgment notes, it is a long-standing principle of the rule of law that the executive should only be allowed to do this in very specific circumstances where the power to do so is clear and explicit. This is not the case within the FOI Act.

Essentially, the review seems to be partly inspired by sour grapes. The government lost in a disagreement with the courts and its solution is to make the case for re-writing the law so it can ignore them in the future when it suits them. The public interest is noticeably absent from its motivations.

Thirdly, the composition and conduct of the Commission has raised some eyebrows. Members include Jack Straw, who has publicly criticised the Act, and Michael Howard whose expenses for gardening services were revealed through FOI. There are no major advocates of the Act on the panel.

The Commission has also adopted some opaque practices during the initial stages of its inquiry, including providing anonymous briefings to members of the press and considering anonymising evidence. Until civil society expressed concerns about the Commission in September, it wasn’t even planning to take external evidence and had the suspiciously ambitious deadline of November 2015 to report to government. Since then, it has opened itself up to submissions and its deadline for reporting appears to have disappeared. However, the damage has already been done – Transparency International UK has no confidence in the impartiality and independence of the Commission.

The saddest thing about this whole episode is that it’s been a missed opportunity. If public money is going to be spent on reviewing the Act it should be put towards examining how it can be improved, not weakened. For example, there are growing transparency gaps in our public institutions, with the private sector providing an increasing amount of goods and services. Although there are some circumstances where these companies can be subject to information requests, these are limited. This is why the Act should be extended to the private sector where they are providing public services.

Recently, Labour has announced that it intends to set-up its own Commission on FOI that will look at the Act as a whole, including how it can be strengthened. This is a welcome development. However, as with the government’s Commission, its members and their actions must gain the confidence of civil society and government if its findings are ever to be realised.

Steve Goodrich is  Transparency International UK’s (TI-UK) Senior Research Officer. He is responsible for leading on TI-UK’s research into lobbying open data and state accountability. He spoke at ‘Freedom of Information: Extending Transparency to the Private Sector‘ on 28 September 2015, an event co-organised by the Bingham Centre for the Rule of Law and the IALS Information Law and Policy Centre.

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Your next social network could pay you for posting

In this guest post, Jelena Dzakula from the London School of Economics and Political Science considers what blockchain technology might mean for the future of social networking. 

You may well have found this article through Facebook. An algorithm programmed by one of the world’s biggest companies now partially controls what news reaches 1.8 billion people. And this algorithm has come under attack for censorship, political bias and for creating bubbles that prevent people from encountering ideas they don’t already agree with.

blockchainNow a new kind of social network is emerging that has no centralised control like Facebook does. It’s based on blockchain, the technology behind Bitcoin and other cryptocurrencies, and promises a more democratic and secure way to share content. But a closer look at how these networks operate suggests they could be far less empowering than they first appear.

Blockchain has received an enormous amount of hype thanks to its use in online-only cryptocurrencies. It is essentially a ledger or a database where information is stored in “blocks” that are linked historically to form a chain, saved on every computer that uses it. What is revolutionary about it is that this ledger is built using cryptography by a network of users rather than a central authority such as a bank or government.

Every computer in the network has access to all the blocks and the information they contain, making the blockchain system more transparent, accurate and also robust since it does not have a single point of failure. The absence of a central authority controlling blockchain means it can be used to create more democratic organisations owned and controlled by their users. Very importantly, it also enables the use of smart contracts for payments. These are codes that automatically implement and execute the terms of a legal contract.

Industry and governments are developing other uses for blockchain aside from digital currencies, from streamlining back office functions to managing health data. One of the most recent ideas is to use blockchain to create alternative social networks that avoid many of the problems the likes of Facebook are sometimes criticised for, such as censorship, privacy, manipulating what content users see and exploiting those users.

