Only yesterday Austin Gatt and two of his sidekicks were busy presenting a White Paper that was almost being hailed as a quantum leap in the state of digital rights on the island. Essentially Gatt, IT Claudio and Arriva Delia were promoting a suggested new constitutional provision that would enshrine the digital rights of every Maltese citizen – the digital right amendment. Kudos to all this sci-fi and all that but J’accuse’s feet remain firmly entrenched in the “if it ain’t broke don’t fix it” approach to legislation and we will not be easily impressed by the special effects of a proposed provision.
Not too far from the realm of digital rights is the issue of data and its protection. We do not need new rights to be enacted for that – we already have a snazzy Data Protection Act. The basic principles of this act are quite easy to grasp. Consider first of all that data is any information related to an identified or identifiable person. You then have the principle that in order to gather “data” that is yours or that identifies you, the potential gatherer (or “controller”) requires your permission. Once he has obtained that permission he can only use it for a specific purpose and for that purpose only.
Why am I saying all this? Well. Here’s the thing. I decided that it is high time I should log onto mychoice.pn and subscribe to updates so that I would be able to analyse what everyone else seems to be receiving. I proceeded to the lovely page and was asked to register. I gave the page my real name and my real surname as well as my email address (there’s always the spam folder). I did not wish to give the PN a remote chance of having my mobile number so I input what I believed to be a credible but phoney mobile number. No probs there.
Then came the ID Card business. I figured that if I subtract one from the progressive number allocated to me when I was registered I would come up with a credible ID card – not mine but credible enough… so if for example my ID was 500075 – the 5000th registered kid in 1975 then all I had to do was input 499975 and hey presto mychoice.pn would let me in.
Let me in my digital rights arse! Imagine my surprise when the validation system on mychoice.pn told informed me that the ID card number input does not match the name or surname provided. Wow. Let’s see what happened there. Essentially the ID number was checked against a database that mychoice.pn OBVIOUSLY has and the validation process checks whether the ID card corresponds to the right name and surname. Lovely. I was never asked by the site whether I acquiesced to the use of my ID number and name (the only box to be ticked is the one were you accept to recieve PBO’s updates). So mychoice.pn is in possession of a database (little need to guess that they are using the electoral register) that contains MY INFORMATION and are actively using it for data processing WITHOUT MY CONSENT. Without your consent either.
So what? I hear you say. Don’t we all know that political parties regularly use the electoral register in their day to day meddling. Sure. But they are definitely going out on a limb here and stretching the rubbish exception that they planted in the Data Protection Act to an incredible extreme. In any case, whether or not they manage to find some loophole to the Data Protection Act in this case what does this really say about the ever so grand initiative of DIGITAL RIGHTS and the white paper?
You’re right. Digital rights? They don’t give a rat’s arse. So much for all the high falutin’ consultation process.
31 replies on “Digital Lies”
Maybe it was the accented second “e” in “Rene”. ;)
http://www.regeringen.se/content/1/c6/19/64/51/6999c512.pdf
Seems even the UN considered to “fix it” just a couple of months ago.
Did you tell the guys at mychoice AG?
Daqs kemm kellhom bzonnha Franza biex iwaqqghu Hadopi. Hemm xi registru elettorali?
HADOPI was not scrapped. It was amended following constitutional court decision. I am no constitutional law expert but I guess our constitution is not really a carbon copy of the French one plus I don’t know where the frogs transposed art 1(b) of this http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:337:0037:0069:EN:PDF
All I know is that so far in Malta we don’t have any provision similar to that in our local laws
Exactly AG. Hadopi was not scrapped, it was found partially unconstitutional because it violated the french (unfixed) constitution. No need for a charade Digital Rights to protect an individuals right to privacy. And anyway whats this party in government doing? Practising what it preaches? Hardly.
Again I ask you… Got an electoral register to spare?
I beg to differ. I think the 58 constitution is pretty fixed and makes reference to the 1789 declaration
So you are stating that our present right to privacy suffices? And where does it arise from? Are you referring to the right to private and family life? Is that a real right under our constitution or we need to go to ECHR with it as it is not really contained in the constitution?
More interesting is this: and where is our right to free and unhindered development of personality tipo German Basic Law?
Cannot answer for gov. Re electoral register I guess the best person to ask would be the electoral Commisioner.
I agree with you that real checks and balances have to be introduced re processing of electoral register. I think you can even buy it (or could buy it in the past) on CD.
