We need to talk about lawyers

Posted: May 12th, 2016 | Author: | Filed under: Estonia, human rights, law, politics, thoughts | No Comments »

I am a lawyer by training, I teach law and am also a member of the council of Estonian Association of Lawyers. I am proud of my profession and have contributed my small part in advancing the legal education in Estonia at Tallinn University of Technology (where I also was for a while in charge of curriculum development). I think law can play an important role in preventing harmful developments (like mass-surveillance), but sometimes law and lawyers can also fail the society they should be serving.

The on-going criminal trial of the writer Kaur Kender continues to bring out important issues related to the criminal justice system in Estonia. It appears that the prosecutor and the judge have asked during the trial (which is closed from the public) from at least one witness: “why do people waste their lives crossing boundaries?”. If true, that question is an important revelation about some parts of the law and justice system in Estonia.

In Estonia, the overwhelming majority of practising lawyers have graduated from the University of Tartu. Indeed, there was no other place to study law before Estonia re-gained its independence in 1991 and even after that government higher education policies did not (and do not) support diversification of legal education. This means that prosecutors, judges, and defence attorneys share common thinking that has been shaped by their alma mater. The same professor of criminal law has influenced nearly all lawyers in Estonian (criminal) justice system. This thinking is influenced both by the authoritarian Soviet legacy and by the legalistic and formalistic German legal tradition, which carries the thoughts of legal positivism and which became the bedrock during the transition to democratic government.

The lack of diversity of opinion and the conformist education has meant that many lawyers tend to think very much inside the box. They thus innately refuse to challenge authority: until some years ago it used to be an extremely radical proposition among lawyers to criticise the judgments of the Supreme Court. It seems that many lawyers consider themselves strict followers of the grammatical interpretation of specific rules, rather than seeing the social context and the larger goals of specific legal acts.

This is partly reinforced by the rigid legal system itself, which treats prosecutors not as people capable of independent thinking. Article 6 of the current Code of Criminal Procedure obliges the authorities to “conduct criminal proceedings upon the appearance of facts referring to a criminal offence”, even if they think that this does not make a lot of sense. Prosecutor Merika Nimmo has concluded in her analysis in an article published last year in Juridica, that “forgoing the strict application of the principle of compulsory criminal proceedings would, according to the author, undoubtedly help to design a faster, more effective and human-centred criminal procedure”.

In history, we have seen horrible results when lawyers stop thinking about the larger picture and construe their roles strictly legalistically. In the introduction of a booklet published by the United States Holocaust Memorial Museum, on “Law, Justice and the Holocaust”, historians wrote about the role of lawyers in Germany leading to Hitler’s rise to power:

Coming from a longstanding authoritarian, conservative, and nationalist tradition, judges believed deeply in reinforcing government authority, ensuring public respect for the law, and guaranteeing that state actions had a legal basis (Rechtsstaat). At the same time, they valued judicial independence in the form of protection from arbitrary or punitive removal from the bench and freedom from dictates regarding decision making. Above all, they rendered judgment based on such fundamental Western legal principles as the equality of all citizens, the right of an accused person to a fair trial, and the concept that there could be no crime or penalty without prior law.

In spite of these values, political democracy presented serious challenges to the judiciary. Many judges rejected the legitimacy of the democratic Weimar Republic, since it had come about through revolution, which they considered, by definition, a violation of the law. This attitude had long-term consequences for the republic. Judges routinely imposed harsh verdicts on left-wing defendants, whom they regarded with suspicion as revolutionary agents of various foreign powers, while acting leniently toward right-wing defendants, whose nationalist sentiments typically echoed their own. As a result, in the mid-1920s, supporters of the republic proclaimed a “crisis of trust,” demanding the temporary suspension of judicial independence and the removal of reactionary and antidemocratic judges from the bench. Judges regarded these developments with alarm, rejecting proposals for reform as a perversion of justice. Many were convinced that the criticism leveled upon them, which had come from the political left and from parliament, undermined the authority of the state.

When Hitler came to power, he promised to restore judges’ authority and shield them from criticism even as he curtailed their independence and instituted reeducation programs designed to indoctrinate jurists in the ideological goals of the party. The Nazi leadership used a series of legal mechanisms—which, in contrast to the revolutionary overthrow of power in 1918, judges tended to consider legitimate— to gradually assume and consolidate Hitler’s power. Then, step by step, and always under the guise of safeguarding the state, the Nazi leadership imposed legislation that fulfilled its ideological goals of rearmament, military expansion, and racial purification.

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis’ ability to carry out their agenda.

Nazi Germany is, of course, a thing of the past. But there are lessons to be learned from here. Judges, prosecutors and lawyers do not operate in a vacuum. They are human beings with beliefs, biases and opinions, which do play a role in the work of the judiciary at any country. The US judge and legal scholar Richard Posner argued after the 9/11 attacks that judges should go with the times and prioritise security over liberty:

If it is true, therefore, as it appears to be at this writing, that the events of September 11 have revealed the United States to be in much greater jeopardy from international terrorism than had previously been believed—have revealed it to be threatened by a diffuse, shadowy enemy that must be fought with police measures as well as military force—it stands to reason that our civil liberties will be curtailed. They should be curtailed, to the extent that the benefits in greater security outweigh the costs in reduced liberty. All that can reasonably be asked of the responsible legislative and judicial officials is that they weigh the costs as carefully as the benefits.

Even though I strongly disagree with the position stated above, at least these issues are discussed in the United States. In Estonia, we do have a mostly impartial judiciary according to international standards, but there has not been much discussion about the influence of the authoritarian Soviet legacy among the legal community and the impact of the prevailing conservative legal thinking due to the prevalence of legal positivism as well as the conformism and groupthink which stems from common educational background and the domination of a single law school. Such debates might turn out to be useful.

However, I also think it is equally important that the critics of the criminal justice system learn from the past and do not antagonise lawyers, as a part of the Centre party and some supporters of Kaur Kender or more lenient approach to prosecution of drug-related crimes seem to want to do, but instead work together to change the system to be more fair. It is important to learn from the past and, most of all, encourage independent, out-of-the-box thinking among lawyers as well as cultivate pluralism among legal education in Estonia. This is not only in the interests of better protection of the right to fair trial, but also for the safeguarding of the constitutional order, democracy and all other human rights.

Further reading:


How state aid killed Estonian Air

Posted: November 8th, 2015 | Author: | Filed under: Estonia, european union, law | No Comments »

The abrupt but expected end of Estonian Air on 8 November 2015 was due to serious breaches of state aid rules. By ‘rescuing’ the airline, the Estonian government instead committed several sins, which were easy to foresee for anyone who have even the slightest understanding of that area of EU competition law.

The aid was to rescue an airline that was not profitable for 10 years, it was given multiple times after several unsuccessful attempts at different business strategies. Sustaining a business which would fail under market conditions is a sin in a market economy. A healthy marketplace is one where innovative and efficient companies grow at the expense of obsolete uncompetitive ones. By giving aid, Estonian government helped a company that should have gone out of business years ago to remain operating. This means that the more efficient companies had no possibility to compete on a fair basis (hence the reason why Tallinn Airport has seen very little competition from other airlines). By giving this unfair advantage to Estonian Air, Estonian government impeded the normal functioning of the Tallinn flight passenger market, a distortion that is not in the interests of consumers.

