Threat to openness: managing access to public archives

Posted on February 10, 2016 by lawrence serewicz
Portrait of Henri Bergson by J.E. Blanche 1891...

Portrait of Henri Bergson by J.E. Blanche 1891 to illustrate Henri Bergson article. Uploaded from http://www.marcelproust.it/gallery/bergson.htm (Photo credit: Wikipedia)

In November 2015, I attended the Threats to Openness conference held at Northumbria University. The conference had a specific aim “discuss the growing threats to citizens’ rights to access public archives across the digital world.” Although we did not discuss what was meant by openness, it was understood mainly to be defined by the right of access or the right to access public archives. However, this provides only a limited sense of how openness was used during the conference. Participants and speakers regularly referred to difference between access and openness noting that they were often confused. One does not always imply the other. As openness can be understood differently, the threats to it will vary with responses that can potentially conflict with efforts to help with access. What was missing was a detailed discussion of the relationship between access to archives, openness and the nature of the society. A society may be relatively closed yet allow access to its archives and one might have an open archive with few records. The implicit theme was that informational openness presupposes an open society. Yet, without understanding how archives relate to an open society, we could not fully understand threats to openness as a threat to access or how threats to access to archives are a threat to openness. To do this, we need to explore what is meant by openness. To do this, I sketch some ideas about the open society.

The following remarks are based on what I heard at the conference. We need to understand the open society to understand openness and from there to understand the threats to it.

Part 1 What is openness? Some thoughts.

First, openness is usually associated with the idea of an open society– “a society characterized by a flexible structure, freedom of belief, and wide dissemination of information.”[1] The open society presupposes a regime based on openness. What constraints this view, though, is that openness and transparency are not the same. A government may want the public to believe that its transparency indicates openness. That a government will publish a large and varied amount of data and information is a sign transparency. The access to that information and its willingness to provide information as requested indicates openness. Transparency does not mean that there is greater access to information or greater openness by the government.

We can look beyond this view of openness to explore how it connects to the political system. Karl Popper popularized the idea of the open society. He argued that an open society was one in which the government is responsive and tolerant with political mechanisms that are transparent and flexible. For Popper, the open society exists in contradistinction to the “closed” society. The closed society is based on traditional or tribal systems that are intolerant of challenges to its authority. One way to limit challenges to authority is to limit the information that is available. However, Popper’s views are a crude version of what Henri Bergson proposed in his work The Two Sources of Morality and Religion where he developed the idea of an open society. Bergson proposed that the Open Society was an idea that was temporal, as it has yet to be realized, and global in that it would include everyone so that we are all living in a potential open society. In other words, it is an ideal that is present in a nascent form still to be realized. By contrast, the closed society was one that the excluded some individuals even as included others so they were closed to part of humanity. The truly open society would be one that is global in scope.

When we consider openness at this global level we start to see how various threats to openness might emerge. We can see, especially through Bergson’s work that the UK society[2] is closed in many respect. As a monarchy, the archives as litmus test for that openness as they raise the question of arcana imperii, the secret information a regime uses to rule. Like all societies, the UK will have legitimate reasons to limit access to keep information secret or private. They indicate the border within which threats to openness emerge for it is the point at which society, or the rulers, have agreed that openness cannot pass. Even as there are attempts to encourage open information in a general sense, all societies will limit access to information and specifically the archives. Thus, we may have to accept that openness, in terms of information, only means; a specific domain, specific information, or a general idea. Even if it is an extensive domain such as the “public domain”, it may not cover all of society. In other words, the limits on information may indicate the extent to which it is a closed society.

A further question is whether those closed off areas are a threat to openness simply by being closed and thus inaccessible. Such a question, though, presupposes that we know who cannot access the information. If a government minister can access the information, is it closed? If junior civil servants have access, is it closed? Do we have to accept as our standard that if the public cannot get access, then it is considered closed? However, that assumes that the public are the standard by which we measure access and openness. If the public do not rule, as they do not in the UK or in other countries, why do we assume that access is to be measured by what the public can access? Moreover, is a public record what the government decides as people may donate or bequeath papers, documents, and records to record office. Does closed mean that they are inaccessible to the public gaze, neither we nor our representatives can see it (such as state secrets) or that they are not readily accessible, that is they are exempt from disclosure even though they are covered by the Freedom of Information Act (FOIA)? Or are they do not even constitute a public record, such as Royal Archives or private archives so are completely outside the “public” gaze?

In an extreme case, as mentioned earlier the archives can be an extension of, or even coterminous with, the arcana imperii[3]. As the rulers rely on this information to rule, openness threatens their rule or their legitimacy. However, the arcana imperii is not limited to imperial governments or government simply. It is applicable to any intellectual discipline where information provides power or status.[4] Where discoveries can provide competitive advantages for the organisation that has sponsored the research, openness can be a threat as the material is what provides the knowledge which creates an advantage.[5]

By their nature archives are closed off in that they are bounded space for a specific purpose to protect or preserve records even as they make them available for future generations. In this regard, some records are closed by statute and others by request. Within that process, a further threat to openness can be found in the system for cataloguing the records. The catalogue can become a barrier to access as the public have to know the “language” to access the material as well as understand the process to access. However, these are structural barriers, which while problematic do not threaten openness generally even though they may be a particular challenge. The structural barriers can be overcome by the archivists or the user. By contrast, a statute or a legal barrier, imposed externally, cannot be overcome by the user or the archivist without penalty. In this, the structural constraints are not designed to reduce openness or access; they are designed to control it. But what are the other threats? We need to consider these at three levels.

Archival

The archival level is where threats to funding become a threat to limit access to archives or a powerful patron seeks to limit access. At this level, there are threats to an organisation hosting the archives where it may close the archives. Other threats might be the technical limits where records, stored as data, become inaccessible and therefore closed. Further, the technical limits can also limit access so that even if the archives are digitized, their access can be controlled more easily and more extensively even to the point of excluding the archivist. By contrast, physical documents, which while closed to the public still exist in a tangible place accessible to the archivist. To put it directly, you cannot encrypt paper.

Societal

At a societal level, threats can occur when people no longer value or understand archives. The archive’s role in society may be misunderstood or overlooked. As a result, the lack of interest or understanding can generate threats to funding or access as society allows the archives to be closed. Moreover, the government may wish to close the archives as a way to ensure their arcana imperii remains protected to maintain their dominance within the political system.

Global

The global level the threats can develop from an international or global resistance to openness. We can see this develop because of cultural reasons or for security reasons. In particular, in the West the fear how information will be used means that it is closed to those who might “abuse it”.[6] We note that scientists close their research to tobacco firms and scientists will sometimes close their research to rivals. Alternatively, the government or research sponsor may classify information to limit access. In some cases, the fear may lead to archives being closed to foreigners or to the public. Yet, these only relate to the archives themselves. We need to consider the other part of the issue the citizen’s right of access.

Part 2

threats to citizens’ rights to access public records

We can read the sentence narrowly to consider possible threats to a citizen’s rights. The focus is mainly, but not exclusively, on political threats where governments want to limit, or community, want to limit rights of access or society no longer supports or is informed enough to challenge the government’s proposal on access. Further, the threat may come from the society being unaware of or unconcerned with the government’s failure to ensure citizens’ rights of access. However, these were not the main concern as the focus was on the political and technical threats to access.

Are there political reasons why access is to be limited?

There may be political reasons for closing or limiting access as a regime is not required to have archives or to allow access even if it has archives. The question here is whether there is a right to access in itself or is access part of the nature of being a citizen especially in an open society? In the former, it is that if you have archives there is a right of access. Thus, if no archives exist you cannot have a right of access and even if there is an archive a right of access is not to be inferred. In the latter, it is that as a citizen, especially in an open society, you are expected to have right of access even if archives don’t exist. In that sense, an open society infers that archives will exist and are accessible. The premise is that free access to information is the basis for an open society, which extends to archives. Yet this brings us to the challenge mentioned earlier that the government may wish to make information open or accessible on its terms and not in response to what the public request. In other words, the government wants to be transparent but not open in the sense that it can be forced to given an account by providing access. The issue of “push” (government transparency) versus “pull” (citizen’s right of access) for the citizen rests on the understanding of whether accessible information is the same as open information. Further, information that is accessible may not be open as only a few people may have access it. The approval process can limit access beyond who can physically attend the location to access the information. When we discuss this issue, we are working from the assumption that the information is in an accessible format when someone exercises their right to access it.

 

As mentioned earlier under the archival threat to openness, a powerful patron or a politically powerful person may seek to limit what the archives contain. They may wish to hollow out the archives to avoid being accountable to history or anyone else. They will ensure documents are well vetted before they get to the archives, if they get to the archives. Once at the archives, they may put the archivists under pressure to accept limits on access. Alternatively, the powerful patron or political figure may encourage individual departments or agencies to limit their access to information or cleanse their records before it arrives at the archives. Although the conference did not explore this idea, the right of access can be threatened by political activity in which records “disappear” and people find that the historical record is sanitized so as to avoid embarrassment at a minimum or hide outright criminality at a maximum.

The deeper threat is that archivists become co-opted by the political process. The archives have to survive in a political system so they will accept such behaviour to protect the archives. The implicit fear is that if they insist too strongly on robust archival retention, their political masters will limit what they receive or limit their funding to operate. As it is their political masters, the government, an archivist has no higher authority to which they can appeal assuming they can make the higher authority see a concern with the issue. Would a national archivist in the UK really be able to face down a Minister who chose to limit what they would provide the National Archives? They may never face an obvious crisis like the Nordlinger Affair which is crude attempt to exert direct political control.[7] Instead, they will have the indirect request to allow greater oversight of the disclosure process or the request to improve the vetting process. All of this will appear to the archivist as a positive step even as it is attempt to encourage even greater political control over the archives by limiting what may be accessible in the future that might hold the government or the politically powerful person to account.

Does technology create a limit to a citizen’s right of access?

We have to consider whether the digital domain changes the nature of the right to access. There is a danger we can believe a right has been expanded through the appearance of openness created through greater access promised by the digital domain. According to this logic, a document can be accessed from anywhere in the world through the web, which makes access global. Yet, that same access can be limited more easily either through controlling the digital access or by keeping the records out of the digital domain. As the closure is less noticeable in that suspending digital access is not as prominent as physically closing a building, it becomes problematic to assume that digital intrinsically creates more openness. Moreover, one can target the closure to people from specific addresses or from certain domains where various login pages can limit access and access can be further limited to what can be searched electronically. By comparison coming into the archives one can have physical access to different documents and is only limited by what the available index allows. Further one has to explain the refusal in person when the digital domain does not require such a personal transaction, which can be open to negotiation or influence. A related problem is that the digital access may not work. In this case, the material that is held digitally is in a format that cannot be accessed. Here the problem is future compatibility. An electronic record from 1990 on a legacy system may not be accessible on a 2015 system. Thus, the technology may constrain the right of access. The technological obsolescence may limit or remove the right of access. Even though someone physically accesses the record, they cannot access the information that it contains.