Electoral commissioner? Just right to privacy? Are we on the same page here? I am stating that the current package of rights afforded by the constitution more than suffices to protect and guarantee your digital rights. As for the electoral register I am stating, quite simply, that through the way mychoice.pn functions and through its use of private data qithout users’ permission the PN is showing where its priorities lie. Repetita juvat: digital rights my arse.
and how does the present constitution provide for the principle that ECNs and the Internet should also be availaible to economic enterprise (and not just as an enabler of personal rights? and how does ISP liability and the right to be heard connect with our Constitution? And how have we transposed Art 1(3b) of the Eu Framework Directive? And how does the present constitution provide for a broadband right? I agree that the electoral register needs a proper re-hash. As far as mychoice, my interest lies in the white paper and not in political conclusions/interpretations
Do you want a constitution or a code? The rule in the case of rights is based on simplicity – a clear set of basic rights that does the trick. That’s why I’m a huge fan of the US constitution. Since when do we transpose directives into the constitution AG? Since when is the constitution to be reduced to doing the dirty work of transposition of secondary EU legislation?
I find your eagerness to over regulate via the basic grundnorms of a state rather disconcerting.
Im no fan of the US constitution or the US approach for that matter. Just think about the PATRIOT ACT. Or PIPA and CISPA. I think the discussion should be about principles starting from a basic understanding of the difference between fundamental human rights, civil rights and enabling rights. It is my eagerness NOT to see overregulation that underlines my agreement in principle to the white paper. If i had to choose between the insertion of a princple (be it consitutional or code or whatever) and the introduction of three strike rules or anything fancy of the sort, i surely prefer the former incuding an obligation on the State to apply these principles in making laws (or rejectlaws which impinge or reduce those principles).
Well you can keep your Uncle Sam posters in the drawer then but we agree that a discussion should start from “a basic understanding of the difference between fundamental human rights, civil rights and enabling rights” – I strongly believe that unless it is proven to be absolutely necessary to change it, the basic package of rights under out constitution need not be changed.
Now when you want to examine the access rights in a digitial age and what have you I would be more than willing to consider proper legislation to that effect in secondary legislation that would still be subject to scrutiny (and/or reinforcement) under the constitution.
The whole discussion that was brought up by the White Paper would need to be shifted to secondary legislation and away from the holy ground of the basic grundnorm. If want to design a new building using new concepts you don’t change the rules regarding cm and metres but you change the design of the building.
*juvant
I think the discussion should be entertained on two levels:
1. Should we recognise ECNs and the Internet as an important tool for the enjoyment of our present human rights (therefore seeing more in the light of a civil right as Vint Cerf suggests)?
2. Are our basic grundnorms contained in our present constitution sufficient (a post-colonial constitution which does not in any way reflect developments at a constitutional level especially in the same spirit that post 89 consitutions contained? Should we recognise informational self-determination? Should we recognise a right to the free and unhindered development of personality? The discussion as per 1. above would be secondary.
Surely, this is not a question of changing cm and mtrs in a building but (a) recognising the importance of having a toolbox (Internet) in the enjoyment of the building and (b) seriously considering whther our building (our present human rights) needs another floor (right to personality etc)
Really?
1. Tools. Not the basic right itself. Tools to enjoy the basic right. Recognise that yes. Make it a constitutional principle? No. Do you specifically “constitutionalise” the right to publish/buy a newspaper?
2. Are they sufficient? Offhand I would say yes. Because my right to life and the freedoms that are enshrined in the constitution (and the FHR Charter) can easily be interpreted to include my right to informational self-determination.
P.S. What is so post-colonial about a constitutional structure that includes the European COnvention of Fundamental Rights as its own and that (via accession to the EU Aquis) is now also subject to the scrutiny of the EU FHR Charter?
the applicability of the Charter on all aspects is debatable since individuals will not be able to take a member state to court for failing to uphold the rights in the Charter unless the member state in question was implementing EU law. Also, how is the right (or principle) to private and family life (as contained in the Convention) enforceable in Malta?
1. Art 41(3) of our present constituion provides:
“(3) Anyone who is resident in Malta may edit or print a
newspaper or journal published daily or periodically:
Provided that provision may be made by law –
(a) prohibiting or restricting the editing or printing of any
such newspaper or journal by persons under twentyone
years of age; and
(b) requiring any person who is the editor or printer of any
such newspaper or journal to inform the prescribed
authority to that effect and of his age and to keep the
prescribed authority informed of his place of
residence.
(4) Where the police seize any edition of a newspaper as being
the means whereby a criminal offence has been committed they
shall within twenty-four hours of the seizure bring the seizure to
the notice of the competent court and if the court is not satisfied
that there is a prima facie case of such offence, that edition shall be
returned to the person from whom it was seized.”
2. Whether it is easily interpreted that present rights include information delf-determination is debatable. Especially when you consider that it took many years of constitutional jurisprudence in Germany to recognise that right (based on Art 1 and 2 of the German Basic Law) and which law is not identical to our own consitution.
Debatable does not mean impossible.
Jacques, despite provisions of Hadopi having been struck down/withdrawn for constitutional reasons it still provides for disconnection from the web (see here). As things stand, I doubt such a provision would have been considered unconstitutional under Maltese law.
