<nettime> PRIVACY in the UK

[tm <t_mould@irational.org>]

> CHAIRMAN: Our Next Speaker is going to talk about engineering and law -
> compatible
> or contradictory
> 
> Brian Niblet is a barrister and a computer scientist
> He was for several years a tenant of the intellectual property chambers in
> the Temple
> and has been a professor of computer science at The University Of Wales
> He presently acts as a commercial arbitrator dealing especially with
> disputes concerning computers and computer systems
> and disputes involving intellectual property..
> Brian
> 
> [privacy]
> SPEAKER: Like the other speakers here today, I'm delighted to be here and
> I'm honoured to be here.
> This is a conference on Licence, Liberty and Privacy and in the last few
> years I have,
> on occaison, been to a number of conferences on Privacy
> and I have to tell you that conferences on Privacy are dangerous.
> They are very dangerous conferences.
> The danger is that they infringe privacy.
> Every Privacy conference i have ever been to has infringed privacy.
> You see, the first thing that happened at this conference is that they sent
> me a badge -
> a label.
> You must be identified at a privacy conference.
> Now I don't wear badges.
> But it doesn't help me.
> Because I'm always identified  as the man who doesn't wear a badge at
> Privacy conferences
> Thats the danger to the audience.
> Then there is the danger to the speakers.
> You see, when I was invited to give a talk they said ofcourse your talk
> will be recorded,
> it will be transcribed, it will be published.
> Thats what happens at Privacy conferences.
> Now I have an agreement with the organisers here, a legally binding
> agreement, a contract
> indeed, that my talk will not be transcribed.
> And I wanted this.
> Because I believe in privacy.
> Privacy is freedom.
> I want the freedom to talk today at this closed meeting without being
> transcribed and
> published - I want that freedom.
> Thats the first thing I have this contract with the organisers for.
> The second reason I negotiated a contract with the organisers was for this
> reason -
> I wanted to demonstrate to you that the contract, that legally binding
> agreement, a private
> treaty between two parties, is one of the effective methods of protecting
> privacy.
> And its protecting my privacy today, limiting my talk to the audience which
> is here.
> Now, its a feature of regulation (the regulation here is that you wear a
> badge and that
> you are recorded) its a feature of regulation that it does infringe privacy.
> I want to tell you today that the most effective method of protecting
> privacy is the Common
> Law Of England.
> It is the Common Law of England that can protect our privacy,
> 
> [Regulation 2_4]
> 
> Regulation infringes privacy.
> Let me draw the distinction between Common Law and Regulation.
> Common Law is the aggregate of commands developed by induction in a process
> based on reality.
> The Common Law is anchored in reality. The judges deal with actual facts
> and actual cases.
> actual circumstances and from that they abstract a principle which is
> grounded on reality
> It is a bottom-up process.
> Regulation is a top-down process, it never reaches the ground.
> It is bureaucrats and legislators.
> It is not in touch with the ground.
> Regulation infringes privacy quite often.
> And the extreme example of that is the first statute in this country said
> to be
> concerned with Privacy -
>  The Data Protection Act of 1984
>  The Data Protection Act of 1984 is a regulatory measure.It infringes
> privacy therefore.
>  The first thing it does is have a regulatory Officer - The Data Protection
> Registrar.
>  Then it has a register of every data user and computer bureau in the country.
>  You must be identified.
>  You must wear a label.
> In that register you must disclose every purpose for which
>  you are going to use that personal data.
>  If that is not an infringement of privacy I don't know what is.
>  And if you don't register, if you don't disclose, there are 15 criminal
> offences created by
>  that Act.
>  You see regulation creates criminal offences.
>  Common Law is mainly dealing with civil matters, and criminal matters,
>  but the emphasis is on civil matters.
>  Regulation creates criminal offences.
>  So that is the injury of the Data Protection Act.
>  And then comes the insult added to that injury - you will pay for this.
>  Every data user in the country who is registered has to pay ffor it.
>  It is a system of taxation of business in this country.
>  So that is Regulation.
> 
>  Reason
>  I say Regulation infringes Privacy.
> A better way to protect Privacy is to develop and extend the principles
> developed in the Common Law.
> It was Edward Cook, one of our great Common Lawyers in the 16th century,
> who said that
> the Common Law is the perfection of Reason.
> I agree with that. Its not so reasonable now as it was in his time.
