Thursday, February 13, 2014

A new tort of privacy in the UK: Vidal-Hall, Hann and Bradshaw v Google Inc [2014] EWHC 13 (QB)


Mr Justice Tugendhat recently handed down this decision in the UK High Court (Queen’s Bench Division) recognizing the existence in the UK of a tort of misuse of private information. Recognition of such a tort is the culmination of many years of the UK courts considering how best to deal with issues of what are essentially invasions of privacy, particularly cases dealing with celebrities, and distorting the concept of breach of confidence in order to accommodate such cases.

A number of matters were considered in the case but this note will focus on the key issue of the recognition of a tort of misuse of private information.

This case concerned claims brought by three users of Google in the UK who alleged that Google had misused their private information and acted in breach of confidence and their statutory duties under the Data Protection Act 1998 by tracking and collating information relating to the Claimants' internet usage using the Safari browser in 2011/ 2012, such as which web sites they visited, how frequently they visited the sites, how long they spent on the site and in what order sites were visited. 

The essence of their claim is that Google collected information from their computers, and other internet enabled devices, regarding their browsing habits. Each Claimant specified in a Confidential Schedule their individual personal characteristics, interests, wishes and ambitions, which they used as the basis of the claim that ‘they suffered distress, when they learnt that such matters were forming the basis for advertisements targeted at them, or when they learnt that, as a result of such targeted advertisements, such matters had in fact, or might well have, come to the knowledge of third parties who they had permitted to use their devices, or to view their screens.’ [at 22] The Claimants' damage is based upon the harm caused to them by the fact that their apparent interests (deduced from their browsing habits) were used to target advertising to them which disclosed certain information about them based on those interests as evidenced in their online habits. Those advertisements, and the personal information that they disclosed, may have or had been viewed by third parties viewing the claimants’ devices. [at 23] Tugendhat J noted [at 24] whilst targeted advertisements which merely reveal the employment of the user may not cause any damage ‘if the targeted advertisements apparently reveal other information about the users, whether about their personalities, or their immediate plans or ambitions, then if these matters are sensitive, or related to protected characteristics (eg beliefs), or to secret wishes or ambitions, then the fear that others who see the screen may find out those matters, and act upon what they have seen, may well be worrying and distressing.’ Whilst all of the Claimants claimed acute distress and anxiety, none of them claimed to have suffered any discrimination or other direct harm.

(It should be noted that the conduct engaged in by Google during the relevant time had since been discontinued, due to regulatory sanctions brought by the United States Federal Trade Commission, which were settled in August 2012 and US state based consumer actions brought by US State Attorneys-General on behalf of 37 US states and the District of Columbia).

In order to satisfy the requirements of the service out rules, the Claimants framed their argument on a number of grounds, including tort. With respect to this claim, Google argued that the cause of action based on misuse of private information/ breach of confidence was not a tort, that no significant physical or economic harm was suffered by the Claimants and the act complained of was not committed in the jurisdiction.

The issue of whether the claim was based in tort is of most relevance to the consideration of the evolution of the privacy tort. Tugendhat J asserted [at 58] that it was clear that a claim for breach of confidence is not a claim in tort, Kitetechnology BV v Unicor GmbH Plastmaschinen [1995] FSR at 777-778. [52] However, the position may be different with respect to misuse of private information, as aluded to in Vestergaard Frandsen A/S v Bestnet Europe Ltd [2009] EWHC 1456 (Ch) where Arnold J stated [at 19] that whilst breach of confidence in not a tort (citing Kitetechnology) ‘Misuse of private information may stand in a different position’ (citing Campbell v MGN [2004] 2 AC 457 at [14]).

Tugendhat J then cited directly from Lord Nicholls in Campbell:
‘This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognized clearly in the judgment of Lord Goff of Chiveley in Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281. Now the law imposes a 'duty of confidence' whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase 'duty of confidence' and the description of the information as 'confidential' is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called 'confidential'. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information." (emphasis added)’

Tugendhat J then considered the complexity of issues surrounding the recognition of such a tort in the context of other decisions and the question of service out of jurisdiction. He observed that the privacy tort and the equitable action of breach of confidence, although related, should be treated separately, citing Lord Nicholls in OBG Ltd v Allan and Douglas v Hello! [2008] 1 AC 1 at para [255]: "As the law has developed breach of confidence, or misuse of confidential information, now covers two distinct causes of action, protecting two different interests: privacy, and secret ("confidential") information. It is important to keep these two distinct." [at 67] Tugendhat J further bolsters his recognition of the tort of misuse of private information [at 68] noting:
 ‘there have since been a number of cases in which misuse of private information has been referred to as a tort consistently with OBG and these cannot be dismissed as all errors in the use of the words 'tort''

After this consideration Tugendhat J concludes [at 70] ‘that the tort of misuse of private information is a tort within the meaning of ground 3.1(9).’