What if openness is a threat? Can that explain why there are threats to access?

Another way to look at the threat to citizens’ rights of access is to consider how openness is considered a threat. By reversing the question, we can explore why individuals, organisations, societies, and governments would want to limit that openness.

The first point to note is that governments, societies, and individuals have legitimate reasons for keeping things inaccessible to the public or to citizens. Usually, these are state secrets or private information so they will not want to encourage access to these types of records. However, we have to be careful not to confuse the desire to preserve state secrets or personal information with a resistance to openness. The United States and the United Kingdom are open with a large amount of their data, information, and records. Even as they seek to preserve secrets, they also work to ensure openness, which is often manipulated so that critics will say that resistance to disclosing state secrets is considered a threat to openness. The problem is that one is a passive resistance, no access to state secrets, the other is active resistance your right to access is limited. In the UK, for example, the right of access to national security documents still exists as the FOIA can be used, yet it is limited by an absolute exemption.

The second point to note is that openness can be considered a threat to the extent that it would undermine legitimacy of the state, society, or the individual.[8] The openness here is considered corrosive of what provides legitimacy. If someone’s birth records show them to be illegitimate and thus not entitled to what they have claimed, they will want to resist openness. A government may do this when it fears that disclosure will undermine its ability to operate effectively. We can see this most clearly in the FOIA exemption under s.36 (harm to the effective public policy) the right of access is not in question, yet, but what is in used is that disclosure would hinder the government’s ability to operate. It would be tainted by publicity so the information takes on the veneer of arcana imperii

Finally, we have to consider that openness is a threat to those who rely on hidden information, the arcana imperii, that allow them to have an advantage. Here the issue is not so much that knowledge is power it is that limiting access to knowledge is what creates power. One can see this indirectly in the way that websites can limit access, which give them an advantage, which also limits rivals to their position. At a larger level we can see this in the way that certain regimes rely more on arcana imperii as they are not founded on principles that would benefit from openness. The idea here is that openness implies an equality, an equality of access in that it is a right, and therefore challenges the intrinsic inequality of the arcana imperii. Although all these points are made tentatively, since they were not addressed at the conference, they do suggest a possible area to investigate especially if we connect openness and threats to openness to the idea of the public domain whereby we assume that the public domain is open.

[1] http://www.oxforddictionaries.com/definition/english/open-society

[2] All societies are closed to some extent which means that Bergson’s ideal is aspirational or theoretical except in the potential of a world state of enlightened citizens.

[3] ARCANUS IN TACITUS Author(s): Herbert W. Benario Rheinisches Museum für Philologie, Neue Folge, 106. Bd., 4. H. (1963), pp. 356-362 J.D. Sauerländers Verlag Stable URL: http://www.jstor.org/stable/41244204 Accessed: 06-04-2015 23:51 UTC

In its other sense, arcanus indicates that which, regardless of chance, must be kept from knowledge, things tacenda or celanda. Whatever the reason, promulgation of these secrets would be disastrous, whether the important area be political or religious.

P360 “Here we have one of the keys to power, the ability – and the need – to conceal what is necessary from the general eye. And the verb vulgärentur is instructive; we have met it twice before. The value of arcana is exclusively political here; what is referred to must be tacenda.

Tacenda means Tacenda are things not to be mentioned or made public—things better left unsaid; tacit means “unspoken, silent” or “implied, inferred.” http://www.thefreedictionary.com/tacenda (accessed 7 April 2015)

[4] The arcana imperii can also describe secrets of nature. If man can unlock those secrets, it is believed he can control nature in the way that man controls man when he knows their secrets or possess secret information that they cannot know.

[5] “Thus the study of arcana imperii stressed not only the empirical collection of knowledge as the basis of politics, but the clever management of that knowledge.” Mining Tacitus: secrets of empire, nature and art in the reason of state Vera KellerThe British Journal for the History of Science / Volume 45 / Special Issue 02 / June 2012, pp 189 – 212 DOI: 10.1017/S0007087412000076, Published online: 20 March 2012

Link to this article: http://journals.cambridge.org/abstract_S0007087412000076 p191

[6] The Congressional Record Service (CRS) used to publish its reports on the internet. However, Congress after 11 September attacks, ordered that they are no longer published on the internet. Even though other organisations such as Federation of Atomic Scientists (FAS) publish them on their own initiative, Congress’s decision has reduced access.

[7] http://www.mybestdocs.com/hurley-c-lucas-keynote0703.htm

[8] The example of Athens vs Socrates is such an example as the city could not tolerate openness beyond a point where its identity or legitimacy was in question.

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Words of Wisdom on turning 30

Posted on February 4, 2016 by lawrence serewicz

On New Year’s Day, Silvia Spiva asked me to offer some words of wisdom to two friends who were turning 30 this year. I was surprised, yet honoured to be asked. I don’t consider myself to be particularly wise or knowledgeable. However, it is a rare person who can see themselves as they are seen.

I promised her that I’d write some words once I had time to reflect on what I would say. When such advice is requested it is easy to offer an immediate answer like “Eat healthy” or “Always wear shades”, which discharges the duty but does not answer the question. I wanted to answer the question without offering a list of duties or tasks the person must accomplish or avoid.

To the extent that I have wisdom or insight, I offer the following comments. I do not know either of the men personally so the comments are focused on the public life which precludes personal or spiritual life. To provide advice on a personal life or a spiritual life, one has to have a better understanding of the person, their background, and their current context. As I have neither, I can only provide some words on their public status and what I know about the public domain. I hope my comments can be useful.

Integrity. As both of you are turning thirty, you will have already achieved a measure of success. You will have already been asked and answered, whether you know it or not, the integrity question. Integrity is fundamental to a rewarding public life. If you have it, people will trust you and rely on you. If you lose it, you will spend a life time trying to recover it or living with its loss. Without integrity, you are not as trustworthy or reliable. You may be asked to sacrifice some of your integrity for short term success. Is the success worth it? For some people, the answer is yes. They gladly become the willing executioner. If you have not already experienced it you will find that many organisations, and some people, will demand or at least politely suggest that you need to be flexible with your integrity. They will ask you to bend to their or the organisation’s will. In other words, you need to sacrifice your integrity for their ends.

Faith. Faith is more than a spiritual characteristic for here it means being part of something larger than you. Our professional or public lives have meaning and are rewarding to the extent that we are part of something larger than ourselves. For some people, that can mean public service. For others, it can be working within an organisation. They want to serve either the public or the organisation’s ends. For others, it is to join a cause or movement. Whatever you decide, turning thirty is when you have to consider what is the larger project, idea, or movement that you want to be part of. Seek these out and see where that adventure takes you. If you take a small slice of a larger problem, you can find a way to make a difference. You may not solve world hunger, but you might find a way to identify potential drought spots before they become severe.

Live your life. As you turn thirty, you are now officially in your middle age. As your life span is about 80 years, when you pass 27 you have arrived in your middle age whether you realize it or not. You have to decide what life you want to live. You may find that you have been living with someone else’s expectations or demands, such as finishing graduate school, or completing an apprenticeship, or founding a company. Over the next decade, you will be shaping your career. If you seek out larger projects ensure that you are pursuing it for your own reasons. If you seek money or fame, they come at a cost. Make sure the price is worth the cost.

Acceptance is not resignation. As you pass into middle age, you will have to accept certain things. This does not mean you are resigned to them. For example, you will not be playing professional sports. If you have not achieved this by the time you are 30 or on track to achieve it by then, it is unlikely to happen. The same is for a number of other pursuits. If you want to run for president, you need to have already laid the groundwork for it. You can only reap what you have sown. If you have not sown the seeds for success in March you cannot harvest them in November when they are expected to bloom

Less glamour does not mean less fulfilling. In an age of mass culture, the prevailing ethos will suggest that success or meaning is measured by public criteria. The criteria may include something glamorous or publicly acclaimed, such as fame, status, power, or money. The prevailing ethos, with a focus on celebrity and status will suggest that if you are not pursuing these or obtaining these your career or life is less fulfilling. The lack of glamour does not mean that what you do or what you want to be is less fulfilling. You are at the point where you have to decide what matters to you and to pursue it. As your choices close off other opportunities, realize that life’s contingencies are not your fate. Instead, a life lived as you want is harder to achieve and is more rewarding than a life lived to others expectations or to their standard.

Lastly, there is the question of how you get anything done in this world. You may believe the common idea that all that matters is the individual to get things done. You may have also been encouraged to believe that networks matter most to achieve your success. Both of these have their role, but neither explains what really works.

Organisations matter. If you want to get anything done, you need an organisation. A network is not an organisation until it actually delivers results and responds to what you require. Organisations may be fluid, they may even be structured like networks, they may even be “virtual” (whatever that means) but they never disappear. Only with or through an organisation will you be able to achieve what you want. Organisations provide the context within which you can flourish and leverage your individual talent. Over the rest of your career and public life, the more you understand organisations and develop your ability to organise, either across or outside your networks, the more success you will have as well as your ability to manage or at least adapt to life’s contingent events.

I hope these words of “wisdom” help without being too obvious or being grandiose. Revel in your youth and marvel at your opportunity.

 

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January Break

Posted on January 1, 2016 by lawrence serewicz

Dear Subscribers,

Thank you for following this blog in 2015. I hope you had a good year for 2015 and I wish you an even more successful 2016. I will take a break from this blog until February.

I will take January off to reconsider the blog, review my writing, and develop some new ideas for posts over the year.

Thanks for reading the blog and I hope you continue to follow it in 2016.

All the best,

Lawrence

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Daniel Morgan’s murder, police corruption and the health of the UK regime

Posted on November 24, 2015 by lawrence serewicz

Daniel Morgan was brutally murdered with an axe. In the days before his murder, he had claimed to have information about a network of corrupt police officers. Despite, 6 investigations and two failed prosecutions, his killers have never been brought to justice. They have escaped justice in part because of police corruption. Police corruption during the initial investigation has made it unlikely that his murder will ever lead to a prosecution. The Metropolitan Police Service failed him and his family. They failed to bring his killers to justice. They failed to address police corruption. They failed to resist an unhealthy relationship with the UK media, in particular News International. The corruption coupled with the corrupt media relationship makes his case notable as it challenges the United Kingdom as a decent society. If Daniel Morgan cannot get justice, who can? When the police and the press are corrupted, who is safe? In response to the corruption, failures, and denial, a relentless campaign has forced the government to hold a public inquiry.

The public inquiry[1] set up in May 2013 to explore the evidence from the police and others sources has the following terms of reference.

  • Police involvement in the murder
  • The role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption
  • The incidence of connections between private investigators, police officers and journalists at the News of the World and other parts of the media and corruption involved in the linkages between them.

A previous post covered the first item on police involvement in the murder. It suggested that the relationships needed to be mapped to see their effect.

This paper focuses on the second point. It defines political corruption and explores the failure to confront corruption on three interrelated levels—the individual, institution, and the regime.

