We know online businesses have egregiously manipulated gaps in the law to further their private interests. Then there are the online businesses, including some of the aforementioned, which have engaged in unlawful behaviour, either intentionally, carelessly or recklessly. They only stopped when they were caught at it or were unmasked by a whistleblower or a leak.
But even in the liberal democracies Governments and other arms of the state e.g. the police and security services, have not always been entirely blameless, albeit their motivations might be substantially different.
What this means is there is a legacy of mistrust and suspicion about the actions and intentions of both of these key sets of players. In this context that mistrust and suspicion acts as an impediment to the introduction of better regulation of the internet, irrespective of the given or ostensible reason for any particular proposal or set of proposals.
For example, in relation to Governments the supposition is, regardless of who appears to have originated an idea for change, if a Government or Government agency advances or supports it, that can only or principally be because they see a way to use it to acquire more data about end users and this will somehow help them fulfil an undeclared political or law enforcement or security purpose.
With companies the supposition is, regardless of who appears to have originated it, if a commercial interest advances or supports a proposal for change it can only or principally be because they see how it would allow them to acquire more data about end users, data which they can then exploit, perhaps in novel ways to increase or maintain their profits.
Thus, despite what either or both might say, nothing can be taken at face value. There will always be a hidden agenda. Very cynical. Some might say paranoid. Maybe the cynicism and paranoia are fake, a feint feeding off the cynicism and paranoia but there you go. A malign feedback loop if ever there was one.
The mistrust and suspicion exist even if, perhaps especially if, changes to the status quo are proposed or supported by civil society organizations which are and have always been wholly and forever devoted to the public interest e.g. child advocacy and child protection agencies. We have been turned into “useful idiots”, tricked or manoeuvred by companies, or Governments, maybe both. Naive fools. Worse still, we may never have needed to be tricked or manoeuvred by anyone because we are blindly driven by beliefs or the Utopian humanitarian causes which are at the root of our organizations’ reasons for existing at all. Certain kinds of techies, lawyers and academics are specially prone to condescension of this type.
There is no point people like me getting upset by such patronising assumptions. They are a fact of life. Like rain. This is what happens in a world of zero trust. If there ever was a different kind of world, it is long gone and may never come back.
For these reasons, when we advance or advocate a policy which seeks to change the status quo we must be willing to accept, indeed we should argue for, independent scrutiny to confirm it will only do x and y but not z or any other letter of the alphabet. This could put NGOs at odds with Governments and industry, perhaps both, because both may have reasons for wanting to keep things under wraps.
Transparency mechanisms are therefore vital if the public interest is to be served in a way which instills confidence among all the relevant stakeholders. Nobody should be marking their own homework. We don’t allow it in banking, energy supply and a great many parts of our collective lives. Even the security services are subject to forms of judicial oversight. If it is difficult to create workable transparency mechanisms in the online space that is not a reason for giving up. It is a reason for pressing on, putting our best brains to work.
To put that slightly differently, we must be able to convince any reasonably minded person there is no deceit intended or likely. Even if someone wanted to, the proposals we are supporting cannot be perverted or diverted towards evil ends because our transparency mechanisms will soon expose them and thereby bring the malfeasance to a halt.
Broadly speaking proposals for change should also, of course, conform with the established corpus of nationally and internationally recognised human rights law, at least insofar as they are consistent with the new realities of cyberspace. But just as we must refuse to be prisoners of outdated technologies, there is nothing wrong with pointing out some laws were crafted and drafted in an analogue era. The values expressed by the laws I have in mind may be eternal, but their practical application must align with contemporary reality, not yesterday’s, much less the day before’s.
Emphatically, we do not want to get into the completely absurd position of the United States where, for example, the placing of a comma in a text written in the 18th Century attained the status of Holy Writ with the dreadful consequences we witness on our screens all too frequently. Then there’s that other 18th century shibboleth, Benjamin Franklin’s poetic declaration “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” OK but Ben famously never had a Facebook account and always refused to carry a mobile phone. We can now only guess what he might have made of either or both.
Reverting back to the main theme, even if the opponents of regulatory change are now vanishingly small and shrinking, they are still there. There is probably no argument or proof which will ever persuade them. Their minds are closed. Were the Archangel Gabriel to appear and endorse a policy or method of implementation they would believe he had been somehow got at by Lucifer and was therefore an unreliable witness.
While accepting we may never win over some people we cannot just dismiss or ignore them. They have repeatedly shown themselves willing to play to and exploit the background noise of suspicion and a lack of trust. Journalists love the kind of scare stories they can drum up and if journalists love it and report it politicians can be spooked by it.
But here’s the good news. The reason we can feel confident. As the pretence of the eternal and unquestioned goodness of tech in general and Big Tech in particular has faded, so public opinion has shifted decisively in favour of regulating the internet both generally and specifically in respect of the protection of children. The balance of political advantage has moved decisively in our direction. We must use this moment well.
Take, for example, the current debate about the acceptability of deploying tools to protect children in or around online messaging environments. We can definitely win that. But what do we do about internet users not living in liberal democracies where the rule of law is routinely honoured ? That’s a good question. These topics will be the subject of my next blog. The final one in this series. Probably.