With respect to the breach of confidence claim however, Tugendhat J concludes that he is ‘bound by the decision in Kitetechnology to hold that the claim for breach of confidence is not a tort.’ [71].

Further consideration was then given to the question as to whether the Claimants had suffered any recognizable and relevant damage.  Tugendhat J concluded that damages for ‘distress are recoverable in a claim for misuse of private information, eg Mosley v New Group Newspapers Ltd [2008] EMLR 679.’ Therefore the Claimants’ claim for damage fell within the requirements of the rules relating to service out.

On the question of whether the information was private, it was submitted on behalf of Google that the information collected about the Claimants browsing habits was anonymous and not private: ‘The aggregation of such information sent to separate websites and advertising services cannot make it private information. One hundred times zero is zero, so one hundred pieces of non-private information cannot become private information when collected together.’ [115] Tugendhat J rejected this approach, noting that Google would not have gone to effort to collect and collate this information unless it resulted in something of value. Further, the fact that Google personnel do not themselves identify or recognize the identity of people from whom the data is collected. At some point the Claimant becomes identifiable as a result of the collation and use of the information, in this case, at the point where the targeted advertisements become visible on their screen by a third party. Tugendhat J conceded that not all of the generated information would give rise to claims of privacy, in the individual cases the particular types of information identified by the Claimants was private information. (‘These are not generic complaints. They are complaints about particular information about particular individuals, displayed on particular occasions (even though the precise dates and times of the occasions are not identified)’ [at 119].

The novel aspect of this case is the final recognition of a separate tort of misuse of private information. This has evolved in the UK as a consequence of the distortion of the breach of confidence action and the UK Human Rights Act, which required a change of approach to the balancing of various interests in the disclosure and protection of personal information. This certainly would not reflect the situation under Australian law, where the privacy tort has evolved no further than the glimmer in the eye of the High Court in Australian Broadcasting Corporation v Lenah Game Meats in 2001. Of course, in Australia the ALRC is still considering the introduction of a tort for serious invasion of privacy.

Tuesday, January 14, 2014

Media & Arts Law Review: December 2013

The new issue of Media & Arts Law Review  (December 2013) is out!

Great articles on a diversity of topics:

Articles by:
Rebecca Giblin: Was the High Court in iiNet right to be chary of a common law graduated response?
Catherine Bond: Commonwealth v WikiLeaks: Fairfax revisited
Susan Corbett: The case for joint ownership of copyright in photographs of identifiable persons
Angela Daly:E-book monopolies and the law

Case note: Michael Douglas: A broad reading of WA's Shield Laws
Hong Kong Media Law Update: Anne Cheung: A Study of Online Forum Liabilities for defamation: Hong Kong Court in Internet Fever in Oriental Press Group Ltd v Fevaworks Solution Ltd

http://www.law.unimelb.edu.au/cmcl/publications/media-and-arts-law-review

Submissions for 2014 can be sent to melissa.dezwart@adelaide.edu.au

Tuesday, December 17, 2013

Oxford-UNSW Copyright Scholars Roundtable: Exceptions reform: fair use for Australia?


A number of copyright scholars enjoyed a day of copyright reform related discussion thanks to Michael Handler (UNSW) and Emily Hudson (Oxford) at UNSW Law School on 17 December 2013. I opened the discussion on the question of fair use, and set out my brief speaking notes below: (A fully developed paper will follow)

The ALRC Final Report on Copyright and the Digital Environment was presented to the Government on 29 November 2013. The Attorney-General, Senator George Brandis has confirmed that the Final Report recommends the introduction a ‘broad flexible exception for fair use’. The full Report must be tabled before Parliament by February 2014 and a Government response to the Report should be forthcoming some time in 2014. However, the Attorney-General has already indicated that he does not support significant changes to the copyright law which would restrict the rights of copyright owners:

‘The government’s response to the ALRC report will be informed by the view that the rights of content owners and content creators ought not to be lessened and that they are entitled to continue to benefit from their intellectual property.’

The question that I would like to ask is why and how the introduction of a fair use exception would in fact lessen the rights of owners or prevent them from continuing to benefit from their intellectual property (in this case copyright)?

Leaving aside the example of the US which has a fair use law and seems to still be enabling copyright owners to make enough money to get by (!), other jurisdictions have more open ended exceptions to copyright, so fair use should not be seen as open slather for unremunerated uses.