This means that not only that Estonian taxpayers had to spend a huge sum as an illegal subsidy to a company with no viable business model (money that could have been better spent), but that also everyone flying to and from Tallinn Airport have had to pay significantly higher ticket prices (or not be able to enjoy lower prices). Lack of competition also meant lower interest in entering the market.

State aid is something that is given only in last resort, if nothing else works, but the company can still be viable. It was quite obvious that there is no way that Estonian Air could be viable (no such realistic business plan existed). However, by giving the company state aid, it created conditions where the company did not need to have realistic business plans. Instead, it sends the company a message that however crazy and unrealistic plans there are, the state will in the end cover the losses. This induces reckless and extreme risktaking behaviour (cf Taskila plans). This is why the ‘one time, last time’ principle is so important as it really means that the state aid is there for this one time.

State aid to a non-viable company is also unfair towards other Member States. What if all Member States behaved like Estonia? A subsidy run to the bottom in which all Member States start pouring public money into airlines that would never stand a chance in an open market would be a huge waste of resources. It also undermines the great achivement that is the single European aviation market, which has only existed for less than two decades and has brought so many benefits.

The establishment of a new company with the exact same routes, by the same owner, using again public money seems to me to be another attempt to flaunt these rules. If this company fails in a year or two, will there be another 40 million euros spent on another airline and then another? Why? This does not seem to be following the essence of these rules, and specifically the ‘one time, last time’ rule.

In my opinion, the European Commission has been too lenient in the Estonian Air case, by delaying the obvious decision for so long.

One more important thing.

EU state aid law does not have public enforcement mechanisms (i.e. the European Commission) only, there are also private mechanisms available. This means that there might be claims for damages against the Estonian state by other airlines that have suffered because of this illegal aid. This means that airlines that have had to compete unfairly against the one that has received illegal state aid (i.e. Air Baltic, Finnair, Lufthansa, Ryanair) could claim under national law damages from the Estonian government. Estonian Competition Act is brief on this, but states in § 78 that “[p]roprietary or other damage caused by acts prohibited by this Act shall be subject to compensation by way of civil procedure.” If I were any of these competing airlines I would seriously consider bringing a civil claim in an Estonian court for damages against the Estonian state for giving illegal state aid to Estonian Air. Because the breaches were fairly obvious and very grave, it could well be worth the effort.


Thoughts on the Delfi vs Estonia case

Posted: June 16th, 2015 | Author: | Filed under: human rights, law, privacy | No Comments »

Today, the Grand Chamber judgment of the ECtHR case Delfi vs Estonia was delivered. The case has an important impact in the balancing of mainly two human rights: freedom of expression and the right to private and family life (to a lesser extent also freedom from discrimination, which is not so well protected under ECtHR). It found that Estonia had not infringed Article 10 (freedom of expression) when it fined Delfi for allowing the publication of user-generated comments, which incited hatred against an individual businessman.

The court makes an important distinction that the liability for user-generated content does not apply to:

“fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topics without the discussion being channelled by any input from the forum’s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or a blog as a hobby” (para. 116)

It only applies for large commercially run portals which creates its own content and asks people to comment on it. This seems to be a way to distinguish between a news portal and social media platforms like YouTube, Twitter or Facebook, although that is not entirely clear.

On other points as well, the Grand Chamber followed the previous decision, but perhaps gave a bit more context and reasoning. On anonymity the Court basically said that it is important, but not all-important because of the reach and speed of information dissemination on the Internet. It referred to the CJEU Google Spain case as an example of the renewed importance of privacy in the digital age. The Grand Chamber seems to have struck somewhat of a balance: if you are a large corporation that earns money on infringement of privacy of individuals (like Google or Delfi), then you cannot use freedom of expression to excuse your intrusions and have to set up sufficient safeguards against it.

In a way there is a larger point to be made: we need rule of law and courts to protect us also from the impact technology to human rights. The ECtHR in its decision is trying to rebalance the right to privacy against freedom of expression in a new context, but surely we are still very much in the beginning of the road.

Read:

Delfi vs Estonia Grand Chamber judgment

My 2013 analysis of the Delfi vs Estonia ECHR judgment 


Kant and Facebook

Posted: January 28th, 2015 | Author: | Filed under: governance, human rights, law, politics, privacy, schoolwork, technology, thoughts | No Comments »

This essay was originally written as a final assignment for the State and Governance class I took this Fall.

This essay aims to consider the concept of the autonomous individual and its role in the political philosophy of Immanuel Kant. This applicability of the concept to a world that is changing due to social media is then analysed in parallel with other pressures. Finally, possibilities to uphold individual autonomy in this new context are explored briefly.

Kant’s autonomous individual

Kant believed strongly in the rationality and morality of an individual. In order to be moral one needs to be able to make choices, which is where individual autonomy comes in. If an individual makes a moral choice, only then she can be praised for it (Berlin 1971). Berlin puts it:

“If I choose to do what I do, not because I am free to choose between them, but because I am conditioned to do so, by whatever it may be – by education, by my passions, by the behaviour of my body, by the pressure upon me of my society, by any kind of force, whether the external forces of nature or the forces of nurture or education or, as I say, my own emotions – if I am in fact conditioned, if I am simply an object in nature like stones and animals, who cannot help acting as they do, so that some men are generous because they cannot help being generous and others are mean because they cannot help being mean, how then can praise and blame be rationally used?” (Berlin 1971)

This central tenet of Kant’s political philosophy distinguishes human beings from other animals and objects. Kant believed that human beings as autonomous individuals are able to tell right from wrong, if the time comes for such a decision. The autonomous individual is, in turn, an important cornerstone for Kant’s political philosophy.

This autonomy is not mere right to make choice and decisions, but it is the possibility to make choices without influence of others, without social conditioning. It places value in the individual uniqueness of each person and her dignity. In this way human beings can make moral judgments that are also rational. This also means that human beings are capable of self-government and is the basis behind the formation of constitutions and democratic constitutional republics.

Autonomy and freedom are not the same. Autonomy is a state in which a person can be in whereas freedom can refer to specific actions: it can even mean a choice to reduce one’s personal freedom (Feinberg 1982):

“Where manipulative techniques are used to open a person’s options with his voluntary consent, there is an enlargement of freedom and no violation of autonomy; hence, this is the least troublesome category. A harder case is that in which a person consents to behavior control which closes some options irrevocably for the sake of a good he has come to value more than his freedom. Respect for autonomy requires noninterference with such choices provided they are genuinely voluntary and fully informed. On the other hand, manipulation of a person without his consent in order to close his options restricts freedom and violates autonomy too. This third category is the most obviously impermissible kind of case. The most troublesome and controversial kind of case, in contrast, is that in which a person is manipulated without his consent for the benign purpose of enlarging his future freedom of choice, but even here, the doctrine of personal sovereignty requires that a person’s moral right to govern himself within his sovereign domain be given precedence even over his future defacto freedom.” (Feinberg 1982).

The loss of autonomy has a much more profound impact on an individual than the (temporary) loss of freedom. In the Kantian sense, individual autonomy is an ideal state.

Kant’s political philosophy is the basis of liberal democracy and the current organisation of the world into states as political entities. We live in a Kantian world, with the concept of the Rechtstaat, a constitutional state which is constrained by human rights and the underlying principles of which stem from the moral values and consent of its citizens.