Daniel_Morgan_s_murder_police_corruption

At the institutional level, the police had a corrupt relationship with News International. The company subverted police objectives. At the regime level, the police were corrupted by the regime’s demands.

The analysis will be of interest to anyone researching corruption. The institutional corruption can also apply to corporations who can be subverted by a powerful patron. The regime level will interest scholars in political philosophy as it connects the regime level to a particular problem. Most importantly, I hope it will be of interest and use to anyone who has followed the Daniel Morgan case. Police corruption threatens the citizen’s safety by weakening their access to public justice. Without a secure access to public justice, a decent society or decent politics is tenuous. When a citizen lacks access to public justice, they appeal to force or power as justice through consent to the laws is impossible. For the UK regime, this threat is particularly problematic.

I welcome your comments on this paper. I encourage you find out about Daniel Morgan’s murder.[2] It exemplifies the problem of justice when the police are corrupt. If Daniel Morgan cannot get justice, who can?

[1] The Daniel Morgan Independent Panel (DMIP) home page is here: https://www.danielmorganpanel.independent.gov.uk/

[2] The following are a list of sites, in no particular order, that contain useful information about Daniel Morgan, his life, his death, and the long, strange, frustrating case.

http://www.justice4daniel.org/index.shtml The Morgan family’s campaign to get justice for Daniel.

https://en.wikipedia.org/wiki/Daniel_Morgan_%28private_investigator%29#Murder The Wikipedia entry about his murder

http://jackofkent.com/2012/02/daniel-morgan/ A well known legal blogger’s material on the case.

http://www.murdermap.co.uk/pages/cases/case.asp?CID=492610746 A blog with a good history of the case.

https://inforrm.wordpress.com/2013/05/16/hackgate-issues-for-the-burnton-inquiry-into-the-murder-of-daniel-morgan/ A blog that covers the police issues including relevance for the phone hacking cases and police corruption

http://brown-moses.blogspot.co.uk/2012/05/hackgate-for-beginners-murder-of-daniel.html A good resource on police corruption and the Daniel Morgan case.

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Volkswagen, Nuremberg and a corporate ethical failure

Posted on October 15, 2015 by lawrence serewicz

We have heard the news that Volkswagen US designed and used an electronic device to thwart the emissions tests for its diesel vehicles. The device would recognize test situations and engage the vehicle in a safe mode that would reduce emissions to an acceptable level. As a result, the VW vehicles would have emitted pollution at up to 40 times the safe limit. In effect, the VW emissions poisoned millions of people as they emitted pollution beyond the acceptable safe limit. The emissions were being increased with each vehicle despite VW’s claims that their vehicles were reducing them. The VW engineers and managers intended to subvert the tests. They did not do this by mistake or as part of single decision by a rogue manager.

The corporate scandal to script but something is different

On the surface, this appears to be an example of corporate malfeasance that is depressingly common. The company is caught after they fake a result, inflate earnings reports, or manipulate their customers’ timelines. The company apologises, someone resigns or is fired, it pays a fine or settles a lawsuit and promises to learn the lessons and change. What is always clear is even as the company responds; it shows it has not learned. Someone is found to blame, the rogue employee, incompetent manager, or the authoritarian chief executive so the company can survive. Even where they identify a problem in their culture, they believe that a better compliance structure or system will deal with the problem. Yet, they miss the deeper problem that a compliance system or structure will not address.

What is the problem that lurks beneath the scandal’s surface?

On the surface, we can say that VW has a flawed corporate culture and focus on the personalities or search for rogue officers.[1] This focuses on the symptoms, without understand the problem that created the scandal.[2] Another view on the surface is to claim that it is the pressure to perform and succeed, yet this requires us to understand why other competitive firms did not cheat.[3] We leave aside the concern that they may be better at cheating. A further surface view would be to excuse it as what everyone else does it, yet this raises the question of why that makes it acceptable. Others stay on the surface by blaming someone or something in statements like “It is the regulatory system that creates the desire for a perverse outcome.” “It was an authoritarian Chief Executive.” These sound good, provide a reasonable explanation and may even contain elements of what happened. They may even lead to some changes. These approaches deal with the symptoms or contribute to the problem as they miss the heart of the problem. The problem was institutional corruption stemming from a deep, ingrained, ethical blindness if not moral callousness. At a basic level, the officers stopped being a moral person, they stopped thinking and this is why the lessons of Nuremburg have to be learned anew. The VW employees were inculcated into a management system that stopped them thinking, to stop asking questions or to question authority and required them to obey and not to raise bad news. They were inculcated to accept institutional ignorance.

Institutional Ignorance: a refusal to think about the ethical consequences

The banality of institutional ignorance is related to Hannah Arendt’s famous phrase “the banality of evil”.[4] She coined the term to describe Adolph Eichmann’s unthinking behaviour to implement the “Final Solution” to exterminate Jews and other enemies of the Nazi state. He was not a grand, malevolent figure. Instead, he was an unthinking bureaucrat who followed orders from an authoritarian leader, which explain why evil was banal. Evil is rooted in thoughtlessness, an inability to think critically, where a person engages superficially with the morality of what they do.[5] The VW employees, in particular the senior corporate officers and the boards, either choose to stop thinking or they are encouraged or trained to stop thinking. Where an organisation does not encourage critical upwards communication[6], where staff can discuss or think about bad news[7], such unthinking behaviour can occur. Eichmann never questioned the purpose of what he was doing or what was being done. If he did, then it was simply to confirm that his leader’s orders were to be obeyed. A good person would have thought about the problem, killing people, and realized it was wrong and would not have participated or actively resisted. Instead, he worked to improve the system. As a good bureaucrat, he acted as the system, and obedience to the system, was the highest moral duty. The system provided his moral framework. He never thought beyond what was required to obey a higher law.

Institutional ignorance encourages the suppression of questions.

At the Nuremberg Trials after the Second World War, the defence of following orders was ruled inadmissible. The courts reiterated that each soldier had a moral duty to question illegitimate orders. Each soldier had the autonomy to be a moral agent. That they failed to act morally and they directed others to act immorally made senior leaders culpable for their crimes. It would appear that this basic lesson has not been learned within German corporate culture. One would expect that in a country where such unthinking behaviour had been displayed so extensively and punished so completely, that the lessons would be learned that employees are ethical persons who need to make moral decisions. More directly, one would expect that a fundamental criteria or leadership in such a country would be that they can demonstrate they have learned the lessons from Nuremberg; that authority is to be questioned, and avoid an authoritarian approach that precludes questions so as to drive out ethical autonomy.

Moral autonomy within a bureaucracy is at the heart of this comparison

What is clear is that VW intended the outcomes that they achieved and the culture enabled that outcome. They intended to subvert the emissions test to sell more vehicles and to increase their market share. They had no apparent concern for what happened to the public who would breathe the polluted air. Like Eichmann the senior managers who knew of the cheat did not think about the moral consequences. If they did, they did not stop it nor did they expose it. Even now they want to avoid their moral responsibility as they to point to their authoritarian leader who created a culture of fear. Even if true that does not avoid their moral responsibility. If anything, it makes the situation worse. A leader can only create a culture of fear if others enable that behaviour. The board and senior managers, those paid to push back and challenge, carried out his orders, *even though* they know it created a culture of fear which was ethically and morally wrong. At no point did senior managers push back or seek to restrain the culture of fear. As long as it delivered the results they wanted, they turned their face. They chose wilful ignorance. Tell me no problems and I will tell you no lies. The senior managers and the board expressed no curiosity and they did not create an ethical structure where this behaviour would not be entertained let alone put into practice and endorsed. We find no evidence that they tried to think critically. Even where external organisations, through inspections, did try to provoke them to think they resisted. In many ways they worked to avoid thinking or act on the ethical consequences of pollution emissions.[8] What is striking from this scandal is VW had no whistle-blowers. No one thought this was a problem or if they did, they said nothing. In a country like Germany such behaviour is deeply troubling. Its history should be the lessons of what can happen if no one stops and asks the questions necessary to force people to think.

Does your company require to you to think ethically?

Questions would force the organisations to “think” and take responsibility to understand the problem. The system appears to have kept anyone from thinking critically or ethically about what they were doing or failing to do. When officers stop thinking, they stop being moral agents. They can avoid moral responsibility for their decisions when they transfer accountability to the system. In turn, the system absolved them of a responsibility to think about the problem. When no one is responsible for the ethical content of a decision then no one is to blame.[9]

Why question something when your superiors tell you what to think about it?

In the VW scandal, we see what Arendt saw in Eichmann except the results were not immediately fatal. For VW and Eichmann the system worked. VW had higher priorities than public safety or a responsibility to act ethically. Why should officers question the system or what they were doing when the system does not encourage it? What junior officer is going to challenge a corporate director on that view? The senior officers had an institutional reputation to defend and a success to deliver. The bureaucracy was structured to serve the senior managers and their goals. The ethics would only get in the way. Why should an employee challenge it or should a senior manager encourage anyone, in particular junior officers, to question it? The senior officers modelled the unthinking behaviour as they did not question or challenge the culture of fear. Everyone simply followed a chain of command. No one appears to have challenged the decision and the programme to defeat the tests.

When you stop thinking, you stop acting morally.

The institutional corruption explains why whistle-blowers never emerged. A whistle blower would require someone to know the scale or scope of the problem and to see it wrong within the VW context. That is the deeper problem. The behaviour was seen and understood as acceptable by everyone involved. No one stopped and said “This is immoral. This is wrong”. VW obviously lacks an ethical culture. It lacks a candid culture where challenging questions were encouraged and an ethical framework beyond what was good for VW. VW appears to be a company without a soul and an ethical compass. This did not start with Winterkorn, if it believes that then it has not learned the lessons from Nuremberg.

Professional curiosity should be mandatory, not recommended.

What we see in all bureaucracies is a focus on secrecy that limits information on a need to know basis. These characteristics inhibit questions. A bureaucracy encourages respect for hierarchy and authority. It discourages dissent and it ensures that any dissent is channelled within the system. It also helps to ensure that the workers remain institutionally ignorant of the moral consequences of their behaviour.

What needs to change to encourage ethical thinking?

For VW to change, it has look at the whole organisation. If it focuses on the one service it will miss the forest for the trees. A curiosity culture, an ethical culture, across the company is needed. Officers have to be required to think and act ethically and question each decisions ethical consequence beyond what is good for VW. The following are some steps to create a curiosity culture one that asks questions that force it to think ethically.

First, they need to demonstrate a culture where bad news can be discussed and acted upon by the organisation collectively. Bad news is not left to a service or a senior management team to manage. The organisation has to demonstrate how it, as the whole organisation, has engaged in the problem.

Second, they need to create a candid culture. The culture will encourage critical upwards communication so bad news is welcomed and addressed with publicly accountable outcomes. The work by Tourish, mentioned earlier, is vital.

Third, they need to train staff in ethical practices. They need to use scenarios to raise awareness of how institutional factors can discourage critical ethical thinking and that the law comes before what is good for VW.