> But I agree that the Common Law is the perfection of Reason because it is
> anchored
> in Reason. Reason is grasping Reality. The Common Law grasps Reality.
> If you look at any book on Privacy
> there is a case I want o mention
> its the case of Kaye against Robertson
> A recent caes dealing with privacy
> I forgot to mention on e thing I want to emohasis when dealing with
> regulation and
>  privacy
>  that its based on the premise that since some people may be wrong everyone
> must be
>  supervised and regulated thats really the main thing i dislike about
> Regulation
>  and thats what the Data Protection Act does.
>  It says that because some people may abuse personal data then everyone
> must be
>  supervised.
>  Everyone must be inspected and registered and they must all disclose.
> The honest citzen who decides to act with personal data in a perfectly
>  lawful and proper way he has to register and pay and disclose.
> 
>  [Reality6_8]
> 
>  NOw I want to mention Kaye against Robinson which is 1991 case in the
> Court of Appeal.
>  I'll just quote what Lord Justice Clydewell said in his judgement on that
> case.
>  "Its well known in English Law that there is no right to privacy"
>  Now that statement occurs in every text you read on privacy on every case.
>  It is well known and perfectly true - in English Law there is no right to
> privacy.
>  The reason for that is that the Common Law is the Perfection of Reason.
>  It would be unreasonable to have a general right of privacy.
>  Because as someone here said this morning
>  You can't define privacy
>  Privacy is not anchored in reality
>  It's not something you can create a general right about
>  What the common law does in its reasonableness is not develop abstractly
>  a general right of privacy
>  what it does is it supplies a bundle of rights that are anchored in reality
>  that deal with privacy.
>  I think, and this is really the thesis of my talk, that they should be
> developed
>  and extended to give us all the privacy that we want.
>  I want a lot of privacy.
>  By the way privacy costs money.
>  Noone is going to put a cctv in my street beause I own the street.
>  I live in a private road.
>  and with my neighbours we protect our privacy in our private road.
>  Anyone who enters the road is a trespasser.
>  So privacy costs money
>  and i'm prepared to pay money for privacy.
>  and the common law has developed
>  these bundle rights that deal with various aspects ofp rivacy
>  and they are capable of great development.
>  That is the way to go to develop these Common Law Rights.
>  They are based on rights tto person and rights to property
> 
> Trespass 8-10
> 
>  if you assume evry person has a right to his own person
>  has property in his own person they can be summed up as property rights
>  Tresspass
>  The great action for tresspass
>  very important protection of privacy
>  used to be called breaching or breaking the close
>  thats what trespass is - crossing a barrier
>  a civil remedy for crossing a barrier
>  thats what privacy is about
>  Trespass is a great way of protectig privacy
>  Trespass to land ofcourse, trespass to the person, trespass to chattles.
>  Nuisance
>  The action for nuisance which is accompanied by posession of land
>  deals with the peeping-tom type of infringement of privacy.
>  Somebody mentioned that this morning
>  Defamation
>  Property in ones reputation
>  Slander and libel protecting reputation
>  The action for breach of confidence
>  which has been developed pretty well by the judges
>  a great way the common law supllies for protecting the privacy of
> confidential information
>  Then there is the law of contrac,t the private treaty between 2 parties
>  I'm demonstrating today that can protect privacy
>  But particularly the employment contract
>  The contract for disclosure of information
>  The contract to a user of a database
>  All these things are things which the contract can protect
> 
>  [copyright 10_12]
> 
>  i want to talk about Copyright Law
>  Copyright Law can be used to protect information
> as  part of the contract I own the copyright to the talk i am giving.
>  my privacy is protected today by copyright
>  Copyright is a great law
>  Ofcourse its now enacted in statute most recently in the 1988 Copyright
> Patents aand Designs Act
>  But it started of as a Common Law
>  and its been developed through statute
> but its really a part of the Common Law
> its a great property law
> i think it is the most important of our property laws
>  We are moving into a world in which copyright will be the main source of
> wealth in the
>  world
>  its the foundation of the publishing industry
>  its the foundation of the entertainment industry
>  it suppports the computer industry
>  programmes and databases are protected by copyright law
>  The richest man in the USA Bill Gates owes his wealth to copyrighting computer
>   programmes and That was a genre of work that didn't exist 40 years ago
> when he was born
>   A great Property Right, Copyright.