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Case Preview: PNM v Times Newspapers, Open justice and the privacy of suspects – Hugh Tomlinson QC

In this guest post, Hugh Tomlinson QC previews an appeal to the Supreme Court in a case that considers where the balance lies between rights to privacy and the principle of open justice. The post was first published on the Inforrm blog

On 17 and 18 January 2017, a seven judge Supreme Court will hear the claimant’s appeal against the decision of the Court of Appeal in the case of PNM v Times Newspapers ([2014] EWCA Civ 1132).

That Court had upheld the judge’s view that, on the basis of the “open justice principle”, information mentioned in open court concerning a person who was arrested but not charged could be reported.  

Background

The claimant was one of a number of men arrested in March 2012 in connection with a Thames Valley Police investigation into allegations of child sex grooming and prostitution.  The claimant was released on bail and was subsequently notified that he was to be released without charge.

Nine men were charged and a criminal trial took place at the Central Criminal Court between January and May 2013.  The claimant was not a party or witness at the criminal trial.  On 25 January 2013 order under section 4(2) of the Contempt of Court Act 1981 was made prohibiting publication of any report which referred to evidence which may identify or tend to identify him.

On 14 May 2013, seven of the defendants were convicted of numerous serious sexual offences.  A further order under section 4(2) of the Contempt of Court Act 1981 was made on the claimant’s application.  It prohibited disclosure of details of applications made to the Court by Thames Valley Police (which concerned certain of the claimant’s property).

The claimant’s full name was mentioned in open court when a police officer said that a witness had failed to pick him out on an identification parade.  He was also mentioned in the course of cross-examination, in speeches and in the summing up.

At the conclusion of the criminal trial the Judge declined to discharge the section 4(2) order until the decision was made as to whether the claimant would be charged.  In July 2013 the police notified the claimant that he was not going to be charged.   The Times and the Oxford Mail applied to discharge the section 4(2) but, before he had handed down his ruling, the claimant applied to the High Court for an injunction.

By an application made on 15 October 2013 against the Times, the Oxford Mail and two journalists, the claimant sought an order to prevent publication of the fact of his arrest on suspicion of committing serious sexual offences against children and associated information because of the fear of the damage such publications may cause to him and his family, including his children.

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Why the rise of wearable tech to monitor employees is worrying

Shutterstock.com

In this guest post, Ivan Manokha, Departmental Lecturer in International Political Economy at the University of Oxford, considers the use of wearable technology in the workplace and the potential privacy implications of collecting the data of employees. 

An increasing number of companies are beginning to digitally monitor their employees. While employers have always scrutinised their workers’ performance, the rise of wearable technology to keep tabs has more of a dystopian edge to it. Monitoring has become easier, more intrusive and is not just limited to the workplace – it’s 24/7.

Devices such as Fitbit, Nike+ FuelBand and Jawbone UP, which can record information related to health, fitness, sleep quality, fatigue levels and location, are now being used by employers who integrate wearable devices into employee wellness programmes.

One of the first was BP America, which introduced Fitbit bracelets in 2013. In 2015 at least 24,500 BP’s employees were using them and more and more US employers have followed suit. For instance, the same year, Vista Staffing Solutions, a healthcare recruitment agency, started a weight-loss programme using Fitbits and wifi-enabled bathroom scales. Appirio, a consulting company, started handing out Fitbits to employees in 2014.

In the UK similar projects are under consideration by major employers. And this trend will only intensify in the years to come. By 2018, estimates suggest that more than 13m of these devices will be part of worker wellness schemes. Some analysts say that by the same year, at least 2m employees worldwide will be required to wear health-and-fitness trackers as a condition of employment.

According to some, this is a positive development. Chris Brauer, an academic at Goldsmiths, University of London, argues that corporate managers will now be comparable to football managers. They will be equipped with a dashboard of employee performance trajectories, as well as their fatigue and sleep levels. They will be able to pick only the fittest employees for important business meetings, presentations, or negotiations.

It seems, however, that such optimism overlooks important negative and potentially dangerous social consequences of using this kind of technology. History here offers a word of warning.