Fourth, they need to publish standards of behaviour. The senior officers and political leaders have to model the standards and be held to account for lapses.

[2] Did VW fail to find this problem because it pursued single loop learning and not double loop learning? Single loop is focused on dealing with the symptoms and not with causes. See the HBR classic article by Chris Argyris. http://hbr.org/1977/09/double-loop-learning-in-organizations/ar/1

[3]There has been the suggestion that VW’s unique position within Germany’s economy especially its ability to deliver jobs in politically important areas meant that corporate boards were relaxed about their oversight. As long as the results were delivered, profitability and continued employment, then the means would not be questioned.

[4] I am relying heavily on, but not exclusively on, Judith Butler’s excellent article Hannah Arendt’s challenge to Adolf Eichmann (Guardian Online 29 August 2011) and Elisabeth Young-Bruehl’s The capacity for evil can spread like an epidemic (Guardian Online 19 August 2011) I have referred to Arendt’s work Eichmann in Jerusalem: the banality of Evil (2nd Edition)

[5] See Bethania Assy Eichmann, the Banality of Evil, and Thinking in Arendt’s Thought https://www.bu.edu/wcp/Papers/Cont/ContAssy.htm The problem raised by Eichmann exists within all bureaucracies and societies. The individual is caught between being too thoughtful, to the exclusion of humanity (see Martin Heidegger as an example), or thoughtless to the point of evil (Eichmann). Bureaucracies favour thoughtlessness because they thrive on routine and procedures rather than curiosity and critical thinking and it is easier to keep bad news or challenges to authority in check. http://arigiddesignator.wordpress.com/2011/12/05/villa-on-arendt-on-thinking-and-judgment/

[6] The work by Denis Tourish is excellent in this area. VW has admitted they lacked a robust system where critical upwards communication was welcomed. Had VW followed his 10 commandments they would not have had a problem with reporting bad news or critical information. VW like many organisations lacked an ethical culture where the employee’s first duty is to the law and not the organisation. https://openair.rgu.ac.uk/bitstream/10059/190/1/LRPpaper1.pdf

[7] Where do you discuss bad news? https://thoughtmanagement.org/2014/04/14/where-do-you-discuss-bad-news/

[8] The issue here is VW wanted to defeat the tests and inspections.

[9] Arendt saw at work with Eichmann. “An issue or responsibility that belongs to everybody effectively belongs to nobody” and “And one can debate long and profitably on the rule of Nobody, which is what the political form known as bureau-cracy truly is.” p.289.

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An analysis of Jeff Bezos’s email to Amazon staff

Posted on August 24, 2015 by lawrence serewicz
Amazon founder Jeff Bezos starts his High Orde...

Amazon founder Jeff Bezos starts his High Order Bit presentation. (Photo credit: Wikipedia)

The following is an analysis of Jeff Bezos’s email to his staff after a New York Times article criticized the company and its culture. The email reveals more about Bezos than he realizes. It is worth understanding the full extent of its meaning. The email can be found at this site.[1]

Dear Amazonians,

If you haven’t already, I encourage you to give this (very long) New York Times article a careful read:

The phrase “Very long”, means it is too long and not frugal, which is a leadership principle.  The Amazonian’s response, which Bezos lauds, says that executives would not read a memo longer than 6 pages. [2]

http://www.nytimes.com/2015/08/16/technology/inside-amazon-wrestling-big-ideas-in-a-bruising-workplace.html

I also encourage you to read this very different take by a current Amazonian:

https://www.linkedin.com/pulse/amazonians-response-inside-amazon-wrestling-big-ideas-nick-ciubotariu

Bezos does not realize that the post is actually critical. Three times Nick says “It may have been that way in the past but it is ok now.”[3] So, when did it change? How does he know it changed? He has been there 14 months. Has he heard rumours? Moreover, he said he knew of the stories before he was hired. More to the point, why does Bezos not refer to a changed culture and explain how it changed and why it changed. Finally, the Amazonian’s response is also curious as it fails to discuss a controversial topic, the Organisational Level Ranking (aka rank and yank)[4]

Here’s why I’m writing you. The NYT article prominently features anecdotes

Except these are not anecdotes, they are episodes and painful experiences. These are people. This is what happened to them. To consider these employee experiences as “anecdotes”  diminishes them and implicitly dismisses them.

describing shockingly callous management practices, including people being treated without empathy while enduring family tragedies and serious health problems.

One searches in vain for the word empathy within Amazon[5]. The only time empathy is mentioned is in the behaviour towards customers.[6] What is curious is that Bezos does not dispute the claims by the employees. He does not say whether he has checked if they were true. Why? Why has he not called the people in question and asked their side of the story? He does not know. He does not have the data. For a data driven company and a leader who proclaims that Amazonians will drill deep into a problem, this is surprising. An alternative view is that he knows the data to be true and is not willing to dispute it.

The article doesn’t describe the Amazon I know or the caring Amazonians I work with every day.

As a CEO that is protected and insulated, who says no to Jeff? How many times has he received negative feedback? What is his critical upwards communications (CUC) system to sense check what is happening on the ground floor?[7] For all its metrics about customers, he appears to know very little about his employees. Can he claim to know anything about the life of frontline workers except what managers tell him? They are all worried about negative feedback so why should they pass bad news up to him? His word is law. Everything drops when Jeff wants something fixed.

But if you know of any stories like those reported, I want you to escalate to HR.

This ignores the point that HR is the problem. They are supporting these decisions and not resisting them. They are the bureaucrats to enable the punishment. They are not pushing back.

You can also email me directly at jeff@amazon.com. Even if it’s rare or isolated, our tolerance for any such lack of empathy needs to be zero.

Needs to be zero? Is it zero or is it not? Also why are you asking people to email you? (This redirects to a message that says “Your email has been redirected”) If Bezos was interested in this issue, he would call the people in the article and find out for himself. Bezos does not care about his staff. A true leader like General Joseph Stillwell does that. After his forces were defeated by the Japanese he walked several hundred miles out of Burma with them. He did not fly out. He did not say “email me your concerns”.[8]

The article goes further than reporting isolated anecdotes.

Earlier, he had said it only contains anecdotes. Which is it? Is it anecdotes if it about people and claims if it is about the company?

It claims that our intentional approach is to create a soulless, dystopian workplace where no fun is had and no laughter heard.

The article never makes that point. Nowhere in the article does it say this. Why make this dramatic point? What is curious is that this is what Bezos believes about his own company based on what he has read. The article does say that the company wants to get as much out of its white collar workers and it suggests that the implicit strategy is that they are replaced with the next batch of willing recruits. Working at Amazon is almost like a tour of combat, where veterans are cycled out of work and new recruits, willing to endure anything for a pay-check, arrive to feed the dream. If they do not like it, they can leave. The question is: Why work there in the first place?

Again, I don’t recognize this Amazon and I very much hope you don’t, either. Here the language is telling. Bezos does not know. He can only hope. Why does he not know what is going on in his company? It is not as if this is the first time he has received such a public complaint. Consider this open letter from 2013.[9]

More broadly, I don’t think any company adopting the approach portrayed could survive, much less thrive, in today’s highly competitive tech hiring market.

This sounds sincere, except that it is betrayed by Jay Carney’s defence a few days later and the Amazonian’s defence. Amazon has a high turn over rate, Carney says everyone has this, and it betrays their business model, which relies on temporary contracts.[10] One could argue that Amazon succeeds on churn and burn. A few senior people stay with the company and the rest are churned through.

The people we hire here are the best of the best. You are recruited every day by other world-class companies, and you can work anywhere you want.

This is true and it is why so many people leave. The turnover rate in 2013 (last data that was available) was one of the highest in America. [11]

I strongly believe that anyone working in a company that really is like the one described in the NYT would be crazy to stay. I know I would leave such a company.

The statement sounds bold and yet it is hollow. Bezos does not have to leave because he never experiences his company as an employee. He experiences it as the founder and leader. He is insulated and nurtured. The company, and his structure, exist for him. He is like an ancient tyrant for whom the city exists.[12]

But hopefully, you don’t recognize the company described. Hopefully, you’re having fun working with a bunch of brilliant teammates, helping invent the future, and laughing along the way.

We note that Bezos mentions hopefully twice. It is the third time in the letter he uses hope. The term suggests he does not know if they are having fun, everyone seems to be having fun around him. Everyone is always smiling and laughing around Kim Jung Un.[13] Bezos is concerned about what will happen. He may face an employee revolt. What will happen to his business model if he does not get the willing recruits to his churn and burn system? What happens if he cannot get someone who is willing to sacrifice friends and family to deliver a doll in 23 minutes? He can only hope that he can automate everything so that he does not have to worry about employees. He can then focus on the numbers and hopefully not have to write another email like this one.

Thank you,

Jeff

What is clear is that Bezos never once apologises for the way the staff were treated. He has not apologized in part because that is not what Amazon culture does. You put up or leave. Yet, if the culture had changed, the leader would apologise and promise to fix things.[14] However, this is not an apology email, this is an email to reassure the staff and to manage the company’s (and the leader’s) image.

 

What we see is a leader who is out of touch with his employees and one who lacks empathy for their plight. If he had called those ex-employees and listened to their stories and found out for himself what was happening, then we could say Amazon has changed. The reality is that he will not do that because he does not care. If it is done, it will be done by an HR professional. At best, the email shows a poor PR exercise. At worst, it shows the extent to which Bezos has been inconvenienced by an article that makes him start to recognize something about his company and himself.

[1] http://www.geekwire.com/2015/full-memo-jeff-bezos-responds-to-cutting-nyt-expose-says-tolerance-for-lack-of-empathy-needs-to-be-zero/

[2] “I have never seen a 50-60 page document – that is not Frugal in terms of time spent, and certainly would not be encouraged. In a sad and continued pattern of setting the record straight with this article, most Amazonians and especially Executives insist that written material adhere to at “6 pages or less” rule.” The hidden irony is that Nick’s article is over 6200 words long. For an article that is 6200 commentary to claim that the original (just over 6700 words) was TL;DR (Too Long Didn’t Read) is unintentionally funny.

[3] “When I interviewed at Amazon, I heard all the horror stories from the past. They’re actually pretty well known in Seattle. I was told they were true, that the company continues to take steps to make things better, and that work-life balance was taken seriously”

“If Amazon used to be this way (and it most likely was, as you’ll see in the quote below), from my 18 month experience working in two of its biggest product groups, that Amazon no longer exists”

“The Amazon described in this article may have existed, in the past. Certainly, I’ve heard others refer to “how things used to be” but it is definitely not the Amazon of today.”

If things have changed, when did they change?

[4] “I won’t discuss Organizational Level Ranking, or OLR.”

