NeverSeconds, Leveson and the Snoopers’ Charter add variety to the eDiscovery world

If you wonder why I spent Saturday pouring out articles, it is because Saturday was the only day last week which did not involve a plane, a train, a seminar or a recording of some kind. The rest of the eDiscovery / eDisclosure world does not, alas, stand still just because I am on the run, and there is a lot of useful and interesting stuff going on. Apart from eDiscovery, I am interested in liberty of the subject, freedom of speech and marketing in the broader sense of public image, and the UK has given us some splendid examples of cock-ups in each of these areas in the past few days which provide amusement value and object-lessons.

May and June are always busy times anyway. As I write this, I am in the US for the fourth time since the end of April. I have yet to finish writing up the Asia eDiscovery Exchange 2012 in Hong Kong a few days ago. In between, I have been to Leeds for a three-hour CPD seminar and taken part in a London talk with HHJ Simon Brown QC and Nigel Murray of Huron Legal, which I will write about separately.

I am at The Breakers in Palm Beach, Florida for the Nuix Information Governance Leadership Forum which opened yesterday with a keynote speech from Debra Logan, Distinguished Gartner Analyst which, again, I will write about in due course. The Breakers itself is quite remarkable. Its core is a copy, as opposed to the usual pastiche, of the Palazzo Carrega-Cataldi in Genoa, and it shows that monumental scale is not incompatible with restrained good taste.

So what has been going on in the UK in the last few days which has bearing on the interests of this blog?  One should start by emphasising that not all UK local authority staff are stupid, just as there are honest politicians, and conscientious and even commercially-minded civil servants. I write about the rest. We have seen Twitter used as both a sophisticated political weapon and as a way of forcing dull, petty bureaucrats into common sense, whilst showing also that even “what I had for lunch” can trend on Twitter in the right hands.

It seems important to mention all this  by way of introduction on a day after the Times reports that Tony Blair described Gordon Brown as “brilliant but bonkers”, and that the government is looking for ways of appointing civil servants who are not obstructive by default. We also learn that Alastair Campbell sneered at Armando Ianucci’s OBE, saying that “three little letters can have more impact than you realise”. Ianucci proved the point by return, with three letters in reply, “WMD”, showing that you need only a fraction of Twitter’s 140 characters plus a few seconds of inspiration to create a missile more devastating than the weapons of mass destruction which Campbell and Blair invented together to mislead Parliament into backing the Iraq war.

The NeverSeconds blog and power of social media

Let us start with blogs and tweets about food, the power of social media and the humiliation of a local authority plonker.  My interest in this, apart from the obvious gratification from seeing council runts put in their place, is that I talk a fair amount about social media policies, which come my way both because of their eDiscovery potential and in relation to  marketing and the public profile of organisations.  This story has no eDiscovery component and is more about how (not) to react to an incipient social media disaster than about heading it off.

The blog is called NeverSeconds and is written by a primary school pupil called Martha Payne. Her blog chronicles the meals served at her school in terms which, whilst less complimentary about them, and particularly their size, is balanced and fair. It also raised money for a charity which provides food for children around the world. Martha’s school itself was supportive, but the blog came to the attention of some pen-pusher at Argylle & Bute council who, with all the dimness and self-importance of the breed, banned the taking of photographs on the school premises. Martha clearly has a talent worth encouraging by her education authority, you would think, and anyone brighter than a plank would have spotted both the chance of a feel-good story and the potential to bring down a firestorm. Within no time at all, Twitter took Martha’s cause to its collective heart. NeverSeconds started trending on Twitter, Martha quickly earned a place in Wikipedia under the Streisand Effect, cash started rolling into Martha’s MyGiving page (£91,500 at the time of writing, or 1,307% of its original target of £7,000), and we all watched to see what Argylle & Bute would do – would it dig itself a deeper hole or cut its losses? Common sense prevailed: the pen-pusher was over-ruled and the ban was rescinded.

One might say that there was no way of preparing for this, beyond recruiting intelligent people, training them and establishing clear reporting and reacting lines – but that would have been a good start. In a sense, it does not really matter what happens in some tin-pot local authority – no-one admires them anyway, their income will not be affected and no-one ever gets disciplined at local councils for incompetence or inadequacy. The story illustrates, however, the incendiary nature of social media.

The Leveson Inquiry

The Leveson Inquiry has generated some jollity, at least for those of us not directly involved. In addition to its importance to press freedom, and thence to democracy, it is of interest to eDiscovery / eDisclosure people at two levels, one to do with the keeping and preserving of electronic evidence and one to do with its production.