Fair use can and should be cast in such a way that it reflects the balance of interests in copyright.

I have been considering the Canadian example: where despite significant legislative reform which declined to introduce a fair use exception, the Supreme Court has re-crafted fair dealing so it is in effect a fair use law.

Such an approach would build upon the decisions of the Canadian Supreme Court in Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34  and CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, which recognized that the Copyright Act contained a ‘balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator’ and that this required a recognition of the limits on the rights of the copyright owner clearly articulating fair use as user’s rights.

In Alberta v Canadian Copyright Licensing Agency (one of five copyright cases handed down on 12 July 2012) the Supreme Court held that previews on iTunes were fair dealing, stating that: ‘One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision must not be interpreted restrictively.’

The Court continued:
‘an important goal of fair dealing is to allow users to employ copyrighted works in a way that helps them engage in their own acts of authorship and creativity’.

As Michael Geist has argued, this decision paves the way for a more 'principles based' approach to fair dealing which effectively transforms it into a law more akin to fair use. The Canadian experience may provide a good model for Australian reform in this area.

Therefore I contend that a fair use law may be crafted and interpreted in a way that does not represent a challenge to the rights of owners, but rather better reflects the balance underlying copyright law. The approach articulated above by the Attorney-General should not necessarily prevent the introduction of a fair use style defence.

Wednesday, December 11, 2013

Julian Assange: Hero or Villain, a binary choice


This is a transcript of my presentation to the Law, Literature & the Humanities Association of Australasia: Interpellations Conference (5-7 December 2013)

This is a difficult issue to write on definitively as the war on whistleblowers is being played out as we speak. Just a few days ago, the ABC was lambasted for reporting the news of the bugging of the mobile phones of the Indonesian President and his wife. Similarly, The Australian recently ran a facile editorial calling for Julian Assange to leave the Ecuadorian Embassy, ‘now the US Justice Department has made clear it has no intention of prosecuting’ him.

I have chosen to discuss this war in the context of two recent major movies: We Steal Secrets and The Fifth Estate. I want to consider whether the vilification of Assange occurring in the context of the fictionalised movie, The Fifth Estate, is balanced out by the ‘documentary’ of We Steal Secrets? Unfortunately both movies were based on biased sources and both were ultimately more concerned with telling an entertaining story that telling the truth. Further, not enough is reported about the facts to enable the audience to distinguish fact from fiction, but viewers will be left with the feeling that it has.

We have also witnessed a bizarre and unquestioned merger of fact and fiction. For example, The Guardian reported that, interviewed on ITV’s The Agenda in October 2013, the British Prime Minister, David Cameron, was asked to review The Fifth Estate. Observing that he had ‘managed to see the first part of the film’, the PM told The Agenda that Benedict Cumberbatch, who plays Assange, was ‘brilliant, fantastic piece of acting. The twitchiness and everything of Julian Assange is brilliantly portrayed.’ However, he then goes beyond a review of the film and the strange merger of fact and fiction begins in earnest. Cameron, and remember he has admitted to seeing only the ‘first part’ of the film, states: ‘he felt uneasy that in the film Assange appears to be more concerned about the fate of people who leaked documents to WikiLeaks – an apparent reference to Chelsea Manning – rather than people whose security may have been jeopardised by the leaks.’ In this swipe, Cameron dismissed very real concerns for Manning’s wellbeing as well as confusing, in his own and the readers’ minds the film and reality. Cameron continues: ‘There is an interesting  bit at the beginning when he says some of these documents are confidential, people’s lives are at risk and of course he is thinking of the people who have leaked them. Actually, you also need to think about the people whose lives are at risk because they have been leaked. In the bit of the film I saw that didn’t come out enough. But it makes you think.’ Later in the same interview, the PM is asked his views regarding the leaking of NSA documents by Edward Snowden and the suggestion that the UK Government was snooping on its citizens. He replied: ‘We have very good rules in this country. If a telephone call is going to be listened into that has to be signed off by the home secretary personally. There are very good safeguards in place.’ The merger of fact and fiction is complete.

So what is the model for The Fifth Estate? The whistleblower film is not a new genre, and there is a large number of films and books where the whistleblower is the hero, including John Le Carre’s recent book A Delicate Truth, which examines the story of Toby Bell: ‘the most feared creature of our contemporary world: a solitary decider.’ In the majority of these works, the whistleblower is celebrated as the hero. Such stories include: All The President’s Men (1976), The China Syndrome (1979), Silkwood (1983), The Whistleblower (1987), The Insider (1999), The Constant Gardner (2005), The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers (2009), The Whistleblower (2010) and Fair Game (2010).

