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Law making meets technology

By Michael Kirby - posted Wednesday, 5 March 2008

The first parable: law making meets technology

I want to start by acknowledging the remarkable age of technology with which we live. Where you would you have been in your lives if there hadn’t been the development of the Internet? What would you be doing with your lives? If we think of the extraordinary developments that have occurred in our lifetimes, what are the amazing developments that will grow out of these? Everything is happening very quickly, exponentially.

I first came into contact with this technology when I was serving in the Australian Law Reform Commission. I was its first chairman from 1975 until 1984.

The incoming Fraser Government had a commitment to act on the protection of privacy. Its new Attorney General, Bob Ellicott QC, was a man of intelligence, energy, imagination and gifts. He was determined to get Australians into the action on protecting privacy.


He gave the Law Reform Commission the project on privacy protection. During the project, the OECD set up an expert group to draw on the work already done on privacy protection in the Nordic Council; the Common Market; and the Council of Europe. The OECD wanted to develop principles for laws on privacy which would span continents.

The group had to marry some very diverse attitudes towards privacy protection: the very strong desire for protection in Europe, because they had been through the horrors of the Nazi occupation where the use of ordinary manila folders with intimate, private information could mean life or death.

Then, on the other side were the Americans with the First Amendment: believing that there should be very little regulation. The world would get better by simply leaving things alone.

We ultimately developed privacy principles that were widely accepted by countries around the world.

In the work of the OECD we had formulated one principle for the protection of privacy in automated data systems. It was accepted in the Australian Privacy Act 1988. It is one of the privacy principles in that statute. The principle effectively was that, in order to protect a person’s privacy, if that person gave personal data to the collector, the collector could not use that data for any other purpose than what the person had given it for, except by specific authority of law or by the approval of the data subject.

It was effectively a moral and ethical principle, designed to keep people’s control over the use that was made of their private information. It was put into law.


Then along came Google and Yahoo! with a massive capacity to range through vast amounts of data. The notion that you could control this penumbrum of information about yourself, the zone of privacy around yourself was very quickly overtaken by technology.

Because the technology was so manifestly useful for users of automated systems, the notion of saying “halt” was like the notion of King Canute who went to the sea to stop the waves coming in.

And so this is the first parable which I derived from my experience at the OECD group. You can do what you can do and you can try to do the moral and ethical thing, but in the end, with technology so vibrant, energetic, dynamic and changing there will ultimately be limits. The technology will outpace in its capacity, the imagination of even the most clever law makers.

To do nothing, is not an option. It is very important to understand that. It is to let others go and take the technology where they will. That, then, is the first parable. Where law-making meets technology we must usually be modest in our aspirations.

The second parable: the democratic deficit

The second parable arises from something that I did in 2005 in the number one courtroom in Canberra.

The case involved the Sony PlayStation, in which a Mr Stevens attempted to get around a “technological protection measure” which Sony Corporation had put into their PlayStation in order to ensure a limitation which they decided should apply to the use that may be made worldwide of their PlayStation. (See (2005) 224 CLR 193; [2005] HCA 58).

Mr Stevens’ argument was that he was entitled to manipulate the CD-ROM in and could exercise his rights of ownership over an object that he had purchased. He argued that the law enacted by the Federal Parliament had not allowed a body like Sony to prevent him from doing so.

Ultimately the High Court decided the Sony claim could not be upheld. Mr Stevens was perfectly entitled to burn his CD-ROM and to get around the technological measure that Sony had placed in its system.

Very soon after this decision the USA called up the US-Australia Free Trade Agreement and said it is our understanding that you in Australia will give full protection to “technological protection measures”. If you don’t already give legal protection under Australian law, you’ve got to do it. And pronto! Parliament quickly amended the Copyright Act in order to do just that.

The moral of this story is that first, people have rights, which ordinarily include using their property as they see fit. This includes rights of fair usage of property, which is the subject of copyright protection. Independent courts exist to uphold those rights. They will not derogate from them unless Parliament makes its law very clear.

Now it hasn’t come back to the High Court since the law was amended. So I’m not making any predictions, one way or another, as to whether Parliament got it right on the second attempt.

But there is an issue as to the extent to which people can take copies and use copies in fair usage of copyrighted material. It’s a very important issue. It affects the balance between the protection of copyright and the protection of free speech: fair usage and the use of your own property.

The second moral therefore is that we are moving to the point in the world where more and more law will be effectively expressed, not in terms of statutes - but in the technology itself. What Professor Lawrence Lessig calls, “Code”. Embedded in the Code, on a multinational basis and effective across borders, will be effective regulation, expressed in the technology itself.

This is a very important and new development. It’s a development that is not initially in the hands of democratic legislators. They don’t set the balances and adjust the competition between free usage and fair usage, free expression and protection for copyright. This is not going to be done in that way. It’s going to be done in big corporations, protecting their own interests.

So this is the second parable. It teaches the lesson that however much we are proud of our democracy and even concerned about the “democratic deficit”, it is inherent in the development of Code, imposed on us from outside by the technology developers, that we face the reality of the limitations of what we - a country like Australia - can actually do to control the use of the technology.

France, as you know, discovered this in the case of an online advertisement for the sale of Nazi memorabilia. France had laws which were designed to forbid glorification of Nazis or sale of Nazi memorabilia. But securing the effective implementation of those laws in a technology which is is global, really demonstrates, the borders at which powers of the single state (except perhaps the USA) to control and regulate the use of the Internet is limited.

In the United States there is the great principle of the First Amendment: Congress shall pass no laws to abridge freedom of speech and freedom of the press - it is a very absolute principle.

