Calls for a digital bill of rights to protect us from internet snooping may be missing the point. Phil Taylor reports

Labour leader David Cunliffe failed to get any traction in local media this week with his promise of a digital bill of rights it's hard to compete with looming bad weather and political storms in Chinese tea cups but internationally his timing was spot on.

Days after Cunliffe said his party would develop a specific law to protect against blanket surveillance from the likes of the GCSB and corporations selling people's online information, the creator of the World Wide Web added his voice to calls for a "Magna Carta" to protect and enshrine the independence of the internet.

Speaking 25 years after he wrote the first draft of the first proposal for what became the world wide web, Sir Tim Berners-Lee this week told the Guardian that "a global constitution a bill of rights" was needed to protect the openness and neutrality of the internet.

A few days earlier Cunliffe said a New Zealand version was needed because the law hadn't kept pace with technology and people needed protection from the digital equivalent of warrantless phone taps. And maybe the law could stop companies selling people's online information without permission. Revelations by National Security Agency whistleblower Edward Snowden of international mass surveillance and "the practices of our own Government Communications and Security Bureau has left many Kiwis feeling their online information is vulnerable", Cunliffe said.


Berners-Lee's Magna Carta plan is part of an initiative called "the web we want", which calls on people to generate a digital bill of rights in each country a statement of principles he hoped would be supported by public institutions, government officials and corporations. "Unless we have an open, neutral internet we can rely on without worrying about what's happening at the back door, we can't have open government, good democracy, good healthcare, connected communities and diversity of culture." It's not naive to think we can have that, but it is naive to think we can just sit back and get it."

He believed a shared document of principle could provide an international standard for the values of the open web and repeated his concern that the web could be carved up by countries or organisations, whether for censorship, regulation or commerce. "The key thing is getting people to fight for the web and to see the harm that a fractured web would bring. Like any human system, the web needs policing and of course we need national laws, but we must not turn the network into a series of national silos."

The privacy horse has bolted, the question is how it can be retrieved. Thanks to Snowden, we now know for sure that nothing we do online is immune to surveillance.

In his 2000 book A Brief History of the Future: Origins of the internet, Professor John Naughton wrote that "our networked future was bracketed by the dystopian nightmares of two old Etonian writers, George Orwell and Aldous Huxley. Orwell thought we would be destroyed by the things we fear, while Huxley thought that we would be controlled by the things that delight us." Snowden had shown that the two extremes have converged: "the NSA and its franchises are doing the Orwellian bit, while Google, Facebook and co are attending to the Huxleyean side of things." The spies' mission happened to be the internet corporates' business plan, comprehensive surveillance, Naughton recently wrote in a column for The Observer. "The only difference is that whereas the spooks have to jump through some modest legal hoops to inspect our content, the companies get to read it neat."

The great irony was that our gullibility made it possible. In exchange for "free" services, we allowed internet companies to do what they liked with our data and content.

We've fallen, said Naughton, for a soothing PR strategy that brands corporations that dominate our networked world as being different from "bad old industrial behemoths of the past" or companies that dominate the offline world such as oil energy utilities and banks. Google has its "don't be evil" slogan and Facebook just wants to help everyone "share" and "like" stuff. "Yet in Darwinian terms these new corporate giants are just the latest stage in the evolution of the public corporation. They exist to create wealth for their founders and shareholders, their imperative is to grow and achieve dominance."

The only difference was the new titans employed far fewer people, enjoyed higher margins and were less harassed by governments, he said.

As the leaks flowed it gradually dawned that "our naive lust for 'free' stuff" had enabled commercial interests effectively to capture the internet for their own purposes and that intelligence agencies were riding shotgun. Snowden's files reveal that the methods of intelligence agencies that carry out electronic eavesdropping have spiralled out of control, largely thanks to the political panic in the US which followed the terrorist attacks of 9/11. As part of efforts to win the ongoing War on Terror since 2001, the agencies expanded their surveillance capabilities with much emphasis placed on monitoring the World Wide Web.

Snowden described the Five Eyes network that includes New Zealand, as a "supra-national intelligence organisation that doesn't answer to the laws of its own countries".

Whether laws such as that proposed by Labour can make it over the line let alone be useful is doubtful. Brazil's attempt to put in place the world's first "Internet Bill of Rights" failed in 2012 due to disagreement over the wording and strong lobbying from vested interests opposed to "net neutrality" clauses that would have prevented internet service providers, for example, from charging consumers different prices for some kinds of internet traffic, such as movies.

Brazilian digital communications professor Andre Pase lamented the lost opportunity. Such a legal framework, he said, could go beyond regular laws "that get easily obsolete in a context of innovation, where fresh, free online services are born all the time".

But New Zealand internet interest groups doubt a New Zealand internet Bill of Rights would add to the existing rights legal framework or achieve what could not be more simply done by amending existing laws, such as the Privacy Act. A charter of rights was a reasonable idea, internet NZ chief executive Jordan Carter told the Herald, "but a piece of legislation that would be binding on all other legislation, well, that's a pretty big upheaval."

Netsafe executive director Martin Cocker doubts it would substantially add to consumer protection or influence the behaviour of the internet corporations. Although such a bill could deal with net-specific issues such as internet neutrality and the right to access, Crocker believes they are better achieved via policy and commercial decisions.

Despite the fact that everything on the internet that is not encrypted can be intercepted, there was still "a culture of trust" which underpinned activity from online banking to social communications, Carter said. "We need to work to make sure it is deserved."

To that end, Berners-Lee is encouraging the public to fight for the independence of the internet, while Naughtons view is that "this crisis" was caused by politics and can ultimately only be solved by politics. Urgently needed are: radically beefed-up parliamentary oversight of intelligence services, backed by warrants, and laws banning bulk collection of metadata.