There is probably not much point in lecturing News International on the merits of document retention and single-instance email archiving. It had a document retention policy – delete everything embarrassing – and would not have been grateful for a system which defeated that. That lesson is for those companies whose senior management wishes to avoid the imputation that it destroys inconvenient documents, who wants to control its staff’s ability to do so, and who would prefer to be able to comply with its disclosure obligations quickly when the need arises. If I sat on the board of a company of almost any size, I would want to know what systems the company has in place to make sure that disclosure was not only possible but cost-effective.

We also had reminders of the primacy of contemporaneous evidence. I would not dream of suggesting that either Gordon Brown or Rupert Murdoch lied on oath, but one of them is, er, mistaken in his recollections. Hearing Tony Blair and Gordon Brown again, disinterred from the political midden, reminds us that some people radiate insincerity as soon as they open their mouths; one cannot assume as a result that everything they say is untrue. If Blair told me the time of day I would check it; if Brown came by, I would hold firmly on to my watch, after all those stealthy appropriations in the footnotes of his budgets. Judges have to make assessments like that about character all the time, which is why oral evidence backed by the contemporaneous documents are vital; if either Brown or Blair were judged by demeanour alone, they would be off to the cells without the formality of a hearing.

At a practical level – perhaps “impractical” would be a better word – the Leveson Inquiry shows what happens when you leave civil servants to manage masses of evidentiary material. They print it, bless them, tens of thousands of pages, multiple times. This article Save money with an automated Leveson Inquiry quotes Frank Coggrave of Guidance Software and Nick Patience of Recommind amongst others on better ways of managing the evidence in inquiries like this.

Perhaps when it is over I will put in a Freedom of Information Request. What did it cost to collect the Leveson material? What alternative methods were considered? What relevant skills were possessed by the people who made the decisions? Were government and EU procurement rules followed?

The Snoopers’ Charter

Every new government is pressed by the police and security forces to grant ever-wider powers to collect private communications data. The Labour government, one of the most interfering and repressive of modern times, planned a big database, but abandoned it in a hail of protests led by those who are now in power. The Home Office civil servants kept the plans alive, and it surprised no-one when a new Metropolitan Police Commissioner, Bernard Hogan-Howe, started arguing for a revived version of the discredited scheme. Nor did it surprise us that the former opponents of the plans, once in government, should embrace the idea; it is easy to ride populist band-wagons when in opposition, less so when a senior policeman tells you that danger lurks in every email and that freedom must be set aside (as a tip, they always tell you that they know the importance of liberty even as they explain why it must be curtailed).

There are many objections to the plans, which are described in this article Communications Data Bill: Need to Know. There are many objections; they include obvious libertarian ones, the fact that the civil servants will screw up anything which involves computers, the practical certainty that the real baddies will (and do) communicate by other means, and the prediction that it won’t be long before a data breach occurs as happened in the 2007 UK data breach scandal. For me, the most compelling argument against it is the potential for misuse in the hands of the authorities themselves: a police superintendent was charged recently with passing information to a journalist; the News International saga includes policemen trading information for cash; the last significant broadening of investigative powers, The Regulation of Investigatory Powers Act of 2000, was widely abused, with every dim little runt in local authority offices feeling empowered to spy on citizens for the most trivial reasons.

You may like this Freedom of Information Request sent to Home Secretary Theresa May. Blair conducted government by sofa, and was himself not a computer user; Brown’s preferred method of communication seems to have been to shout at people and throw office furniture; ministers in the present government have been caught using private email and texts deliberately to avoid being on the record. I am all for government ministers being able to communicate freely, without fear of their every discussion being recorded; I feel the same about military officers and policemen; and company directors; and union representatives; and students; and secret lovers; and you and me. I see no benefit in the proposed new laws which is not outweighed by the risks to liberty and by the certainty that the civil service will make a series of expensive mistakes in specifying, implementing and using any system which emerges. Even if, as is now proposed, the data itself stays with the carriers, the civil servants will foul up the process somewhere along the line. We will by then have surrendered our control of our own data.

Meanwhile, to illustrate my fears about the trickle-down of powers to those least fit to use them, my own local authority, Oxford City Council, plans to make compulsory video recordings of every cab journey (I wrote about that here) and purports to empower its “officers” to demand our names and addresses in the street. Eternal vigilance is required.

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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
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