Historical precedent

The monitoring of workers’ health outside the workplace was once attempted by the Ford Motor Company. When Ford introduced a moving assembly line in 1913 – a revolutionary innovation that enabled complete control over the pace of work – the increase in productivity was dramatic. But so was the rise in worker turnover. In 1913, every time the company wanted to add 100 men to its factory personnel, it was necessary to hire 963, as workers struggled to keep up with the pace and left shortly after being recruited.

Ford’s solution to this problem was to double wages. In 1914, the introduction of a US$5 a day wage was announced, which immediately led to a decline in worker turnover. But high wages came with a condition: the adoption of healthy and moral lifestyles.

The company set up a sociology department to monitor workers’ – and their families’ – compliance with its standards. Investigators would make unannounced calls upon employees and their neighbours to gather information on living conditions and lifestyles. Those that were deemed insufficiently healthy or morally right were immediately disqualified from the US$5 wage level.

Analysing Ford’s policies, Italian political philosopher and revolutionary Antonio Gramsci coined the term “Fordism” for this social phenomenon. It signalled fundamental changes to labour, which became much more intense after automation. Monitoring workers’ private lives to control their health, Gramsci argued, was necessary to preserve “a certain psycho-physical equilibrium which prevents the physiological collapse of the worker, exhausted by the new method of production”.

Parallels today

Today, we are faced with another great change to how work is done. To begin with, the “great doubling” of the global labour force has led to the increase in competition between workers around the world. This has resulted in a deterioration of working and employment conditions, the growth of informal and precarious labour, and the intensification of exploitation in the West.

So there has been a significant increase in the average number of hours worked and an increase in the intensity of labour. For example, research carried out by the Trade Union Congress in 2015 discovered that the number of people working more than 48 hours in a week in the UK was rising and it warned of a risk of “burnout Britain”.

Indeed, employee burnouts have become a major concern of employers. A UK survey of human resources directors carried out in 2015 established that 80% were afraid of losing top employees to burnout.

Ford’s sociology department was shut down in the early 1920s for two reasons. It became too costly to maintain it in the context of increasing competition from other car manufacturers. And also because of growing employee resistance to home visits by inspectors, increasingly seen as too intrusive into their private lives.

Wearable technology, however, does not suffer from these inconveniences. It is not costly and it is much less obviously intrusive than surprise home visits by company inspectors. Employee resistance appears to be low, though there have been a few attempts to fake the results of the tracking (for example, workers strapping their employer-provided Fitbits onto their dogs to boost their “activity levels”). The idea of being tracked has mostly gone unchallenged.

Labour commodified to the extreme

But the use of wearable technology by employers raises a range of concerns. The most obvious is the right to privacy. The use of wearable technology goes significantly further than computer systems where emails are already logged and accessible to employers.

Surveillance becomes continuous and all-encompassing, increasingly unconfined to the workplace, and also constitutes a form of surveillance which penetrates the human body. The right to equal employment opportunities and promotion may also be compromised if employers reserve promotion for those who are in a better physical shape or suffer less from fatigue or stress.

It may also be argued that the use of wearable technology takes what the Hungarian historian Karl Polanyi called the “commodification” of human labour to an extreme. Monitoring worker health both inside and outside the workplace involves the treatment of people as machines whose performance is to be maximised at all costs. However, as Polanyi warned, human labour is a “fictitious commodity” – it is not “produced” for sale to capital as a mere tool. To treat it as such risks ultimately leading to a “demolition of society”.

To protect individual rights, systems have been introduced to regulate how data that is gathered on employees is stored and used. So one possible solution is to render the data collected by trackers compulsorily anonymous. For example, one company that collects and monitors employee data for companies, Sociometric Solutions only charts broader patterns and connections to productivity, rather than individual performance.

This, however, does not address concerns about the increasing commodification of human labour that comes with the use of wearable technology and any potential threats to society. To prevent this, it is perhaps necessary to consider imposing an outright ban on its use by employers altogether.

The ConversationIvan Manokha, Departmental Lecturer in International Political Economy, University of Oxford

This article was originally published on The Conversation. Read the original article.