>   And it protects privacy
> 
>  Lets compar e it with the Data Protection Act of 1984
>  In the Uk no bureaucrats involved in it
>  There is no copyright Office in this country
>  One or two people looking at c in the Patent Office noone else
>  No register of copyright
>  noone has to disclose what copyrights they have
>  you don't have to pay for it
>  Its a great property right
>  and It will protect privacy
> 
>  Kaye 12_14
> 
>  I say the common law is the way to go for protection of privacy
>  all these remedies, and there are more, can be exteneded and developed
>  the great pity and shame in the last 25-50 years is that the judges have
>  abdicated their responsiblities for developing these laws
>  as judges did in the old days
>  you heard about the case of Vilince against Fletcher
>  which brought in that strict liability for dangerous things brought onto land
>  a major step a major torte of
>  nothing to do with Parliament nothing to do with any bureaucrat
>  it ws simply the judges themselves developed English Law
> they have not done that in the last 10 or 20 years
>  let me tell you about kaye and robertson
> It was Gordon Kaye a wellknown actor who was in hospital had a very serious
> motor accident
> he was in a very bad way
>  he was in a hospital room
>  and a journalist and photographer went into the hospital without authority
>  went into his room and took photographs of him with flashguns going off
>  very dangerous to his life
>  a great infingement of privacy
>  and that was the case  Kaye against Robertson
>  and in fact the judges at the Court Of Appeal found a Common Law method of
> getting him
>  a remedy
>  there was an injunction against publication of the photographs and of an
> article
>  and the judges in the Court of Appeal, they did it by invoking the Common
> Law torte of
>  injurious falsehood
>  so the Common Law did protect his privacy
> 
> 
> 
>  But I say that his privacy should have been protected by a contract that
> Kaye had
>  with the hospital
>  I agree with this process of movement from status to contract
>  Ofcourse thats so
>  If you are a National Health patient you've got status you haven't got a
> contract
>  By the way I'm not on the National Health Service
>  I have to pay -  I have a private doctor
>  My doctor doesn't give my records to the National Health Service
>  I pay him
>  I have a contract with my doctor
>  Kaye should have had a contract with the hospital
>  and the remedy breach of contract
>  the contract must imply either implicitly or explicitly
>  'no unauthorised entry into my hotel/into my hospital room'
>  and then ofcourse the hospital would have an action in  trespass against
>  the journalists - they had no lawful authority onto hospital premises
>  The Common Law can handle thse problems
>  If the judges develop it
>  In that case Lord Justice Clydewell said in the course f his judgement
>  "The right  of Privacy [which he thinks exists, I say it can't],
>  the right of privacy has so long been disregarded here
>  that it can only be recognised by the legislature".
>  I think thats a most unfortunate statement
>  The judges are leaving this to the legislature
>  They want regulation
>  They should be developing the Common Law
>  YOu see the judges, this is an aside, the judges in the last 25 years have
> been very
>  active in developing public law
>  Publc Law has developed enormously, judicial review and so forth
>  But they haven't developed private law
>  the judges have fallen down in my opinion in the logical development of
> private law
>  you see concepts are open ended
>  and all these common law remedies i mentioned are concepts
> and they are openended concepts
> 
> Copyright
> The literary work which has been protected by copyright lawfor 200 years or
> more
>  - didn't know that the computer programme was going to be a literary work
> openended , these concepts can be developed, and i'm sorry to say the
> judges have not
>  and i think that is the way to go
>  thats really my theses here today
> 
>  Now I want to mention the Internet
>  I want to make 2 points about the Internet
>  I'm interested because everyone is interested in international global
> electronic digital
>  networks. Most exciting .
>  And ofcourse the communication of digital msgs by encryption on the INternet
>  is a major historical advance in privacy
>  weve head this morning about the practical purposes
>  the mathematicL discovery of the Public Key Encryptor system
>  coupled with engineering invention associated to that, are giving us the
> possibility
>  of sending msgs between peoples anywhere in the world
>  Quite cheap apparatus.
>  With practically no way of intercepting or discovering the content
>  of that msg and authenticating the identitiy of the sender or the receiver.
> Thats a major historical advance in privacy
>  By the way, the history of the world can be summarised in one sentence -
>  Its the history of increase in privacy
>  Tribes didn't have privacy
>  We are given more and more privacy
>  and the Internet is a major advance in that
>  and there are going to be people who are concerned about it
>  and what i  say is that we have to apply Common Law principles to that
>  and what i say should be applied to the Internet  is the commomlaw principle
> annunciated in the case of MT (very famous case),
>  of MT against Carrington.
