Mark O'Brien

Law, privacy and information technology: a sleepwalk through the surveillance society?

The Surveillance Studies Network report of 2006 on the ‘surveillance society’, highlighting the omnipresence of information technology in British society, once again brought into sharp focus concerns about the types and levels of technological surveillance to which the public are subjected. This article seeks to explore the opportunities for surveillance presented by recent developments, and suggests a number of privacy and civil liberties concerns.

The Witchfinder-General and the Will-o'-the-Wisp: The myth and reality of Internet control

Abstract Internet pornography, especially child pornography, has been a significant concern in British society for several years. This article seeks to examine the prevalence and impact of such material, the way public concern has developed, and media and legislative reactions to this concern. It suggests that a more rational debate of the actual and likely dangers in this sphere is necessary in order both to protect and serve the interests of justice.

Clear and Present Danger? Law and the Regulation of the Internet

Information technology has had a significant and all-encompassing impact upon our lives in recent years, not least in the sphere of criminal justice, helping the police solve crime, but also providing the means for the commission of new ones. This article explores the role of law and society in the control of certain such new crimes, especially regarding the phenomenon of internet-based pornography, and examines the methods being employed to combat such crime, together with an exploration and examination of the effectiveness and desirability of such methods.

New Technologies, New Frontiers: Modern Challenges in the Cyber Age

Perhaps more so than any other legal discipline, information technology law has been the subject of considerable development in the last two decades. Many of the innovations in information technology, some by now familiar to us all, others, such as warchalking for example, still emergent, have had accompanying legal difficulties and presented issues which have wide ramifications; these problems and their solutions sometimes not immediately apparent. The refereed articles in this special edition of Information & Communications Technology Law, although derived from seemingly diverse areas, are bound by one common theme; that of the challenges which exist within the Information Technology & Communications Law field as a consequence of the introduction and application of new technologies. At a later stage in this editorial, we will examine further some of the newest and most visible legal challenges to arise in this field, and assess the nature and extent of the opportunites and problems that these present. In this first stage, though, we will examine some of the important issues raised in each of the papers, which the authors first presented in an earlier form at the 2003 Socio-Legal Studies Association Annual Conference, and comment upon how these contributors evaluate the relevant impact upon their respective fields.

Privacy and the public/private divide

This special edition of Information & Communications Technology Law draws upon the annual Information Technology Law & Cyberspace Stream of the Socio-Legal Studies Association held at Kent University in April 2007. Once again, the stream brought together a range of papers seeking to examine the challenges that the evolving information society presents for law and some of the problems law presents for our society in this sphere. This issue focuses upon the prevalent theme of the conference sessions – that of privacy and the public/private divide. Fenwick (2007: 73) has noted that the concept of ‘private life’ appears ‘to encompass a widening range of protected interests’ particularly with regard to what the state regards as the boundaries to private life. A casual observer of the British media can be in no doubt that the issue of privacy is one that has gained a prominent role in the United Kingdom’s political debate, as it has in other countries. The ongoing ID cards and biometrics debate is one such example, whilst recent controversies surrounding the National Health Service (NHS) database is another, together with the loss of disks containing the personal details – including bank account information – of 25 million British citizens. Each debate and controversy has cast the State as an Orwellian Big Brother seeking ever greater amounts of data though, unlike Big Brother, commentators have bestowed the trait of incompetence to this. Bainbridge (2008: 635) has observed that within the information society, the individual’s rights are very vulnerable. He comments that ‘all manner of personal information is stored about us’ on a variety of electronic systems. As the would-be NHS doctors caught in the NHS computer scandal discovered, much of that data can be sensitive and potentially hurtful or damaging if placed in the hands of unintended recipients. This special issue explores the scope of the ‘public’ and the ‘private’ as they relate to some of the opportunities for new types of communication that have resulted from the information revolution. In ‘Blogging: A privacy perspective’, Karen McCullagh explores privacy in the context of the ‘blogging’ phenomenon. She initially highlights one of the

The Internet, child pornography and cloud computing: the dark side of the web?

The advent of cloud-computing technology, the much-heralded development of remote and multilayered storage, presents a multiplicity of likely opportunities for potential criminal behaviour, and corresponding challenges to lawyers and regulators. One area of note in this context is the so-called ‘deepnet’ – Internet content, although theoretically accessible, is not indexed via usual search engine means, only being detectable via software such as ‘the Onion Router’ – the distribution of files over multiple nodes to facilitate their de-encryption. This article argues that this development, in conjunction with the utilisation of the cloud-computing techniques of establishing hosting facilities on demand, presents specific new challenges to those charged with combating a range of nefarious on-line activities of interest to law enforcers. In particular, this article will focus on the online propagation of pornographic material, and the additional difficulties of detection and criminal regulation posed by the deepnet. It will be argued that not only is detection rendered more difficult by virtue of the marriage of the technological development of the Deepnet, and tools for access to it such as the Onion Router with ‘the Cloud, but also that effective policing is hindered, not least by the adoption of outdated and inappropriate policing and regulatory practices, this latter point being analysed via regulatory theory. Finally, this article contends that, in the technological medium in hand, alternative regulatory methods – including an increased focus upon regulation by user groups – rather than being discouraged, profitably could be employed in order to effect a realistic and sustainable regulatory framework.