Implementing Leveson, how the national newspaper groups use the local press as “human shields” – Hugh Tomlinson QC

In this guest post, Hugh Tomlinson QC, Chair of Hacked Off, considers the press’s response to the Government’s consultation on the implementation of Section 40 of the Crime and Courts Act 2013 – a significant component in the Leveson system of press regulation.   

nottingham-postThe local press has, over the past few weeks, been running an anti-Leveson campaign in response to the Government’s unfair and unbalanced consultation on the implementation of Leveson. The themes are familiar: local newspapers are the life blood of democracy, they didn’t do phone hacking but they will be financially ruined if section 40 is implemented.

The first two points are true but the third is not. The innocent and popular local press is being used by its guilty and unpopular national big brothers to defend the indefensible – as a “human shield” against proper regulation.

Let’s take the example of the response of the Nottingham Post. This is a daily newspaper with a circulation of 18,000 in Nottingham and the surrounding area. It provides a valuable service to the local community and is, indeed, essential to local democracy. But it is not a plucky little independent paper struggling to survive. It is owned by Trinity Mirror, a profitable newspaper group with an annual turnover of around £200 million.

It should be remembered that although there are over 1,000 distinct daily and weekly newspapers in the UK, five publishers own 80% of these titles. In other words, the typical local newspaper is not a struggling small business, but part of a larger media corporation. Many of these local newspaper owning groups are profitable, despite the severe pressures on the local press resulting from the decline in classified advertising.

Back to the Nottingham Post. This local newspaper – along with all the others owned by Trinity Mirror – has refused to submit itself to independent regulation but, instead, has joined the body created by the national newspapers, IPSO. This has, of course, not carried out meaningful regulation of any kind.

So why will the Nottingham Post not join an independent regulator? After all, it is something that opinion poll evidence shows is overwhelming favoured by the public.

The Nottingham Post gives its readers two reasons.

First, it says that if it had to sign up to a recognised regulator such as Impress it would be forced to

“commit to a potentially expensive compulsory arbitration process They could well have to find thousands of pounds to contest every case heard, as complainants queued up to cash in on minor errors when a swift apology would suffice”.

So, it is said, “potentially” a local newspaper “could well” face additional expenditure under the arbitration system offered by Impress to readers. This is, of course, not an argument available to the big national newspaper groups. An arbitration system would save them large sums in court costs – their concern is not low cost arbitration but avoiding independent and effective regulation.

The local press is being used to advance an argument against section 40 to shield the national press from the full operation of the balanced Leveson for audited self-regulation. But the argument does not work, even for the local press. There are four reasons for this:

  • As the use of the word “potentially” shows, there is no evidence whatever that the arbitration process will be expensive for the local press. The claim is pure scaremongering. Of the 140 IPSO complaints brought against local newspapers over the past 2 years only 14 could even theoretically give rise to a legal claim – at most there are likely to be a handful of arbitration claims against the local press. Bad claims would be weeded out by the arbitrator at an early stage. The likely additional cost to local newspapers would be negligible.
  • The suggestion that “minor errors” would give rise to arbitration claims is a deliberate misrepresentation – an arbitration claim can only be brought if there is a legal “cause of action” such as defamation or privacy. “Minor errors” do not give rise to legal claims.
  • Arbitration is cheap. That is its most obvious virtue. At Impress a claimant will pay less than £100, while a newspaper’s costs need not rise above a few thousand – a tiny fraction of court costs.
  • The Royal Charter contains specific provision to protect local newspapers against even the costs of arbitration – where they have been caused serious financial harm the PRP can allow a recognised regulator to proceed on the basis that that the local and regional press need not participate in the arbitration system. This provision was inserted into the Royal Charter specifically to assist the local press – but they never mention it.

Second it is said, that IPSO has refused to seek recognition by the PRP

“for the simple reason that it believes it would be submitting to state regulation”.