Focusing on the individual, Kant believed in a republican political order and not in direct democracy. He stated: “… that of democracy is, properly speaking, necessarily a despotism, because it establishes an executive power in which “all” decide for or even against one who does not agree; that is, “all,” who are not quite all, decide, and this is a contradiction of the general will with itself and with freedom” (Kant 1795). Thus Kant sided with the individual always, and not with the will of the majority, which he saw as despotism. This is an important distinction that highlights how important Kant considered individual human beings and their autonomy.

Indeed, individual autonomy is a necessary building block from which the Rechtstaat can be built. Autonomous individuals who have an innate understanding of morality choose to associate themselves with others in a political entity in which they agree to be bound by a constitution that reflects those basic moral values. In this state that is based on the principle of Rechtstaat, those individuals retain autonomy and are protected against misuse of power. Other states, which are constructed in the same way, are co-existing peacefully with each other in a global setting.

The Kantian concept of individual autonomy is very much present in John Stuart Mill’s philosphophy, in which he claims it to be “one of the elements of well-being” (Mill 1859). This has been further advanced by Rawls, who considers individual consent essential for his theory of justice (Christman 2014).

Web 2.0

We live in a ICT-centric techno-economic paradigm (Perez 2009). The most powerful technology in this era is the World Wide Web that is changing our society and our behaviour. The Internet was initially text-based and mostly one-way communication in which information was made available on various websites for individual users. Although Web 2.0 is a buzzword that is difficult to define, it is commonly used to denote innovations in websites, including the use of new technologies such as AJAX, social components such as user profiles, friend links and like buttons, user-generated content in different formats (text, video, photos) that also invite comments and ratings (Cormode and Krishnamurthy 2008). The social aspects of Web 2.0 include:

  • users as entities in the website system, with individualised profiles that includes information about the user that may be added by the user or other users;
  • formation of connections between those users, either individual connections between “friends” or membership of common groups or subscription to information shared by other users (“following”);
  • the possibility to add text, photo, video or other content to the site and to content published by other users, with some control of privacy and sharing
  • other social features including public APIs that allow third party content to bed fed to other sites or embedded in the site in question, as well as real-time chat features. (Cormode and Krishnamurthy 2008).

The social and “sharing” features have enjoyed considerable success, with social media sites among the most popular on the web. At the time of writing of this paper, there were 1,35 billion daily Facebook users and 323 million daily users of twitter (out of a total of ca 3 billion internet users).  In the United States in January 2014, 74% of all internet users used social networking site of some kind whereas 89% of users aged 18-29 do.

The implications of Web 2.0 and its impact on the protection of privacy has divided experts. According to a recent report by Pew Research Center, experts remain divided over whether there will or will not be a global widely accepted privacy infrastructure in 2025 (Pew Research Center 2014). Those who were more sceptical believed that only a few can protect themselves against “dataveillance”, global agreements are difficult to reach and Internet of Things will make the situation a lot worse. Those who were more optimistic believed that there will be a more tiered approach to privacy and consumers will have new tools to self-manage privacy settings, that there will be a backlash against invasion of privacy. However, experts agreed that revealing personal information to the state and corporations is the new default and that people will adjust their norms to it.

Web 2.0 also has additional implications for democracy in addition to privacy issues, it is questioned whether the existing democratic systems are suitable for the constantly networked young people (Loader et al 2014). Loader reprints Russell Brand’s defence of non-voting:

“I’m not voting out of apathy, I’m not voting out of absolute indifference, and weariness and exhaustion from the lies, treachery, deceit of the political class that has been going on for generations and which has reached fever pitch where we have a disenfranchised, disillusioned, despondent underclass that are not being represented by that political system so voting for it is tacit complicity with that system. And that is not something I’m offering up.” (Loader et al 2014)

 Younger generations might consider representative democracy archaic and “uncool” and thus will be even more disillusioned and uninterested in the existing systems. Although efforts are being made to make voting cool for the connected generation (by introducing e-voting for example), this can have unintended consequences on the overall functioning of the democratic governance system and infringe on the basic safeguards that guarantee against fraud and abuse.

Autonomy and social media

Social media also changes our individual selves, because a person continues to have a singular identity that is the same in both online and offline world (Ess 2015). This means that what happens in social media has changes offline lives as well. In this context, Ess considers that in Western countries there is a shift away from the rational, individual and autonomous individual towards emotive and relational individual that increasingly defines herself through relationships she has with others. This is supported by the changing attitudes towards privacy and (intellectual) property that are no longer exclusive and individual, mainly due to the virtual abundance offered by the internet (Kostakis and Drechsler 2013). At the same time, in Eastern countries there is a shift from relational to a more individual emphasis, which means a kind of convergence in the middle.

The key factor in autonomy is individual privacy. The right to privacy became relevant with the advent of the first mass communication technologies, i.e. photographs in a newspaper (Warren and Brandeis 1890). As a consequence of abuses by totalitarian regimes that took advantage of technologies that allowed for infringement of privacy, a strong framework of laws has been in place that guarantees individual privacy, especially in Europe. In the current era right to privacy is seen by some as unimportant, but it would be more correct to note that the understanding and usage of the right to privacy has transformed. Research has shown a phenomenon that could be described as “partial publicity” or “public privacy” which essential means that privacy has become multilayered and that there are several shades of gray between total publicity and total individual privacy (Ess 2015). A new form of subactivism has been identified occurring in the social media space that “is not about political power in the strict sense, but about personal empowerment seen as the power of the subject to be the person that they want to be in accordance with his or her reflexively chosen moral and political standards.“ (Bakardijeva 2009).

As a consequence of the developments of social media, especially in the sense of loss/transformation of privacy, the Western understanding of self is moving away from individual sense of selfhood (that is essential for an autonomous and rational individual) towards a more relational sense of selfhood (Ess 2015).

The other impact that social media has, is the changes in communication. The (national) public sphere is weakened due to the fragmentation enabled by the web, which is dominated by commercial interests. There is a fragmented public sphere in which people are in their own social bubbles in which they engage in computer-mediated communication using non-neutral algorithms programmed to maximise profit or potentially used for something more sinister.

It is well known that Facebook and other social media sites exploit privacy for commercial gain. The business model relies on individuals using social media and reveal more to others, i.e. “if you are not paying for it, you are the product”.

Jürgen Habermas has stated in an interview with FT:

“The internet generates a centrifugal force, …[i]t releases an ­anarchic wave of highly fragmented circuits of communication that ­infrequently overlap. Of course, the spontaneous and egalitarian nature of unlimited communication can have subversive effects under authoritarian regimes. But the web itself does not produce any public spheres. Its structure is not suited to focusing the attention of a dispersed public of citizens who form opinions simultaneously on the same topics and contributions which have been scrutinised and filtered by experts.”

Seyla Benhabib also sees profound changes in the democratic models induced by new forms of media:

 “The emergence of new media technologies, and new centres of information is leading to everyone doing their “own thing,” so to speak. It’s as if people are going around with bubble wrap around their brains. And inside the bubble wrap is the informational world that they themselves have generated. When we first articulated this model about the interaction of the strong and weak public spheres in the late 1980s and 1990s, many of us were thinking of transformations in Eastern Europe, the emergence of civil society movements, strong women’s movements, ecology and youth movements in the West, and so the model was one of a decentred, weak public sphere of anonymous conversations and networks that would then have some impact on the decisional public sphere. Now, we need to reconsider this model in the light of the complete proliferation of the electronic media and public spheres – the rise of FaceBook; YouTube; community and citizen journalism, etc…”

Thus in an abundance of information and communication options, people are for the first time able to choose for themselves also which spheres to belong to and which to form. Communication no longer knows state and community boundaries, people are no longer bound by their associations in a spatial ways. Also, the former borders of specific ingroups and outgroups are becoming fuzzy and individual identities are becoming blurred as well, which adds to the pressure of relational rather than individual selves, because the latter are not so easy to define any more.

