The Queen’s Speech, Information Society Services and GDPR

The Queen’s Speech promised new laws to ensure that the United Kingdom retains its world-class regime protecting personal data. And the government proposes a new digital charter to make the United Kingdom the safest place to be online for children.

Improving online safety for children should mean one thing. Children should be able to use online services without being used by them and the people and organisations behind it. It should mean that their rights to be heard are prioritised in decisions about them.

As Sir Tim Berners-Lee is reported as saying, there is a need to work with companies to put “a fair level of data control back in the hands of people“. He rightly points out that today terms and conditions are “all or nothing”.

There is a gap in discussions that we fail to address when we think of consent to terms and conditions, or “handing over data”. It is that this assumes that these are always and can be always, conscious acts.

For children the question of whether accepting Ts&Cs giving them control and whether it is meaningful becomes even more moot. What are the agreeing to? Younger children cannot give free and informed consent. After all most privacy policies standardly include phrases such as, “If we sell all or a portion of our business, we may transfer all of your information, including personal information, to the successor organization,” which means in effect that “accepting” a privacy policy today, is effectively a blank cheque for anything tomorrow.

The GDPR requires terms and conditions to be laid out in policies that a child can understand.

The current approach to legislation around children and the Internet is heavily weighted towards protection from seen threats. The threats we need to give more attention to, are those unseen.

By 2024 more than 50% of home Internet traffic will be used by appliances and devices, rather than just for communication and entertainment…The IoT raises huge questions on privacy and security, that have to be addressed by government, corporations and consumers. (WEF, 2017)

Our lives as measured in our behaviours and opinions, purchases and likes, are connected by trillions of sensors. My parents may have described using the Internet as going online. Today’s online world no longer means our time is spent ‘on the computer’, but being online, all day every day. Instead of going to a desk and booting up through a long phone cable, we have wireless computers in our pockets and in our homes, with functionality built-in to enable us to do other things; make a phonecall, make toast, and play. In a smart city surrounded by sensors under pavements, in buildings, cameras and tracking everywhere we go, we are living ever more inside an overarching network of cloud computers that store our data. And from all that data decisions are made, which adverts to show us, on which network sites, what we get offered and do not, and our behaviours and our conscious decision-making may be nudged quite invisibly.

Data about us, whether uniquely identifiable or not, is all too often collected passively, IP Address, linked sign-ins that extract friends lists, and some decide if we can either use the thing or not. It’s part of the deal. We get the service, they get to trade our identity, like Top Trumps, behind the scenes. But we often don’t see it, and under GDPR, there should be no contractual requirement as part of consent. I.e. agree or don’t get the service, is not an option.

From May 25, 2018 there will be special “conditions applicable to child’s consent in relation to information society services,” in Data Protection law which are applicable to the collection of data.

As yet, we have not had debate in the UK what that means in concrete terms, and if we do not soon, we risk it becoming an afterthought that harms more than helps protect children’s privacy, and therefore their digital identity.

I think of five things needed by policy shapers to tackle it:

  • In depth understanding of what ‘online’ and the Internet mean
  • Consistent understanding of what threat models and risk are connected to personal data, which today are underestimated
  • A grasp of why data privacy training is vital to safeguarding
    Confront the idea that user regulation as a stand-alone step will create a better online experience for users, when we know that perceived problems are created by providers or other site users
  • Siloed thinking that fails to be forward thinking or join the dots of tactics across Departments into cohesive inclusive strategy

If the government’s new “major new drive on internet safety” involves the world’s largest technology companies in order to make the UK the “safest place in the world for young people to go online,” then we must also ensure that these strategies and papers join things up and above all, a technical knowledge of how the Internet works needs to join the dots of risks and benefits in order to form a strategy that will actually make children safe, skilled and see into their future.

When it comes to children, there is a further question over consent and parental spyware. Various walk-to-school apps, lauded by the former Secretary of State two years running, use spyware and can be used without a child’s consent. Guardian Gallery, which could be used to scan for nudity in photos on anyone’s phone that the ‘parent’ phone holder has access to install it on, can be made invisible on the ‘child’ phone. Imagine this in coercive relationships.

If these technologies and the online environment are not correctly assessed with regard to “online safety” threat models for all parts of our population, then they fail to address the risk for the most vulnerable who need it.

What will the GDPR really mean for online safety improvement? What will it define as online services for remuneration in the IoT? And who will be considered as children, “targeted at” or “offered to”?

An active decision is required in the UK. Will 16 remain the default age needed for consent to access Information Society Services, or will we adopt 13 which needs a legal change?

As banal as these questions sound they need close attention paid, and clarity, between now and May 25, 2018 if the UK is to be GDPR ready for providers of online services to know who and how they should treat Internet access, participation and age [parental] verification.

How will the “controller” make “reasonable efforts to verify in such cases that consent is given or authorised by the holder of parental responsibility over the child”, and “taking into consideration available technology”.

These are fundamental questions of what the Internet is and means to people today. And if the current government approach to security is anything to go by, safety will not mean what we think it will mean.

It will matter how these plans join up. Age verification was not being considered in UK law in relation to how we would derogate GDPR, even as late as in October 2016 despite age verification requirements already in the Digital Economy Bill. It shows a lack of joined up digital thinking across our government and needs addressed with urgency to get into the next Parliamentary round.

In recent draft legislation I am yet to see the UK government address Internet rights and safety for young people as anything other than a protection issue, treating the online space in the same way as offline, irl, focused on stranger danger, and sexting.

The UK Digital Strategy commits to the implementation of the General Data Protection Regulation by May 2018, and frames it as a business issue, labelling data as “a global commodity” and as such, its handling is framed solely as a requirements needed to ensure “that our businesses can continue to compete and communicate effectively around the world” and that adoption “will ensure a shared and higher standard of protection for consumers and their data.”

The Digital Economy Bill, despite being a perfect vehicle for this has failed to take on children’s rights, and in particular the requirements of GDPR for consent at all. It was clear if we were to do any future digital transactions we need to level up to GDPR, not drop to the lowest common denominator between that and existing laws.

It was utterly ignored. So were children’s rights to have their own views heard in the consultation to comment on the GDPR derogations for children, with little chance for involvement from young people’s organisations, and less than a monthto respond.

We must now get this right in any new Digital Strategy and bill in the coming parliament.

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