This is nonsense. The PRP is not a “regulator” at all – it is simply a body that audits regulators to determine whether they come up to proper standards. Seeking recognition from the PRP is not, in any sense, “submitting to state regulation”. What is more, the national press (who control IPSO) have no principled objection to “state recognition”. As Lord Justice Leveson pointed out, the Irish Press Council is underpinned by statute and has “been accepted without demur” by the leading UK newspaper publishers, including Trinity Mirror. There is no “objection of principle”

The Nottingham Post, dancing to the tune of its Trinity Mirror masters, has no proper arguments against the implementation of section 40. Although the Post did not engage in phone hacking and the wholesale abuse of victims, its ultimate owners did. The Post is one of many local and regional papers acting as “human shields” – providing the excuses to justify a last-ditch attempt by the national newspaper groups to avoid participating in a proper system of regulation.

Hugh Tomlinson QC is the Chair of Hacked Off, the campaign for a free and accountable press which is urging supporters to respond to the Leveson implementation consultation.

This post first appeared on the Inforrm blog. It does not represent the views of the Information Law and Policy Centre or the Institute of Advanced Legal Studies. 

How the UK passed the most invasive surveillance law in democratic history

IPBill image

In this guest post, Paul Bernal, Lecturer in Information Technology, Intellectual Property and Media Law at the University of East Anglia, reflects on the passage of the Investigatory Powers Bill. The legislation was recently passed in Parliament and given Royal Assent on 29 November 2016.

You might not have noticed thanks to world events, but the UK parliament recently approved the government’s so-called Snooper’s Charter and it has now become law. This nickname for the Investigatory Powers Bill is well earned. It represents a new level and nature of surveillance that goes beyond anything previously set out in law in a democratic society. It is not a modernisation of existing law, but something qualitatively different, something that intrudes upon every UK citizen’s life in a way that would even a decade ago have been inconceivable. Continue reading

Social media and crime: the good, the bad and the ugly

social media and crime

Social media has revolutionised how we communicate. As part of a series for The Conversation, Alyce McGovern, UNSW Australia and Sanja Milivojevic, La Trobe University summarise how social media is affecting crime and criminal justice.  


The popularity of social media platforms such as Facebook, Twitter and Snapchat have transformed the way we understand and experience crime and victimisation.

Previously, it’s been thought that people form their opinions about crime from what they see or read in the media. But with social media taking over as our preferred news source, how do these new platforms impact our understanding of crime?

Social media has also created new concerns in relation to crime itself. Victimisation on social media platforms is not uncommon.

However, it is not all bad news. Social media has created new opportunities for criminal justice agencies to solve crimes, among other things.

Thus, like many other advancements in communication technology, social media has a good, a bad and an ugly side when it comes to its relationship with criminal justice and the law. Continue reading

Data Retention and the Automated Number Plate Recognition (ANPR) System: A Gap in the Oversight Regime

ANPR Intercept

The Advocate General’s Opinion in the recent Watson/Tele2 case re-emphasises the importance of considered justification for the collection and storage of personal data which has implications for a variety of data retention regimes. In this post, Lorna Woods, Professor of Internet Law at the University of Essex, considers the legal position of the system used to capture and store vehicle number plates in the UK.

The Data Retention Landscape

Since the annulment of the Data Retention Directive (Directive 2006/24/EC) (DPD) with Digital Rights Ireland (Case C-293/12), it has become clear that the mass retention of data – even for the prevention of terrorism and serious crime – needs to be carefully justified. Cases such as Schrems (Case C-362/14) and Watson/Tele2 (Case C-698/15) re-emphasise this approach. This trend can be seen also in the case law of the European Court of Human Rights, such as Zakharov v. Russia (47143/06) and Szabo v Hungary (11327/14 and 11613/14).

Not only must there be a legitimate public interest in the interference in individuals’ privacy and data protection rights, but that interference must be necessary and proportionate. Mechanisms must exist to ensure that surveillance systems are not abused: oversight and mechanisms for ex ante challenge must be provided.  It is this recognition that seems part of the motivation of the Investigatory Powers Bill currently before Parliament which deals – in the main – with interception and surveillance of electronic communications.

