Do we need a digital bill of rights?

By CBA/ABC National Fall issue 2014

That was the question for a panel of experts convened by National at this summer’s Canadian Legal Conference. Here are the highlights.

Do we need a digital bill of rights?

Photography by Graham Kennedy

There is a growing movement around the world to rethink some of the rules governing our privacy rights.

In March, Tim Berners-Lee, who is credited with the invention of the worldwide web, called on citizens around the world to pressure governments for a digital bill of rights to ensure net neutrality and reinforce our privacy rights.

Some of the growing pushback stems from reaction to the Edward Snowden NSA revelations and fears about state violations of our privacy rights. But people aren’t just worried about the state — there are growing concerns about the private sector too. Companies such as Google, Amazon, and Facebook are growing in influence and people are questioning how they use our data. If they’re watching us, we have to ask ourselves: “Well, who is watching them?”

In trying to answer the question posed, we must consider a range of issues. How would we actually produce a digital bill of rights? What would go into it? How would we enforce it globally? How do we square opposition to state surveillance with enforcement of privacy laws against private companies and private actors?

Senior editor Yves Faguy moderated the panel discussion during the Canadian Legal Conference in St. John’s. Here’s a sample of what our experts had to say:

Norbert Griffin
Delivery Manager for Security, ZedIT Solutions Inc.

Norbert Griffin

Norbert Griffin

Right now you have free services through Google, Microsoft, and Yahoo. Do you have an expectation of privacy and security with these services? Did you know that Facebook can use your videos and your pictures? Did you know that Twitter can collect a lot of information like IP address and search terms and browser type and much more?

For private industry to make money, they’re going to do something that’s really easy for you to use, but there’s going to be a cost associated with that.

You are the product when the product is free. And if these companies can’t collect that information then we’re going to have to somehow pay some money for it. Then who is going to be responsible for checking security of these companies?

Patricia Kosseim
Senior General Counsel, Office of the Privacy Commissioner of Canada

Patricia Kosseim

Patricia Kosseim

Massive volumes of data are being aggregated with powerful analytics and algorithms to reveal past patterns in order to predict future behaviour. Given literally billions of data points, it’s increasingly difficult to implement a traditional consent model that assumes an opportunity to explain and obtain individual consent for each specific data ele­­­m­ent collected for a specific and limited purpose.

This has led some to question whether consent is even a workable principal at all, or whether we should be moving to a different paradigm of ethical use. If individual consent truly is impos­sible, or even imperfect, should we be requiring independent third-party review and approval of purported uses? Has the time come to create consumer ethic boards to oversee the kinds of psychological experiments or social manipulations like the one recently undertaken by Facebook?

Mandy Woodland
Technology & privacy lawyer at Mandy Woodland Law

Mandy Woodland

Mandy Woodland

How does all this tie into net neutrality? ... The issue of playing favourites is really important. The open internet is important because it uses free, publicly available standards that anyone can access and build on. And it treats traffic in roughly the same way. So a loss of net neutrality means a lot of different things. Small businesses are potentially at risk. If you’re a start-up business who wants to provide video-streaming service, well you’re probably not going to get the same access that Netflix is now paying for in a faster lane.

So, it’s not necessarily an issue of whether I can stream TV shows more quickly, but whether or not some of the newer businesses… trying to bring us excellent new technologies will be able to do so, or whether they’ll be shut down before they get started because they don’t have equal access to the internet.

Yves Boisvert
Columnist, La Presse

Yves Boisvert

Yves Boisvert

These days we often think of the Orwellian society of 1984 where the state knows everything about you. But there’s another part of that Orwellian world. It’s that the state also erases some part of the past, like it did in the Soviet Union where you would have, for example, a picture of Trotsky that would be removed from a gathering of the Communist Party many years after. If, for instance, somebody runs for public office and has a criminal record, or has been involved in some questionable dealings, at what point do you decide to erase that from Google? And this has to be taken into account if you decide to have a digital bill of rights.

The above comments have been edited and condensed for publication.

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