One could imagine a not so distant future in which Facebook and/or its descendants have become even more persuasive than today. Already today, Facebook has shown that it is willing to ethically questionable and possibly illegal social experiments that change the mood of its users. It also already manipulates voting patterns by pushing people to vote by creating peer pressure to go to polls. Thus it is not difficult to imagine that at some point in the not so distant future Facebook could manipulate and nudge users to vote for a particular candidate or political party. For example, it could manipulate its feed algorithms to show more news stories that could make people vote progressive or conservative. As the algorithms are secret, it is not possible to know whether this is already not done.

Currently Facebook already allows paid political advertising. In Estonia, where outdoor political advertising has been banned to improve the quality of democratic debate, an extremely poor decision upheld by an even worse judgment by the Estonian Supreme Court, it is allowed to have banner ads that direct you to the e-voting site where you can vote for your candidate. As social media advertising techniques surely improve, it will be easier than ever to nudge you to vote in the “right” direction, by analysing the commercially available data. You can then be targeted with tailored messages.

The autonomous individual is not only in danger during elections, but social media has also helped to create the conditions to impact the state in other ways.

As social media offers technological tools for bringing together large groups, potentially the whole population, there has been renewed interest towards direct democracy and deliberative democracy. Direct democracy was considered to be despotism by Kant and there is no reason to believe that widespread use of direct democracy would not result in worsening of the status and conditions of minorities. Even when Facebook itself has tried to emply direct democracy methods, it has had to face failure.

Mediacratisation has also been heightened by social media, in which it is much easier to induce moral panics that can be used to force changes in policies or even impact legislative processes. In November 2014, Estonian Minister of Finance resigned due to a arguably Russophobic comment he made on Facebook when commenting there. Even if one agrees that such comment was unacceptable (and I personally do), it shows that politicians are facing new pressures from social media sources, which can organise quickly for or against a specific cause. This could lead to a world of emotional voting which was depicted in the sci-fi TV series “Black Mirror” episode “The Waldo Moment”.

Possibilities for “Facebook Kantianism”

For a Kantian autonomous individual to survive there are several ways to preserve it and keep Facebook too. This requires to regulate Facebook on a global scale, which is difficult, but nevertheless achievable.

If one considers Kantianism as the perseverance of the autonomous individual in a social media setting, then interesting possibilities arise. It partly depends on whether one considers Facebook as a neutral and mechanical platform that simply replicates online the processes that happen offline. However, it seems that Facebook goes far beyond that. The algorithms that define what gets shown to whom are programmed by human beings and even if they try to stay neutral, it is rather impossible to do.

It could be that the solution is the regulation of Facebook according to an understanding of hybrid self (Ess 2015), which means that Kantian autonomy is consciously and deliberately preserved for those purposes which require moral judgment and which have wider political consequences, whereas in other relationships a more relational side prevails. There needs to be some way of delineating these aspects and also regulation that prevents any infringements of the independent side. This means certainly more regulation of Facebook and the likes and an enforceable ban on those activities that intrude on autonomy. Regulation of Facebook is, however, somewhat difficult as it already wields enormous political influence.

Another option would be a move towards cosmopolitan federalism, which would expand the Kantian concept of autonomy beyond the borders of the state. This is supported by the fact that democracy is undergoing a transformation also due to the decoupling of state and citizenship. Nation state is losing its monopoly to trans- and supranational, but also local levels of governance, leading to a growing ideas of globalised governance.

This does not necessarily mean the end of a nation state. Benhabib writes:

“This sketchy vision of cosmopolitan federalism is not based upon a hostility toward the nation-state; quite to the contrary. Only within a framework of sub- and transnational modes of cooperation, representation, and collaboration is it possible to protect the fundamental values of liberal and republican liberty, that is of private and public autonomy.”  (Benhabib 2005).

The fate of the autonomous individual is uncertain. However, if enlightenment values such as human rights, equality and democracy, upon which Western societies have so far prospered and which have managed to maintain a relative level of peace and non-violence in the world, were to be upheld more attention should be diverted towards the impact of social media on the concept. It might be necessary to create global regulation that would ensure that technology does not end up controlling human beings, but human beings continue to have autonomy in the dynamically changing world. There are no reasons why the principles of the Enlightenment could not be equally applied social networking sites. If done properly, this could bring about unprecedented levels of growth, peace and stability, because it is an opportunity to apply those principles not within Rawlsian self-contained nation states, but globally, to all those that are connected.

Tallinn, 6 January 2015

 

References

Bakardjieva, M. 2009. Subactivism: Lifeworld and politics in the age of the internet. The Information Society 25:91–104.

Benhabib, S. 2005. Borders, Boundaries, and Citizenship. PS: Political Science and Politics 38.4: 673-677.

Berlin, I. 1971. The Assault on the French Enlightenment. Kant and Individual Autonomy. John Danz Lectures, University of Washington, 22, 24 and 25 February 1971. Unpublished, available at: http://berlin.wolf.ox.ac.uk/lists/nachlass/assault2.pdf

Christman, J. 2014. Autonomy in Moral and Political Philosophy. The Stanford Encyclopedia of Philosophy (Winter 2014 Edition), Edward N. Zalta (ed.)

Cormode, G., & Krishnamurthy, B. 2008. Key differences between Web 1.0 and Web 2.0. First Monday, 13(6).

Ess, C. 2015. The Onlife Manifesto: Philosophical Backgrounds, Media Usages, and the Futures of Democracy and Equality. in: The Onlife Manifesto Being Human in a Hyperconnected Era (ed. L. Floridi). Springer

Feinberg, Joel. 1982. Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution. Notre Dame L. Rev. 58: 445.

Loader, B., A. Vromen and M. A. Xenos. 2014. The networked young citizen: social media, political participation and civic engagement. Information, Communication & Society, 17:2, 143-150.

Kant, I. 1795. Perpetual Peace: A Philosophical Sketch

Kostakis, V. and W. Drechsler. 2013. “Commons-based peer production and artistic expression: Two cases from Greece. New Media & Society

Mill, J. S. 1859. On Individuality, as one of the elements of well-being. On Liberty.

Perez, C. 2009. Technological revolutions and techno-economic paradigms. Working Papers in Technology Governance and Economic Dynamics no. 20

Pew Research Center. 2014. The Future of Privacy. Available at http://www.pewinternet.org/2014/12/18/future-of-privacy/

Warren, S. D. and L. D. Brandeis. 1890. The Right to Privacy. Harvard Law Review, Vol. 4, No. 5 (Dec. 15, 1890), pp. 193-220


Holding on to our values

Posted: January 9th, 2015 | Author: | Filed under: cool, governance, human rights, law, politics, thoughts | No Comments »

Terror aims to divide and isolate us. As Hannah Arendt wrote, this is true for the rule of terror in totalitarian regimes, but it is also the aim of fundamentalist extremists today whatever their ideology. They aim to disrupt our lives and frighten us to force us to change our values, beliefs and behaviour. In this fear we already lost our way for a while as evidenced by torture and extrajudicial detention in secret prisons, mass surveillance of everything and everyone, etc.

Instincts and emotions tells us to give in to fear, to blame an entire religion or group of people, to make compromises that should not be made etc.

