US-EU wars over privacy and discovery

Americans who do not sympathise with EU notions of private information need to learn some European history and to understand how the UK government’s erosion of personal liberty makes us cling to such privacy as we have left

I am obliged to the US site Gabe’s Guide for a pointer to an article in the National Law Journal about the clash between EU privacy and data protection laws and US e-discovery. The Gabe’s post is illustrated by a photograph of a big sign saying “Road Block Ahead” which echoes something I have said elsewhere: that whilst EU privacy is merely a bump in the road to EU lawyers – something else to identify and deal with – it can be a complete bar to US lawyers fighting in US courts (see Foreign collections need more than just big feet).

The US courts seem to us somewhat contemptuous of European notions of privacy, and their attitude is aptly described as “the second worst form of US imperialism”. I wrote about this in an article called Whose discovery rules would you rather break? in which I said that one US judge’s approach – perfectly proper by his own court’s rules – could be taken to mean that the “cheese-eating surrender monkeys could stuff their regulations up their blue and white striped blousons so far as his court was concerned”. You hardly need the  backing of the EU data protection laws to want to stymie an  attitude like that.

I will leave you to read the National Law Journal’s article When US E-Discovery meets EU roadblocks for yourself. You will get from it some examples which explain why EU data managers are not rushing to comply with the orders of distant courts. It is worth a moment to try and explain why we on this side of the Atlantic take a rather different approach to privacy than that taken by Americans.

Not the least of New Labour’s sins is the debasement of education and, in particular, of history teaching. The pursuit of trendy “relevance” (to say nothing of eye-catching “initiatives”) means that we are growing a generation who know nothing of history (they cannot spell or add up either, for much the same reason). They have not merely lost the framework of hard facts – dates, kings, battles – which serve as milestones and triggers and which give a context, but they also lack any understanding of the broader events which should serve as lessons from the past to the future. The history of our modern wars would have been very different if Tony Blair knew of the precedents of history – we have fallen before by accident and without a strategy into a long occupation (the bombardment of Alexandria in 1882 to remove a tyrant who threatened British interests), and the last Prime Minister who lied to Parliament about foreign pacts to attack another country (Eden, over Suez in 1956) is remembered for little else.

Many European countries know the value of privacy from bitter 20th century experience within the memory of people still living and able to recall millions more who died. The Germans who invaded most of their neighbours from 1938 onwards had neatly-typed lists, often provided for them by local collaborators, of those they disliked – Jews, gypsies, communists, homosexuals, the mentally-ill, and many other neat classifications which are arbitrary by our standards but which spelt deportation and death for millions. Stalin’s Russia rounded up millions more – their own people as well as Poles and others – because they met some specific or generalised criteria. More recently, Erich Honecker’s East Germany erected a system in which thought was a crime for which your neighbours would spy on you, collect information about you, and report you, resulting in massive filing systems full of unverified, unattributed data about the most minute personal details.

It is little wonder that Europeans fear the accumulation (and therefore the potential for dissemination) of this kind of data. Whatever value it may have in the right hands, its potential for evil in the wrong ones is enormous.

The fear is multiplied (at least in the UK) when we look at the path our own government is following, which daily resembles more and more the Honecker model. Ever more complex databases are established at fabulous cost. Tax, health, crime, education, personal and social characteristics, email and telephone conversations are being stored and cross-matched. The potential for evil is multiplied partly by the technical incompetence of those who specify, design and implement such systems and partly by the lack of control over those who use them.

The calibre of people given the power which is concomitant with the data is terrifyingly low. Yesterday’s paper carries news of a senior policeman who simply cannot see what was wrong with sending flat-footed Plods to arrest an MP and raid his home and office. My local police are encouraging busybodies to send them the licence numbers of vehicles driving over the speed limits so that they can collate the data and fine repeat offenders. Low-grade officials invoke the anti-terrorist laws to prevent behaviour which not itself illegal, or to justify poking and prying into private lives. New regiments of state-employed officials have powers to interfere in the minutest details of our lives – what goes into our bins, for example – and to record the results of their investigations. The Government plans to give private unregulated bailiffs the power to assault house-holders who seek to defend their property. We read almost weekly of private information lost because government and its employees lack basic procedures which should protect the data. Many, if not most, of these people, from bone-headed senior policemen down to the dimmest local authority drone, have no concept of individual liberty or the risks of its erosion by abuse and ignorance.

Any large organisation – private as well as public – cites “data protection” as the reason for being unhelpful. Ask for information on any subject and they say “dita protekshun” as short-hand for “bugger off, I can’t be bothered to help you”. I have taken to replying in kind – if asked, for example, when my wife will be home, I say politely that I cannot answer that for reasons of data protection. Try and photograph a policeman doing his job (our job, that is) and he may order you to hand over your camera, saying that data protection law prohibits it (it does not, so tell him to sod off and ask for his name and number – which he will probably not give you for alleged data protection reasons). It works (or, rather, does not work) the other way as well. Local authorities will not share contact information between departments, so that your local taxing authority (who obviously does know who you are in that capacity) will not recognise you if, say, you sign up for evening classes. The institutional incompetence which is the norm at this level of government is thus compounded with deliberate information starvation.

There are signs of a fight-back. The European Court has recently ordered UK police to destroy DNA samples of innocent people involved in police investigations, reckoning that the benefits of such a database are outweighed by privacy considerations and the risk of abuse in incompetent hands. The government has just bowed to pressure and limited those who can use surveillance powers – the investigatory powers invented to guard against terrorism were being abused for trivial reasons (as many of us predicted would happen) by dumb animals employed in junior positions in local authorities. People of this calibre are a dangerous threat to freedom when armed with powers and information beyond their intelligence.

In a pile of unread books beside my desk is Agnès Humbert’s Résistance: One woman’s defiance in Occupied France. It is unread because I have not yet found the courage to read about a woman arrested and sent to a slave labour camp by the Germans. A few doors away from me in Oxford lives a woman who, as a girl in occupied Holland, hid under a table whilst jack-booted German soldiers searched the flat in which she was hiding. If you add that legacy to the way that Brussels and the UK government erode freedom and delegate intrusive powers to those least fit to hold them, you begin to see why we resist any external attempts to access our documents.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Data privacy, Data Protection, eDisclosure, eDiscovery, Litigation Support. Bookmark the permalink.

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