>  The openended principle was established then.
>  It was in the Kings Bench court 1765
>  Over 200 years ago, what the Kings Bench Court said
>  was that a judicial warrant is necesary
>  to pry into a subject s personal papers.
> 
>  you have to have suspicion of wrongdoing, valid suspicion of wrongdoing
>  and then you have to have a judicial warrant
>  then you can pry into the nature of the msg but not otherwise
>  thats the principle of MT against Carrington
>  Because the court said
> "For papers a re often the dearest property a man may have"
>  but in the 21st century electronic communications are going to be the
> dearest property
>  a man may have
>  and i say, that principle, which is a common law principle, is the one to
> apply
>  to interception of messages on global electronic networks
>  My second point about the INTERNET
>  People say that the Internet is a great challenge to the LAW
>  Intellectual Property is ended because of the Internet
> 
> Defamation
>  'everyone can defame everyone else because of the Internet'
>  Absolutely false that.
>  Ofcourse novel situations challenge the common law, they did since the
> common law started
>  ever since the memory of man
>  but the common law can cope with those changes
>  The trouble with the Internet
>  itself is that it is not a proprietary system
> 
>  You see the Internet consists of common law land.
>  The Internet at the moment is an incohate feudal system
>  Nobody owns the Internet
>  No-one administers the Internet
>  No-one manages the INTERNET
>  You can't buy the Internet, you can't sell the Internet
>  Propriety doesn't come into it
>  Its common land
>  In the old days  if a man  put his cow  on common land ofcourse someone
> would come in the
>  middle of the night and milk it.
>  because its not a trespass to do it
>  you can't apply  legal principles in a framework of lawlessness
>  thats the trouble with the Internet
> But we see the emergence of proprietary nets, intranet networks of networks
>  and that will change the situation.
>  You see in the middle ages when we had this feudal commonland, when the
> Lord of the manor gave
>  all this common land to his surfs to put cows on it, he kept his land
> seperate from them
>  this is what is happening at the moment
>  We get the corporate intranets with their firewall to the commonland
>  thats how they're protecting it
>  theres no infringement of the Intranet thats too well-managed
>  If there were, commonlaw principles would apply
>  and there were the great Enclosure Acts of the later middle ages
>  It was the privatisation of land
> 
> We move from the feudal system to the capitalist sytem
> Land could be bought and sold for the first time
> and we had the common land
> and enclosure acts on the common land and land became privatised
> and thats is  happening on the internet
> The Internet will emerge  from   proprietary networks, by the way.
> In the century that followed the Enclosure of common land
> agricultural productivity accelerated witihn a hundred years.
> A lot of trouble over the Enclosure Acts as you know, social upheaval,
> but in that hundred years aferwards, agricultural productivity increased by
> a factor of five or even maybe 10 and resulted in a great increase in
> population because they could be
> fed for the first time
> And i say that the emergence of proprietary digital global  networks,
> where people can buy and sell and administer and manage, will solve the
> problems
> of the challenge of the Comon Law principles,
> and we shall see 10 years after that it won't take a hundred years.
> An enormous increase in international commerce on the Internet, we are
> waiting for that.
> I wouldn't put a book on the Internet
> but  on a propietary network ofcourse i would be pleased to put a book on the
> Internet because i know that legal principles can be applied
> to that maintained and managed  proprietary system.
> So now, chairman, i'm in a positio n to answer the question
> that is the subject of my tallk which is  - engineering and law - are they
> compatible
> or contradictory ?
> In answer I want to quote Sir Francis Bacon the great Bacon who actually
> was a contemporary
> of Sir Edward Cook. He put Cook in the Tower - they were great enemies,
> both were great
> common lawyers though.
> By the way Bacon was a distinguished scientist and a distinguished common
> lawyer
> I think he understood the nature of law
> What he said, Bacon, was "Nature to be commanded must be obeyed"
> An Engineer is a creator, he creates structures, he creates things out of
> natural materials
> and materials derived from Nature
> An Engineer, to command his structures must obey nature
> The common law is this aggregate of commands based on nature
> They are commands. In order t o be effective the comman law commands must
> obey nature
> So ofcourse engineering and the common law are compatible, they are
> anchored in reality
> Engineering and regulation may not be compatible
> 
> Clap
> 
> If you have any specific questions for Brian
> 
> Question from the audience :
> 
> "If  one of us had a personal tape recorder what would the position be then ?"
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