The Berlin Group was established in 1983 by the Berlin Commissioner for Data Protection and Freedom of Information. The Group has, through its continuing examination of the data protection and privacy implications of telecommunications-based systems and services, developed into what the current Chairman and Berlin Commissioner, Dr. Alexander Dix, refers to as “an early warning system monitoring the risks arising from new technological developments, but at the same time, highlighting the opportunities of a privacy-friendly network architecture”.

The Group takes a very inclusive approach on what constitutes a telecommunications-based system or service. Over the years, this has resulted in a detailed examination of a broad range of subjects, everything from search engines and location-based services to social network services and road pricing systems.

In brief, this comes up in classrooms and at conferences in roughly the following exchange:

Q. “So, should I worry about what Google knows about me?”

A. “Maybe, but I’d worry more about what the government gets out of Google, then matches with what they already know about you.”

Around this issue, researchers like Chris Soghoian in the US (as well as Ben Hayes and Simon Davies overseas) have been pushing for greater transparency from both companies and government on the use of broad data production powers.  Last week, to their great credit, Google took a big first step and published an interactive map on the numbers and types of data requests they recieve from governments around the world.  This coincides with another important US private sector push – Digitaldueprocess.org – that is asking for clear, consistent and accountable measures to be put in place when government ask companies to ‘check up’ on their customers.

We commend Google and others involved for this significant first step, look forward to improvements and more details as they tweak the reporting model and sincerely hope other companies (and, ahem! governments) follow suit.

In Berlin alone, over 15,000 protesters gathered in a rally that ended at the Brandenburg Gate. (The organizers have argued that 15,000 is a lowball number from the authorities, and the actual number could be closer to 50,000.) Peaceful and creative action took place throughout Europe, including art performances in Vienna, public lectures in Rome, and the construction of a collage made from uploaded photos of UK surveillance equipment and tactics in London.

From the website of the German Working Group on Data Protection:

“Surveillance mania is spreading. Governments and businesses register, monitor and control our behaviour ever more thoroughly. No matter what we do, who we phone and talk to, where we go, whom we are friends with, what our interests are, which groups we participate in – “big brother” government and “little brothers” in business know it more and more thoroughly. The resulting lack of privacy and confidentiality is putting at risk the freedom of confession, the freedom of speech as well as the work of doctors, helplines, lawyers and journalists.

The manifold agenda of security sector reform encompasses the convergence of police, intelligence agencies and the military, threatening to melt down the division and balance of powers. Using methods of mass surveillance, the borderless cooperation of the military, intelligence services and police authorities is leading towards the construction of “Fortresses” in Europe and on other continents, directed against refugees and different-looking people but also affecting, for example, political activists, the poor and under-priviledged, and sports fans.

People who constantly feel watched and under surveillance cannot freely and courageously stand up for their rights and for a just society. Mass surveillance is thereby threatening the fabric of a democratic and open society. Mass surveillance is also endangering the work and commitment of civil society organizations.

Surveillance, distrust and fear are gradually transforming our society into one of uncritical consumers who have “nothing to hide” and – in a vain attempt to achieve total security – are prepared to give up their freedoms. We do not want to live in such a society!

We believe the respect for our privacy to be an important part of our human dignity. A free and open society cannot exist without unconditionally private spaces and communications.”

In the United States, Freedom Not Fear Day was supported by a number of NGOs, including the Electronic Frontier Foundation (EFF) and the Electronic Privacy Information Center (EPIC). Together, they issued a release calling for an end to watch lists and data profiling programs that fail to comply with the federal Privacy Act, the establishment of comprehensive data protection legislation, and the repeal of the Patriot Act.

But Freedom Not Fear Day was a decidedly more subdued affair in the U.S. Besides this endorsement and statement issued by EPIC, EFF and IP Justice, no other activities appear to have been scheduled to commemorate Freedom Not Fear Day in Washington D.C. Canadian activities were similarly subdued: the official website notes that a light projection was planned for Toronto’s City Hall but information on who organized it and how it turned out couldn’t be found.

