Pub Date : 2021-01-02DOI: 10.1080/13600834.2020.1807135
B. Simpson, L. Collingwood
The articles in this special issue arise from papers presented at the Socio-Legal Studies Association Annual Conference in Leeds in 2019. Few would have predicted that within twelve months the Covi...
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Pub Date : 2021-01-02DOI: 10.1080/13600834.2020.1807119
C. Giles
ABSTRACT Location-based mobile dating applications are often one of the richest sources of personal information readily accessible to strangers on the internet and in many cases this information now extends to a user’s HIV status and the date of their most recent sexual health test. Drawing on qualitative data collected from dating application users, this article considers how these features construct sexual health in a manner which reinforces the uneven distribution of responsibility for preventing HIV transmission. Examining the current legal framework covering HIV transmission criminalisation in England and Wales, this piece aims to illustrate the importance of understanding how these applications are used in practice, if they are to be used at trial.
{"title":"Digital disclosure: HIV status, mobile dating application design and legal responsibility","authors":"C. Giles","doi":"10.1080/13600834.2020.1807119","DOIUrl":"https://doi.org/10.1080/13600834.2020.1807119","url":null,"abstract":"ABSTRACT Location-based mobile dating applications are often one of the richest sources of personal information readily accessible to strangers on the internet and in many cases this information now extends to a user’s HIV status and the date of their most recent sexual health test. Drawing on qualitative data collected from dating application users, this article considers how these features construct sexual health in a manner which reinforces the uneven distribution of responsibility for preventing HIV transmission. Examining the current legal framework covering HIV transmission criminalisation in England and Wales, this piece aims to illustrate the importance of understanding how these applications are used in practice, if they are to be used at trial.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"30 1","pages":"35 - 53"},"PeriodicalIF":1.5,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1807119","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41527013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-08-12DOI: 10.1080/13600834.2020.1807134
Robert Herian
ABSTRACT The perpetual script of a smart contract, that executes an agreement machine-to-machine without prejudice, guarantees performance of ‘contractual terms’ enabling the exchange or transaction of cryptoassets and other forms of property. Yet, smart contracts as recognisable or valid legal instruments within the boundaries of contract or property law remain uncertain and contentious. Contrary to perceptions of contractual streamlining and efficiency, understanding the uncertainty smart contracts produce lies in the technology's failure to meet many of the fundamental principles of contract law and theory concerning, for example, breach of promise and remedy for breach. Smart contracts appear to reduce contracting to a form and standard well below that developed by contract law and theory over many centuries in both civil and common law jurisdictions. Including elements of the law of restitution, this article's remedial analysis will examine smart contracts considering ‘traditional’ contract law to understand and, where possible, test the legal legitimacy of this post-human technology, and explore the potential of smart contracts to supplement or, in time, supersede traditional contract law.
{"title":"Smart contracts: a remedial analysis","authors":"Robert Herian","doi":"10.1080/13600834.2020.1807134","DOIUrl":"https://doi.org/10.1080/13600834.2020.1807134","url":null,"abstract":"ABSTRACT The perpetual script of a smart contract, that executes an agreement machine-to-machine without prejudice, guarantees performance of ‘contractual terms’ enabling the exchange or transaction of cryptoassets and other forms of property. Yet, smart contracts as recognisable or valid legal instruments within the boundaries of contract or property law remain uncertain and contentious. Contrary to perceptions of contractual streamlining and efficiency, understanding the uncertainty smart contracts produce lies in the technology's failure to meet many of the fundamental principles of contract law and theory concerning, for example, breach of promise and remedy for breach. Smart contracts appear to reduce contracting to a form and standard well below that developed by contract law and theory over many centuries in both civil and common law jurisdictions. Including elements of the law of restitution, this article's remedial analysis will examine smart contracts considering ‘traditional’ contract law to understand and, where possible, test the legal legitimacy of this post-human technology, and explore the potential of smart contracts to supplement or, in time, supersede traditional contract law.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"30 1","pages":"17 - 34"},"PeriodicalIF":1.5,"publicationDate":"2020-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1807134","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48454630","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-08-12DOI: 10.1080/13600834.2020.1807117
Rachel Allsopp
ABSTRACT This article examines the big data practices employed by the online gambling industry to illustrate the wider societal power structures involved. As well as using data for commercial ends, gambling operators in the UK market are obligated by law to utilise gamblers’ data to protect problem gamblers. This paper argues that the use of data in this way can be interpreted as a form of social control when observed through a Foucauldian lens. Contrary to the dominant narrative of free and informed choice, gamblers’ behaviour is arguably being governed both at an individual level through disciplinary mechanisms of surveillance and correction, and at the level of the population through governmentality techniques applied to the gambling environment. Through big data practices and industry discourse, these mechanisms of power are used to frame the choices of individuals and shape them into a productive population of ‘responsible gamblers’.