[5] Empathy is certainly not an Amazon principle http://www.amazon.jobs/principles

[6] “Strong customer and stakeholder empathy.” On the Amazon jobs page 18 jobs mention this term. See for example http://www.amazon.jobs/jobs/335422/senior-product-manager-alexa

[7] Denish Tourish’s excellent article is found here: https://openair.rgu.ac.uk/bitstream/handle/10059/190/LRPpaper1.pdf?sequence=1&isAllowed=y Bezos has not followed rules 4 Managers should seek out opportunities for regular formal and informal contact with staff at all levels. and 10. The CEO, in particular, needs to openly model a different approach to the receipt of critical communication , and ensure that senior colleagues emulate this openness

[8] “I claim we got a hell of a beating. We got run out of Burma and it is humiliating as hell. I think we ought to find out what caused it, go back and retake it.”.

[9] http://www.geekwire.com/2013/open-letter-jeff-bezos-contract-workers-amazoncom/

[10] “The story is sort of based on the idea that there’s high turnover and attrition, but the facts are that the attrition, people leaving, cycling in and out of this company, is completely consistent with other major companies in the United States.” http://www.politico.com/story/2015/08/new-york-times-amazon-jay-carney-jeff-bezos-defend-121425.html#ixzz3jRo4OQcV

[11] See http://www.ibtimes.com/amazoncom-has-second-highest-employee-turnover-all-fortune-500-companies-1361257 and

http://www.payscale.com/data-packages/employee-loyalty/full-list

[12] See for example, see Xenophon’s Hiero.

[13] http://smilewithkimjongun.tumblr.com/

[14] For a good example of a corporate apology letter see Tesco’s apology letter for horsemeat. https://thoughtmanagement.org/2013/01/20/tesco-horsemeat-and-how-to-write-an-apology-letter/

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What is a regime?

Posted on August 13, 2015 by lawrence serewicz
English: Constitutional Monarchy

English: Constitutional Monarchy (Photo credit: Wikipedia)

What do we mean by regime? I use this term often in my writing as it explains the wider context for political activity. Politics occurs within the regime and the regime shapes political activity. The term, though, is not used often. When it is used, it usually attracts a negative view, as it is often associated with authoritarian governments or states. Many people confuse it with the state, society, or culture. Instead, these fit within the idea of the regime. Although the modern usage suggests that regime is the layer between the state and the government,[1] I use the term more broadly. A rough equivalent might be to consider it as the Establishment for its ability to influence the way of life within a community. However, the regime is more than the establishment. Even though the idea of an establishment is closely related to regime, as the regime shapes the establishment, which embodies the society’s highest ideals, they are not the same. What the society values and rewards most highly emerges in the establishment, which expresses the regime. The regime creates the ideal type for the community, the citizen. Before we can understand the citizen, though, we have to consider the regime.

What is a regime?

My work relies on Leo Strauss’s approach to the term. He explained that regime means the following.[2]

[T]he order, the form, which gives society its character. Regime is therefore specific manner of life. Regime is the form of life as living together, the manner of living of society and in society…regime means simultaneously the form of life of a society, its style of life, its moral taste, form of society, form state, form of government, spirit of laws. [3]

The regime shapes and reflects society’s elements and the ends to which they act. We can see that the regime shapes society, which shapes the establishment that in turn creates or encourages a type of person or character. Here I want to illustrate the idea through the United Kingdom regime.

The institutions shape our lives more than we realize

In the UK, the regime manifests in the society that the government wants to create. In certain systems or institutions, such as the legal, benefits, education, and prison system, we discern an effort to create or encourage behaviours to shape a way of life. This way of life depends, though on individuals who exhibit the preferred behaviours. The regime produces the character that the society rewards. At the same time, regime relies on other institutions. The press and media patrol the public domain to discourage behaviour that diverges from the regime. They also celebrate those that fit within it. The regime encourages a certain type of virtue that forms the character of each citizen and shapes public behaviour in the public domain.

Popular media shapes our character as much as the laws do

We can see this illustrated in the way the popular media encourage a celebrity culture that draws a person of a certain character type who seeks fame in entertainment or sports. The character the celebrity culture encourages, though, is not necessarily the regime’s ideal type. Instead, it is a subset in that it is the character acceptable to public opinion. Public opinion even though it influences the regime, is not the same as the regime. From these institutions and the laws, a certain type of behaviour emerges. To succeed, though, a citizen has to do more than obey the laws. They have to conform in some way to the regime. If our focus stays on the government, the laws, the regime’s public face, we miss its deeper systemic nature.

How the regime is founded determines a large part of its nature

In the UK, the regime also includes the Crown, which is made up of the Monarchy, the Church, and Parliament. Each of these is sovereign or absolute in its own way. These shape the government, education system, and laws. The Crown wants to habituate its citizens to obedience. Without obedience, the regime would founder as it lacks a constitutional founding in consent. When we consider how the regime is founded, its origins, we begin to understand how it operates. The UK regime began in conquest and force of arms not by consent. In a system based in consent, the government has to persuade the people and encourages political obligations through reason while a system based on coercion has to command the people and habituate obedience through custom, practice and only occasional through reason. From this founding, we see how the regime has habituated the people to accept and obey the Crown’s rule.

How a regime is founded influences the character it nurtures

From that founding, we can also understand why the regime embraced a slave economy and exploited the slave trade. Slavery fits the royal prerogative ethos and a regime based in the idea that the strong rule and the weak suffer what they must. Over time, though, the regime has changed. The Crown has a democratic veneer through its steady embrace of the idea of the rule of law. The Monarchy’s founding ethos, perhaps softened by the democratic veneer, is transmitted through its Government as shaped by Parliament and the Supreme Court. The founding ethos although diminished in its intensity remains present in the Royal prerogative.[4] Through the prerogative the Crown acts with arbitrary power beyond the rule of law even if it has to accord to the law. Before we believe that the rule of law restrains prerogative power, we must remember that Parliament sees no limit to its sovereign will, it is above the law.[5] In that belief, it reiterates the same will to power that is found within the Monarchy’s founding. As the Crown is central to the regime, the Crown servants swear an oath of allegiance and obedience to the Queen. The regime gains its character from Monarchy and to overlook this reality is to misunderstand the regime and the establishment that reflects and maintains the regime. As the Monarch does not rule by consent, she is not elected nor is her successor, it is based in coercion. The coercion, though, is hidden, subtle, and almost implicit, which shapes the regime and the citizen’s behaviour. The near implicit coercion is part of the idea of policing by consent. On the surface, it sounds reasonable, yet it betrays the nature of the political regime’s founding in force. Despite the democratic veneer given by Parliament, elections only change the government; they never change the regime or its nature.[6] Something else would be required to change the regime. The regime can change by consent or by coercion. The latter is unlikely, as the Crown possesses the monopoly on all force and the former would require a crisis greater than any government. Moreover, the possibility of regime change through consent is reduced by the regime’s ability to inculcate acceptance and loyalty to such institutions as the Monarchy.

The Crown as the pinnacle of public behaviour embodies the regime

The Crown’s coercive power is subtlety reinforced by public displays of military force such as the trooping of the guard and the Queen’s birthday honours. These are her soldiers. They serve her first. They do not serve her as head of state. Were they to serve the UK state, they would swear allegiance to the state not the Queen. However, the regime also relies on positive incentives such as the honours system to encourage certain types of behaviour in particular public service. Yet, there are other the less public incentives such as wealth and power. The city of Westminster and the City of London, the UK regime’s twin towers of power and influence, contain the guilds and inns. These institutions reflect and advance the regime. The courts and the markets are ways the regime channels the ambitious away from such thoughts as drove men such as Alcibiades, Julius Caesar and Oliver Cromwell. Thus, even efforts to change the regime by consent will be stymied or greatly restrained, as the powerful and gifted will be turned to other pursuits.

The limits to regime as an analytical tool

Regime, though, has specific limits that constrain its use as an analytical tool. The term reflects an earlier time when politics was practiced differently and society was organised differently. Today, larger, more complex, modern states and societies require the term to be adjusted. The regime, though, always captures the relationship between the individual and the community. Despite its pre-modern origins, the regime is better suited for the UK given its monarchy. The UK’s founding and the monarchy’s continued presence and influence throughout all institutions and society, has a strong influence on the regime. We must remember despite the monarchy’s diminished power, it is still Her Majesty’s government and Her Majesty’s ministers who enforce her laws even if they are proposed by Parliament. The Crown still rules and is still sovereign and the people are ruled and are subject to it. Within that understanding, regime allows us to understand the politics and the political activity.

Regime influences our understanding of politics

With regime as an analytical term, we can explore the way different regimes address key issues. Each regime reflects an approach to legitimacy, democracy, liberalism, and the relationship between the individual and the community. We note the difference between a liberal democracy and a constitutional democracy in these areas. Although they may share some characteristics, they are different regimes. Their founding reveals who possesses sovereignty. In the UK, the Crown rules and has sovereignty. In the liberal democracy, the people are sovereign and this is expressed through the government that represents their interests. The people rule and are ruled in turn. From this founding, and the way it is expressed, the different regimes will encourage different behaviours. They also reveal a different understanding of the relationship between the individual and the society. In the UK, the individual has, with the Human Rights Act, gained access to a standard beyond Parliament’s or the Crown’s sovereign will. By contrast, liberal democratic regimes serve the individual and further their self-interest.

A regime expresses and shapes the relationship between ruler and ruled

We also see the difference in the relationship between the rulers and the ruled. In the constitutional monarchy, the Crown rules and the people are ruled or governed. In contrast, the liberal democracy is based on the belief that the people rule and are ruled in turn. To put it directly, no one rules the Queen. She is above the law and only those laws directly written about her apply to her. Where she obeys the laws, she does so voluntarily. No one in a liberal democracy has the option to obey the laws they want to obey; everyone is subject to the law. From this difference, we can see why the Royal Household, an extension of the Queen, has tremendous influence even if she no longer possesses direct political power.

How the regime exercises power tell us about its nature

Once we consider the regime, we can also start to understand the way the regime exercises power. Institutions create the regime and these institutions exercise power. In particular, we see that the laws are only one form of power available to the Crown to influence and shape behaviour. Another instrument is the ability to shape public opinion. Other instruments are not open to the public to influence. In particular, the UK as a constitutional monarchy retains its prerogative power, which provides an arbitrary power unconstrained by law. The government regularly uses the prerogative instead of as an exception.[7] A liberal democracy has the same prerogative power but it is exercised in rare exceptions. The exceptions are usually a severe threat that requires a state of emergency. The prerogative power is not exercised to suit the government’s interest. In the constitutional monarchy, with prerogative power and the Queen’s status, we see that the rule of law is less robust as arbitrary political power can be exercised beyond the law. Such an approach encourages a view that law and political power reflect the regime’s will and neither the rule of law nor a higher standard, such as human rights, guides it. An individual will see political power exercised by arbitrary will rather than through law equal to all and be encouraged to defer to its use. In the liberal democracy, the rule of law encourages a moderate behaviour encouraged by a belief in the equality before the law and the need for political power to justify itself before the law.