As rational and moral human beings interested in organising our lives so that we can live peacefully together, we should not give in to those raw emotions and instincts. Instead, we must be even better at adhering to our values of democracy, freedom, pluralism, equality and tolerance.

Human beings are currently living together in an increasingly interdependent and interconnected world, having empathy with other individuals, and their human dignity, because of rational and moral choices people have made, because of the constitutional states and international legal system that we have built up. We are all not born equal, we have decided to organize our lives so as to treat everyone equally, because it is good for us all.

This means that we currently live in the most peaceful, least violent times for the human species. Statistically speaking, in terms of reduction of violence in the world we live in an utopian paradise that could not have been dreamed of even 100 years ago. So lets not let anyone change this and strive to be even better at achieving those values.


Fuzzy borders

Posted: January 4th, 2015 | Author: | Filed under: Estonia, european union, human rights, law, philosophy, thoughts | No Comments »

There has been recently some discussion in Estonia on the culture of complaint, especially in the rather influential conservative-libertarian circles. This concept, which was initially proposed by the late art critic Robert Hughes in his bestseller book in the US in 1993, was expressed in Estonia in modern terms by Elver Loho in his post on nihilist.fm. Obviously I disagree with both Robert Hughes and Elver on these issues, but that is for another post at another time. However, this has started me thinking on group-based approaches to categorising people.

It used to be easy to define and label individuals based on specific stereotypes and assign them to ingroups and outgroups, i.e. Estonian and Russian, woman or man, gay or straight, which could then become basis for discrimination or even worse as history has witnessed. However, there are additional facets to this because people’s identities and group boundaries are changing too because of social progress and also technological progress that has made unparalleled mobility and connectivity possible for many people around the globe.

Ingroups and outgroups are becoming at the same time fragmented and globalised due to the impact of social media. Fragmented in the sense that people find new ingroups based on extremely specific criteria (fans of an obscure singer) that allows them to cultivate their individual interests while sharing them with people from around the world. Globalised in the sense that there are new global ingroups and outgroups (Beliebers, Apple fans, chemtrail conspiracy theorists, etc etc) that come and go. These seemingly superficial categories have much more impact than one thinks, comparisons with religious cults are not totally out of place.

On the other hand, the perceived borders between groups based on which people used to be labelled and grouped together are becoming fuzzy. Distinct human races have been proven not to exist, ethnicity is more and more self-defined and unlimited (how would you objectively define an Estonian?). People migrate and get multiple relationships with different ethnic and national communities.

Country borders are becoming porous, because states cannot any more decide who can live in their country. In Estonia’s case, 500+ million EU citizens have a rights and obligations in relation to Estonian state, as well as the huge number of permanent residents who are non-citizens, not to mention refugees under international law. Although non-citizens have no access to traditional representative democracy through elections (which is a problem), they can wield power in other ways (for example through the judiciary and the executive branch). Citizenship has little meaning left for defining ingroup/outgroup. E-resident Edward Lucas is probably considered by many Estonians belonging to an ingroup more than many of the 300 000 Russians living here on a permanent basis.

One cannot really base one’s attitudes towards people based on perceived gender and sexuality, either. Gender and sexuality is not binary, because in addition to cis gender persons there are people who identify as various forms of trans* and in addition to strictly heterosexual people there are a range of (closeted and non-closeted) lesbian, gay, bisexual, queer, etc people. Also, disability as a social construct can now under anti-discrimination law mean any long-term physical or mental impairment that prevents from participating in work-life equally with others (i.e. including certain overweight people).

This variety of differences, which is also intersecting in each individual and unique human being, some of which has always existed and some of which has been made possible by technology (i.e. mobility and connectivity) is the thing that seems to making people uneasy and uncertain, because they cannot rely on their prejudice and stereotyping. I do not have an easy stereotype for a cis gender, lesbian, Chinese businesswoman, who lives in India and has a British spouse. What if she is also a Belieber and uses Linux? Stereotypes that used to be good for easier living are increasingly unreliable and also unacceptable (which is why sensitivities and so-called political correctness has become an issue).

In order to cope, one cannot but to have tolerance for all the various individual differences and find common ground on shared humanity, which leads us closer to Benhabib’s cosmopolitan federalism.

Read: Benhabib, Seyla. “Borders, Boundaries, and Citizenship.” PS: Political Science and Politics 38.4 (2005): 673-677.


The invalid Data Retention Directive and Estonia

Posted: May 10th, 2014 | Author: | Filed under: Estonia, european union, human rights, law, privacy, thoughts | No Comments »

One of the most important decisions about protection of human rights in Europe (and perhaps the world) in recent times, was the 8 April 2014 decision of the European Court of Justice in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others. The case concerned the contentious Data Retention Directive, which required all Member States to keep so-called metadata about mobile and fixed phone and internet connections. The Court found that the directive interfered disproportionately the right to private life of all European residents and declared the so-called Data Retention Directive invalid in its entirety and from the time it came into force. There case came about because of Digital Rights Ireland and more than 12 000 private individuals in Austria had contested the validity of the data retention requirement (as it amounts to mass surveillance). There had already been constitutional challenges to the laws adopted based on the directive in many member states (Germany, Romania) and several refused to transpose the directive (Sweden), so it is clear that the directive was controversial. After all, it had been adopted in a three-month expedited proceeding after the London and Madrid terrorist attacks.

In Estonia the data retention requirements have so far not raised in formal legal constitutional issues. Looking through the procedure of adoption of the law, it seems that privacy rights argumentation was never really raised and there was almost no opposition to this (what many call totalitarian) law. The law was passed after six month legislative procedure with 82 members of parliament out of 101 voting in favour (with no votes against or abstaining). The explanatory note of the draft law states that the proposal was put together by two public officials (one from the Communications Board and another from the Ministry of Economy and Communications), with participation of “surveillance and security authorities” and the Estonian Information and Telecommunications Union. The only contentious issue that was raised seemed to be that the telecoms were not happy with having to pay for the data retention themselves (they still do).

The Estonian provision seems to be much wider than the directive, for example allowing the retained data to be used not only for serious crimes, but has been expanded to include also misdemeanours (even by the tax authorities!). This in itself seems excessive and disproportionate even if the directive was still valid. There are a number of other issues, but the most fundamental one is that according to European Court of Justice, mass surveillance is not allowed by law. It is disproportionate (even to fight terrorism) to preemptively gather, retain and process data about every single person.

So why did our constitutional system of protection of basic human rights (and the right to privacy) fail so spectacularly in this issue? In my opinion the reasons were the following:

  • Not enough detailed human rights scrutiny of laws made due to harmonisation of laws based on EU directives. The Estonian authorities seemed to assume that since this was based on an EU directive, there was no inherent risk to human rights protection. The human rights architecture in Europe assumes that there is scrutiny in terms of human rights BOTH in EU level and in national level, but this time there seemed to be neither worked. President Ilves failed in his duties as he can refuse to sign the laws he believes are unconstitutional and instead proclaimed it without problems.
  • The lack of independent NGOs dealing critically with human rights (and specifically with data protection). There was simply not enough specific expertise in Estonia to challenge the draft at any stage of the process.
  • Lack of discourse critical of technological development, also unfounded trust in technology. Since the belief in the positive impact of technology is so engrained, any opposition to using mass data collection could be seen as standing against the ‘normal’ technological development of the society. The so-called tech and data protection experts are rather evangelists who stand to personally benefit from lack of critical discourse.
  • Overall weak position and awareness of human rights. In many ways human rights are seen as declaratory, self-evident principles that have little impact in the daily lives of Estonian people, especially in specific matters.
  • Hightened sense of vulnerability brought about by fear of terrorism. I think that in Estonia this is not so relevant, since the number one fear is still Russia and there has been no terrorist attacks on Estonian soil. However, decision makers might be influenced by this.

