Judicial conservatives open to protecting digital rights

Wired on Friday: This month saw prominent US senator Ted Stevens attempt to understand the internet in terms of a truck passing through a "series of tubes". Immediately afterwards, he put the finishing touches on a law he helped draft that would rewrite the rules of the internet, writes Danny O'Brien

As the very ways we communicate and interact change around us, it is often asked: how can we update our legal ideas of privacy, free speech, due process and free association when our regulators move so slowly and the hardware and software our society runs upon changes so quickly? Perhaps the answer is less with the "tubes" and the "trucks", and more with the steady ground of tradition that lies beneath them.

As lawmakers lumber towards dangerously confused decisions about regulating the internet, it looks like the last hope for a flexible online world may lie with the most conservative wing of public administration - the courts. Judges across the world are now being asked to interpret outdated precedent and ill-considered new laws, and are obliged to make the best of it.

The good news is that, in many US cases, they seem to be one of the few groups able to make sense of the new while preserving the best of the old. We may see shortly whether Irish judges are as comfortable making these decisions as their US equivalents.

Before I go any further, I should declare my own special interest here. Trailing each of these columns for more than a year now has been the mysterious coda that explains that I'm the activism co-ordinator for the Electronic Frontier Foundation (EFF). For the past year, that has indeed been my day job.

Fascinating a workplace though it is, I've tried to keep the EFF out of my columns. But for those of you who have wondered which frontiers I have been electronically and actively co-ordinating the foundation of, let me briefly explain.

The EFF is an ancient internet group, of over 16 years' vintage, dedicated to preserving civil liberties in a world forged from new technology. It's hard to adequately convey the importance of this relatively small San Francisco non-profit organisation: if, for example, you use encryption to conduct your online purchases, you can thank the EFF for its fight to establish the right to encrypt as being as important as the right to free speech in the US judicial system.

The uncensored nature of the internet is, in part, down to the organisation's work battling various early censorship plans by the US government.

The EFF is an amazing place - but of course I would say that, and may, I fear, do so at length if provoked. Let me, then, briefly drag it into this column to highlight how the modern EFF works.

Rather than lobbying the US congress or the executive, or even the UN, the EFF has found its most successful strategy is through the courts. A non-profit agency employing less than 30 people has managed to challenge public internet policy and force major climbdowns by large corporations, all in the name of the most treasured but rarely-defended values - human rights - and all through the power of the courts.

Speaking positively, one might say that this is because US judges are accustomed to taking old and vague definitions and conservatively applying them to new situations uncovered by society.

To give an example: Apple tried to ignore California's protection of journalistic sources when they subpoenaed the internet records of some websites' internet service providers (ISPs). Apple effectively claimed that internet journalists just weren't the same as "proper" journalists. When defended by EFF's lawyers, the judges were quick to establish that journalists should have similar protections, no matter where they practised their work.

The irony is that the US courts are, by design, aggressively conservative (with a small "c"). They seek to square new law and business practices with the prior traditions of society.

This week, a similar battle may well commence in the Irish courts. A similar group to the EFF, Digital Rights Ireland, is considering legal action against the Government over its data retention policies with regard to ISPs within the State.

It will not be an easy case for the courts to decipher. Irish politicians have given lip service to privacy and proportion, but their actions have not always been consistent.

New telecommunications technology gives tremendous opportunities for secure and ubiquitous communication between us and our friends, family and business associates. It also gives governments the chance to make land grabs over our rights and our privacy. It is hard for an executive to resist that temptation, or judge how best it should moderate any new power it aggregates to itself.

The storing and divulging of years of personal data about every Irish citizen's communications is a momentous new power, and needs to be considered seriously.

Should Digital Rights Ireland conduct its case against the practice of data retention in the State, the courts may be the first and last to truly deliberate over that power. If Digital Rights Ireland pursues its case, it and the Government may find judges are the same the world over: able to peer through the hype and smoke of the newest gadgets and technology we use, and see the deep values and principles they should preserve underneath. However they decide, we, and the internet, deserve our day in court.

• Danny O'Brien is activism co-ordinator of the Electronic Frontier Foundation.