However, these hero stories are not the model for The Fifth Estate. Rather,  I would locate it more directly in the ‘dangerous geek’ genre, akin to The Social Network and Jobs. Again, the temptation in these films is to depict the neurotic, anti-social geek as the person who uses up and ultimately abandons his friends. Steve Jobs is shown as effective in starting up the business, based on Wozniak’s computing skills, but he ruthlessly exploits and then abandons the friends who helped him build the first Apples in his parents’ garage. In The Social Network, Facebook founder Mark Zuckerberg is also shown as exploiting carelessly those around him.

I like a good ‘hero story’ as much as the next person. However, I believe it is dangerous and misleading to reduce the WikiLeaks story down to a good versus evil showdown. This is particularly the case when the story is still playing out and still has a very real set of consequences for vulnerable people, including Manning, Assange and now of course, Snowden. The exhortation to Assange to exit the Embassy cited above must be considered in the context of real life rather than dramatic consequences. This is not a new development in a movie plot line.

The Fifth Estate is preoccupied with the question of whether Assange is good or evil, as is We Steal Secrets. Both start from the angle that Assange could be a hero, and then expose him as paranoid, delusional and worst of all, uncaring by the end of the film. He loses his humanity to the machine. The technology of leaking literally becomes more important than the alleged lives at stake, but this is all done in the cause of narrative development and dramatic tension, rather than accuracy and truth. Yes these films are meant to entertain, but as the discussion above demonstrates, this is not the way it may be interpreted by audiences, who perceive it as an accurate portrayal of events.

Assange and others, such as Geoffrey Robertson, have recognised the dangers lurking in ‘fictionalised’ accounts such as The Fifth Estate. There was a well-publicised exchange between Assange and Benedict Cumberbatch online and reported in The Guardian (which it must be remembered is a key player in and source of the content for The Fifth Estate).

Assange’s letter to Cumberbatch included the following:
‘The bond that develops between an actor and a living subject is significant.
If the film reaches distribution we will forever be correlated in the public imagination. Our paths will forever be entwined. Each of us will be granted standing to comment on the other for many years to come and others will compare our characters and trajectories.’

Assange continues:
‘Feature films are the most powerful and insidious shapers of public perception, because they fly under the radar of conscious exclusion.
This film is going to bury good people doing good work, at exactly the time that the state is coming down on their heads.
It is going to smother the truthful version of events, at a time when the truth is on most demand.
As justification it will claim to be fiction, but it is not fiction. It is distorted truth about living people doing battle with titanic opponents. It is a work of political opportunism, influence, revenge and, above all, cowardice.
It seeks to ride on the back of our work, our reputation and our struggles.
It seeks to cut our strength with weakness. To cut affection with exploitation. To cut diligence with paranoia. To cut loyalty with naivety. To cut principle with hypocrisy. And above all, to cut the truth with lies.’

Cumberbatch’s response to Assange was discussed in another Guardian article, again breathlessly and heedlessly merging discussion of the film and real life politics, regardless of Cumberbatch’s status as an actor. (In fact the writer of the article admits to ‘a moment of genuine confusion’ when she thought she ‘was about to meet Assange himself.’).

The article provides a summary from Cumberbatch regarding what his response to Assange’s email was:
‘I don’t want to go into any great detail, but it took me four hours and the central thrust was: this is not documentary, this is not a legally admissible piece of evidence in a court of law, it’s not going to alter perception in a way that is actually politically going to damage you at all. People who will come to see this film will be savvy enough to see it as what it is; it’s a starting point,  that should both provoke and entertain. It will be a talking point, but your life, your private life, your persona, is fatefully intertwined with your mission – it cannot not be now. And to be honest, I think the sort of general perspective on you is still echoing from the kind of character assassinations that began way back when, with the initial leaks, and that is now heightened by the accusations of sexual misconduct in Sweden, and so you’re known as this white-haired Australian weirdo wanted for rape in Sweden who’s holed up behind Harrods in some embassy. So the misinformation about you is already there.’

There is some discussion of Cumberbatch’s thoughts on Assange’s childhood and the impact this might have had on his personality and mental state. And then, as with the interview with Cameron discussed above, the article moves to Cumberbatch’s attitudes to ‘cyber-whistleblowers’ including WikiLeaks and Snowden, which we are told are ‘decidedly ambivalent’: ‘He is alarmed by revelations of mass surveillance by the NSA and GCHQ, and doesn’t like the idea of anyone reading his private emails…but then adds, “Oh, but you might have stopped me from being killed on a tube I took last Wednesday. If they are saving lives, how can we say that’s less important than civil liberties?...”’. Whilst interesting in a general sense, why are we presented with Cumberbatch’s views on these important issues as if he is an authoritative source?

