The National Society
Magna Charta Dames and Barons
 National Society Magna Charta Dames®
Somerset Chapter Magna Charta Barons®

P.O. Box 4222, Philadelphia, PA 19144

Telephone: 215-836-5022; Fax 215-836-5056

National Society Magna Charta Dames and Barons Web Site

Text of Address By:
 Dr. Emm Barnes Johnstone
April 9, 2016 - Washington DC


Dr. Emm Barnes Johnstone led the Magna Carta project at Royal Holloway, University of London, based in Runnymede just two miles from the meadow where the charter was sealed, a role that saw the creation of an app for visitors to the site, a festival on the anniversary weekend, and a suite of legacy projects including the establishment of a doctoral centre for Magna Carta and it legacy at the college. 

 She led the development of a massive open online course about Magna Carta and its legacy which launched in 2015 with over 70,000 student taking the course.

Dr. Emm Johnstone is a public historian specializing in public history, sharing and developing insights into our past with diverse audiences through objects and images. Emm's fields of interest include medical history and in particular the history of care for the chronically ill, and the history of the rule of law, from 1215 up to the present day where law makers face new challenges through innovations in technology and through international trade, travel, and terror. Emm has co-authored two books (The Art of Medicine, University of Chicago Press 2011, and The Changing Faces of Childhood Cancer, Palgrave MacMillan, 2014).  

She is Executive Officer, Queen Mary University of London. Previously she was Senior Executive Manager and Science Outreach Officer at Royal Holloway University of London. She received her BA Hons and Phd. In Natural Sciences from University of Cambridge. Her Phd. Was In Victorian Theories of mind. She also studied at the University of Pittsburgh.

Her husband, Professor Adrian Johnstone, will be joining us for the dinner. Professor Johnstone is in the Department of Computer Science at Royal Holloway University of London, Centre for Software Language Engineering. He led the bid for £1m from the Leverhulme Doctoral Training Studentships scheme to create the Magna Carta Doctoral Centre, supporting interdisciplinary PhD research on the theme of Freedom and the Rights of the Individual in the Digital Age.



The Rule of Law in the Digital Age: harnessing Magna Carta to protect freedoms in a connected world

 Thank you for inviting me to join you at this lovely occasion. I want to talk today about the struggles faced by judges and lawyers, policy makers, journalists, and citizens, when trying to uphold the rule of law in the digital age. When so many of our transactions and activities take place in the virtual world, crossing nation states and legal jurisdictions, making use of platforms for social interaction that have short histories with little case law and few shared understandings of what is acceptable, it is no wonder that individuals, corporations and governments can behave in ways that prompt debate and disagreement about the legality and appropriateness of actions.


In particular, I want to focus on privacy, and what this means in the online world. How far can individuals be said to have a right to privacy, and where are its limits? Is there one law for everyone, or are certain groups of people, or perhaps some corporations, afforded greater protection than others? Do law makers, policy makers, journalists and citizens all share the same set of principles and understandings in these matters? Do understandings vary dramatically between countries and if so how can this be resolved? These are the questions that run through my mind when reading the steady stream of news stories that ask us to consider whether privacy in online activities should be afforded the same protections as family life in the home, and whether we should be concerned about the more or less conspicuous limits already placed on our online privacy by the needs of national security, the interests of companies promoting their products, and the actions of hackers.


We’re here this evening to mark our connection with Magna Carta. What does Magna Carta have to say about privacy? Nothing, if we search for the word itself in the document, but the Great Charter does mark the foundation of protection for privacy in two important senses:

-          1: it enshrines the freedom of the individual against the over-reaching of authority – we could call this “privacy of action”;

-          2: it codifies the right to retain one’s own property unless found guilty by one’s peers – we could call this “privacy of possession”.

Both these strands thread through current discussions of privacy, and provide fuel for legal debate when courtrooms are asked to rule on novel situations. The first strand can be seen shimmering in debates about whether and when government has the right to place limits on the freedoms of the individual (for example, an accepted asylum seeker in a country is told where to live, whilst citizens may live where they choose). The second strand runs through analysis of how and when governments may take a person’s property (for example, issuing search warrants for suspects’ property).


Privacy is protected explicitly in the Universal Declaration of Human Rights and in the United States Bill of Rights. The UN Declaration states in Article 12: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The Bill of Rights supports the protection of privacy under a number of amendments, most notably

-          Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…; and

-          Amendment XIV: No State shall deprive any person of life, liberty, or property, without due process of law.

 [As an aside, these two Amendments carry echoes of Magna Carta’s 39th and 40th clauses – combined as the 29th clause of the 1297 issue of the Charter:

-          39: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

-          40: To no one will we sell, to no one deny or delay right or justice.]