{"title":"Leveraging the ‘power’ of big data in the production of ‘responsible gamblers’: a Foucauldian perspective","authors":"Rachel Allsopp","doi":"10.1080/13600834.2020.1807117","DOIUrl":"https://doi.org/10.1080/13600834.2020.1807117","url":null,"abstract":"ABSTRACT This article examines the big data practices employed by the online gambling industry to illustrate the wider societal power structures involved. As well as using data for commercial ends, gambling operators in the UK market are obligated by law to utilise gamblers’ data to protect problem gamblers. This paper argues that the use of data in this way can be interpreted as a form of social control when observed through a Foucauldian lens. Contrary to the dominant narrative of free and informed choice, gamblers’ behaviour is arguably being governed both at an individual level through disciplinary mechanisms of surveillance and correction, and at the level of the population through governmentality techniques applied to the gambling environment. Through big data practices and industry discourse, these mechanisms of power are used to frame the choices of individuals and shape them into a productive population of ‘responsible gamblers’.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"30 1","pages":"54 - 74"},"PeriodicalIF":1.5,"publicationDate":"2020-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1807117","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43447253","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-16DOI: 10.1080/13600834.2020.1794615
Tyrone Kirchengast
ABSTRACT Deepfakes are a form of human image synthesis where an existing picture or image is superimposed into a video to change the identity of those depicted in the video. The technology relies on machine learning or artificial intelligence to map an existing image, usually a photo of a person's face, to transfer that image to an existing video image. The technology emerged into the latter part of 2017, and has since given rise to apps and other programmes that allow users to create their own deepfakes. We already use filters and emojis to alter images by consent, however, deepfakes are particularly problematic because they allow for production of videos that are highly convincing, taken to be a real video of the person depicted. Deepfakes provide for the manipulation of all manner of video, but particular risks include videos produced to incite political deception, voter manipulation, commercial fraud, and ‘revenge porn’. The production of deepfake ‘revenge porn’ presents as especially insidious given the ability to transfer the face of any person onto an already existing pornographic video. Harm is exacerbated where that video is then disseminated, via the internet or by social media.
{"title":"Deepfakes and image manipulation: criminalisation and control","authors":"Tyrone Kirchengast","doi":"10.1080/13600834.2020.1794615","DOIUrl":"https://doi.org/10.1080/13600834.2020.1794615","url":null,"abstract":"ABSTRACT Deepfakes are a form of human image synthesis where an existing picture or image is superimposed into a video to change the identity of those depicted in the video. The technology relies on machine learning or artificial intelligence to map an existing image, usually a photo of a person's face, to transfer that image to an existing video image. The technology emerged into the latter part of 2017, and has since given rise to apps and other programmes that allow users to create their own deepfakes. We already use filters and emojis to alter images by consent, however, deepfakes are particularly problematic because they allow for production of videos that are highly convincing, taken to be a real video of the person depicted. Deepfakes provide for the manipulation of all manner of video, but particular risks include videos produced to incite political deception, voter manipulation, commercial fraud, and ‘revenge porn’. The production of deepfake ‘revenge porn’ presents as especially insidious given the ability to transfer the face of any person onto an already existing pornographic video. Harm is exacerbated where that video is then disseminated, via the internet or by social media.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"29 1","pages":"308 - 323"},"PeriodicalIF":1.5,"publicationDate":"2020-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1794615","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43028756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-14DOI: 10.1080/13600834.2020.1794617
Halefom H. Abraha
ABSTRACT Several initiatives are underway to address the jurisdictional and conflicts-of-law challenges triggered by the ubiquity of cloud data storage. By introducing a new approach for international cooperation through the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), the United States of America (US) leads the cross-border data access reform agenda. The US approach deserves closer scrutiny, given its impact in shaping international standards that govern law enforcement access to cloud data, as well as its influence on other impending reform initiatives. While a number of blogs and reports have been written about the CLOUD Act, a comprehensive academic analysis appears to be lacking. This article addresses this gap by examining the extraterritorial reach of the US government’s law enforcement powers, and conversely the powers of foreign governments to obtain data held by US-based service providers. Most importantly, this article scrutinises the adequacy of the substantive and procedural safeguards stipulated under the CLOUD Act.