Geoffrey Robertson in his recent essay expressed the view in an essay that Assange’s withdrawal from  his autobiography project actually left the field open to negative portrayals of him and his work.

He also identifies several critical inaccuracies in the film which are important to the purported balance of its portrayal of events relevant to the major leaks. For example, in a moment of dramatic tension, the fictitious diplomat, played by Laura Linney, is involved in an attempt to extract a source from Libya. This plotline has clearly been included in the film to provide some human face to the leaks. However, as Robertson points out, it could never have happened in the context of the leaks of the diplomatic cables provided by Chelsea Manning. Manning did not have access to the level of intel ('top' or 'ultra' secret sources which would have placed the 'source' at risk as portrayed in the movie) (see Geoffrey Robertson, Dreaming Too Loud, 2013).

As Robertson states, there is no blood on WikiLeaks hands as a result of the leaks: 'The Fifth Estate will be propaganda if it propagates the lie that Assange has blood on his hands, and that Bradley Manning (who does not appear in the movie, although if 'Cablegate' has a hero, it is he) deserved the severe punishment (thirty-five years in prison) that he received.'

All of this discussion needs to be placed in the context of the mainstream media’s hostility (at worst) or ambivalence (at best) about whistleblowing. Despite the amendment of Australian whistleblowing laws in the Public Interest Disclosure Act 2013 (Cth), the whistleblowing actions of Manning and Snowden would not have been protected under that legislation had they occurred in Australia on the basis that the secrets they revealed (ie in part that the US Government is spying on everyone) is authorised by law.

The importance of these issues cannot be overstated. At a time when we should as a society be considering the consequences of the revelations that our communications, our networks of friends and families, our personal and supposedly private interactions, are considered fair game by democratically elected governments worldwide, we are, instead of interrogating these governments, turning on the whistleblowers. In Australia recently, revelations that Australia had tapped the phones of the Indonesian President and his wife, were met not with questions regarding how and why this was happening, but attacks upon the ABC for reporting on this scandal as it was ‘not news’.

We need to ask the big questions. Manning, Snowden, Assange and others have placed their lives and liberty on the line in order to tell us about the mass surveillance not only possible but occurring world wide, and all we seem to be able to do with this information, is to characterise them as misfits (and either mad or evil ones at that) which somehow saves us from having to deal with the difficult re-examination of ourselves that needs to be done in the wake of the revelations.