How the various Amendments apply in specific cases has kept the Supreme Court busy over the decades. How statements about the protection of privacy apply in digital contexts – including sales transactions, email conversations, and search engine search histories – has proved to be hard to establish once and for all. Public opinion, and legal debate, question whether law-abiding citizens do or should have the right to access whatever information online they like, without surveillance – “privacy of action”. Would we object, for example, to being watched via CCTV in a library with staff noting which books we get down off the shelves? If so, is it different when browsing web pages? Questions also arise about whether a person’s online history is a “possession” and thus should be protected from “unreasonable searches and seizures” – “privacy of possession.” Would we object, for example, to having police officers routinely collect our paper receipts from grocery shopping? If so, is it different when shopping online? What makes the digital world the same, or different? We are not asking about activities that are clearly illegal however and wherever they take place – selling cocaine, for example, or committing fraud – but about activities that are perfectly legal, and whether or not it is right and appropriate for governments and their agencies to have access to information about what we read, say, and do.


Let’s look at two recent cases, to see examples of how Magna Carta’s founding principles continue to shape legal thinking about the right to, and limits of, privacy in the digital world.


1. Cell phone searches

Two years ago, the Supreme Court was asked to rule on whether the outcome of the trial of Brima Wurie, found guilty of distributing crack cocaine, had to be overturned because his cell phone had been searched without a warrant. The Court was asked to decide if this was in breach of the Fourth Amendment protection against warrantless searches. Arguments against searching cell phones were raised by academics and lobbying groups, stressing that cell phones can store vast amounts of sensitive, personal information and that intrusions into this data jeopardise the very same privacy interests that the Fourth Amendment traditionally protected. The Court ruled that (i) the search of cell phone digital data is not vital in promotion of legitimate governmental interests in police safety and preservation of evidence during an arrest, and (ii) the search of cell phone digital data represents a major intrusion on the owner’s privacy. The Fourth Amendment has since been taken to guarantee some measure of privacy in the digital world. Individuals are deemed to have a reasonable expectation of privacy when using their cell phones, as they, or indeed we, do not make information about who we call publicly available and it is not judged reasonable to expect that our phone logs are being monitored all of the time.


2. The Onion Router, or Tor

Many of you will have heard of the “dark web”, the encrypted network that exists between Tor servers and their clients. It refers to content on the World Wide Web that can only be accessed using specific software or authorisations. The dark web is not just used by paedophiles, drug dealers, and terrorists, though that is its current reputation, and of course these groups and individuals do make use of it for their illegal actions, as it is harder to track people’s locations and real-world identities than in the rest of the World Wide Web where user’s Internet Protocol addresses are easy to track. For this reason, there are major programmes of activity in many governments’ intelligence networks to police the dark web.


What is probably less well known is that Tor, the software most commonly used for accessing the dark web, was developed by the US Naval Research Laboratory, and that the development work was funded by the Defense Advanced Research Projects Agency. The software has allowed pro-democracy activists in repressive regimes to communicate and organise without being identified. The technology itself is not suspect, but criminals have been attracted to it, since it seems to offer the promise of anonymity online.


Earlier this year, a federal judge in Washington released a court order arguing that users of Tor do not have a reasonable expectation of privacy for their Internet Protocol addresses while using the service. This was part of the case against a former employee of black market drug supplier Silk Road, shut down two years ago. The Justice Department linked the former employee’s IP address to Silk Road using a subpoena of Carnegie Mellon University’s software department that had been investigating Tor vulnerabilities to de-anonymise users. The judge ruled that since Tor users have to disclose their real locations to other Tor users as part of the software - to total strangers - users were not acting as though they expected privacy. So, users of a service designed to offer them online anonymity are not protected by privacy laws, as they are sharing personal information with strangers by virtue of using the software in the first place.



Legally, then, much hangs on whether a user of an online service can be said to have had the “expectation of privacy”. How many of us here have used a social media site such as Facebook, Twitter, or Flickr, or have signed up for gmail or yahoo? How many have read the terms and conditions of use, to understand what the supplier is entitled to do with our data? Often users are unaware of the legal status of their privacy until after there has been a problem – a legal challenge against that privacy, or an attack by hackers.


These worries about online privacy, and about the right and proper limits to it when we face so many global threats, continue to fill the news reports on a regular basis. The Ashley Madison data breach, obligations placed on technology companies to support policing, ongoing coverage of Snowden’s leaks, and new bills from Western governments striving to be more open about their surveillance capabilities, bring these concerns into everyday conversations. But should we worry about online privacy? Is there harm in allowing our governments to track what we read, say, and do online? Or is such monitoring overstepping the proper reach of authority, limiting personal freedoms that we date back to 1215?


Whilst oldies like you and me may struggle to make sense of our own views about privacy online, digital natives are much clearer about what rights should be protected in the digital age. During the first half of 2015, Tim Berners-Lee, the inventor of the internet, worked with the British Library on a project called The Web We Want. People aged 10 to 18 were asked to put forward clauses for a Digital Magna Carta. The top ten most popular clauses showed a high degree of overlap and agreement, and together pose a tough challenge to our judges and lawyers, policy makers, journalists and citizens, in every country: young people overwhelmingly want a web free from government censorship and mass surveillance in all countries. How to square this idealistic vision with the need to protect societies from criminal individuals is a topic too large for this talk. But this focus on the concerns of young people, and future challenges for us all in our diverse professions, does return us to Runnymede, and the work of my former colleagues at Royal Holloway.


