Month: May 2010

From xkcd:

Hint: to get the full effect, mouse over the image.

Angela Daly, a PhD candidate in Law by the EUI, Florence, has just published a fascinating article on SSRN on the extent to which the existing rationales for freedom of expression apply online.

The abstract provides:

The Internet, and Rationales for Free Expression

The changes to society brought by the Internet have prompted a challenge to orthodoxy in a number of areas of law, Intellectual Property being a notable example. Human rights, especially those related to information, knowledge and ideas, have been drawn into this re-evaluation, with various issues being encountered in practice demanding solutions that accord with respect for rights and freedoms, and with the functioning of this new technology. Nevertheless, the theoretical aspect of human rights in the Internet context has not been so much addressed. The Internet has implications for how rights are conceived, especially the freedoms of speech and expression. This study is an examination of whether the existing rationales for free speech and expression still apply in the context of cyberspace. These rationales, coming mainly from court decisions (in particular, the US Supreme Court) as well as the academic literature (notably Cass Sunstein‘s work), will be examined, alongside observations about the state of play in the Internet, with Yochai Benkler‘s elaboration of the development of “commons-based peer production” initiatives being of particular relevance. If indeed the Internet is significantly different from previous communication technologies, then this may require a different approach to how the Internet is regulated, including in order to promote and maintain free speech and expression.

A cartoon commissioned from Chris Slane for this year’s Privacy Awareness Week:

Image: Two children are walking in a forest. They appear to be carrying PDAs; there are many public electronic devices (phones, ATMs, internet booths) on the trees; there is a cctv camera on a tree; there is a spy satellite overhead; and one of the background trees is in fact a communications mast. Peering out from behind a tree towards the back of the scene, a witch following them is studying her own PDA.
Caption: Alas, Hansel and Gretel had left a digital trail.

Dr Johnson defined gallimaufry as

1. A hoch-poch …
2. Any inconsistent or ridiculous medley. …

Here’s a hoch-poch, or hotch-potch (though, of course, not a hotchpot) of links relevant to the themes of this blog that have caught my eye over the last while:

First, an Article 10 Right of Reply? considers the various routes to a legally enforceable right to reply to inaccurate information in the same medium where the original statements were published. In this post, Andrea Martin argued that such a development is neither necessary nor desirable, but that a voluntary scheme operated by broadcast media would have a lot to recommend it.

Second, the Irish judiciary has signalled support for setting up a judicial council, a development anticipated by the ICCL in 2007 which I welcomed at the time.

Third, Slate recently published No More Bullet Points, No More Clip Art (h/t Oisín, offline) arguing that “PowerPoint isn’t evil if you learn how to use it”. But so many people fail to learn how to use it that I have no doubt that my antipathy will continue.

Fourth, a story in the Independent on Plagiarism and PhDs: how to deal with copying says that it “may seem counter-intuitive but postgraduates are more likely to commit plagiarism than undergraduates”. Whether postgrads or undergrads – or of that matter, postdocs, lecturers or professors – we must all be on our guard against plagiarism in the academy.

Fifth, I have long been a strong supporter of open access to academic information, so I am heartened to learn that over 20% of the world’s scholarly journals now open access! (Kudos to DOAJ)

Sixth, Thinspiration: Still legal in the U.S.! picks up the proposed French legislation which I discussed in my post on incitement to anoxeria.

Seventh, the online challenge to traditional third-level education gathers pace: U of California Considers Online Classes, or Even Degrees the University of California “hope to put $5-million to $6-million into a pilot project that could clear the way for the system to offer online undergraduate degrees and push distance learning further into the mainstream …”

Eighth, a woman jailed by a Chicago judge for 2 days for wearing an offensive T-shirt to court recalls my post If t-shirts could talk …, discussing a similar Irish case and a more serious US example (there’s also an earlier Illinois example). Cohen v California 403 US 15 (1971) anyone?

Human Rights in Ireland‘s superb Blog Carnival on DNA Databases (context | 2010 Bill (pdf) here and here | mass screening | European experience | Australia | Scotland) picks up and amplifies my concerns about DNA privacy. In particular, David O’Dwyer‘s post argues that the common trope that “the Innocent have nothing to fear!” exacerbates “the growing perception of ‘us’ and ‘them’ in society – ‘Us’ the law abiding citizens and ‘Them’, the law breakers, the ‘Barbarians at the gate'” (by no means a uniquely Irish concern). He concludes that

While these laws may seem to be in ‘our’ interest

…There has been sufficient miscarriages of justice in the history of crime in this and in other jurisdictions to indicate a belief that ‘the innocent have nothing to fear’ is not necessarily the whole answer.

McGuinness J –Gilligan v Criminal Assets Bureau [1997] IEHC 106; [1998] 3 IR 185 (26 June 1997) [118].

