Hi there Internet whānau, last week there were a couple of really interesting and thought provoking stories that came up. So, get a cuppa and let’s elucidate about censorship (bad), then dive into a recent US Supreme court case about unwarranted surveillance (bad, and under threat).
David Kaye suggests ways to “fix” platforms without resorting to censorship
David Kaye is the UN’s Special Rapporteur on the right to freedom of expression. As such, he’s been thinking a lot about freedom of speech, political influence and Internet platforms. His most recent report to the UN Human Rights Commissioner explores issues around hate speech, censorship and Internet portfolios and the post-Cambridge Analytica scandal regulation that is starting to happen.
Effectively, Prof. Kaye is talking to the wider debates and issues putting forward ideas that can help shape, debate and constrain unwanted behaviour (Nazis’ I’m looking at you) but without relying solely on crude, un-nuanced tools like automated moderation.
Read his piece, it’s good, and then if you feel like really diving in there is his full report to the UN (warning, it's long).
- Prof. Kaye’s opinion piece on Reuters: How to ‘fix’ social media without censorship
- You can download Prof. Kaye’s report on the promotion and protection of the right to freedom of opinion and expression here.
US Supreme Court declares that cell location data requires a warrant
Landmark case. Historic win. These are words that have been used over the weekend to describe the US Supreme Court’s decision in Carpenter vs United States.
What was the case about you ask? Effectively, it was a challenge to the “Third Party Doctrine” which hails from the 1970s and means that if your personal information or private information is shared with, or available to, a third party then you have waived privacy and search protections - the government does not need to get a warrant to get third party-held information.
In the information age, that has meant that Americans’ cell phone call records, location data, email content and metadata (if using a cloud provider), isp traffic records and so on have been available for law enforcement without a warrant.
The Carpenter case is the latest decision, and first Supreme Court decision, that amends the Third Party Doctrine. In a modern society your smartphone, and your cellphone provider hold huge amounts of telling information about you. Metadata is powerful and hugely useful for intelligence and law enforcement agencies.
This rule recognises that power, and accords some metadata (call location information) the same projections as the content of your communications or homes - officers must get a warrant.
We think that this is how it should be in New Zealand too. And we’re not alone. In 2016, the Independent reviewers for New Zealand’s Intelligence agencies recommended that metadata be treated the same as content data. And again in January of this year the Law Commission and Ministry of Justice’s review team recommended that New Zealand’s Search and Surveillance law (which creates the search warrants and production orders regimes for NZ law enforcement) should require warrants for access to metadata as well.
Unfortunately the NZ Government hasn’t announced its plans in response to the review, but we’ll be keeping an ear to the ground to help make sure that metadata is treated the same as other data when it does spin up a project to amend the search and surveillance act.
Would you like to know more?
- EFF blog: Victory! Supreme Court Says Fourth Amendment Applies to Cell Phone Tracking
- Orin Kerr’s excellent, but very legal, analysis at Lawfare: Understanding the Supreme Court’s Carpenter Decision
- Law Commission and Ministry of Justice review of NZ’s Search and Surveillance Act (also a very long read)
That’s us for this week. Take care of yourselves and each other!