After taking part in the 2015 celebrations of the Charter’s 800th birthday, it would be easy for Royal Holloway to wrap up the bunting and move on to the next project. But the connection with Magna Carta lies deeper than mere geographical location for the College. The continuing need for a charter detailing human rights, to limit the reach of governments and protect individuals’ freedoms, excites academics and students from across the Faculties, and so Royal Holloway has invested in legacy activities in both research and education.


My husband Professor Adrian Johnstone, an expert in theoretical computer science, led a College bid to the Leverhulme Trust to fund 15 PhD studentships to explore Magna Carta’s relevance in the digital age, a bid that has to date involved over 60 lecturers and professors across the College, coming from diverse disciplines and complementary perspectives. Projects being undertaken as part of the Magna Carta Doctoral Training Centre include:

-          a study of how the use of digital technologies is transforming the organisation and experience of paid work, across a range of economic sectors and occupations, raising questions for working lives and workers’ identities and personal freedoms (co-supervised by the School of Management and Department of Geography);

-          an investigation of the rights of individuals within the criminal justice system and in particular how staff can best share information about prisoner self-harming to protect prisoners without breaching ethical boundaries around information privacy (co-supervised by the School of Law and the Information Security Group);

-          a project to formally define market manipulation and abuse in high frequency trading from a statistical point of view, and test whether some electronic markets are prone to this by looking at unregulated markets where trading takes place in cryptocurrency such as bitcoins (co-supervised by the Departments of Economics and Computer Science);

-          a review of the hidden terms and conditions about what will happen with users’ data in online services, to support the development of a framework for the delivery of these services in a more transparent and accountable way (co-supervised by the Department of Computer Science and the School of Law);

-          a project to examine the attitudes of the white British majority towards various ethnic minority groups in the country, exploring the extent to which minorities are granted the right to assert and express their minority identity and distinctiveness, and the extent to which the majority feel the need to curb these rights to ensure social cohesion (co-supervised by the Department of Psychology and the School of Law);

-          an investigation of the role of personal values in restorative justice and other forensic settings, looking at whether participation is shaped by personal values and in turn changes the personal values of offenders who take part (co-supervised by the Department of Psychology and the School of Law).


The College’s commitment to education about Magna Carta includes, as I am sure you know, a new series of annual lectures, the first scheduled for 13th June. This will be given by David Anderson, the UK government’s Independent Terrorism Legislation Reviewer, on “Terrorism and Tolerance.”


The College will also be running a Constitutional Convention for the third year, again an annual event this time targeting young people aged 14-18 from around the South of England with plans to broaden participation in future years through involving digital delegates from around the country or indeed the world. Participants are asked to debate a number of instances where Magna Carta’s principles have been challenged in court, before drafting their own clauses for a new Charter and pitching these to one another in a large-scale debate.


Dr. Matthew Smith, who some of you may have met last June in the pop-up exhibition in Egham high street, took over from me when I moved on from Royal Holloway in September. His first focus has been to expand the sources of financial support for the education programme and I am delighted to announce that last month he secured a first-round approval for his bid to the Heritage Lottery Fund, for £0.5m to fund an expanded education programme for three further years. He now has the task of completing his audience development plan before resubmitting in the Fall for ‘round two’, in which 90% of projects are fully funded, so we are cautiously optimistic that he will secure this support. Those of you who are planning to visit Runnymede in June this year will have the chance to meet with Matthew, and I know he is keen to explore ways to make his planned classroom and community resources relevant to and widely available for use in the United States as well as the United Kingdom.


Thanks to the continuing support of Ted Neilson and the Magna Charta Dames and Barons, and the Magna Carta 800th Anniversary Committee, we have a new ten-year series of Fairhaven Lectures to plan, and visits from the Magna Charta Dames and Barons to look forward to. I hope to meet many of you again in Runnymede in just a few weeks’ time!


Thank you


Emm Johnstone’s Course: From Coursera: Freedom and protest: Magna Carta and its legacies:

This course was previously called: The Magna Carta and its Legacy. This course aims to lead students into a greater appreciation for and an understanding of Magna Carta and its significance around the globe, as we approach the 800th anniversary of its sealing. The course examines why Magna Carta was radical in its day, why it has been a source of numerous debates, and why this anniversary is being celebrated in the present.

Leverhulme Trust List of this Years Doctoral Scholarships:

The App: Runnymede Explored;

Emm Johnstone’s Book:   The Changing Faces of Childhood Cancer: Clinical and Cultural Visions since 1940 (co-written with Joanna Baines) will be out in January 2015.

Blog Entry Library of Congress:

 Suggested Readings

British Library website devoted to Magna Carta:

The Forum at the Online Library of Liberty for a selection of essays and images exploring and contextualising Magna Carta and its linkages with subsequent attempts to codify liberty, drawn from the last 100 years demonstrating changing readings of the importance of Magna Carta

Videos and images from the 750th anniversary of the sealing of Magna Carta, including

Articles free to access exploring Magna Carta’s uses in British and American history and the history of law, including and the texts of lectures given at Royal Holloway as part of a ten year series of Magna Carta themed public talks

- by Professor Shirley Williams by Lady Mary Arden



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