Watching Me, Watching You: Surveillance, the Media and the Law

Media & Arts Law Review 
Call For Papers
 The Editors of the Media and Arts Law Review are preparing a Special Issue of the journal focusing on legal issues regarding surveillance, journalism and the media. Articles should be between 6,000- 8,000 words and may address any area of law that is relevant to any aspect regarding surveillance of, or by, the media. The special issue will be published in September 2016.
 Proposals for an article of 500 words and a brief author bio should be sent to law-cmcl@unimelb.edu.au.
The proposal is due 30 November 2015 and acceptance of the proposal will be advised by 14 December 2015. If the proposal is accepted, a full article suitable for blind double peer review must be submitted by 30 April 2016.
 Please contact Jason Bosland (j.bosland@unimelb.edu.au) if you have any questions.

Peter Carey's Amnesia: what does it tell us?

After reading the hype regarding Peter Carey's Amnesia being a book focused on hacking, cyberspace, and politics I could not resist reading it at once. The back cover indicates that the novel will address the pressing question: "How did a young woman from suburban Melbourne become America's Public Enemy number one?": sound familiar? with a different gender are we talking about Assange here? Add to this the rumours (since denied) that Carey had been 'sounded out' about writing Assange's biography, and it sounds like we have a novel that will address these big questions of our time.

It starts out in a promising tone, placing the story of Gaby Baillieux in the hands of a journalist who has just endured a defamation trial, the 'famously shmabolic' Felix Moore,  jaded, faded and channelling to not a small degree of one of my favourite voices of doom, Bob Ellis. A worm has entered the computerised control systems of Australian (and American) jails and detention centres, opening the doors and freeing the prisoners and detainees, announcing itself with the words 'THE CORPORATION IS UNDER OUR CONTROL. THE ANGEL DECLARES YOU FREE'. Unlike the other journalists and commentators, the  narrator recognises this act for what it truly is: an attack on the US, and more conclusively, an act in retaliation for events begun in 1975, when the US (read CIA) removed the democratically elected Whitlam government.

If this all seems fairly far fetched, even for a self-declared conspiracy theorist you would be right.
We are taken on a journey through Melbourne, specifically Carlton and Coburg of the last couple of decades, recounting Gaby's childhood and her introduction through the enigmatic Frederic, to computers, online games, phreaking and eventually hacking. There are some fun moments, such as the drone disguised as a magpie, but ultimately I found the story deeply unsatisfying. For much of the book it is not clear just how unreliable the narrator has become, and how many levels of conspiracy are at work. It is nicely done, lots of references to technology, but lots of inconsistencies too. In the end we don't really answer those big questions, nor really gain any true understanding if Gaby is Public Enemy number one, and we certainly don't get any clear sense of her motivations, beyond being fairly pissed off with her parents.

This is not the novel of the internet generation and at worst makes the work of online activists seem childish and petulant. Further, although it skirts round the complexities of the Australian media landscape, it does not tackle important questions of old versus new media.

Some other reviews may be found at:
Amnesia by Peter Carey review – turbo-charged, hyper energetic, Andrew Motion, The Guardian
Amnesia by Peter Carey, book review: Echoes of Assange as author turns his sights on hacktivism

See also the 7.30 Report Interview with Carey.

Julian Assange: When Google Met WikiLeaks

Julian Assange's latest book When Google Met WikiLeaks is partially a response to Eric Schmidt and Jared Cohen's The New Digital Age, published on the eve of the Snowden revelations in 2013. The disclosure that that the US government was collecting massive amounts of user data via the major US tech companies somewhat undermined the techno-utopianism of the Google sponsored manifesto. The New Digital Age featured (along with a range of various 'The Future Of ...' topics) some discussion of WikiLeaks and Assange, including some loose logic connecting hackivism with terrorism, questioning the role of WikiLeaks (and Assange in particular) in providing a leaking platform, and vague, untrue assertions about the harm caused by various leaks, and Assange now seeks to correct the record.

When Google Met WikiLeaks consists primarily of a transcript of the long discussions/ interview that took place while Assange was staying at Ellingham Hall whilst under house arrest. Schmidt and Cohen asked Assange to expound on a number of topics, noting that the views would be incorporated in their future book. The book also includes context, Assange's response to claims made in The New Digital Age, and a timeline of events.

This short book is well worth a read, as is Assange's other book Cypherpunks, if you want a chilling view of the future of the internet. Rather than couching everything in pseudo-management speak, Assange spells out the potential threats to the open internet, privacy and free speech.

As Assange notes early on, the involvement of Google in routine metadata harvesting should not come as a surprise to anyone. Google's corporate mission after all is to collect and "organise the world's information and make it universally accessible and useful" and Google obtained NSA funding to develop search tools to make sense of the data it was collecting (39).

The book is an essential read for anyone attempting to understand Assange's philosophy regarding secrecy, leaks and whistleblowing, correcting as it does some of the quotes attributed to him in The New Digital Age.

Both Cypherpunks and When Google Met WikiLeaks will remain largely unread by a public that remains far too blasé about the revelations regarding what is being done with our data. However, they provide thoughtful and knowledgable insights into the challenges of data and surveillance and should be given greater prominence in public analysis of the Big Data issue. Assange is at the forefront of the analysis of these issues and his insights should be given greater prominence given his first hand experiences with whistleblowing, surveillance and the media. Recommended reading for anyone who cares about the 'future of the internet'.

CFP: Media & Arts Law Review: Law and Law Breaking in Game of Thrones

The Editors of the Media and Arts Law Review are preparing a Special Issue of the journal which will consider various issues of law and regulation that arise in the HBO TV Series Game of Thrones and the George RR Martin books, upon which the series is based.