{"title":"Regulating law enforcement access to electronic evidence across borders: the United States approach","authors":"Halefom H. Abraha","doi":"10.1080/13600834.2020.1794617","DOIUrl":"https://doi.org/10.1080/13600834.2020.1794617","url":null,"abstract":"ABSTRACT Several initiatives are underway to address the jurisdictional and conflicts-of-law challenges triggered by the ubiquity of cloud data storage. By introducing a new approach for international cooperation through the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), the United States of America (US) leads the cross-border data access reform agenda. The US approach deserves closer scrutiny, given its impact in shaping international standards that govern law enforcement access to cloud data, as well as its influence on other impending reform initiatives. While a number of blogs and reports have been written about the CLOUD Act, a comprehensive academic analysis appears to be lacking. This article addresses this gap by examining the extraterritorial reach of the US government’s law enforcement powers, and conversely the powers of foreign governments to obtain data held by US-based service providers. Most importantly, this article scrutinises the adequacy of the substantive and procedural safeguards stipulated under the CLOUD Act.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"4 2","pages":"324 - 353"},"PeriodicalIF":1.5,"publicationDate":"2020-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1794617","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41293569","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-07DOI: 10.1080/13600834.2020.1790092
Shakila Bu-Pasha
ABSTRACT Article 35 of the General Data Protection Regulation (GDPR) states that data controllers are required to carry out data protection impact assessment (DPIA) if a processing operation, particularly involving the use of new technologies, is ‘likely to result in a high risk to the rights and freedoms of natural persons’. The focus in this paper is on the role and responsibilities of data controllers in a smart city platform in assessing ‘high risk’ and the importance of impact assessment in relation to data processing with the latest technologies for the protection of personal data.
{"title":"The controller’s role in determining ‘high risk’ and data protection impact assessment (DPIA) in developing digital smart city","authors":"Shakila Bu-Pasha","doi":"10.1080/13600834.2020.1790092","DOIUrl":"https://doi.org/10.1080/13600834.2020.1790092","url":null,"abstract":"ABSTRACT Article 35 of the General Data Protection Regulation (GDPR) states that data controllers are required to carry out data protection impact assessment (DPIA) if a processing operation, particularly involving the use of new technologies, is ‘likely to result in a high risk to the rights and freedoms of natural persons’. The focus in this paper is on the role and responsibilities of data controllers in a smart city platform in assessing ‘high risk’ and the importance of impact assessment in relation to data processing with the latest technologies for the protection of personal data.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"29 1","pages":"391 - 402"},"PeriodicalIF":1.5,"publicationDate":"2020-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1790092","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49611479","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-25DOI: 10.1080/13600834.2020.1785663
Henry Pearce
ABSTRACT This article builds on previous literature in the data protection and freedom and information field, which has argued that the ‘release and forget’ disclosure model utilised by the (UK) Freedom of Information Act 2000 (FOIA) is unfit for purpose in the context of personal data that have been subject to a process of anonymisation, and that reform is necessary. Rather than outlining a detailed proposal for reform, the article intends to stoke debate in this area by highlighting a range of issues and factors that could help inform discussions regarding what shape any reform of the FOIA’s disclosure model should take. The article argues that the notions of privacy and data protection by design, data licensing, risk, contextual controls, metadata, and privacy enhancing technologies, should all have a role to play in respect of improving how anonymised data are disclosed under the FOIA.