 

I hope this essay provides an insight into what I mean by regime. I hope others can find it of use and interest. I would be interested in your views on the idea of regime and whether you would recommend other material or sources to complement what I have described.

[1] “Contemporary academic usage of the term “regime” is broader than popular and journalistic usage, meaning “an intermediate stratum between the government (which makes day-to-day decisions and is easy to alter) and the state (which is a complex bureaucracy tasked with a range of coercive functions).” https://en.wikipedia.org/wiki/Regime

[2] The idea of regime is found more in ancient political philosophy as Plato and Aristotle relied on it as central to their approach to politics. An important caveat is that ancient political communities were smaller and had a greater control, in a certain sense, over the individual’s life than the modern nation states. For the idea of regime in ancient political philosophy consider http://batesca.tripod.com/regime.htm and http://federalistpublicola.com/2007/10/15/plato-and-aristotles-regimes-republic-and-politics/

[3] Leo Strauss, What is Political Philosophy? pp 9-55 in What is political Philosophy? and other studies Free Press 1959 p.34

[4] See for example: http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23603.htm

[5] Lord Neuberger recognized this point when he quoted Lord Justice Laws,

“It may be that my perceptive and far-thinking colleague , Lord Justice Laws, will one day turn out to be right when he argued that, through judicial development of the common law, ‘a gradual reordering of our constitutional priorities [may] bring alive the nascent idea that a democratic legislature cannot be above the law.61 ’ But we are not there yet.” (the footnote is from: Laws, Illegality and the Problem of Jurisdiction, in Supperstone & Goudie (eds), Judicial Review, (Butterworths) (1997) 4.17 cited in Goldworthy, The Myth of the Common Law Constitution in Edlin (ed), Common Law Theory (CUP) (2007) at 204) http://webarchive.nationalarchives.gov.uk/20131202164909/http://judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf

[6] As Vernon Bogdanor explains, the UK lacks a constitutional moment. http://www.consoc.org.uk/wp-content/uploads/2015/02/COSJ2947_The-Crisis-of-the-Constitution_WEB_FINAL.pdf Such a moment would create consent.

[7] http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23603.htm

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Leaders determine culture: The troubling case of UK policing.

Posted on June 22, 2015 by lawrence serewicz
A senior police officer of the Hamburg police ...

A senior police officer of the Hamburg police on assignment at Hamburg city hall, Germany. Français : Capitaine de la police de Hambourg en faction devant l’hôtel de ville de Hambourg, en Allemagne. (Photo credit: Wikipedia)

UK College of Policing published a report on police leadership culture.[1] The report found that the top officer culture is problematic as it encourages bullying, sexual harassment, and a sense of entitlement to legal and illegal perks. The report describes specific problems and opportunities. I am interested in the report because of what it suggests about corporate culture. In particular, I am interested in the way that culture influences how the employees deliver their services. In this case, how the police behave.

A fish rots from the head, and the barrel creates the rotten apple.

In a previous post, I looked at the idea that an organisation, like a fish, rots from the head down. I concluded that an organisation rots from the inside, as the corporate culture turns toxic.[2] In a related post, I explored the idea that rotten barrels create the rotten apples.[3] I found that employees will have local or team specific cultures yet follow the dominant culture within their organisation. If the organisation tolerates or encourages certain behaviours, the staff will adopt them or adapt to them. In these blogs, culture is expressed in the saying that “it is how we do things around here.”

Do staff follow the leader in the culture journey?

What I want to explore in this post is the way that a leader’s culture is emulated by staff. In particular, I will argue that the oft-repeated claims of rotten apples or rogue officers reflect the leadership styles at the top. I do not mean that the top officer are rogue so much as their behaviour encourages or creates a culture in which rogue officers can develop. If they fail to lead ethically, then their behaviour influences the rest of the organisation even if it is only indirectly. I suggest that what is done at the micro level (top) is emulated and exaggerated at the macro level (front line). If the top act unethically then the frontline staff will pick up these clues. The middle managers, though, are critical as they transmit this culture. The middle managers in this case, the font line supervisors translate the culture to the frontline. They encourage the junior officers behaviour that they belief will please the senior officers and match what they expect.

The leader embodies their organisation for better or worse

As a hierarchical organisation, the police encourage deference to authority based on seniority. As the organisation is designed around and supports the leader, their behaviour is less likely to be challenged and carry a greater influence. The leaders set the tone within the company. http://www.smartbiz.com/article/articleview/228/2/3/.  How they approach their role and the organisation will influence the overall culture. If they encourage the hierarchy and the sense of entitlement, junior officers will be initiated into that culture. They understand the system and conform to succeed. As a result, they are habituated to accept it as the “the way we do things around here”.

The hierarchy benefits senior officers who want to retain the culture that enables their behaviour as it discourages junior officers from engaging in reforms. The report suggests that leaders encourage junior officers to communicate upwards. However, this reform is less likely where there is a residual autocratic culture. The previous culture is what middle managers will know. They benefit from it and the reforms threaten those advantages. When middle managers retain the previous autocratic culture, senior officer reforms will be less likely to succeed. The middle managers will resist reforms that undermine their advantages. The previous culture gave them benefits as their authority was respected as it was based on the hierarchy. The autocratic culture reinforced their status. By contrast, the transformational culture removes that advantage. Even though the report says that a senior police officer who encourage bottom up communication will engage and develop junior officers, they will not succeed without middle managers. Yet, the report overlooks the middle manager’s role. They create the tension between the proposed and the current culture. The senior officer who exploits the structure for perks is less likely to be challenged. The structure cloaks or explains their behaviour. By contrast, similar behaviour by a front line officer would draw attention. A senior officer who drives an expensive car is less noticeable than a frontline officer who drives the same car.[4] However, the two behaviours are linked by the culture that created them.

A rogue office reflects a rogue culture

When an organisation explains the behaviour of a junior officer as “rogue”, it reflects more on the organisation that creates or enables the officer. If the culture of the hierarchy encourages senior officers to act rogue then it will habituate junior officers to accept that culture. The junior officers will be encouraged to belief that the position comes with privileges. What we see in the report is a problem that affects all organisations although it is more problematic for the police. The senior officers appear to undermine the control systems that would limit that corruption.[5] In this, the report and recent scandals suggest a larger problem not just for the police but also for many organisations.

Organisational Corruption when an organisation no longer serves its purpose

The senior officer culture can corrupt the institution. When this happens, the institution begins to serves senior officers. The culture encourages senior officers to see the organisation as something that serves their interests. For example, arrests and policing are made to make top officer look good. The institution moves away from its purpose to something else.[6] The senior officers will consider the organisation’s reputation and increase efforts to protect and promote that reputation. The more the organisation serves their interests, the more they will want to manage its reputation. The reputation becomes more important than the organisation’s purpose. In effect, its reputation becomes its purpose as the senior officers benefit from that reputation not the organisation.

How senior officers corrupts the institution with reputation management.

When reputation management becomes more important than its purpose, then institutional corruption occurs. When the Metropolitan Police worked closely with the News of the World, through the Fake Sheik, they were interested in reputation management. The senior officers were seduced by the promise of good press and publicity. The police appeared more eager to accommodate News International than meet the police objective. The senior officers never broke the law even though their behaviour limited the organisation’s ability to deliver on its purpose. Institutional corruption also occurs when a senior officer manages the arrest of a powerful person to protect the organisation.[7] The institutional purpose is not being served as it does not uphold the law. A frontline version of these events can be seen in the problems associated with Plebgate as seen in Operation Alice. There, the frontline officers engage the press to manage the incident. They behaved like the senior officers as they used the organisation to subvert the organisational purpose. In effect, the police appeared busy in the effort to manage the press and the politics instead of uphold the law?

Transparency and accountability can restrain a leader but do they exist?

If the structure challenges the senior officer behaviour, it can contain it. The challenge will come from transparency that encourages accountability. The corporate governance is supposed to create the accountability. However, the report shows the police are weak at scrutinizing senior officer behaviour. In large part, this weakness comes from the organisational culture and hierarchy. They combine to discourage challenge and scrutiny. The hierarchy encourages deference and the culture remains infused with the autocratic past. The autocratic past also encourages the deference.

External scrutiny is needed but is that compromised?

Greater external scrutiny would help to improve the internal governance. Yet, like the Rotherham scandal, scrutiny is missing.[8] The local authorities and the police commissioners seem unable or unwilling to hold the police leadership to account. If they are not reviewing the practice and behaviour of senior officers, their partners, who is? If the scrutiny panels have not reviewed these issues at some point or on a regular basis, we have a problem. It would appear that scrutiny becomes an elaborate governance kabuki where local authorities look the other way in return for an easy life. We all just get along without anyone airing their dirty laundry. Instead of resisting toxicity and insularity, the system encourages it because partners become silent co-conspirators. They reduce or avoid scrutiny and accountability becomes superficial as the focus turns to less institutionally contentious issues. There are always other priorities and that excuse the cultural continuity. Instead of understanding that the organisations have to hold themselves to account and hold each other to account, if the public are to trust them, they turn outward. They never get their own house in order as no one wants to rock the boat.

What can be done to hold the leadership to account?

The report recommends that the police develop their internal communications to allow bottom up accountability. The new organisational culture has to reject the autocratic past and become democratic. A more democratic culture will help to develop the idea that senior officers justify their work to the organisation. The future will require them to convince and not command. Although this may take time for the police who have a historical autocratic culture, it is what other organisation do to develop their culture. When employees are engaged by the organisation, they see the proposed behaviour modelled by the senior manager. An engaged employee is more likely to contribute to the overall culture. An engaged employee will have a stake in the organisation’s purpose and work to resist changes to it by leaders who wish to subvert its purpose for their own ends. The challenge will be to created accountability mechanisms, like public hearings, or staff surveys that explain and measure the corporate culture. The senior officers will need to need to justify the culture they create and nurture. It is not enough to say, “We are hitting targets” if those targets serve the police leadership and not the public.

Conclusion

What the UK police leadership reveals is that its influence on culture endures and is stronger than in other industries. The challenge is whether the leadership can change itself and in changing itself whether it will change the overall culture. The report suggests that it might be beginning to succeed. However, the residual autocratic culture remains embedded within officers and organisation. Perhaps we need to look at the middle managers as the guardians of the old culture who need to change. They are the leaders that determine the police culture and any organisation’s culture. Perhaps this is a topic for future research.