Monday, November 25, 2013

The Fifth Estate: the World vs Assange


Bram has finally got around to seeing The Fifth Estate. No small attraction of this movie was of course the fabulous Benedict Cumberbatch who plays Julian Assange, but Bram has concluded Benedict is better as Khan (no spoilers for those of you who haven't seen Star Trek Into Darkness, which you should).
Anyway, back to The Fifth Estate: an interesting but ultimately unsatisfying movie. Unfortunately the film suffers from being old media’s take on new media, whilst it manages to highlight the importance of new media ventures such as WikiLeaks, it really suggests that such projects are petulant children and until they grow up and learn some manners, they should be looked after by their older siblings who know the rules of the game. It doesn’t really tackle the real issue of whether existing media is serving its purpose of exposing the truth or whether it is now in the capture of government and big business. It never tackles the question of why whistleblowers turn to organizations such as WikiLeaks rather than established media. Ultimately of course The Fifth Estate descends into a good versus evil battle: is Assange a hero or a villain? Rather than focus on the big questions of surveillance, privacy, big data and what role is the media playing in keeping an eye on the other three estates, we are again preoccupied with the question of personality. Yet again, we get a gratuitous scene of Assange dancing…
The film is told from the perspective of Daniel Domscheit-Berg (played in the movie by Daniel Brühl), one time admirer of, and collaborator with, Assange. The film is based upon Berg’s book Inside WikiLeaks, a book highly critical of Assange (unsurprising since they had a falling out and Assange suspended and then excluded Berg from WikiLeaks) and the WikiLeaks book written by Guardian journalists David Leigh and Luke Harding, who also had a falling out with Assange during the publication of the war logs and US Embassy cables over the questions of redaction and matters of trust. Unsurprisingly therefore it tracks Berg's gradual disillusionment with Assange and his exclusion from WikiLeaks. The film deals only tangentially with Bradley (now Chelsea) Manning and mentions the sexual assault allegations and detention of Assange at the conclusion of the film in text boxes.
The film operates in the style of having various characters act as the mouthpiece for various points of view. Berg’s girlfriend (Anke played by Alicia Vikander) is very much the voice of conscience. We see her reminding Berg that people may be hurt as a result of the leaks, that the people named in the logs have families too. In the movie, she is a catalyst for Berg’s determination to stand up to Assange over the question of redaction, and ultimately bears responsibility for breaking up the band. She plays the role of “moral person”, she respects the value of the work being done by WikiLeaks but believes this does not justify any personal costs to her, Berg or anyone else. She also reminds Berg that Assange is a “manipulative asshole”, implying he has been corrupted by power and has gone bad (or mad or whatever). Daniel is the "everyman" character, motivated by conscience, generous, trusting and ultimately denounced by Assange when he stands up to him about the redactions (though Berg is shown still working “selflessly” behind the scenes to shut down access to the WikiLeaks server while Assange is presenting to the media). Nick Davies (David Thewlis) from the Guardian represents the “good media”. He has several set pieces where he tells us the viewer about the role of the media. At one crucial point he warns Assange: “you need to be careful how the story is published”. He claims that he is working on an angle to paint the leaks as the next Pentagon Papers, and that the future of Assange, WikiLeaks and Manning depends on this. It is at this point of the film that a key question comes into play: what is the role of WikiLeaks as an organization: to publish the truth, to protect whistleblowers, is it a source or a media organization? Different points of view on this are represented by different characters, but Davies is shown as trying to assist WikiLeaks in obtaining “legitimacy”. This is a contentious (and generous) characterization of how the Guardian has actually treated Assange.
Added to the narrative provided by the Berg and Guardian books, the film includes a misleading side story about a US diplomat concerned to protect her source in Libya when the US Embassy cables are published. As Geoffrey Robertson has pointed out, this scene ‘could never have happened as a result of Cablegate’ as Manning did not have access to ‘top’ or ‘ultra’ secret sources (Dreaming Too Loud, "Assange in Ecuador", 2013). Further, any claims that WikiLeaks had blood on it's hands with respect to Cablegate have been refuted, and there is no evidence that there have been any casualties as a result of the Embassy Cable leaks.
The fictional diplomat, (Under Secretary of State Sarah Shaw played by Laura Linney) who is initially impressed by the work of WikiLeaks leaves us with the poignant comment that she is not sure who will be judged more harshly by history: her or Asange.
This is of course a film about truth and lies. Big lies told by governments, banks and corporations and small lies we tell one another. We are ultimately made to feel more concerned about the “lies” that Assange has told Berg, such as the fact that WikiLeaks is run by hundreds of volunteers, than the lies the US Government is telling its own citizens on a daily basis. If Assange is not 100% truthful and personally beyond reproach, then the suggestion seems to be, we cannot respect his work.
It is also about loyalty and trust. Assange explains early on to Berg that he works alone as “you don’t get far relying on others”. A key moment in the film is when Assange learns of the assassination of his Kenyan sources, he feels he has let them down because he did not get their story enough publicity to protect them.
Throughout the film we are drip fed strange elements from Assange’s past in pieces that feel quite staged (teenage hacking, being on the run from his mother’s ex, his University education): in the tone of “you need to know this about Assange because it explains why he is quite mad so try not to hold it against him!”.
There is also a thematic obsession with the colour of his hair, various explanations are given by Assange to different people about traumatic events that turned his hair white. Then at the conclusion of the film we are shown Assange dying his hair (a habit it is implied started with the Family and their practice of forcing all children to dye their hair blonde). But again, this is done in the context of presenting Assange as a liar (references are also made to his hacker tag of Mendax).
Throughout the film Assange is presented as a damaged character, but in the end this does not seem to be enough to redeem him, which is what the film so desperately wants. He has to be after all a hero or a villain, he cannot be neutral, human, conflicted. He is painted as an egomaniac and it is this ego which ultimately undoes him.
The film ends with some straight to camera pieces from Assange, apparently from inside the Ecuadorian Embassy, which again are clumsy attempts to encapsulate key points of view, but they become awkward in their lack of connection to the drama which has preceded this conclusion. They do not vindicate, rather they ostracise the viewer even further from Assange.
It is a shame that the film, which does so well in visualizing the new power of data, did not present a more balanced view of the personalities involved. Assange has denounced the project and it is worth looking at the email exchange between Cumberbatch and Assange regarding characterization of Assange and Cumberbatch’s participation in the film. See also WikiLeaks comments on the script.
It is time we move beyond personality and take up the bigger questions provoked by the leaks: how long are we content to sit by and let the media numb us into accepting massive scale surveillance? 