{"title":"The (UK) Freedom of Information Act’s disclosure process is broken: where do we go from here?","authors":"Henry Pearce","doi":"10.1080/13600834.2020.1785663","DOIUrl":"https://doi.org/10.1080/13600834.2020.1785663","url":null,"abstract":"ABSTRACT This article builds on previous literature in the data protection and freedom and information field, which has argued that the ‘release and forget’ disclosure model utilised by the (UK) Freedom of Information Act 2000 (FOIA) is unfit for purpose in the context of personal data that have been subject to a process of anonymisation, and that reform is necessary. Rather than outlining a detailed proposal for reform, the article intends to stoke debate in this area by highlighting a range of issues and factors that could help inform discussions regarding what shape any reform of the FOIA’s disclosure model should take. The article argues that the notions of privacy and data protection by design, data licensing, risk, contextual controls, metadata, and privacy enhancing technologies, should all have a role to play in respect of improving how anonymised data are disclosed under the FOIA.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"29 1","pages":"354 - 390"},"PeriodicalIF":1.5,"publicationDate":"2020-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1785663","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46134681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-12DOI: 10.1080/13600834.2020.1759277
Mikael Lohse
ABSTRACT Safeguarding Finland’s national security is a collaborative function of the intelligence authorities and their clients and partners. This collaboration requires a sharing of national security information within the intelligence community, and with other public authorities – both domestic and foreign – as well as with enterprises and corporations. The first objective of this article is to distinguish norms regulating the sharing of national security information from the intelligence and data processing legislation, and to organise this legal substance into three categories: Disclosure of information in (1) national co-operation, (2) international co-operation, and for (3) crime prevention. The second objective is to identify areas of development in each of these three categories and accordingly suggest law and policy recommendations for the future.
{"title":"Sharing national security information in Finland","authors":"Mikael Lohse","doi":"10.1080/13600834.2020.1759277","DOIUrl":"https://doi.org/10.1080/13600834.2020.1759277","url":null,"abstract":"ABSTRACT Safeguarding Finland’s national security is a collaborative function of the intelligence authorities and their clients and partners. This collaboration requires a sharing of national security information within the intelligence community, and with other public authorities – both domestic and foreign – as well as with enterprises and corporations. The first objective of this article is to distinguish norms regulating the sharing of national security information from the intelligence and data processing legislation, and to organise this legal substance into three categories: Disclosure of information in (1) national co-operation, (2) international co-operation, and for (3) crime prevention. The second objective is to identify areas of development in each of these three categories and accordingly suggest law and policy recommendations for the future.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"29 1","pages":"279 - 290"},"PeriodicalIF":1.5,"publicationDate":"2020-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1759277","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48964031","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-05-04DOI: 10.1080/13600834.2020.1759276
T. San
ABSTRACT As data analytics become prevalent in industries in Malaysia to draw predictions about individuals’ habits and behaviour, it is important that certainty exists about the legal status of predictions vis-à-vis data protection law. The predictions can be privacy-intrusive and threaten individuals’ autonomy, although this may not always be so. The Malaysian Personal Data Protection Act 2010 is silent on the legal status of predictions. This paper examines whether the Malaysian Parliament should extend the Act to provide control to individuals over predictions about themselves. In doing so, the paper explores the position in the EU, Japan, Australia and the USA. The finding is that in those jurisdictions, predictions are within the remit of data protection law. It is argued that this is an over-generalisation and is inconsonant with commercial realities. The author advocates that a different approach be adopted to achieve a balance between individuals’ interest to control their data and commercial needs to use predictions without undue hindrance.
{"title":"Predictions from data analytics: Does Malaysian data protection law apply?","authors":"T. San","doi":"10.1080/13600834.2020.1759276","DOIUrl":"https://doi.org/10.1080/13600834.2020.1759276","url":null,"abstract":"ABSTRACT As data analytics become prevalent in industries in Malaysia to draw predictions about individuals’ habits and behaviour, it is important that certainty exists about the legal status of predictions vis-à-vis data protection law. The predictions can be privacy-intrusive and threaten individuals’ autonomy, although this may not always be so. The Malaysian Personal Data Protection Act 2010 is silent on the legal status of predictions. This paper examines whether the Malaysian Parliament should extend the Act to provide control to individuals over predictions about themselves. In doing so, the paper explores the position in the EU, Japan, Australia and the USA. The finding is that in those jurisdictions, predictions are within the remit of data protection law. It is argued that this is an over-generalisation and is inconsonant with commercial realities. The author advocates that a different approach be adopted to achieve a balance between individuals’ interest to control their data and commercial needs to use predictions without undue hindrance.","PeriodicalId":44342,"journal":{"name":"Information & Communications Technology Law","volume":"29 1","pages":"291 - 307"},"PeriodicalIF":1.5,"publicationDate":"2020-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/13600834.2020.1759276","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48876872","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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