August 2005

‘Rights’ to information, or ‘obligations’ to society?

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Over the past three years Roger Longhorn, Max Craglia and I have been trying to understand the emotions and principles of the debates surrounding rights of access to information, particularly to information produced by government (PSI – Public Sector Information). It is relatively easy to produce convincing arguments that access to PSI is a societal, even a human right, where a policy assumption should be that all information is available unless there are compelling reasons to restrict access – this is an ‘enabling’ legislative context. The opposite context would be an official secrets regime, such as that in Singapore (Skinner 2001), where information is deemed secret unless it is specifically made available for wider access – a ‘controlling’ legislative context. Access to PSI includes arguments that allowing citizens to use information enhances democratic participation and allows citizens to evaluate the performance of government. Further arguments would state that access to PSI should be non-discriminatory, and there should not be levels of pricing that exclude user groups that need to use PSI, or that the emergence of ‘digital divides’ should be minimised.

The rich literature surrounding rights of access to PSI is strongly contrasted by the much less coherent literature on what we could term ‘obligations of use’ (Maxwell 2003). This paper will focus mostly on some of the dilemmas surrounding the use of information that include, but also go beyond PSI, and the extent to which societal obligations of use are contained in a contest between national scale rules and local scale behaviours. We should see ‘rights’ not as stated rules of access to PSI, but as fluid environment of information practice, where we negotiate between contests of legislation, rules, national, corporate, social, and individual behaviours that occur when we consume PSI.

We should see ‘rights’ not as stated rules of access to PSI, but as fluid environment of information practice…

Rights can be stated as being ‘absolute’ (we have the right to information), as being ‘circumscribed’ (if you use that information you must be critically aware of the consequences), or even ‘contextualised’ (you cannot presently access that information at present due to outbreaks of terrorism). In the context of global terrorism and the threat of attack, US government agencies are contextualising the US Freedom of Information legislation. By noting that new requirements to protect critical infrastructure mean that they should now refuse access to information that was openly accessible before (RCFP 2005). Yet, it is possible to use the Internet to make that information available, which is censored in one nation. This introduces the first ‘rights dilemma’- are we ethically justified in using information, no matter if there is negative impact for society?

The second rights context occurs when we use PSI even when we do not have access to metadata, or even do not use the metadata, that provide us with important information about issues such as sampling and accuracy. This ‘right to consume’ goes deep into consumer behaviour when purchasing products from global corporations. We use information tools, such as GIS, largely as black-boxes where we do not understand the complex algorithms that make up such processes as polygon overlay, yet we still use them to make policy decisions that affect citizens. Second dilemma of rights to data therefore states that ‘I do not know enough information about a process or product, but I will still use it’.

Third dilemma of rights to information argues that ‘it is just my job’, so do not blame me for denying your access rights. This is where you are aware that legislation restricting access to information is still practiced rigorously in government agencies, even though the information being restricted is available elsewhere. The Survey of India (SOI) has for long practiced its restricted map access policy (SOI 2004). Even the new National Map Policy for India remains conservative in areas of security so that “national security objectives are fully safeguarded” (India 2005). The Policy also notes that public access maps “will ensure that no civil and military Vulnerable Areas and Vulnerable Points (VA’s/VP’s) are shown”, and “if the international boundary is depicted on the map, certification by SOI will be necessary”. However, Dilemma 3 is fundamentally a lose-lose process, where those in Government can be criticised for not restricting information rights in the face of global terrorism, and can also be criticised if they maintain access rights, because that may be seen as supporting terrorism.

Fourth dilemma concerns our desire to protect our own information, while wanting access to information about others – this is the ‘societal benefit dilemma’. In UK, recently there was an outcry about population register records being computerised under contract in India (Kablenet 2005) and there was a fear of national confidential information moving beyond the physical borders of the nation state. More prosaically, we rely on data protection legislation to help ensure that the use of individual data is both regulated and kept to a minimum (Purdam, Mackey, and Elliott 2004) and in Europe the general approach is known as ‘opt-in’ where we must give permission for our individual information to be used for purposes beyond those that are legally defined. However, we do dilute these constraints through our social behaviour, since the right to information can conflict with a powerfully stated (by UNESCO) right to communicate (McIver, Birdsall, and Rasmussen 2003).

The fifth dilemma states, ‘I know that this information is restricted, but it is in the public interest that I make it available (leaking information)’? Do we have a right to ‘whistle-blow’ – to use our own initiative to make information publicly available, even if organisation rule forbid it? This was of concern in July 2005 when an IT specialist identified critical security failings in Cisco IT infrastructure that was a major component of the global Internet. Cicso responded by claiming that he violated trade secrets, and others regarded his publicising of the failings as possibly alerting terrorists (Zetter 2005).

Citizens campaigning for Right to Information in Rajasthan, India. After a long wait, Indian parliament finally passed the landmark Right to Information Bill on May 12, 2005.

These five rights dilemmas are by no means exhaustive, but the intention is to highlight the complex relationship between access to information and the obligations of use. The prevailing climate of recent decades has been very much towards information commons and freedom of information. However, for every action there is a reaction, and this is where the wider research literature provides insights for policy-makers.

The first reaction exists in the debate surrounding privacy, which often is promoted in connection with data protection to maximise our personal rights to minimise the use of our personal information, and even to become anonymous.

Second, and more directly in the context of rights and obligations, is the strong emphasis on privacy. Governments wish us to participate more in democracy and society (the European Commission has the term ‘active citizenship’ as a priority), yet they also promote the protection of privacy. The two components of rights and obligations have been largely disassociated in recent western society. While I am not implying that privacy activists are ‘idiots’ in the current use of the work, governments are worrying about the impact of globalisation on what we term ‘community’ and ‘society’.

Rights supersede obligations, and this is no more seen at present than in the increasing use of the patents systems. First, patent protections have been used to stop India making cheaper copies of patented drugs (Tata 2005). Second, patents are being used to take out monopoly ownership of software techniques that are often regarded as common knowledge, a recent case being the US Patent for “locating available real estate properties for sale, lease or rental using a database of available properties at a central location and remote stations which use a graphic interface” (Anon 2005).

Rights to information therefore are not independent of obligations, but where they are regarded as being separate. There is considerable scope for misuse and abuse of information. That may explain why the prevailing model for PSI producers generally is not to look towards social contracts that embody obligations, but to use much broader mechanisms of restricting access. The former requires complex auditing processes, and for some PSI producers, notably official statistics, the risk of even one case of confidential data being disclosed is too risky. The UK Office for National Statistics noted in 2001 “once a claim of disclosure was made, confidence and trust in ONS would be damaged” (Statistics 2001). The latter situation of restricting access is more broad brush, easier to administer, and is a risk-averse policy. It is therefore not surprising that access controls remain a critical part of the information policy toolkit.

Lastly, there are wider issues to information rights. We may have rights to access and use PSI, but that may require considerable administrative reform and culture change within government agencies (TOI 2005a). Second, we may have rights of access to information, but may not be able to afford the IT infrastructure to process it, or have the skills to analyse it (Jagadheesan 2005), perhaps implying that we need rights of access to technology. What is clear, however, from all the research on PSI access and use, is that a continuing liberalisation of the PSI landscape is a powerful contributor to economic growth, citizen participation, and democracy. It is right that information users should continue to press for more PSI availability, but it also is right that they do so through an understanding of the policy dilemmas facing PSI producers. Rights, in the end, are not definitive entities, but are fluid and complex contexts within which PSI production and use are contested and negotiated.

References

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