[1]http://whatworks.college.police.uk/Research/Documents/150317_Ethical_leadership_FINAL_REPORT.pdf

[2] https://thoughtmanagement.org/2011/11/21/does-the-fish-rot-from-the-head-down-when-organisations-go-toxic/

[3] https://thoughtmanagement.org/2012/01/07/the-myth-of-the-rogue-employee-rotten-barrels-create-rotten-apples/

[4] http://www.bbc.co.uk/news/uk-england-birmingham-30710852

[5] The Dark Side of Authority: Antecedents, Mechanisms, and Outcomes of Organizational

Corruption   Ruth V. Aguilera and Abhijeet K. Vadera Journal of Business Ethics,

Vol. 77, No. 4 (Feb., 2008), pp. 431-449 Stable URL: http://www.jstor.org/stable/25075575

[6] Denis F. Thompson proposed a model of institutional corruption in which he looks at institutional corruption as occurring when an organisation, in his research Congress, deviates systematically from its proper purpose. See Denis F. Thompson Ethics In Congress: From Individual to Institutional Corruption (1995). See also Institutional Corruption: a Fiduciary Theory M. E. Newhouse Cornell Journal of Law and Public Policy vol 23 553-594 and Dennis F. Thompson Two Concepts of Corruption Edmon J Safra Working Papers No. 16 August 2013. There he describes institutional corruption as occurring “when an institution or its officials receive a benefit that is directly useful to performing an institutional purpose, and systematically provides a service to the benefactor under conditions that tend to undermine procedures that support the primary purposes of the institution.” (p.3)

[7] Fleet Street routinely nurtures a crop of untold stories about powerful abusers who have evaded justice. One such is Peter Morrison, formerly the MP for Chester and the deputy chairman of the Conservative Party. Ten years ago, Chris House, the veteran crime reporter for the Sunday Mirror, twice received tip-offs from police officers who said that Morrison had been caught cottaging in public toilets with underaged boys and had been released with a caution. A less powerful man, the officers complained, would have been charged with gross indecency or an offence against children.

At the time, Chris House confronted Morrison, who used libel laws to block publication of the story. Now, Morrison is dead and cannot sue. Police last week confirmed that he had been picked up twice and never brought to trial. They added that there appeared to be no trace of either incident in any of the official records

http://www.nickdavies.net/1998/04/01/the-sheer-scale-of-child-sexual-abuse-in-britain/

[8] Rotherham grooming scandal showed the scrutiny to be limited and ineffective. It became a captive of the status quo and failed to challenge the organisation. Officers appeared to feed the Members a steady diet of good news and the Members did not want to look for problems. Instead of providing accountability and challenge, even if informally, it failed in that duty as it became a servant of the political leadership. http://www.cfps.org.uk/domains/cfps.org.uk/local/media/downloads/06_09_17_Rotherham_report_1.pdf

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Thoughts on TRILCon15: The Privacy Arms Race

Posted on April 27, 2015 by lawrence serewicz
Hospital curtains used to give patients privacy.

Hospital curtains used to give patients privacy. (Photo credit: Wikipedia)

On the 21st of April, I attended the Trust Risk Information and the Law Conference 2015. It was by the Centre for Information Rights. The theme was the Privacy Arms Race. My blog on the previous conference can be found here.[1] A write up by Paul Gibbons (author of the well-regarded FOI-Man blog) can be found here (accessed 25 April 2015)

The event, sponsored by Bond Dickinson, was a good mixture of academics and practitioners exploring the various challenges in the race for privacy against the increased capacity to broadcast, track, and find personal data.

Kieron O’Hara, who gave the opening talk in 2014, returned with an eloquent presentation on the Right to be Forgotten (RTBF) and the Google Spain ruling. In the Google v Spain decision, he pointed out, we are not forgetting people so much as de-indexing them from search engines. Although free speech advocates worried it was stifling free speech, the decision has less of an effect on speech and more of an effect on search systems. There will be ways to find the information, if interested, but it will not be as easy to find.

The ruling, as Prof O’Hara explained, was also a possible regulatory bar for new entrants into the search engine business. New entrants will need to manage the searches in response to the new regulatory burden as well as customer expectations. The costs and bureaucratic systems might be easy for Google to manage but will smaller or new search engine companies might struggle.

Implications: What I found interesting from the talk was the way in which the ruling is a first step in setting the boundaries to the digital public space. I will return to this theme throughout the post. I found one way to look at the privacy arms race was that individuals were trying to become better digital citizens and expecting digital behaviour from governments and corporations in line with their expectations. The RTBF is an example of the community, through the law, shaping the public memory. O’Hara explains that it is not a new right as such as the control of memory and the belief in a right to be forgotten, such as with various societies allowing historical cases to be expunged or removed.

After the opening session, two breakout sessions were available.

One was stream 1B which was about The Information and Enforcement Battle ground

The papers were

Privacy, Darknets, and the Consequences of Copyright Enforcement Andrew Black, David Komuves (University of Edinburgh)

The case of public documents of high public interest where private information can be found: a comparison between England and Spain. Pilar Cousido Gonzalez (University of Madrid, visiting Professor University of Winchester)

Predicting your behaviour: the need for big data policies Andrew Kimble (Bond Dickinson LLP)

The second was 1A: The technology battleground.

I attended this session as I was presenting the second paper.

Possible Futures for personal data stores. Marion Oswald (University of Winchester) Kieron O’Hara, Max Van Kleek (University of Southampton) Dave Murray-Rust (University of Edinburgh)

Dave Murray Rust presented the group paper which explored how and why people lied online to protect their identity. The paper found that people often engaged in this behaviour because privacy notices were too complex, too long, and too difficult to understand. The concerns about the way the organisation might use their personal data, which if the privacy notice was poorly written or structured, would be high, could lead people to become “privacy vigilantes” to protect their privacy. Methods that might be used are providing false or incomplete information. One solution they explored was the idea that people would have their own personal data stores. They could take their personal data and set the various access controls so that when the visited sites or used devices the settings were already in place. An alternative was that the PDS would contain the links to the personal data and act as a conduit to where the data was stored and not a store in itself. The goal is to create a system that enables the user to manage their multiple identities across the various systems.

What underpinned this paper was the discussion the idea that people had multiple identities depending on the context. A person can be a member of a demographic group and be a member of a voluntary group. They could then manage their identity within each group. Another concern was who owned the data and whether the law would change about data ownership. At the moment, we do not own our personal data. [See  Ruling on Fairstar]

Implications. Can the user bundle their identities together in such a way that they have not created their own security service dossier. By collecting the information together so that they can manage it, the user also makes it easier to manage them. Even if the PDS is encrypted, it does give a focal point that provides a near instant understanding of a person across all their platforms. Does the benefit from convenience outweigh the surveillance or identity theft threats?

I gave the second presentation.

Esotericism or Encryption: Can technology protect philosophy?

I argued that the threat from state surveillance and persecution are a threat that is coeval with political life. The individuals who wanted to protect their privacy from the state or from the community used various devices. I compared and contrasted the practice of esotericism with encryption. The key change, though, in esotericism was the rise of the modern state and the Enlightenment idea of free speech. The ability to speak openly and be tolerated reduced the need for esotericism as persecution was reduced. However, in the digital age, persecution has returned and individuals use encryption to protect themselves. The problem though for both esotericism and encryption is that technology can defeat both. For a short summary of the article see this blog post https://lawrenceserewicz.wordpress.com/2015/04/24/persecution-and-the-art-of-writing-the-return-to-an-ancient-problem/ (25 April 2015)

The result is a deeper problem. If philosophy is a radically private act and Internet of Things threatens that privacy, is philosophy possible? If philosophy is not possible, so that all philosophizing has to be done publicly, then it becomes a political activity. In that domain, the technological state can ensure a status quo because it can search out through algorithms and computer assisted linguistic analysis to find ideas and speakers who threaten the status quo. Any change will be filtered through the technological status quo, which might moderate most change but also make some changes impossible. For a short blog post on this point see https://mediameditations.wordpress.com/2015/04/23/freedom-of-thought-and-the-public-domain/( accessed 25 April 2015) However, all of this assumes that the status quo is just and desirable. If not, then the ability to change it might be stifled. In a sense, the technological status quo encourage a dogmatic belief in the status quo that becomes tyrannical.

Implications: The struggle for privacy is part of a wider struggle of the individual against the community or the state. The danger from a search for privacy is that we can surrender the public sphere to ensure we retain our privacy. In that sense, we want the public to accept and condone our private lives and acts in exchange for accepting the political status quo. If we trade privacy for public life, do we have the basis to shape the public life and to resist the state’s power on anything except the private life that it might challenge and thus accepts a political status quo so long as it is benign towards our private lives.

To wear it or not – that is the question! Melanie Eberlein-Scott, Spencer Wood (Facts International) The new black is wearable technology. Melanie discussed a wearable technology is becoming both a fashion item and a powerful tool for marketing and health industries. Spencer was not able to make the conference, but provided a video clip for his parts of the presentation. The way fashion and technology intersect because it shows how individuals, and society, seek to adapt to it. At the TRILCon14, there was an interesting presentation on fashion and its response to surveillance.[2]

This presentation went beyond the previous one as it was describing devices that were being used and the services that rely on those devices. Although this was focused on the benign technology, these are devices that the user wants to wear and are not required to wear; the technology has its origins in surveillance. The earliest wearable technology for monitoring was military use for global positioning systems and law enforcement with prisoner tracking bracelets. The technology is becoming fashionable as it provides health and consumer data that allows for an individualised or personalised service. The technology allows us to track our performance and monitor our status. For marketing firms the technology can provide a valuable insight as companies can see in real time the effect of product placement and advertising. The wearable technology field is increasing with Google Glass and Apple Watch leading the way. It remains to be seen, though, whether Apple Watch can ignite interest beyond the low-key response to Google Glass

Implications: Wearable technology will only increase. Even though the technology might not broadcast user information, it does provide a ready store that hackers or other interested parties would want. One point that was raised was whether the wearable technology could be used to modify behaviour or ensure compliance such as with health information for insurance purposes that limit the user’s freedom. Despite these concerns, the field looks to grow as there are many applications for industries seeking comparative advantages and users who want to benefit from the personalised services such as health monitoring or consumer advice that it can provide.

Lunch Plenary Address

After lunch, the plenary session was Professor Hankin discussion the Foresight report on Future Identities. https://www.gov.uk/government/publications/future-identities-changing-identities-in-the-uk (accessed 25 April 2015) The report looked at what went into online identities and recognized that there was not a single unchangeable identity for an individual. The report was the product of this research project. https://www.gov.uk/government/collections/future-of-identity (accessed 25 April 2015) The site is worth visiting because it contains the 20 background papers prepared to support the final report.

The implications: The future of identity will have to find a way to put the individual within a wider context even as it seeks to individuals or personalize identity and services. Someone’s group identity might have a greater impact on their behaviour than their individual identity.

After the plenary session, there were two choices. The first stream covered the regulatory battleground

The expanding scope of the Data Protection Directive: The exception for a “purely personal or household activity” Oliver Butler (University of Cambridge) –

Will Export Control Regulations Change the Way Corporations Use Cloud Computing Services? John Eustice, Timothy O’ Toole, (Miller & Chevalier) –

The second stream, which I attended, was the online battleground

A right to an online private life for employees? Megan Pearson (University of Winchester) –

She discussed how employee privacy has evolved as the social media age has allowed surveillance to expand into the time away from work and the way private life can affect professional life. The presentation covered how many employees had been fired or punished for comments on social media. The cases were based mainly on bringing the company into disrepute. Two main issues were how the company became aware of the material, often it was an anonymous tip off, or the comment had received wider circulation.