So what now? At the moment the law in Estonia is in place and the massive breach of privacy rights is allowed to continue. There has been almost no public debate and the governmental authorities seem to be waiting for the reaction of someone else (in Finland, the review of retention laws was announced a couple of days after the judgement).

The situation is remarkably problematic not only because of the continuing disproportionate infringement of privacy rights, but the credibility problem this poses for Estonia’s image as a technologically advanced country both internally and externally. Are Estonian people going to continue to trust in e-services when it is clear that the human rights safeguards are not working? Is the international community ready to admit that Estonia is not such a great example of tech-friendly society after all if it also means lack of regard to basic human rights?

 

Annex: The provision in question is as follows (English translation is only available for the future version, but there seems to be no change in terms of this provision):

§ 1111. Obligation to preserve data
(1) A communications undertaking is required to preserve the data that are necessary for the performance of the following acts:
1) tracing and identification of the source of communication;
2) identification of the destination of communication;
3) identification of the date, time and duration of communication;
4) identification of the type of communications service;
5) identification of the terminal equipment or presumable terminal equipment of a user of communications services;
6) determining of the location of the terminal equipment.
(2) The providers of telephone or mobile telephone services and telephone network and mobile telephone network services are required to preserve the following data:
1) the number of the caller and the subscriber’s name and address;
2) the number of the recipient and the subscriber’s name and address;
3) in the cases involving supplementary services, including call forwarding or call transfer, the number dialled and the subscriber’s name and address;
4) the date and time of the beginning and end of the call;
5) the telephone or mobile telephone service used;
6) the international mobile subscriber identity (IMSI) of the caller and the recipient;
7) the international mobile equipment identity (IMEI) of the caller and the recipient;
8) the cell ID at the time of setting up the call;
9) the data identifying the geographic location of the cell by reference to its cell ID during the period for which data are preserved;
10) in the case of anonymous pre-paid mobile telephone services, the date and time of initial activation of the service and the cell ID from which the service was activated.
(3) The providers of Internet access, electronic mail and Internet telephony services are required to preserve the following data:
1) the user IDs allocated by the communications undertaking;
2) the user ID and telephone number of any incoming communication in the telephone or mobile telephone network;
3) the name and address of the subscriber to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;
4) the user ID or telephone number of the intended recipient of an Internet telephony call;
5) the name, address and user ID of the subscriber who is the intended recipient in the case of electronic mail and Internet telephony services;
6) the date and time of beginning and end of the Internet session, based on a given time zone, together with the IP address allocated to the user by the Internet service provider and the user ID;
7) the date and time of the log-in and log-off of the electronic mail service or Internet telephony service, based on a given time zone;
8) the Internet service used in the case of electronic mail and Internet telephony services;
9) the number of the caller in the case of dial-up Internet access;
10) the digital subscriber line (DSL) or other end point of the originator of the communication.
(4) The data specified in subsections (2) and (3) of this section shall be preserved for one year from the date of the communication if such data are generated or processed in the process of provision of communications services. Requests submitted and information given pursuant to § 112 of this Act shall be preserved for two years. The obligation to preserve the information provided pursuant to § 112 rests with the person submitting the request.
(5) The data specified in subsections (2) and (3) of this section shall be preserved in the territory of a Member State of the European Union. The following shall be preserved in the territory of Estonia:
1) the requests and information provided for in § 112 of this Act;
2) the log files specified in subsection 113 (5) and the applications provided for in subsection 113 (6) of this Act;
3) the single requests provided for in § 1141 of this Act.
(6) In the interest of public order and national security the Government of the Republic may extend, for a limited period, the term specified in subsection (4) of this section.
(7) In the case specified in subsection (6) of this section the Minister of Economic Affairs and Communications shall immediately notify the European Commission and the Member States of the European Union thereof. In the absence of an opinion of the European Commission within a period of six months the term specified in subsection (4) shall be deemed to have been extended.
(8) The obligation to preserve the data provided for in subsections (2) and (3) of this section also applies to unsuccessful calls if those data are generated or processed upon providing telephone or mobile telephone services or telephone network or mobile telephone network services. The specified obligation to preserve data does not apply to call attempts.
(9) Upon preserving the data specified in subsections (2) and (3) of this section, a communications undertaking must ensure that:
1) the same quality, security and data protection requirements are met as those applicable to analogous data on the electronic communications network;
2) the data are protected against accidental or unlawful destruction, loss or alteration, unauthorised or unlawful storage, processing, access or disclosure;
3) necessary technical and organisational measures are in place to restrict access to the data;
4) no data revealing the content of the communication are preserved.
(10) The expenses related to the preserving or processing of the data specified in subsections (2) and (3) of this section shall not be compensated to communications undertakings.
(11) The data specified in subsections (2) and (3) of this section are forwarded to:
1) an investigative body, a surveillance agency, the Prosecutor’s Office or a court pursuant to the Code of Criminal Procedure;
2) a security authority;
3) the Data Protection Inspectorate, the Financial Supervision Authority, the Environmental Inspectorate, the Police and Border Guard Board, the Security Police Board and the Tax and Customs Board pursuant to the Code of Misdemeanour Procedure;
4) the Financial Supervision Authority pursuant to the Securities Market Act;
5) a court pursuant to the Code of Civil Procedure;
6) a surveillance agency in the cases provided for in the Organisation of the Defence Forces Act, the Taxation Act, the Police and Border Guard Act, the Weapons Act, the Strategic Goods Act, the Customs Act, the Witness Protection Act, the Security Act, the Imprisonment Act and the Aliens Act.


Delfi vs Estonia ECHR judgment

Posted: October 10th, 2013 | Author: | Filed under: human rights, law, privacy, thoughts | 1 Comment »

Today, the European Court of Human Rights issued their long-awaited judgment in the case of Delfi vs Estonia. The case has implication for many human rights issues, including hate speech, anonymous speech, liability of internet portals for comments on their website etc.

As I currently understand the law, the provider is not liable when there is a notice-and-take-down system in place. This means that for example YouTube is not liable for any derogatory or infringing content that is uploaded until it has received a take down notice (which can be submitted by anyone) after which the content is made unavailable. This system is, of course, not perfect, because it allows to block also material that might not be infringing. It also means that the service provider should have the knowledge and expertise to identify content that is infringing from what is not, which poses specific problems. The lack of clarity and inconsistency of the notice-and-take-down system was also pointed out by the intervening third party Helsinki Foundation for Human Rights in Warsaw (which I had the pleasure of visiting and meeting with during the last weekend). See their written comments to the court (PDF).

The Delfi case involved a number of derogatory comments against Mr Leedo, who owns the company that provides ferry services between mainland Estonia and the two larger islands. The comments were extremely offensive (and are reproduced in English in para. 14 of the judgment).