It’s not a principle that we in Australia have adopted. We have more measured, more nuanced principles in our law that often compete with freedom of expression - values such as freedom to secure protection of your reputation, of your privacy, your honour, of your family.

But the important point for us is to never forget, in the context of the Internet, that asserting our values, like France asserting its values is one thing. But it is often quite difficult to enforce: technically and in reality in a world of a global technology.

We have to be modest in our appreciation of what we can do.

The third parable: human values and exceptional cases

The third parable was brought home to me in a conference I attended in London in 2007. The conference was to establish TELOS - a new group in the University of London concerned with technology and the law. It was concerned with all technologies; but very much focusing on information technology.

One of the points made in the conference was connected with Lessig’s notion of Code. It was illustrated by one of the professors of the University of London. She described how the London Underground got rid of all their cheery ticket sellers and ticket clippers and substituted machines with machine readable tickets.

You put the ticket through and the barrier opens. Occasionally in London, I’ve had to search around and I’ve found a cheery ticket person. I’ve said “I need to take this ticket back to prove I spent £4 to go from Heathrow to the City”. They’ll let you pass through and keep your ticket. A human being has the last word.

In France, irritated by the large number of people who jump the turnstiles, they now have steel metal barriers which close completely. When you walk through the barrier the whole thing opens. There is no jumping. There is no getting through. If you make a mistake and the machine gobbles your ticket - there is no redress.

The moral of the third parable is: there are values that we have to ensure somehow that we defend.

Values of discretion. Values of fair dealing. Values of review. Values of challenge. Values of reconsideration and thinking again. Human judgment. That’s just the nature of a civilised society. You have to allow for the unusual and the exceptional case.

The fourth parable: everything is global now

The fourth parable and last, arises out of a journey I took last week to Cambridge University in England for a meeting there of the Hague Institute for the Internationalisation of Law.

The meeting was called with experts from England, the Netherlands, the US and Australia. We looked at the concern in many countries about the loss of national control over law. It is fed by the Internet and the supply of so much data about law and what other people are doing. How other people are tackling very similar problems. Because of that, it is just impossible to put up your hand up and say like Canute “We’ll just deal with this problem in our own special ‘democratic’ way.”

We saw such a division just a few months back in the High Court of Australia. It was in a case which concerned the rights of prisoners to vote in the late Federal election. The case concerned an amendment to the Commonwealth Electoral Act, enacted by the Federal Parliament with the full power of the Federal Parliament.

Before the amendment, under a law which had effectively existed for the most part of the Federation a prisoner could vote in our elections unless the prisoner was in prison for more than three years, which is the ordinary federal electoral cycle.

In one of the measures in the last Parliament, that voting right was taken away. Anyone in prison was deprived of the right to vote. No exceptions.

That amendment was challenged in the High Court. Now our Constitution has no great ringing Bill of Rights and no clear specific provision on this. And so the question was presented to the High Court of Australia - to the only power that could decide whether prisoners of less than three years could vote.

Four of the Justices reached the view that Parliament did not have the power to deprive such prisoners of the vote if otherwise entitled. Two of the Justices reached the view that Parliament did have the power.

We all expressed our point of view. And then the order was made which restored those prisoners to the electoral list. And they voted in the last election.

The point of my last parable is this: In reasoning to our various conclusions, each and every one of us, called attention to the reasoning of courts in other countries, under other constitutions, according to other provisions dealing with the same matter.

Legislatures in several countries had imposed big or short or long or no restrictions on prisoner’s voting in the general elections. The questions arose as to whether the amending law was compatible with the Australian Constitution and its guarantees of political freedom. In Chief Justice Gleeson’s reasons, he referred to matters of history.

In the reasons of Justice Gummow, Crennan and myself, we like Chief Justice Gleeson, referred to the decisions of the European Court of Human Rights, which had declared how important it was that restrictions on the right to vote should be strictly proportional to a demonstrated need to limit the entitlement of a citizen to take part in the political life of their country.

Justices Hayne and Heydon were fiercely critical of the opinions of the majority. They said that it was impermissible to look at what other courts in other countries, with different constitutions and different circumstances say on such a matter - and that it was immaterial to study what they had held.

But the difficulty of today for judges of the minority view is this: By this technology, by the Net, we are constantly bombarded with information about what is happening elsewhere and with information about how other clever people address, consider and solve analogous questions.

If there are differences, you have to take the differences into account. But for judges to blind their eyes and close their ears to the messages of the Internet today is something that is just not going to happen.

It is very important for all of us, to appreciate that in every nook and cranny of our economic, social, legal and political life, the technology of informatics is going to permeate and is going to play a part in the world of tomorrow - mostly constructive.

We have to be careful in regulation that we don’t impose rules or principles which favour particular or sectional interests and don’t necessarily favour only interests that speak up for their rights and for their interests in the use of the Internet. But none of us now can be immune from the global dynamic of the Internet.

A final reflection: technology is not enough

We have, I hope, made some progress. It is not good enough to have a great technology. Technology itself is not enough. We have to build a good society - a society with good values.

The full speech is available on YouTube:

1. Judge Michael Kirby's preamble on Regulating the Net (4:33)

2. Judge Michael Kirby's parables on Regulating the Net 1 (10:52)

3. Judge Michael Kirby's parables on Regulating the Net 2 (10:27)

4. Judge Michael Kirby's parables on Regulating the Net 3 (5:37)

5. Judge Michael Kirby parables on Regulating the Net 4a (8:28)

6. Judge Michael Kirby's parables on Regulating the Net 4b (4:51).

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This is an edited version of a speech given to the Internet Industry Association on February 21, 2008.

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About the Author

The Hon Michael Kirby AC CMG is a former justice of the High Court of Australia.

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