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Data Abuse Laws Abuse Liberty · Saturday September 05, 2009 by Crosbie Fitch

“Laws should be tightened to give judges the option to jail people found guilty of serious abuses of personal data”, the UK’s Information Commissioner has said.

How can an individual possibly abuse data? Even if the data represents collection of personally sensitive details?

Data is inert and immutable, it is not a living being, nor is it part of one.

You may feel that the fact you have a particular disease or political viewpoint is a little piece of you that is wandering the digital cosmos, but that’s superstition. The facts you reveal about yourself, that you confide to others, are your speech, not your person, and they leave your body, loosed from your control the moment they leave your mouth. You remain unable to bind others to secrecy, to gag them, with your confidence. You can only trust them to remain discreet. If you don’t want anyone else to disclose your secrets, don’t reveal them to anyone else. You can’t reveal them and yet claim the supernatural power to constrain their further dissemination. Of course, with a corrupt government, you may well beg and be granted the privilege of doing so.

Individuals have never naturally had the power to prevent others’ indiscretion, so simply because with more information people can be more indiscreet, why does this principle fly out of the window? If anything, the fact that despite their lip service, government and military agencies find it very easy to play fast and loose with the data in their care should reduce the temptation to criminalise the negligent or indiscreet individual, not increase it.

Why is the ‘Information Commissioner’ singling out individuals for incarceration as punishment for their indiscretion (their natural liberty and right to communicate the knowledge they have been made privy to), instead of the membership organisation that had been entrusted with the care of the information leaked by one of its ex-employees? Regulate the organisation to discretion by all means, but don’t penalise and incarcerate individuals for breaching the trust of their employer.

From a natural rights perspective, the principle should be that individuals are to be entrusted with the care of sensitive information, whereas corporations are to be distrusted. This means that individuals are not to be prosecuted for failing that trust (they are subject to reputational consequences), whereas corporations may be regulated to adhere to a duty of care and consequently may be appropriately penalised for negligent or vicarious disclosure.

This is the information age, the age of instantaneous diffusion. Anachronistic privileges such as copyright that pretend the power to constrain dissemination are revealing their ineffectiveness in front of us, and yet instead of confronting the reality they’re failing to hide, the authorities are still attempting to reinforce them with ever harsher penalties against the individual, and in the case of ‘personal’ information, creating new ‘non disclosure’ laws to punish them.

The fact that people must communicate to live has been recognised for millennia and is why we have this principle of freedom of speech. See Fire in a Crowded Theater for its only ethical limitations.

The only reason secrets do not travel is because the people entrusted with them are inclined to be discreet, not because those who’ve confided them have any natural right to gag those they tell them to.

Can anyone expect justice from Judge John Stobart who said “while there may be some members in this organisation who do not deserve to be protected by the law, they should be able to expect that officers within the organisation will not abuse the information provided to them.

A judge who believes some individuals do not deserve protection by the law? That is breathtaking – an abuse of justice far worse than the abuse of information he purports. Abandon all human rights ye who enter his courtroom.

One may well hope that any sensitive information provided to a membership organisation would be kept confidential, and one may well wish to be able to sue that organisation for negligence if through incompetence they fail, but that doesn’t extend to suspending the liberty of its (ex)employees, whether fining or incarcerating them. They have the potential opprobrium or approbation of the public and their peers to look forward to.

 

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