(2004). Benefits and Drawbacks of Anonymous Online Communication: Legal Challenges and Communicative Recommendations. Free Speech Yearbook: Vol. 41, No. 1, pp. 127-141.

Benefits and Drawbacks of Anonymous Online Communication: Legal Challenges and Communicative Recommendations

This report presents the findings of the analysis of the state of the art conducted as part of the JRC research on "Exploring Digital Government Transformation in the EU: understanding public sector innovation in a data-driven society" (DIGIGOV), within the framework of the "European Location Interoperability Solutions for eGovernment (ELISE)" Action of the ISA2 Programme on Interoperability solutions for public administrations, businesses and citizens, coordinated by DIGIT. The results of the review of literature, based on almost 500 academic and grey literature sources, as well as the analysis of digital government policies in the EU Member States provide a synthetic overview of the main themes and topics of the digital government discourse. The report depicts the variety of existing conceptualisations and definitions of the digital government phenomenon, measured and expected effects of the application of more disruptive innovations and emerging technologies in government, as well as key drivers and barriers for transforming the public sector. Overall, the literature review shows that many sources appear overly optimistic with regard to the impact of digital government transformation, although the majority of them are based on normative views or expectations, rather than empirically tested insights. The authors therefore caution that digital government transformation should be researched empirically and with a due differentiation between evidence and hope. In this respect, the report paves the way to in-depth analysis of the effects that can be generated by digital innovation in public sector organisations. A digital transformation that implies the redesign of the tools and methods used in the machinery of government will require in fact a significant change in the institutional frameworks that regulate and help coordinate the governance systems in which such changing processes are implemented.

Exploring Digital Government transformation in the EU

The Role of the Epistemic Community in Influencing Privacy Legislation: The United States and the European Union

In Klass and others v Germany, the first surveillance case before the European Court of
Human Rights, it was acknowledged that the threat of secret surveillance posed by
highlighting its awareness ‘of the danger such a law poses of undermining or even destroying
democracy on the ground of defending it.’ This thesis considers a form of surveillance,
communications data retention as envisioned in Part 4 of the Investigatory Powers Act 2016
and its compatibility with the European Convention on Human Rights. This thesis highlights
that communications data is not only just as, if not more intrusive than intercepting content
based on what can be retained. It also reveals that communications data is mass surveillance
within surveillance. Additionally, this thesis demonstrates that communications data does not
just interference Article 8 of the Convention, but a collection of Convention Rights including
Articles 9, 10, 11, 14, Article 2 Protocol 4 and potentially Article 6. Each of these rights are
important for democracy and Article 8 and privacy underpins them all. Furthermore, this
thesis highlights that obligation to retain communications data can be served on anything that
can communicate across any network. Taking all factors highlighted into consideration, when
assessed for compatibility with the Convention, communications data retention in Part 4 not
only fails to be ‘in accordance with the law’, it fails to establish a legitimate aim, and fails to
demonstrate its necessity and proportionality. In establishing that communications data
retention as envisaged in Part 4 of the Investigatory Powers Act 2016 is incompatible with
the Convention, it demonstrates that it undermines democracy and has sown the seeds for its
destruction. Not only would the findings of this thesis create an obstacle to an UK-EU post-
Brexit adequacy finding, it would have an impact beyond UK law as many States in Europe
and outside seek to cement data retention nationally.

Surveillance law, data retention and risks to democracy and rights

Artificial intelligence, or AI, promises to assist, modify, and replace human decision-making, including in court. AI already supports many aspects of how judges decide cases, and the prospect of “robot judges” suddenly seems plausible—even imminent. This Article argues that AI adjudication will profoundly affect the adjudicatory values held by legal actors as well as the public at large. The impact is likely to be greatest in areas, including criminal justice and appellate decision-making, where “equitable justice,” or discretionary moral judgment, is frequently considered paramount. By offering efficiency and at least an appearance of impartiality, AI adjudication will both foster and benefit from a turn toward “codified justice,” an adjudicatory paradigm that favors standardization above discretion. Further, AI adjudication will generate a range of concerns relating to its tendency to make the legal system more incomprehensible, data-based, alienating, and disillusioning. And potential responses, such as crafting a division of labor between human and AI adjudicators, each pose their own challenges. The single most promising response is for the government to play a greater role in structuring the emerging market for AI justice, but auspicious reform proposals would borrow several interrelated approaches. Similar dynamics will likely extend to other aspects of government, such that choices about how to incorporate AI in the judiciary will inform the future path of AI development more broadly.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3404992_code974617.pdf?abstractid=3390854&mirid=1

Developing Artificially Intelligent Justice

IN TRO D UCT ION 192 I THE FOURTH AMENDMENT 197 A "Real Space" Cases 198 1 Root of the current doctrine: Katz v United States 198 2 Communications privacy part II: pen registers, Smith v Maryland  201 3 Record retention: The bank cases 204 4 Synthesis of the doctrine 206 B Application to the Internet 206 1 Are the records in the possession of a third party? 208 2 Were the records voluntarily turned over to the third party? 208 3 Would an inquiring user have realized that the technological context enabled third-party access? 209 4 Do the records capture communication "content"? 211 C Lower Court Decisions 212 D Conclusion on the Fourth Amendment 214 E Reasons to Distinguish the Internet from Real Space 215 II THE FIRST A M ENDM ENT 216 A Anonymous Speech in Real Space 217 1 The right to give information anonymously 218 2 The right to associate anonymously 221 3 The right to receive information anonymously 222 B Data Retention and Anonymous Speech Activity 223 1 The value of online speech 224 2 Anonymity versus accountability 225 C O N CLU SIO N 229