Monday, September 16, 2013

Journal of Virtual Worlds Research: Legal and Governance Challenges

The latest issue of Journal of Virtual Worlds Research is hot off the (virtual) press. Over the past twelve months, virtual world gurus Dan Hunter and Greg Lastowka and I have assembled a diverse collection of virtual world and law pieces. Notably it is also the ten year anniversary of Lastowka & Hunter's "The Laws of the Virtual Worlds"  (2004)  California Law Review 92(1) (available here). The collection shows us how large this area of study has now become and how much work there reamins for us to do and virtual places to explore. Enjoy!

The collection consists of:

Table of Contents

Managing Editor Corner

What Should Atomic and BITonic Learn from Each Other?PDF
Yesha Sivan

Issue Editors' Corner

EditorialPDF
Melissa de Zwart, Dan Hunter, Greg Lastowka

Peer Reviewed Research Papers

Authorship in Virtual Worlds: Author's Death to Rights Revival?PDF
Sergio Roncallo-Dow, Enrique Uribe-Jongbloed, Kim Barker, Tobias M Scholz
Evaluating Consent and Legitimacy Amongst Shifting Community Norms: an EVE Online Case StudyPDF
Nicolas Suzor, Darryl Woodford
The Iron LawPDF
William Sims Bainbridge
Blazing Trails: A New Way Forward for Virtual Currencies and Money LaunderingPDF
Michael P. Bombace
Dutch Supreme Court 2012: Virtual Theft Ruling a One-off or first in a Series?PDF
Arno R. Lodder
Magic Modders: Alter Art, Ambiguity, and the Ethics of ProsumptionPDF
Aaron Trammell



Friday, July 5, 2013

Alex Gibney's We Steal Secrets: anti-Assange propaganda (again)

In May I was invited to a preview showing of Alex Gibney's We Steal Secrets by Universal Pictures. In the interests of full disclosure, I was also invited to speak at a Q and A session hosted by ABC Radio Adelaide following a screening of the film in late June (so I have seen the film twice). Naively I believed that as a documentary, the film would depict not only the fascinating story of WikiLeaks, but also the astonishing bravery of those involved in the key leaks, especially Julian Assange and Bradley Manning. As it turned out, the film was a testament to the suffering of Bradley Manning, although it seems to reduce his motivations for leaking material to the consequences of sending a gender-confused loner to FOB Hammer in Iraq, rather than the motivations of a human being faced with exposure to horrific evidence of the actions of his own country in a time of war. For a more detailed analysis of and background to Manning's motivations, see Chase Madar's The Passion of Bradley Manning, and Manning's own opening statement from his trial. As for Julian Assange, the film goes to some effort to build up the viewer's admiration for Assange as a highly intelligent and strongly motivated digital activist at the beginning of the film, only to dramatically tear this down (as if it was an illusion or sham) half way through the film. Through selective use of interview subjects, editing and footage Assange is portrayed as strangely (and unnecessarily) paranoid, vain and power obsessed. I can only hope that people seeing this film without a strong background in what actually happened will be able to see through these storytelling devices.

On all of these points I would suggest you read Robert Manne's excellent review of the film in The Monthly, together with the later version with annotated comments, where Manne exchanges views with the film's director, Alex Gibney. I agree with Manne's comments and responses, and share his concerns with the limitations of the film. I would also add a few of my own (some of these are expressed elsewhere and I would also refer you to WikiLeaks annotated transcript of the film, also referred to by Manne and Gibney).

First, the title of the movie: We Steal Secrets, is a quote from former CIA/NSA director Michael Hayden, not from WikiLeaks. Why no-one seems to be at all concerned with the fact that the US Government admits to stealing secrets is beyond me. The revelations of Edward Snowden seem to have attracted a similarly distorted publicity: Snowden "stole" secrets from the NSA: if his claims are true (and I have no reason to doubt they are given that every Hollywood movie I have ever seen takes it as a given that the CIA, NSA and other three letter organisations are monitoring citizens all of the time) then whose secrets was Snowden stealing? By my calculations, he was just claiming them back again. So the title raises an important issue, but its implications are misleading. WikiLeaks was not claiming to steal secrets: it provides an anonymous publications outlet for whistleblowers: there is a difference.

