What Roles Should Tech Companies and Governments Have in Defining Due Process for Data?

So about the sources and uses of all that data. The more of it we create and use and profit from, the more questions appear to be arising about who owns it, who can use it, in what circumstances and for what purposes.

In other words, the issue of 'due process' with all of its legal, political and financial implications is coming into play. And if it were all that simple we'd quickly establish all those rules and parameters, then get back to the more urgent business of mining coin from the stuff.

But, alas - or maybe thank goodness! - it is far more complicated than that. The fundamental issues, as the following article articulates, is that we are not sure, nor are we in agreement, about what who is due what and by which process.

These disagreements quickly encompass much larger social challenges about the role of government versus the private sector, the primacy of ownership and by whom, as well as the imponderable question of whose rights are more important than who's.

We will, inevitably, turn to the courts to settle these matters since we seem incapable of negotiating anything in a civil manner anymore. But the courts have no better sense of this than the rest of us and, in an age of lightning fast developments, a penchant for looking to past precedent for guidance even when there is no such thing because nothing like this was ever attempted or seen before. Not, of course, that we will let that stop us. But still, it should give one pause, if only to contemplate into whose hands we are assigning the future of value and values. JL

Phillip Bobbit comments in the Financial Times:

Decentralization, devolution and commodification of technology are all part of a general evolution in the constitutional order from the industrial nation states that fought the world wars of the 20th century to the informational market states that are now emerging.
One can imagine the outrage among telecommunications executives at the statement in these pages by Robert Hannigan, the head of GCHQ, accusing US technology companies of becoming the “command and control networks of choice” for terrorists. Yet during the cold war, AT&T’s Bell Labs co-operated with American intelligence agencies to produce technologies that could retrieve data from a tapped undersea communications cable. It was an achievement of which all parties were exuberantly proud. What has happened?First, encryption has become commodified. When the press reported that the US National Security Agency had broken BlackBerry encryption, there was widespread consternation. Why would the NSA need to collect all those private conversations? In reaction, a US senator waved his mobile phone on the floor of the Senate and announced that all private conversations between Americans were being spied upon. In fact, the NSA has no interest in the communications of ordinary US persons, even those as exalted as senators. It is simply that the means of encryption have passed to the private sector.During the cold war, the NSA had to break codes used by foreign military and intelligence agencies and by no one else. Now encryption techniques are widely available. As Mr Hannigan notes, these techniques “are supplemented by freely available programs . . . many of them proudly advertising that they are ‘Snowden approved’.”

Second, the targets of legitimate surveillance have become decentralised. In the cold war, the US and her allies knew who our adversaries were. Military targets, diplomatic communications and counter-intelligence personnel were confined to a small number of generally identifiable groups of persons. Postal regulations forbidding the interception of the mail, and warrant requirements for wiretaps made explicit exceptions for such national security surveillance. Now the targets of legitimate surveillance do not wear uniforms, do not operate from embassies, and do not reside in compounds denoted by foreign flags. Indeed, determining precisely who the enemy is has become a large part of frustrating his intentions.

Third, the communications infrastructure has become radically devolved. It is hard to imagine an AT&T executive in the 1950s and ‘60s proclaiming: “We don’t believe in creating back doors” – that is, proudly asserting that his company has no intention of co-operating with US or UK intelligence. It shows how far we have come in the globalisation and devolution of the communications infrastructure that another executive could assert the riposte: “What should we do if the Saudi or Russian government also demanded information be handed over?” It is clear that, for this executive his company’s customers are the number-one priority.

We can look at these developments as isolated problems but in fact they are all part of a general evolution in the constitutional order from the industrial nation states that fought the world wars of the 20th century to the informational market states that are now emerging.
Decentralisation, devolution and the commodification of technology (including weapons) are hallmarks of both market states and market state terrorist organisations. Appreciating this ought to help us find ways to cope with these issues.

For one thing, states are the arbiters of the legal process, not corporations. It is scarcely sufficient for a technology executive to announce that any change in the procedures would amount to “eliminating due process”. The point is: what process is “due”? In a state under law, we have legal institutions to answer this question – representative institutions and independent courts.