The case will be commented in detail by many people, but here are my preliminary observations:

1. Not all news stories require the same degree of moderation of comments by the publisher. The court held that Delfi should have expected a number of hateful or defamatory comments due to the nature of the article and thus exercise extra caution:

86. /—/ Therefore, the Court considers that the applicant company, by publishing the article in question, could have realised that it might cause negative reactions against the shipping company and its managers and that, considering the general reputation of comments on the Delfi news portal, there was a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech. It also appears that the number of comments posted on the article in question was above average and indicated a great deal of interest in the matter among the readers and those who posted their comments. Thus, the Court concludes that the applicant company was expected to exercise a degree of caution in the circumstances of the present case in order to avoid being held liable for an infringement of other persons’ reputations.

This is an important distinction as the same could be said about articles that deal with other, sensitive topics such as issues related to ethnic minorities, migrants, LGBT rights etc in which areas at the moment there is uncontrolled hate speech. Does this mean that the publisher should put extra resources on moderation of the comments for these topics or should ban commenting altogether?

2. The notice-and-take-down system has to be effective in order to exclude liability of the publisher. Although there was a word-based automatic filtering system as well, the portal relied on a notice-and-take-down system, which allowed users to report comments they thought were offensive or illegal. Delfi had made it very easy to report offensive content with a single click (unlike twitter, which is only now starting to work out a reasonable system to report hate speech). The court thought that the systems were not adequate:

89. The Court notes that in the interested person’s opinion, shared by the domestic courts, the prior automatic filtering and notice-and-take-down system used by the applicant company did not ensure sufficient protection for the rights of third persons. The domestic courts attached importance in this context to the fact that the publication of the news articles and making public the readers’ comments on these articles was part of the applicant company’s professional activity. It was interested in the number of readers as well as comments, on which its advertising revenue depended. The Court considers this argument pertinent in determining the proportionality of the interference with the applicant company’s freedom of expression. It also finds that publishing defamatory comments on a large Internet news portal, as in the present case, implies a wide audience for the comments.

3. Liability of the publisher is related to the fact that submitters of comments were unable to modify or delete comments later. This means, according to the court, that Delfi had a substantial degree of control over the comments:

/…/ The Court further notes that the applicant company – and not a person whose reputation could be at stake – was in a position to know about an article to be published, to predict the nature of the possible comments prompted by it and, above all, to take technical or manual measures to prevent defamatory statements from being made public. Indeed, the actual writers of comments could not modify or delete their comments once posted on the Delfi news portal – only the applicant company had the technical means to do this. Thus, the Court considers that the applicant company exercised a substantial degree of control over the comments published on its portal even if it did not make as much use as it could have done of the full extent of the control at its disposal.

4. It is up to the publisher to decide which means to use in order to stop hate speech and defamatory comments. The court considered it to be an important factor that the domestic courts did not prescribe a specific remedy (i.e. moderation before publishing, etc). This means that it is up to the publisher to ensure that the exisiting protection system is adequate and effective.

5. The court does not ban anonymous expression or find that it is the cause of hate speech or defamation. The only thing the court said was that since users were not registered, it would have been more difficult to sue them directly. Since it allows comments for users that are not registered, it has a ‘certain responsibility’ for those comments. It goes on to state:

92. The Court is mindful, in this context, of the importance of the wishes of Internet users not to disclose their identity in exercising their freedom of expression. At the same time, the spread of the Internet and the possibility – or for some purposes the danger – that information once made public will remain public and circulate forever, calls for caution. The ease of disclosure of information on the Internet and the substantial amount of information there means that it is a difficult task to detect defamatory statements and remove them. This is so for an Internet news portal operator, as in the present case, but this is an even more onerous task for a potentially injured person, who would be less likely to possess resources for continual monitoring of the Internet. The Court considers the latter element an important factor in balancing the rights and interests at stake.

This approach by the court is problematic, because it might lead to anonymous commenting option to be removed in fear of liability. One wonders if similar comments made on a website which does not have a media company behind them would also result in a similar conclusion. Given the worrying trends of possibly illegal surveillance of internet activities, data-mining and the like, does it not make sense for people not to identify themselves and try to increase anonymity?

Finally, the court considered that the fine of 320 euros was not in any way disproportionate given the fact that Delfi was one of the largest Internet portals in Estonia. It seems that the court could have accepted a much higher financial penalty.

My advice to the news portals would be:

  1. Make notice-and-take-down system more effective by training the moderators and informing the users better;
  2. For stories for which hateful and defamatory comments are expected (high-risk stories), utilise a quick pre-moderation system or proactively and constantly screen comments for hate speech or defamation;
  3. Clarify the policies and increase transparency of the notice-and-take-down system;
  4. Allow users to modify or delete their own comments while remaining anonymous.

I have previously written that anonymous comments are not evil in themselves and removing the possibility is too severe infringement of freedom of expression that would not also have the intended effect. I am not happy that the court did not use this case to explore in more detail the issues related to anonymous expression online. I am a bit disappointed by the case made by Delfi, which they could have argued in a more powerful way, but the government’s lawyers should be commended for their thorough work.

The case does show very well the complexity of the issue and the difficulty in balancing different rights in the context of the Internet. Better and more clear rules on this are a necessity.


Why it is not a good thing to have only one law school in Estonia

Posted: July 10th, 2013 | Author: | Filed under: education, Estonia, european union, human rights, law, thoughts, university | 1 Comment »

Disclaimer: I am currently employed by Tallinn Law School at Tallinn University of Technology.

Recently, a little fight broke up in the media between the Faculty of Law at University of Tartu (UT) and Tallinn University  (TLU) Law School, in which the Dean of the former claimed that TLU lacks resources and capacity to teach lawyers. The latter of course responded and others have chimed in, including Ministry of Education and my own boss from Tallinn Law School at Tallinn University of Technology (TUT).

The backstory is a bit long and complicated: The Faculty of Law of University of Tartu has enjoyed a dominant position among law schools in Estonia. It used to be the only law school in Estonia before Estonia re-gained its independence, and is still considered by many as the only ‘true’ law school in Estonia. In many ways it is, as although many private law schools were established in the 1990s, these have not survived various financial and administrative challenges (some of which were possibly orchestrated by University of Tartu and Ministry of Education and Research). However, two private ‘new’ law schools merged with the other bigger public universities and thus pose a greater potential challenge for UT. This is the way I ended up working at TUT (the law school was based on the law school at now defunct American-style, international-oriented Concordia International University Estonia). TLU ended up getting merged with Academy Nord, politically well connected more widely oriented law school.

The current higher education policy favors consolidation and avoidance of duplication. After the financing reform of higher education, ‘responsibility’ of teaching law was assigned to UT. TUT and TLU thus were not supposed to teach law in Estonian and tuition-free. Our law school sensibly chose to offer studies in English, with some Estonian law courses in Estonian (which has been the strength of our law school). TLU, however, is admitting 90 students this year to study law tuition-free, which has ticked off both UT and Ministry. Some of their concern regarding capacity and capability of TLU is legitimate, but mostly TLU goes against government policy.

But is it a good policy to have only one strong law school in Estonia? The obvious argument is that Estonia with 1.3 million inhabitants is unable to support more than one high quality law school. Arguments of efficiency and most rational use of public funds are used to argue that only UT should teach law. This is the way it has been previously (and in many fields is still today).

However, what is the impact of the dominance of one law school?