Granted, the roots of Freedom Not Fear Day are in Berlin and the global day of action seems to have spread to other European capitals but it’s interesting to note that North Americans seem reluctant to stand up to the notion of “security theatre“.

Are we focusing on the street signs and landmarks that dominate our behaviour as individuals, rather than helping identify and lay the roads that will guide the development of our society?

That’s the question posed by Professor Ian Kerr of the University of Ottawa at a private function in Edmonton last month. Speaking to an audience of Privacy Commissioners, Assistant Privacy Commissioners and senior privacy advocates, he worried that:

“… idealism is no longer in vogue. … My concern is that we in the privacy advocacy community are taking approaches that shrink any space for idealism; and that, as a result, we in the privacy community are, quite unintentionally and inadvertently, undermining ourselves. We are creating for ourselves a kind of silence through which we will no longer be heard.”

Professor Kerr went on to cite Langdon Winner, writing in 1980’s Autonomous Technology:

“Shielded by the conviction that technology is neutral and tool-like, a whole new order is built – piecemeal, step by step, with the parts and pieces linked together in novel ways – without the slightest public awareness or opportunity to dispute the character of the changes underway. It is somnambulism (rather than determinism) that characterizes technological politics… Silence is its distinctive mode of speech.”

Many privacy protection authorities, whether provincial, federal or international, find that most of their time and energy is occupied protecting the privacy rights of individuals, on a case by case basis. This is a result of their mandate to enforce specific legislation, the processes established within each office, and the natural impulse to ensure an individual’s rights are protected, errors are corrected and wrongs are addressed.

Nevertheless, it is undeniable that privacy advocates – especially Privacy Commissioners – have an obligation to look beyond the transaction and to observe the trend, to anticipate challenges to our privacy rights and prepare counter arguments.

The text of Professor Kerr’s speech is available, as well as the audio.

But another aspect of data portability could and should be the ability to move your personal information right off the Internet altogether. Jean Burgess, a researcher based in Australia, recently blogged about the frustrations of removing herself from the social networking site Facebook. She writes:

“Oh, and by the way, in order to delete your Facebook account, apparently, you have to not only deactivate it, but also delete every single item you have contributed to the site (messages, wall posts, posts other people have written on your wall, photos, links to contacts, profile information) and then email customer service and request they delete your account completely. Oh, and also, in order to delete absolutely everything, I’d also have to re-add every single one of the applications I’ve ever had installed, and then go through and remove the content, and then delete the applications again. Because when you delete an application, guess what? Your data is still stored there somewhere.”

Sites like this (and the software developers that partner with them) don’t make it easy to take back your digital footprint. And they likely won’t change their practices until a critical mass of users start to clamour for change.

The proposal to link databases is ambitious: each proposed partner country has different standards for the collection, storage and use of biometric information.

Governments already share information across borders, but under strict controls designed to protect the rights, including the right to privacy, of innocent individuals. While international participation in the Server in the Sky program looks to be in its very early days, it will be interesting to see who participates, and how. In terms of Canadian participation, our citizens rightfully expect that their personal information remains safeguarded and understandably, could be reluctant to see that information freely shared with two countries that were ranked near the bottom of Privacy International’s ratings of privacy protection around the world.

But after we hand over that information, is it still ours? Can we change it, take it back, move it somewhere else?

Alec Saunders has drafted a Privacy Manifesto for the Web 2.0 Era that spells out four fundamental principles:

“Every customer has the right to know what private information is being collected….
Every customer has the right to know the purpose for which data is being collected, in advance….
Each customer owns his or her own information….
Customers have a right to expect that those collecting their personal information will store it securely.”

Imagine if we all took these principles to heart whenever we’re online – wouldn’t companies need to respond?

At present, while most businesses have usually been criticized for their disregard when it comes to their customers’ information, some companies are responding to customers’ desire for more control over their personal information. In fact, these companies are recognizing that handing control of personal information back to the customer could benefit the company as well.

Data portability, the idea that you can take your data from websites you currently use and transfer it seamlessly to another website, is gaining ground. The DataPortability Workgroup announced today that Google and Facebook, two companies which hold a remarkable amount of consumer data, have just signed on.