Fausto the case you quote isn’t exactly an example of a draconian measure and the point really lies in establishing what constitutes theft on the ether and how far the law will sanction it. In that context present laws can deal with the problem satisfactorily in the same way as they have been dealing with the consequences of theft over a couple of millennia. Digital rights would not change much in that regard and cannot be compared, say, to the right (writ) of habeas corpus.
Does this mean that you agree with ISP blocking/filtering? blocking of sites like pirate bay etc etc?
No it does not mean that – either one way or another. It means that the basic laws relating to rights should not be confused with the development of specific laws in certain fields as they unravel, change and alter in the natural manner that has been occurring to laws since the dawn of time. Compare and contrast: the state right to blocking pirate bay and the state right to block a paedophile website. Beyond the facile protests look at the legal principles behind the two issues – is the problem that we are dealing with here to be found at the level of “blocking website X” or at the level of “declaring activity X illegal with the ancillary consequences”?
So don’t confuse the two issues. Not wanting to alter the constitution because it works does NOT equate with ISP blocking/filtering or blocking of sites. I am sure you have strong arguments for or against but what concerns me right now is that this kind of White Paper is more the bastard son of misinformed public opinion, the ACTA whiplash and a pandering to populistic votes rather than a genuine effort at lawmaking. Which is why I point out that the mychoice.pn page is a blatant example of how seriously the PN efforts in digital rights can be taken.
So are you saying that UN’s work and Frank La Rues’ work on the subject are also the bastard son of misinformed public opinion?
Would suggest you look at Mayer-Schönberger’s theories regarding the generational development of data protection in Europe and how latest generations are not only pushing towards the realignment of substantive laws but also the re-assessment of principles emanating from previous generations and their inclusion in higher legal texts.
Would also reccomend Reidenberg’s Lex Informatica’s theories and how the inclusion of basic principles can help the development of specific laws which would then include detailed provisions of how those same principles can be put in action.
And again… How seriously can the digital rights initiative be taken when the same party already betrays a blatant disregard to your rights under other related digital laws (data protection includes but is not limited to digital collection of data).
*of not *to your rights
AG October 12, 2012 at 11:14 am [edit]
the applicability of the Charter on all aspects is debatable since individuals will not be able to take a member state to court for failing to uphold the rights in the Charter unless the member state in question was implementing EU law. Also, how is the right (or principle) to private and family life (as contained in the Convention) enforceable in Malta?
CHAPTER 319 Laws of Malta – The European Convention Act
http://justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=8795&l=1
We could argue all week about the idea of Digital Rights, and such funky Ideas. I for example disagree that the internet is ‘just a tool’ or ‘merely a means’, or that things are as simple as you present them. But it doesn’t matter really because the conclusion I have come to is the same as yours. Meddling with the constitution to add some random lip service rights before addressing the several issues surrounding the digital infringement of rights already protected by our constitution and law is neither credible nor useful, if not outright wrong. (actually it would be nice to have such a conversation, but anyhoo …)
How about some direct action? In terms of Maltese and/or International law, if I where to obtain a digital copy of the Electoral Register (this does not seem to be too hard, even starting from the paper version) and make it publicly available online as a fully searchable database (with open API, so gurus can data mine it too), and host it on some server in a far-away country with strong freedom of information laws, would I be criminally liable? Under which laws? I guess someone should just go ahead and do that, and make sure to thank the Maltese Government on the front of the website for providing the data.
In fact I am surprised no one has done this already. It would cost what, $25 a year max for hosting. All the required software is available for free. All you need is access to one of those big copy machines that can scan a bunch of papers (or 5 minutes with a usb stick in hand at the right PC at one of the parties’ headquarters, if their Wi-Fi is set up in very securely, otherwise an hour or two parked outside the building would probably be enough).
Wouldn’t it be cool to be able find out how many Zammits where born in ’68 huh?! Or how many people of voting age are called Bjorn Borg, and their geographic distribution? Oh the pranks I could pull off! Thank God no one with the skillz and the criminal intent has set eyes on this precious loot yet!
Hemm hu il-hecker!
Hi Philip. Think the whole idea if a White paper is to have that conversation which I find interesting. We might not agree in the end but I’d rather focus my grey matter on these issues rather than a car park or a bendy bus.
Re electoral register, surely there is no criminal liability locally. Our present regulation of electoral registers is very lax and for various historical reasons. Both parties consider their access to the register as a right. I think that there should be proper regulation on the use of the register and this is the position taken by our data protection commission but it is surely an uphill struggle. After all, everyone is using or processing the electoral register not only the parties but everyone who is in business and wants to validate some information. Is that right? I would say no.
I guess congratulations are in order AG. Just take it easy on the constitution!