National Society Magna Charta Dames and Barons Web Site
Text of Address By:
Dr. Emm Barnes Johnstone
April 9, 2016 - Washington DC
Introduction
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.
Talk
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
Links:
Emm Johnstone’s Course:
From Coursera: Freedom and protest: Magna Carta
and its legacies:
https://www.coursera.org/course/magnacarta
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:
https://www.royalholloway.ac.uk/studyhere/researchdegrees/feesandfunding/leverhulmedoctoralstudentships/home.aspx
The App: Runnymede Explored;
https://www.royalholloway.ac.uk/aboutus/newsandevents/events/magnacarta/magnacartaapp.aspx
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:
http://blogs.loc.gov/law/2014/10/a-magna-carta-mooc/
Suggested
Readings
British
Library website devoted to Magna Carta:
http://www.bl.uk/treasures/magnacarta/
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
http://www.britishpathe.com/video/750-years-of-liberty/query/Magna
Articles
free to access exploring Magna Carta’s uses in British and American history
and the history of law, including
http://www.historytoday.com/ralph-v-turner/meaning-magna-carta-1215
and the texts of lectures given at Royal Holloway as part of a ten year
series of Magna Carta themed public talks
- http://www.rhul.ac.uk/aboutus/documents/pdf/magnacarta/2007-lecture.pdf
by Professor Shirley Williams
- http://www.rhul.ac.uk/aboutus/documents/pdf/magnacarta/magnacarta8711.pdf
by Lady Mary Arden
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