For the data portability movement, the participation of Google and Facebook means the idea has legs. Not surprisingly, we at the Office of the Privacy Commissioner are interested to see where it goes from here.

Then the Revenue and Customs agency in the United Kingdom lost all that information, and the idea didn’t seem that funny anymore.

The British-based law form Pinsent Masons came up with their interpretation of the idea, tailored to the data protection regimes in Europe:

“There is a stream of questions Santa has yet to answer,” said William Malcolm, a data protection specialist at Pinsent Masons, the law firm behind OUT-LAW.COM.

“Is this information used for anything other than present giving? Information passes out of the EU, so does Santa check the letters for unambiguous, specific and informed consent to this overseas transfer?”

OUT-LAW’s attempts to put the questions to Claus were hindered by the lack of an office chimney. Eventually the questions were put up a domestic chimney but no response was received by time of publication.

The Data Protection Act says that you must inform someone when you are collecting data about them, and tell them what the purpose of collection is.

“What about the naughty/nice database?” said Malcolm. “Are children given notice that behavioural data is being collected about them throughout the year? And does it qualify as covert monitoring, which would breach Article 8 of the European Convention on Human Rights?”

In November, several prominent security and privacy advocates participated in a debate at the University of Virginia’s Miller Center of Public Affairs. The resolution?

“In the war against terrorism, and with advances in technology, Americans need to lower their expectations of privacy.”

Participating were Marc Rotenberg, Lord Alderdice, Douglas Kmiec, and K.A. Taipale.

Videos of their statements and rebuttals are available on YouTube and on the Miller Center website.

Here’s an excerpt from opening remarks by Lord Alderdice, the former speaker of the Northern Ireland Assembly:

“These are not just questions of law, politics, and the constitution; they are also very human questions. Invasion of one’s personal space creates feelings. Likewise, terrorism creates feelings. Sometimes these feelings are so powerful that we respond emotionally rather than reflectively and thoughtfully. When governments react emotionally, they very often make mistakes and the laws created are frequently counterproductive.”

Donald Kerr, the principal deputy director of national intelligence, at the 2007 GEOINT Symposium, October 23, 2007 in San Antonio:

“When I’m at work, and throughout my day, security is safety, as a barrier against physical or emotional harm. When I go home at night, security is privacy, as an expectation of freedom from unnecessary burdens. In the intelligence community, we have an obligation to protect both safety and privacy…..

concern for privacy. Too often, privacy has been equated with anonymity; and it’s an idea that is deeply rooted in American culture. The Long Ranger wore a mask but Tonto didn’t seem to need one even though he did the dirty work for free. You’d think he would probably need one even more. But in our interconnected and wireless world, anonymity – or the appearance of anonymity – is quickly becoming a thing of the past…

Anonymity results from a lack of identifying features. Nowadays, when so much correlated data is collected and available – and I’m just talking about profiles on MySpace, Facebook, YouTube here – the set of identifiable features has grown beyond where most of us can comprehend. We need to move beyond the construct that equates anonymity with privacy and focus more on how we can protect essential privacy in this interconnected environment.

Protecting anonymity isn’t a fight that can be won. Anyone that’s typed in their name on Google understands that. Instead, privacy, I would offer, is a system of laws, rules, and customs with an infrastructure of Inspectors General, oversight committees, and privacy boards on which our intelligence community commitment is based and measured. And it is that framework that we need to grow and nourish and adjust as our cultures change.

I think people here [at the 2007 GEOINT Symposium], at least people close to my age, recognize that those two generations younger than we are have a very different idea of what is essential privacy, what they would wish to protect about their lives and affairs. And so, it’s not for us to inflict one size fits all. It’s a need to have it be adjustable to the needs of local societies as they evolve in our country. Eventually, we can only hope that people’s perceptions – in Hollywood and elsewhere – will catch up.

Our job now is to engage in a productive debate, which focuses on privacy as a component of appropriate levels of security and public safety…”