Articles should be between 6,000- 8,000 words and may address any area of law that is relevant to an aspect of Game of Thrones. The special issue will be published mid-2015.

Proposals for an article of 500 words and including a brief author bio should be sent to Melissa.dezwart@adelaide.edu.au. The proposal is due 10 October 2014 and acceptance of the proposal will be advised by 20 October 2014.

If the proposal is accepted, a full article suitable for blind double peer review must be submitted by 19 December 2014.

Please contact Melissa.dezwart@adelaide.edu.au if you have any questions.

The Media & Arts Law Review is the only Australian-based journal to focus on a broad range of legal issues affecting cultural life. The Review aims to engage both the academic and practitioner branches of the profession. It has a wide scope, including: communications, copyright, cultural heritage, defamation, digitisation, entertainment, free speech, intellectual property, journalism, privacy and public interest issues. The Media & Arts Law Review publishes independently refereed articles from Australia and overseas, as well as conference reports and book reviews. It also includes a series of regular update reports on media and arts law developments. These offer a snapshot of matters such as case law, legislation, law reform, convention developments, and changes in industry self-regulation. Update reports include coverage of the US, Canada, the UK, the European Union, New Zealand, Australia and some Asian jurisdictions.

Editors: Jason Bosland and Melissa de Zwart

Strategic Space Law Program at McGill

The McGill University Institute of Air and Space Law, in partnership with the University of Adelaide Law School, has planned to offer the first ever Strategic Space Law program. The aim of the program is to provide a unique opportunity for lawyers and other professionals in the defence services, international relations, government, international organisations and other entities around the world to understand space law in a strategic context. The program will be run as a one-week intensive, interdisciplinary, interactive workshop (non-assessable) at the Institute of Air and Space Law, McGill University, from 27-31 October 2014. This Brochure provides more details of the program. The Brochure can also downloaded from:

http://www.mcgill.ca/iasl/channels/event/strategic-space-law-intensive-program-237671

Glenn Greenwald: No Place to Hide

It is one year since the revelations of former NSA contractor Edward Snowden, confirmed our worst fears regarding widespread interception of telephone and internet communications. Those leaks were carefully shepherded to publication according to a carefully planned timetable by Glenn Greenwald and Laura Poitras (together with Ewen MacAskill of The Guardian) in order to ensure that the importance of those disclosures was not lost in the midst of mass information overload. Greenwald's role in the Snowden leaks has not been without personal risk and cost to him (and to his partner David Miranda) and in this book No Place To Hide, he traverses all of these issues: the background to his meeting with Snowden (together with Poitras) and decisions taken regarding content and timing of publications; his own analysis of the leaked material in context; a discussion of the dangers of mass surveillance and threats to privacy and an exploration of what it means to be a journalist in the post 9/11 era, when concerted efforts are made to break down journalists' protections and to discredit whistleblowers as paranoid loners with no sense of social obligation.
Greenwald has written a very readable book which identifies a number of vital questions for our age. He addresses these questions from a multi-jurisdictional perspective, highlighting key differences in particular between US and UK approaches to journalistic protections and freedom of speech. It also provides a fascinating insight into Edward Snowden, the young man prepared to put his whole life on hold (and potentially much worse) to stand up for what he believes in.
Along the way a number of other interesting points are canvassed.
Greenwald begins by outlining the story of the early contacts that were made to him by Snowden and his uncertainty regarding the status and seriousness of this potential source. Contact was delayed by his own lack of understanding of the need for encrypted communications. Once these obstacles were overcome and he travelled to Hong Kong (meanwhile still questioning whether the effort would be wasted) only to be surprised by the serious, well-organised, thoughtful and startlingly young Edward Snowden. This background reinforces the fact that Snowden's act of whistleblowing was no reckless or random act. Here is a man prepared to sacrifice his own freedom to support the ideals of democracy and transparency. He did not seek any personal gain of any kind and was determined to remove himself from the centre of the story, so the focus was not on personality  but rather about his message.
Greenwald makes an interesting aside regarding the role of video games in shaping Snowden's world view (and of course that of others of his generation) through 'moulding political consciousness, moral reasoning, and an understanding of one's place in the world', as well as the central belief in the value of the internet: 'the world in which his mind and personality developed, a place unto itself that offered freedom, exploration, and the potential for intellectual growth and understanding.' This belief in the need to ensure that the internet functions as a place for freedom and individual actualisation lies behind Snowden's motivations to reveal the vast, daily, bulk collection of personal data being undertaken by the NSA and its equivalents in other States, and Greenwald captures and articulates this core belief well.
A key message to take away from Greenwald's book is the ongoing threat to journalistic standards and freedoms: the detention of David Miranda at Heathrow, the raid on The Guardian's offices and smashing of computer hard drives and the repeated demands for Greenwald's prosecution as a 'co-conspirator"should be seen as very serious incursions on the independence and integrity of journalistic freedoms. As Greenwald notes, the smashing of computers and hard drives by The Guardian on the demand of GCHQ staff is bad enough, but what does it mean for the source who has risked his life to bring their contents to light? How do we deal with growing complicity between journalists and politicians?  Particularly chilling were the references to efforts against Anonymous and the 'human network that supports WikiLeaks'. The attacks on Greenwald were derogatory and dangerous and the status of journalistic standards and the continued existence of an independent media remain in question.
Greenwald's book is still shocking for the stories that it reveals about data collection. The clunky power point slides used to train NSA employees and contracts contained in the book are laughable and chilling for their simplistic message of "Collect it All".
This book is vital reading for anyone concerned about the Snowdon revelations and their implications for privacy, but also for those concerned about the future of journalism in the context of whistleblowing, mass surveillance and Big Data.

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.