McGuinness J’s dictum was approved by Hardiman J in the Supreme Court in O’C v DPP [2000] IESC 58 (19 May 2000) [195]. Concerns over the too-easy invocation of the trope have animated previous posts on this blog. As Toby Stevens observed on The Privacy, Identity & Consent Blog:

Debunking a myth: If you have nothing to hide, you have nothing to fear

… “Nothing to hide, nothing to fear” is a myth, a fallacy, a trojan horse wheeled out by those who can’t justify their surveillance schemes, databases and privacy invasions. It is an argument that insults intelligent individuals and disregards the reality of building and operating an IT system, a business or even a government. If ever you hear someone at a dinner party crank out this old chestnut, grab your coat, make your apologies, run fast and run far. And as William has said before, I wouldn’t want to be stuck at a dinner party next to someone who has nothing to hide – imagine how dull that would be.

An extraordinarily important book is published today. It is Freeing Speech: the Constitutional War Over National Security (NYU Press | Amazon | Google Books) by John Denvir, Research Professor of Constitutional Policy at the University of San Francisco School of Law.

From the abstract:

The United States is in the midst of a heated conversation over how the Constitution impacts national security. In a traditional reading of the document, America uses military force only after a full and informed national debate. However, modern presidents have had unparalleled access to the media as well as control over the information most relevant to these debates, which jeopardizes the abilities of a democracy’s citizens to fully participate in the discussion. In Freeing Speech, John Denvir targets this issue of presidential dominance and proposes an ambitious solution: a First Amendment that makes sure the voices of opposition are heard.

Denvir argues that the First Amendment’s goal is to protect the entire structure of democratic debate, even including activities ancillary to the dissemination of speech itself. Assessing the right of political association, the use of public streets and parks for political demonstrations, the press’ ability to comment on public issues, and presidential speech on national security, Denvir examines why this democratic model of free speech is essential at all times, but especially during the War on Terror.

Courts’ interpretations of constitutions profoundly affect how we live. Many courts of final appeal accord very great deference to governments in the area of national security. In an era of political spin, not to say outright government manipulation of the media, government is often protected from criticism by government secrecy. Freeing Speech argues that we need a new reading of the constitution that both limits executive power and supports full, democratic debate. It is a message that is as important in the US (which is the focus of the book) as it is in Ireland, where the leading Supreme Court decision in this area is the deeply flawed The State (Lynch) v Cooney [1982] IR 337 upholding the infamous section 31(1) of the Broadcasting (Authority) Act, 1960 [(also here), as amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976 (also here), ultimately repealed in 2001].

Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School, is entirely right when he says of the book that it offers “provocative suggestions for a First Amendment for our time, one that would provide us today with the information we need to govern ourselves”. Those interested in the issue should immediately purchase a copy of this book. Indeed, buy two (you can make a gift of the other to your friendly neighbo(u)rhood enthusiast for unfettered state power). Order them from Amazon, and while you’re at it, authorise Amazon to notify NYU Press to make the book available on Kindle.

May 2010 is the ICCL‘s Know Your Rights Month! The ICCL’s Know Your Rights public information project is designed to inform people in clear and accessible language about their rights under various key areas of the law in Ireland. There are two key projects. The first is a series of information packs covering key human rights areas: Criminal Justice and Garda Powers, Privacy and the European Convention on Human Rights. They are written in plain English, and will be updated regularly as the law changes, providing accessible and accurate information. As well as being available for download free of charge, they are also being distributed to libraries and citizens’ information centres nationwide.

The second key project is a series of roadshows to raise awareness of human rights and to help those giving advice on foot of the ICCL information packs. The first of these roadshow events will take place on Wednesday 19 May 2010, from 2:00pm to 4:00pm in the Community and Social Enterprise Centre, 8 North Mall, Cork. Those interested should contact the ICCL’s Joanne Garvey to reserve a place.

I am particularly impressed by the privacy pack, covering the following areas:

• Closed Circuit TV (CCTV)
• Consumer affairs
• Data protection
• Educational institutions
• Foreign nationals and asylum seekers
• Gardaí
• General information
• Government departments and agencies
• Internet
• Key words
• Media
• Privacy at work
• Surveillance
• Useful Contacts

This morning‘s Today with Pat Kenny radio show on RTÉ Radio 1 featured a slot on protecting privacy which discussed the ICCL Know Your Rights campaign in general and the privacy pack in particular. The issue were explored by Gary Davis, Deputy Data Protection Commissioner and TJ McIntyre of the UCD School of Law and head of Digital Rights Ireland. The item can be streamed or podcast from the webpage for today’s show. It’s well worth a listen, and the ICCL’s packs are well worth consulting. Kudos to them for such an important job so well done.

Update: there is a super post, with more history, over on Human Rights in Ireland.

By way of update on Sliding into Oblivion and Ten Copyright Myths, and in the week when the Pentagon has come to believe that PowerPoint is damaging the US war effort in Iraq and Afgahnistan, here are two Ignite Dublin presentations on PowerPoint. First, Mark Congiusta on PowerPoint: The Good, The Bad and The Ugly. (Just Kidding: There’s Nothing Good About PowerPoint) at Ignite Dublin #3:





Second, Rowan Manahan on If PowerPoint is the answer, it must have been a stupid question Ignite Dublin #4:





Bonus: for photos see this photo-stream (thanks to Loes van Mierlo).