December 29, 2009

The end of the year is near. Rather than making resolutions weak enough to lapse in a matter of days, why not take stock of our data rights?

The problem with such rights is, victims of data related violations tend to become an object of ridicule. According to Brad Stone (*), Mr Marquess' "Twitter account was recently hijacked, showering his followers with messages that appeared to offer a $500 gift card to Victoria's Secret." How sad for Mr Marquess. Yet how can one resist making fun of him. Isn't Brad Stone's story entitled "viruses that leave victims red in the Facebook"?

The issue is not limited to private jokes. I have long insisted data rights should be as important to individuals and organizations alike. The Yes Men are hard at work to insure corporations and governments share in Mr Marquess' distress. They are indeed among the few who can boast to have achieved a tangible result at Copenhagen last week. Rhymer Rigby reports "the Canadian government was furious" at the prank they engineered at its expense (**). It was made to appear to having committed "to drastic reductions in greenhouse emissions", a position too good to be true.

One might not forget the bright side of the present situation. If data rights victims attract little mercy, it is partly because Western societies have chosen to focus on eliminating bodily violence. This is not to say violence has disappeared nor that justice prevails. But who would dare propose to go back to trial by combat (1)? Even if decisions of the courts are biased today towards the smartest lawyer the way they used to be in the Middle Ages towards the strongest knight, at least modern trials do not add outwitted advocates to the list of fatalities.

The same priority explains why toys manufacturers face higher liabilities than bankers. A toy painted with a toxic substance can hurt children's lives. No matter how toxic mortgages repackaged as complex securities proved to be, they only hurt our pocket books.

It's a side effect if justice is again found wanting, especially if one considers bankers can even gain twice in the process, first by selling a toxic product, second by betting the product will be proven toxic. Read Gretchen Morgenson and Louise Story for the details (***). For the spokesman of Goldman Sachs, the goal was "to satisfy client demand". Isn't "the victims asked for it" the classic defense of the accused? Surely Sir Goodwin deserves his well-padded pension for assisting his shareholders. They and Royal Bank of Scotland got ruined, it must have been their secret wish.

When it comes to data rights, the same focus on violence is perhaps at work behind the higher level of consideration currently enjoyed by companies over individuals. As much as MySpace collects its users' data, it does not take their lives away, at least not literally. But most companies are incorporated, which is to say embodied, and an attack on their data rights is a direct threat to their lives, as Rupert Murdoch likes to claim.

To explain is not to excuse. By definition our Information Age is bound to generate and process data in ever growing quantities. If our negligence let this happen without a strong enough legal framework (2), the danger is that, short of a revolution, it will soon become impossible to remedy the distorsions which result from misguided legality. Even when based on purely economic grievances, revolutions cost far too many real human lives.

As regard to data rights, it is important to understand individuals are not treated uniformly by today's laws, which like to categorize their rights according to their several roles, mainly as employees, citizens and consumers.

Adam Liptak recalls "the [US] Supreme Court has given public employers wide latitude to search their employees' offices and files" (****). Now a new case will decide whether to protect "personal text messages sent and received on a government pager" when communication fees are paid for by the employees. Note Google mail extends no such protection to consumers, whose every message is parsed for ad targeting. The use of "machines" for greater efficiency should not blind us to their being under the control of the monitoring employees. Who's watching the watchers?

In the United States, the one hope for greater eprivacy comes from the atavistic distrust of Americans for their government. As long as such measures do not conflict with higher business interests, there is a genuine concern to protect citizens against overzealous officials. Take the Ohio Supreme Court for instance. A New York Times editorial (*****) correctly stresses the importance of its recent opinion which makes illegal for the police to search cellphones without a warrant (3).

For indeed a US court has clearly acknowledged how traditional rules must evolve in view of modern technology. Contrary to arguments that technology changes nothing, the Ohio Supreme Court understands that increased functionality raises "a reasonable and justifiable expectation of [...] privacy". Inquisitive officers may read good old address books, not so today's cellphones. Were the FTC realize that data collection works in the same way! Good old salesmen knew a lot about their clients but Amazon and Google's unbounded profile aggregation has breached a threshold.

Employees and citizens deserve some protection because employers and the government are always tempted to abuse their power. Pity the poor consumers. They are only victims of their own gullibility. Of course privacy right violations have long been ignored because they are deemed to cause no economic losses. The financial crisis has revealed that even when the size of the losses is undisputed, "victims asked for it".

Milt Freudenheim had given us a review of healthcare related privacy issues (******). The good news is that this is the one area where consumer privacy is officially and seriously taken into account. The bad news is that current measures are still falling short of offering patients real privacy. The sad news is that medical ID theft promises to create life-threatening situations as emergency measures are based on borrowed or corrupted profiles.

Data rights for consumers may well wither until bodily harm occurs. You just wait. May you enjoy good health and a Happy New Year!

Philippe Coueignoux

• (*) ........... Viruses That Leave Victims Red in the Facebook, by Brad Stone (New York Times) - December 14, 2009
• (**) ......... Jokes that are no laughing matter, by Rhymer Rigby (Financial Times) - December 22, 2009
• (***) ....... Banks Bundled Debt, Bet Against It and Won, by Gretchen Morgenson and Louise Story (New York Times) - December 24, 2009
• (****) ..... Text-Message Privacy Case Is Accepted By Justices, by Adam Liptak (New York Times) - December 15, 2009
• (*****) ... Cellphone Searches, Editorial (New York Times) - December 26, 2009
• (******) . And You Thought a Prescription Was Private, by Milt Freudenheim (New York Times) - August 9, 2009
• (1) see trial by combat in the Wikepedia
• (2) see legal framework in the main theme index of these fillips.
• (3) see "State versus Smith", Supreme Court of Ohio, December 15, 2009