What was interesting was the expectation within the audience that people either should know better or that the issues could be solved by a company being clear about the policies associated with social media. What was also interesting is that the sensitive material was often broadcast or provided by friends and not the state or the company monitoring the employee or the web. In some cases, there are people who seek out such comments or pictures to amplify them or report them to the company.

Implications: The danger to employees is similar to the average user who finds their tweet, post, or picture being broadcast across the web. The issue was the balance between an organisation’s concern about its corporate reputation if an employee brought it in to disrepute and the individual’s social media life away from work. What is emerging though is that companies and individuals are learning from it. We might be starting to see people become better digital citizens as they learn to behave online and to understand the boundaries to acceptable and unacceptable behaviour that we learn in the public domain from childhood. If we accept that the digital domain is still in its relative infancy with people being able to publish directly to a global audience, the law, society, and individuals are adapting quickly to develop the acceptable social conduct.

 

The final plenary session was themed on Data protection & the right-to-be-forgotten – the future?

Is data protection law the new defamation? Judith Townend (Director, Centre for Law and Information Policy, Institute of Advanced Legal Studies)

Judith explored whether the data protection law and the increased emphasis on privacy would have a chilling effect or a deterrent effect on journalism as it was suggested the defamation law would. The results suggest that it did not have an effect, in large part because the exceptions that exist, and the focus on other issues. The research showed that privacy and privacy related issues had a much higher profile. However, in light Leveson’s promised review of data protection and journalism, which has not arrived, it remains an open issue. Even though the ICO has published guidance on the role, it is not a statutory guidance. An interesting finding from the paper was that news organisations were receiving more requests for personal data which suggests that the public now have a greater awareness of their information rights.

Implications: Even though the paper did not find a positive result, it did raise a point of continuing friction. The Leveson review’s promised review of journalism and data protection might have been overtaken by events. The Vidal-Hall v Google ruling reaffirmed the tort for the misuse of private information. Although journalism is not directly affected, it does raise the bar on those who might access the information in the hopes of providing it to the media. A second issue is that the Right to be Forgotten are influencing the way that Google, which appears to want to increase its role as a news organisation, manages its search engines. As media companies have to rely on the search engines, it can mean that the regulation of search engines has a knock on effect on journalism.

Where now for the right to be forgotten? Iain Bourne (Group Manager, Policy Delivery, Information Commissioner’s Office) –

Iain discussed how the ICO was handling the RTBF complaints. These are the complaints lodged by people who are refused by Google in their request to be de-indexed. What they found was that for the thousands of requests that Google had received very few had led to an ICO complaint. The low conversion rate could either mean that Google has an effect procedure or that people are unwilling to appeal. One point to consider from the presentation was that Google v Spain focused on privacy and not the context of search as search is not the same as search. The presentation explored their published criteria and the challenge, especially around information that covered allegations of criminal offences . The difference between EU members on this issue as they have different approaches to what is available and what is not. The process is not seamless or without its flaws because the web global reach means that mirror sites can host information outside the EU jurisdiction. There are also sites and organisations devoted to retaining links to the data that had been de-indexed.

Implications. The low conversion rate suggests that the RTBF is having the desired effect. Cases where there is a borderline issue seem to be handled well by Google. Thus, the clear-cut cases are handled easily. The same approach seems to work in the cases where someone might have cause to appeal are not appealing because of the response provided by Google. What needs to be explored is if the RTBF case is having an effect on what people publish and the way that search algorithms are being designed. Although more sites are changing their systems so that the search engine robots cannot scan inside the site, it is uncertain if there has been an effect on what is published. The challenge is whether the RTBF can be scaled to a global “right”. Even if it is, the effort to enforce it in all but the most obvious cases may prove difficult. However, it does signal intent and it does start to shape the public domain and what is published and how search engine companies operate in the new regulatory environment.

Trust as Collateral Damage in the Privacy Arms Race – the right to be forgotten Alastair McCapra, (Chief Executive, Chartered Institute of Public Relations)

The final paper of the plenary session looked at whether trust was possible in light of the right to be forgotten. Alastair discussed several issues of how the RTBF was affecting the trust in the web as a record keeper and whether that process was being shaped by such request. He looked at how Wikipedia entries had been affected by take down requests under RTBF. Another area of concern was that the RTBF was giving the false impression that PR disasters could be “cleaned up”. The RTBF would not change the underlying issue and it gave a false expectation that it would mean that issues could be addressed.

Implications: The continuing struggle between privacy and transparency and the desire to control information with the desire to make information free presents a struggle that has consequences for how individuals will use the web. The right to be forgotten is the first attempt to manage the public domain in a way that responds to the individual and gives them some control over their personal data.

 

Overall, I found the day stimulating and full of interesting ideas. The presentations were excellent and they sparked good discussions with the audience. The organisers are to be commended for running a seamless event. The event has developed from its first year and I look forward to the next one. If you get a chance visit the Centre for Information Rights site.

[1] https://thoughtmanagement.org/2014/05/11/thoughts-on-the-trilconference-trilcon/

[2] Electronic surveillance, fashion, marketing & the law’ Savithri Bartlett, University of Winchester, Matteo Montecchi, University of the Arts London, London College of Fashion and Marion Oswald, University of Winchester

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Friend or Foe? The state’s only question about your digital identity

Posted on March 29, 2015 by lawrence serewicz

The major issue for the web is how to identify a user. At first glance, this seems an obvious question. We know who someone is by the IP address and the owner of the computer. Except that is not always the case. First, else might be using the computer. A child might be logged on instead of the computer or account owner. Second, someone might be using a false identity, a legend, to appear to be someone else. Third, someone might be using encryption to hide their identity, which makes it difficult if not impossible to identify the person at the computer. Google’s privacy counsel argued a similar point in the year after[1] the EU Article 29 working party ruled on personal data.[2]

Are you the person at the computer?

Google’s argument at the time was that the information they collect relates to a machine and not to a person. Yes, a person may own or associate with the machine and therefore it is personal data for the purposes of the UK DPA and the EU Article 29 Working Party.  However, the wider issue of privacy in the digital age is that we are not certain that the person at the MAC address or IP address is the person listed. Another person could use that address or computer either legally, a housemate, or illegally a hacker or someone seeking a cover. As the identity is difficult to determine, in a way that is not as difficult in the physical domain, the state has to undertake digital investigations and in some case surveillance.  However, encryption increases the difficulty associated with basic effort to validate someone’s identity.

Who is a friend, who is an enemy? The questions a state has to ask. 

The governments in the physical domain spend extensive resources making sure they can identify their citizens for their services. They issue them with passports, so they know they have a right of return if they leave. They issue them with driving licenses so they know they are licensed for the road. They issue them with social security numbers to know who is entitled to social service benefits. For each of these documents they have to prove their identity to the state usually through official birth certificates as issued by the state or a recognized institution. However, this is only part of the issue. Identity is not so much a problem as to determine whether someone is a threat.

Who you are in the physical domain is not always who you are in the digital domain

In the physical domain, residence is usually a sign that an individual is not an immediate threat. People who hate a government or the society usually move away. Even if they do not move away, their thoughts and views against the government can be seen in their physical behavior. They can participate in protests, support violent groups, or take direct action. In each of these, there is a clear line between legitimate politics, as accepted by the society and the illegitimate politics where violence is used for political change. Thus, the problem for a regime is when it uses the methods designed against illegitimate protest on legitimate protest. However, this is a secondary issue as the main issue is how to identify threats.

Unless the state can recognize friend from enemy, it cannot keep you safe

The state’s highest responsibility is for society’s self-preservation from physical threats and secondarily from intellectual threats. Even in the intellectual realm, a state will take a stand against threats to society’s safety especially if the society cannot manage those threats by itself. For example, many states will control or outlaw certain types of speech that are directed at violent overthrow of the state or society. In this way, the liberal democratic state serves to protect itself from a radicalism that would destroy it from within as would external physical threats. We can see this in ways that states, especially at war or under threat, will censor news outlets or even specific individuals. Yet, in those instances, the state can identify the threats.

There is a lot of work to make it easy to identify who you are in the physical domain.

In the digital domain, the identity is harder to confirm. Even if someone says they are the person using the computer at this moment, how does anyone reading their email or blog post know that it is? Moreover, does the ISP know it is their user and not someone else? They may have strong circumstantial evidence that it is user (proper authenticated sign in, regular pattern of behavior[3]) but these rely on secondary issues for verification such as cctv if available, coworkers if present, third party testimony someone else who witnessed the user’s behavior, or a personal statement from the user. All of these problems are ones that the state surveillance systems, through their intelligence agencies, have to overcome. They can be overcome through a huge intensive cross matching of many uncertainties. However, they are much more difficult than the physical domain where no encryption exists.

Will our physical identity become the basis for our digital identity?

What might happen with web identity is that computing becomes as organic as the physical domain.[4] If computing, and storage, become organic then our gene sequence will be our “face” or our identity just as in the physical domain our identity is created within the context of our family, community and state. We can then use ourselves to demonstrate identity or authenticity within the digital domain. With this identity confirmed, the state can then reduce the need to focus on those who can be dismissed as non-obvious threats as they do in the physical domain.

What is God’s name is the same question we ask in the digital domain.

The digital domain’s problem with identity is only an exaggerated version of the problem in the physical domain. We may have a name but who are we? Are we a threat? In this we are reminded of what God said when he was asked his name.  I AM WHO I AM (Exodus 3:14).

Verified identity will reduce the need for digital surveillance.

For the state, the question of identity can be the difference between life and death. In the age of encryption, it is no surprise that the stat is concerned to be able to identify friends from enemies so that it can keeps its side of the bargain to protect society and ensure its self-preservation. In this sense, encryption makes the problem worse and it identifies the problem is not technological it is a political issue of how a state can keep its obligation to its citizens by determining who is a friend and an enemy.

[1] http://peterfleischer.blogspot.co.uk/2008/02/can-website-identify-user-based-on-ip.html (accessed 29 March 2015)

[2] Here is the website that explains what the Article 29 Working Party is http://ec.europa.eu/justice/data-protection/article-29/index_en.htm (accessed 29 March 2015) There 2007 decision on personal data is her.

[3] Our online behaviour may tell others more about us than we realize as we type and use input devices. http://www.theguardian.com/technology/2014/jul/18/how-your-electronic-dna-could-be-the-secure-login-of-the-future (accessed 29 March 2015)

[4] http://www.swissinfo.ch/eng/swiss-team-uncovers-time-tested-preservation-method/41272794#.VOdWrIXddRY.linkedin (accessed 29 March 2015) and http://www.gizmag.com/dna-data-storage/36151/ (accessed 29 March 2015) and the research press release http://www.sciencedaily.com/releases/2015/02/150212154633.htm (accessed 29 March 2015)  Discuss the attempt to store data through saving data as a DNA sequence.

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