Everyone knows everyone. Estonian legal community is already incredibly small. In a situation where almost all of the practicing lawyers, judges, prosecutors, many politicians and policymakers, know each other from the university, it means that important legal decisions might not be made based on justice, but based on other things such as personal friendships or animosity. Former Chief Justice of the Supreme Court Märt Rask has stated that there are serious issues regarding the Tartu Court House, into where both judges and prosecutors work. Mr Rask claimed that judges and prosecutors had become so familiarised working in the same building that judges no longer asked prosecutors any questions during trials. Indeed, when one new judge challenged this practice, prosecutors got angry at the judge. Having more than one law school would help to alleviate this problem somewhat (and not putting judges and prosecutors into the same building as well).

All students study under the same faculty members. If there is only one professor of criminal law, or labour law or European law, then this means that students are exposed to only one point of view. Professors and instructors are not machines, they are human beings with specific leanings and understandings. Some are good, some are bad, some emphasise certain things, some other things. Having only one person teaching all lawyers legal principles and approached in any field is a huge incentive for groupthink. This is compounded by the lack of problem-based learning and overreliance on lectures.

Lack of diversity in terms of schools of thought and development directions. There is a difference in what kind of values are instilled into students at law schools. There are law schools that value legal positivism, there are more liberal law schools. There is a difference in how law is taught at different universities as well as what is emphasised. The Estonian educational authorities seem to think that there is only one way and that this role can only be played by UT. This means that the institutional choices made by this one law school apply for all of Estonia. For example, the internationalisation efforts of UT are rather limited in the field of law. They teach exclusively in Estonian and Estonians, their faculty is Estonian (excluding a few visiting scholars). Thus, if they were the only law school in Estonia, Estonia would be rather blank in the international legal space.

Lack of diversity leads to stagnation and poor quality of teaching and learning. So having only one law school would lead to further diminishing of the status of legal education and law in general.

The remedy would be to be more lenient regarding diversity in the area of teaching and research in law in which international competition is limited (it is hardly likely that any other university outside Estonia gets involved with Estonian law), supporting more universities to offer studies in Estonian and about Estonian legal system. This means that state educational policy must change considerably, which is extremely unlikely at the moment. The only other solution is to study abroad and hope that students return to Estonia, but this takes much more resources from the society and skills and knowledge acquired from other jurisdictions can only be applied in Estonia to a limited degree.

It would be interesting to see a more detailed analysis on the impact that havinga domionant law school has for the society in terms of protection of human rights (especially procedural rights), the legal profession in the country and the quality of legal education. Sadly, no-one has looked into this, because there are very few countries in a similar situation.


The impact of technology on the right to privacy

Posted: July 3rd, 2013 | Author: | Filed under: european union, human rights, law, privacy | No Comments »

In 1890 Louis Brandeis and Samuel Warren published in the Harvard Law Review an article called “The Right to Privacy”. They wrote:

“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life ; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.””

It was the dawn of the age of the mass circulation gossip newspapers, aided by the improvements of the printing press and the invention of photography. This technological change prompted Brandeis and Warren to write their article and to call for legal protection of the right to privacy, which had already been enacted in France in 1868 (“11. Toute publication dans un écrit périodique relative à un fait de la vie privée constitue une contravention punie d’un amende de cinq cent francs.” Rivière, Codes Français et Lois Usuelles. App. Code Pen., p. 20.). In the article, Brandeis and Warren set out many of the principles that we follow to this day. Also, they called for both tort action with substantial compensation, injunctions as well as possible criminal sanctions for the violation of this right. Thus the right to privacy was born as a reaction to specific technological changes.

In the 1970s and 80s, when mass computing and databases had started to become prevalent, work started on international regulation of the right to privacy in the specific context. This resulted in the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (also known simply as Convention 108). The Convention entered into force in 1985 and has been ratified by 45 European states and Uruguay, including most recently by Russia in May 2013. This forward-looking document is the foundation of European rules on data protection. It sets the main principles related to data processing, including rights of individuals. Thus Europe already had before IT became commonplace a set of rules to adhere to.

In the European Union, data protection has recieved more attention than almost any other fundamental right. It is one of the more strongly protected rights in the EU level, having both its own Article in the founding treaties (since Treaty of Lisbon), strong protection in the Charter of Fundamental Rights of the EU, which became binding in 2009 together with the ToL, and a large body of secondary EU law (mostly directives), already since 1995’s Data Protection Directive. Again, these strong protections have been put to place as a consequence of advances in technology.

The fact that data has been protected in such a high degree in Europe and at the European level, has facilitated cross-border transmission of data, without which there would be a quagmire of different rules to follow. The EU data protection rules are currently being updated to react to the spreading of business models which involve trading with personal data (by mostly American companies such as Facebook, Google, Apple, Yahoo and Microsoft). These include the much debated right to be forgotten and the right of data portability, which means that you could move your data from one social media service provider to another, preventing customer lock-in.

With the NSA snooping scandal, an aspect of privacy has come about that had been forgotten by many. Although the focus has been on the private sector lately, it has become clear that the governments are more than ever capable and interested in finding out what people do and say online. No-one is off-limits, it appears.

In much of the same way as Louis Brandeis and Samuel Warren denounced the activities of gossip rags, it is important that there is a strong reaction in the form of legislation for the kind of invasion of privacy that has happened now. The answer is not to claim that privacy is dead (linked text in Estonian), but the opposite, rules and oversight must be made even stronger as a reaction to technological advances, just as we did when photography was invented. Those rules have to be smart and take into account the changing technological paradigm. Ultimately mankind can be successful if it can make technology work for it, rather than using it as an excuse to decrease human rights standards. We have outlawed reproductive cloning of human beings, eugenic practices and many other things that are technologically possible, but against the values on which our society is based on. So why cannot we keep 100% privacy in the digital age?

Of course the right to privacy as applied to Facebook is somewhat different than as applied to the tabloid newspapers. The underlying philosophical and ethical values are similar, but their application can vary. The individual has become much more empowered to control information about him or her than ever before. And that is a positive thing. Harvard scholars did recently a literature review on the privacy practices of the younger generation, and found surprisingly that privacy is as valuable as ever:

“The prevailing discourse around youth and privacy is built on the assumption that young people don’t care about their privacy because they post so much personal information online. The implication is that posting personal information online puts them at risk from marketers, pedophiles, future employers, and so on. Thus, policy and technical solutions are proposed that presume that young would not put personal information online if they understood the consequences.

However, our review of the literature suggests that young people care deeply about privacy, particularly with regard to parents and teachers viewing personal information. Young people are heavily monitored at home, at school, and in public by a variety of surveillance technologies. Children and teenagers want private spaces for socialization, exploration, and experimentation, away from adult eyes. Posting personal information online is a way for youth to express themselves, connect with peers, increase popularity, and bond with friends and members of peer groups. Subsequently, young people want to be able to restrict information provided online in a nuanced and granular way.”

The above research suggest we should not be worried about privacy becoming unimportant in the future, but rather how to guarantee that we can control the privacy of our online lives. This should include being informed about when and what the government (or other governments) are able to know about us and what are the oversight mechanisms that protect us from it. The national intelligence community should be also interested in this, because otherwise they will be faced with another snowden, another wikileaks every couple of years. If people are in general terms aware of what, why and how is being gathered and have reassurances about sufficient oversight then Edward Snowden’s revelations would not have had much news value. If, however, it will be business as usual, more revelations are bound to take place.

P.S. In a way governments, especially the US, have fallen victims of the technological change even more than any individual. Wikileaks and Snowden revelations have been deeply embarrassing and probably hugely damaging. So the governments too must decide whether aiming for more secrecy is viable or should openness and transparency be better in the long run.