Law, technology and society: the real consequences of a metaphorical world

One of the pervasive themes of cyberlaw and cyber society scholarship in recent years has been exploration of the consequences of cyber-activities in the real world. Often key to this concept of ‘cyberworld’ vs ‘real’ world activities (and also the blurred distinctions between the two) has been an at least tacit acceptance of the ‘cyberspace is place’ metaphor (Hunter, 2002; Rowland, 2006), whereby the ‘No Man’s Land’ of electronic communication via the Internet has come to be regarded, via a general acquiescence to the use of spatial metaphorical devices (Rowland, 2006), as simply another type of space in the ‘real world’, with, Hunter argues, the metaphor of ‘cyberspace as place’ exercising a consequent ‘strong, and unrecognized, influence’ on the development and the ‘regulatory regimes of cyberspace’. This special issue of Information and Communications Law, including articles derived from the Information Technology Law and Cyberspace stream of the 2010 Socio-Legal Studies Association Annual Conference hosted by Bristol Law School, University of the West of England, explores some of the wider ‘real world’ implications of interaction with a technological ‘virtual world’. In ‘What happens online stays online? Virtual punishment in the real world’, Brian Simpson examines the question of whether or not certain types of online or ‘virtual’ activity can or should have consequences (including legal consequences) in the real world, and in so doing, explores the argument that those who commit virtual misdemeanours could be the subject of forms of punishment in the virtual world. Simpson also examines the important issue of the policing of the increased externalisation of fantasy afforded by the advent of technology, and the increased possibility of punishment of one’s ‘innermost thoughts . . . placed in the public domain of the Internet’. He contends that such externalisation of fantasy in the virtual environment may not be justification for legal sanction against such thoughts, and explores notions of virtual punishment, drawing parallels with the ‘internal disciplinary mechanisms’ of sporting bodies. Jackie Jones’s article, ‘Trafficking Internet brides’, explores the manifestation of new and extreme types of consumerism afforded by the development of the Internet and focuses upon the issue of ‘mail order’ brides. Jones explores the historical backdrop of the issue, examining the transportation of women to be brides in the colonies, examines modern manifestations of this practice including international

Conceptualisation and control in virtual space

This special issue of Information & Communications Technology Law is derived from some of the papers presented as part of the Information Technology Law and Cyberspace stream of the 2009 Socio-Legal Studies Association Annual Conference hosted by De Montfort University, Leicester, UK. While the articles – from Brian Simpson of the University of New England, Armidale, Australia; Margaret Devaney, of the Irish Law Reform Commission, Ireland; Mark O’Brien of the University of the West of England, UK; and finally Chris Ashford of the University of Sunderland, UK, deal with topics as diverse and provocative as gambling, policing and public order, the legal regulation of fantasy, and also online sex environments, there is a common thread running through all the articles that the activities, social and legal, analysed therein either could not take place in the form that they do, or would not be the subject of legal regulation were it not for the information revolution. In ‘Controlling fantasy in cyberspace: cartoons, imagination and child pornography’, Brian Simpson explores the interesting and thought-provoking subject of the construction of fantasies, examining the extent to which cyberspace, and its use by the populace, has allowed for the regulation of fantasy in a way that would not have been possible without the advent of the Internet. In analysing recent case law derived from a number of jurisdictions, he argues that an outcome of current laws, ostensibly designed to protect children, could be that thoughts are placed under state surveillance. Margaret Devaney examines the factors that hinder the effective regulation of gambling internationally in ‘Online gambling and international regulation: an outside bet’, in an interesting article that explores international and European Union-level regulation. In exploring the regulatory options available to the European Union, she contends that a number of factors disrupt such regulation, including diverse approaches to regulating gambling and its advertising in different countries; the absence of a consensus as to the risks of online gambling; the borderless nature of the Internet; the absence of tax harmonisation regarding gambling; and the development of new forms of gambling. ‘Still on the road? Technology and historical perspectives on counter-cultural policing’ explores the impact of technological advancement on a particular subculture in the United Kingdom, the so-called ‘New Age Traveller’. In doing so,

Still on the road? Technology and historical perspectives on counter-cultural policing

Technological development in the last 20 years has had a significant input into what is policed and how such policing takes place. This article seeks to explore the policing of a part of the counter-culture in the United Kingdom, the so-called ‘New Age Traveller’, and in doing so highlight the impact of technology in relation to public order control.

Virtual lives: relationships between the citizen and society

The relationship between communications and information technologies and society is a dynamic one, encompassing often unexpected change. One important aspect of such technological development is its capacity for impacting upon the individual. This special issue of Information and Communications Technology Law, derived from papers presented in the Information Technology Law and Cyberspace stream at the 2008 Socio-Legal Studies Association Annual Conference, explores four different visions of how such change could impact upon society and the conduct of our ‘virtual lives’ in cyberspace.