Data Retention: Privacy, Anonymity, and Accountability Online

The Seattle police obtained a surveillance drone with the approval of a city council that did not realize what it was doing. Following a council review that lasted literally two minutes, Oakland created a data integration center that networked together all of the city’s existing surveillance infrastructure. In San Diego, elected representatives were only dimly aware that the law enforcement agency they supervised had built and deployed innovative facial recognition technology.In an age of heightened concern about the militarization of local police and surveillance technology, how is it possible for local law enforcement agencies to obtain cutting edge and potentially intrusive surveillance equipment without elected leaders and the general public understanding what they are doing? The answer lies in the multi-billion-dollar process of federal procurement, through which the federal government, often in the name of combatting terrorism, funnels resources to local law enforcement agencies to purchase surveillance equipment. But the federal government does not take steps to ensure that local elected representatives and members of the public are involved in decisions about what technologies to acquire, or that anyone develops a protocol to constrain how the technologies are used. Surveillance policy making by procurement thus raises a host of questions related to accountability for policy choices when the federal government influences local policing through grants but does not address all relevant concerns, and how to deal with the inevitable spillover effects of the federal government’s national security initiatives on the ways local law enforcement agents carry out their more routine policing functions.This article is the first to comprehensively consider the intersection of procurement and local surveillance policy making. Using case studies from Seattle, Oakland, and San Diego, it exposes the practice of surveillance policy making by procurement. The case studies highlight the structural and institutional factors that lead to surveillance policy making by procurement, and elected representatives’ responses to it point the way towards policy solutions that would bring a greater measure of transparency and accountability to local surveillance policy making. The case studies also provide fodder for thinking through the way federal spending programs can generate confusion over who is responsible for policy choices, and how the federal government’s national security policies have spillover effects on the conduct of routine policing. Local communities vary greatly, in their crime rates, the competence and trustworthiness of their police departments, and in their political convictions. This article draws on the case studies to suggest that local governments have a valuable role to play in tailoring surveillance policy to local conditions. It concludes by proposing politically feasible steps to strengthen local democratic input regarding what surveillance technology should be adopted and the conditions under which it should be deployed.

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Surveillance Policy Making by Procurement

Online multimedia has been growing rapidly due to ubiquitous mobile phones, widely deployed surveillance cameras, dashcams and mini-drones. When one takes photographs or videos at a public location, it is highly likely that some other people ("bystanders") also appear in the visual data. The data may be available online, such as shared by social media, and questions about privacy arise. This panel discusses the issues about privacy in online multimedia from legal, technological, and social aspects.

https://dl.acm.org/doi/pdf/10.1145/3123266.3133335

Privacy Protection in Online Multimedia

INTRODUCTIONOne day some of us showed up [to] committee and there were some objects on [the] table. It turns out they were drones. We didn't even know we owned drones. We looked at each other [and asked], where did these come from? And then someone said, oh, you approved it two years ago.1-Seattle City Council Member Nick LicataThe heavily militarized response to those protesting the police shooting of Michael Brown in Ferguson, Missouri generated real shock among members of the public, who did not realize that the federal government provided military-grade weapons and equipment to local law enforcement agencies. In the aftermath, the White House conducted a top-to-bottom review of federal support for local law enforcement equipment acquisition.2 It concluded that "training has not been institutionalized, specifically with respect to civil rights and civil liberties protections[.]"3 It also found that "[l]ocal elected officials are frequently not involved in the decision-making" about what technology their police forces acquire, and the general public is "unaware of what their [law enforcement agencies] possess."4These statements are equally true of federal programs promoting the acquisition of surveillance equipment. The primary difference is that while the public does eventually witness the use of force, surveillance, by its nature, remains largely invisible. Yet surveillance equipment is also susceptible to abuse. The federal government's role in promoting its use merits close attention. This Article begins that work.Federal agencies make considerable funds available to local law enforcement agencies, in the form of grants, to acquire surveillance technologies. Congress substantially increased the amount of funding available in response to the 9/11 terrorist attacks, reflecting the view that local cooperation was essential to prevent future incidents of terrorism. 5 its interest in enhancing the capabilities of local law enforcement agencies is likely to increase because anti-terrorism experts are convinced that Orlando and San Bernardino-style "home-grown" terrorist incidents are now a substantial threat to our security and safety.6By influencing the process of procurement, the federal government can entice local police departments-over which it has no formal control-to enhance their surveillance capabilities in line with federal priorities. But this approach, which this Article refers to as surveillance policy making by procurement, has a variety of additional consequences. For the most part, local law enforcement agencies are directed and controlled by locally elected government officials, who are in turn subject to the pressures of local public opinion. Surveillance policy making by procurement can short-circuit this process when elected officials and the public are left without a meaningful understanding of what technologies their law enforcement agency is acquiring. This can create a governance void, in which law enforcement agencies deploy powerful surveillance technologies in ways that may conflict with local political preferences. Moreover, because the same surveillance technologies that are useful in investigating terrorism are also useful in investigating more routine forms of criminal conduct, federal programs created with the War on Terror in mind can have significant effects on standard law enforcement work.To better understand surveillance policy making by procurement, this Article develops three case studies: Seattle's acquisition of a drone and deployment of a "mesh network"; Oakland's construction of a "domain awareness center"; and San Diego's rollout of facial recognition technology. The technologies that Seattle, Oakland, and San Diego acquired are not marginal improvements on existing tools.7 All substantially increase the capacity of a law enforcement agency to collect, store, analyze, and share information about individuals, with a potentially significant, negative impact on privacy. …

/pdf/surveillance-policy-making-by-procurement-34fv6gljwv.pdf

Catherine Crump

Papers

Data Retention: Privacy, Anonymity, and Accountability Online

Surveillance Policy Making by Procurement

Privacy Protection in Online Multimedia

Surveillance Policy Making By Procurement