Gibney seems very preoccupied with proving that Assange is paranoid, power hungry and deluded regarding his need for privacy. His exchange with Manne suggests that Assange is overly concerned about the Grand Jury indictment (which Gibney is not convinced even exists). At no time does Gibney present the alternative explanation which could also be drawn from the very footage he shows: Assange was thrust unaided and unsupported into the limelight with the media publication of the leaks. The movie does not show a person who wanted and demanded that limelight, but rather a person transitioning from a very private life to a very public one. Was Assange ready for it? No, but who would be? Rather than admiring himself, I felt Assange appeared very uncomfortable with all of the attention, but was willing to be there to present the message (but again, as a society we fixate on the messenger). And Assange was justified in his reticence, the mainstream media essentially then hung him out to dry (along with WikiLeaks): thanks for the copy now you are on your own!! There is no empathy at all for the personal difficulty that this must have caused Assange and no consideration of the long term impact it has had on Assange to accept the burden of publishing the leaks. If Assange is so hungry to be the public face of WikiLeaks then it must be accepted he has also paid an enormous price.

The listening device found this week at the Ecuadorian Embassy in London may also raise some questions about whether Assange's privacy fears are paranoid?

I also very much doubt Gibney's arguments that Assange is under no real threat regarding the possible extradition to the US from Sweden. I disagree absolutely with his interpretation of what Sweden has said ("if the charges are political (such as the Espionage Act) many countries-including Sweden - would refuse to extradite him." I AM a lawyer and that is NOT how I would interpret what Sweden or Judge Lindskog have said: "What is classified under US law is probably not classified under Swedish law, and enemies to the US may not be enemies to Sweden,'' he said. That is a rather big PROBABLY. Would you take the risk?

Another takeaway from the movie seemed to be that WikiLeaks (read Assange) failed Manning, leaving him to fall prey to the 'confessor and journalist' Adrian Lamo. Little is made about Lamo's entrapment of Manning (and his outright dishonesty) rather we are gently led through a series of implications that WikiLeaks enticed, entrapped and then used Manning. Certainly the complexities of anonymity create some unanticipated problems. We see these in the film in Manning's need to reach out, unfortunately to Lamo, who betrays him. However, WikiLeaks and Assange did not have the benefit of 20/20 hindsight and an in-house psychologist when opening up the anonymous drop box. Much is made of the 2009 Most Wanted Leaks and the encouragement of leakers to respond to that call. Thanks Gibney, you can do all of the work for the US prosecutors.

 I was also annoyed by some of the gratuitous comments made about Assange and his "cheap suits" and "$300 laptops": why is this relevant? Here is a person who has dedicated themselves to a public cause, and we have to worry about what they are wearing: oh please! A further gratuitous scene shows Assange dancing at a nightclub (the sub text being that Assange dances while Manning is detained in horrendous conditions), really this grates as an irrelevance at best. The film also repeats those claims about Assange being scruffy and unwashed during the days when the Afghan War Logs were being produced for publication, these comments coming from the journos who were happy to take the major leaks to sell their newspapers and then stabbed WikiLeaks in the back. For Gibney it seems that Assange must be saint or sinner, and never a human being, in order to be defensible.

 My most serious concern regarding the film is not actually the film itself. It is, as a piece of cinema, a compelling and engaging work. The scenes depicting the Manning chat logs are well presented and chilling. It contains some wonderful footage of Assange that I had not seen before. It presents the background of the WikiLeaks story clearly for those who don't know much about the context and nature of the links. For that reason I was happy to be involved in the Q & A. However, it is also for that reason that I am most concerned. If this is the main source for many people to learn about Assange, Manning and WikiLeaks, it is at best a half truth. And that is the risk, many will prefer to use this movie as a source of truth rather than merely a source. There are lots of better, more accurate sources of information. On this point also Gibney makes much of Assange's refusal to be interviewed for the project (despite this the film includes a lot of interviews and footage of Assange from other sources). This refusal is made out to have been made on the basis that Gibney refused to pay him a large sum of money and on the grounds that Assange has something to hide. There are multiple instances of Assange speaking freely available from a range of other sources. Assange is not living under a self-imposed veil of silence, he is active and communicating on a daily basis.

As Manne observes: "Gibney's powerful, accomplished and vivid film will for some time help shape opinion, especially among those members of the liberal Left on whom Assange now most relies. So in the conflict between them, it matters who is right." And this is the real danger. It presents itself as an impartial analysis of events, when it clearly is not so.

There is no balance when it comes to correcting attacks on Assange from a number of people who are well known to be hostile to him (and not above the cheap shots). Again, Manne notes that the film really ends with Domscheit-Berg's reflections on Assange, reflections which are distorted and biased by his own falling out with Assange.

 So I would urge you to not accept We Steal Secrets as a documentary which explains the story of WikiLeaks and Assange, but rather read beyond the film to real sources which explain Assange's motivations and the operations of WikiLeaks, such as Cypherpunks ( a book which has been curiously overlooked given that it clearly articulates Assange's views).

View the film for the interesting vision and range of opinions, but read more widely and be open to the truth from other sources.