Yet this concern is not limited to electronic communications data, as the current case concerning passenger name records (PNR) data before the Court of Justice (Opinion 1/15) and other ECtHR judgments on biometric data retention (S and Marper v. UK (30562/04 and 30566/04)) illustrate.  Despite the response of the UK government to this jurisprudence, there seems to be one area which has been overlooked – at least with regard to a full oversight regime. That area is automated number plate recognition (ANPR) and the retention of the associated data. Continue reading

Brexit: “You don’t know what you’ve got till it’s gone”

Brexit IT law scrabble

In the following editorial, Professor Lilian Edwards considers the implications of the Brexit vote for information law and assesses the mood amongst the academic community in the aftermath of the EU Referendum.

The article was first published in Volume 13, Issue 2 of SCRIPT-ed: A Journal of Law, Technology and Society. Professor Edwards’ views do not represent those of the Information Law and Policy Centre or the Institute of Advanced Legal Studies. 

On 23 June 2016 a slim majority of UK voters decided we should leave the EU in one of the great political upsets of British political history. On 24 June, the next day, CREATe,[1] the RCUK copyright and business models centre which I have helped run since 2012, ran a one-day festival at the Royal Society of the Arts in London. This was designed to be a showcase and celebration of four years of working at the cutting edge of copyright and how it either helps or hinders the creative industries and arts. Hundreds of academics signed up to show and see, including the Director of CREATe, Martin Kretschmer of Glasgow University, from Germany by birth, and many others from all over Europe and beyond.

It was a classic international IT/intellectual property event: analysing laws made throughout the world to regulate globalised cultural markets, transnational data and product flows, disruptive technologies that disregard borders, and audiences as likely to listen to music made in Brazil via decentralised P2P networks, as watch Netflix series made in the US, or use smartphones made in Japan to watch Hindi pop videos on YouTube.

In the event, the CREATe Festival became more of a wake. Reportedly, experienced academics, who thought themselves hardened to trauma by years of bombardment from REF, TEF and NSS, were almost in tears at the first session. This writer, derelict of duty, was not there to corroborate, still staring like a rabbit in the headlights at the TV in a hotel bedroom in Docklands, where the dominant tech, business and financial workers were almost equally in shock.

So, Brexit. As the dust not so much settles as temporarily accumulates while we work out what on earth happens next, what are the implications for IT law and UK academe? Are they really as bad as they seemed that morning? Continue reading

Pokémon Go has revealed a new battleground for virtual privacy

Pokemon go and virtual privacyAndres Guadamuz, University of Sussex

People have been lingering outside Boon Sheridan’s house all through the night. The designer lives in an old church in Massachusetts that has been designated a “gym” in the new smartphone game Pokémon Go. Because the game requires players to visit places in the real world, Sheridan now has to put up with people regularly stopping outside his building to play.

It has got to the point where he has started wondering if there is anything the law can do in situations like this. He wrote on Twitter: “Do I even have rights when it comes to a virtual location imposed on me? Businesses have expectations, but this is my home.” This problem of virtual activities impinging on physical spaces in only likely to grow with the increasing popularity of the augmented reality used in games such as Pokémon Go to overlay digital landscapes on real ones. But there may be a way to deal with this before it becomes a serious legal problem for more people.

Pokémon Go encourages players to interact with their actual environment by using realistic maps of their surroundings as part of the game. Certain landmarks, monuments and public buildings are tagged as “stops”, where players can collect items, and some public spaces including churches, parks and businesses are tagged as “gyms”, where users can battle each other.

It is the tagging element that has prompted a few interesting legal questions about the role of augmented reality. The game’s developer, Niantic, is using a combination of data from Google Maps and user-generated tags collected from an earlier game called Ingress. This data is used to identify real-life spots as either a stop or a gym. But what happens when the data mistakenly identifies a house as a public space, as happened to Sheridan?

As it turns out, Niantic offers people the chance to highlight problems with a location. And in the grand scheme of things, whether a person’s house is mis-tagged in a game does not seem like something worthy of new laws, particularly when the developer offers to correct any errors. But Pokémon Go is just the beginning. The game has proven the potential of augmented reality to appeal to a very large audience, so we can expect many other applications of the technology to come our way.

The wild success of location-based gaming may bring about a horde of imitators, so expect a new generation of augmented reality gaming to hit the app stores soon. And the technology’s potential also goes beyond gaming so we can expect more mainstream applications of geo-tagging and location-based interaction, especially with the growth of wearable technology such as fitness trackers. You can imagine that soon we will have a world in which ever house, every car, even every person could come with an added virtual tag full of data. The potential for innovation in this area is staggering.

But what if your house is tagged in a global database without your permission and you value your privacy so do not want any passersby to know that you live there? Or what if a commercially-sensitive database identifies your business with incorrect data and you cannot reach the developer or they refuse to amend it? People looking for businesses in your area may miss you and go to a competitor that is correctly listed. Even more worrying, what if your house was previously occupied by a sex offender and is tagged in an outdated database with that information?

The problems would go far beyond what is happening with Sheridan’s house. These cases could have real negative effects on people’s lives, privacy, or business prospects.

The potential for trouble will be worse with the launch of apps that allow users to tag public or private buildings themselves. Why will abusers and trolls bother spray-painting a house, when they can geo-tag it maliciously? Paint washes away, but data may be more difficult to erase.

My proposal is to extend data protection legislation to virtual spaces. At the moment, data protection is strictly personal as it relates to any information about a specific person, known as a data subject. The data subject has a variety of rights, such as having the right to access their data and rectify and erase anything that is inaccurate or excessive.

Protecting objects

Under my proposal, the data subject’s rights would remain as they are, but the law would contain a new definition, that of the data object. This relates to data about a specific location. The rights of data objects would be considerably more limited than those of a data subject. But classifying them like this would take advantage of the data-protection mechanisms that already exist for when someone is intrinsically linked to a location.

In other words, just tagging a location on an augmented reality database wouldn’t violate the data protection. But mis-tagging a location as a public space in a way that could impinge on people’s enjoyment of that location could trigger action by the regulator to have the tag amended, removed or even erased. This would be especially useful for private spaces such as Sheridan’s house. If the app developer fails to make a change to the data, the property owner could make a request to the data protection authority, who would then force developers to change the data – or face fines.

There are limits to this proposal. Such a regime would only apply to companies based in the same country as the data protection regulator. So, for example, European countries wouldn’t be able to force Niantic to make changes to Pokémon Go’s tags, because the company is based in the US. There would also need to be strict restrictions on exactly what counts a data object and what is worth amending or deleting, otherwise the system could be abused.

But one thing is already certain: Pokémon Go is just the beginning of a new world of location-based data applications, and we need to find better ways to protect our digital rights in that space.

The ConversationAndres Guadamuz, Senior Lecturer in Intellectual Property Law, University of Sussex

This article was originally published on The Conversation. Read the original article.

Photo: Eduardo Woo, CC BY-SA 2.0

Analysing the Advocate General’s opinion on data retention and EU law

7562831366_66f986c3ea_o (1)Last week, the Advocate General published an opinion on a case brought to the European Court of Justice concerning the compatibility of the UK and Sweden’s data retention laws with EU law.

In a detailed analysis, Lorna Woods, Professor of Internet Law at the University of Essex considers the potential implications of the opinion for national data retention regimes (including the UK’s Investigatory Powers Bill) and the legal tensions which arise from the Advocate General’s opinion. This post first appeared on Professor Steve Peer’s EU Law Analysis blog.     

The Advocate General’s opinion concerns two references from national courts which both arose in the aftermath of the invalidation of the Data Retention Directive (Directive 2006/24) in Digital Rights Ireland dealing with whether the retention of communications data en masse complies with EU law.

The question is important for the regimes that triggered the references, but in the background is a larger question: can mass retention of data ever be human rights compliant. While the Advocate General clearly states this is possible, things may not be that straightforward. Continue reading