Kylie cocktails all round!

It must be National Common Sense Week. In the last two days, Matron has noted not one but two positive developments in the area of civil liberties.

Today, the Home Office came out with the surprise announcement that it would suspend the dreaded section 44 of the Terrorism Act 2000 under which police officers were able to stop anyone in a designated area without having to show reasonable suspicion. According to the Guardian, the powers were used on more than 148,798 occasions which leads Matron to believe that this includes more than it's fair share of "driving-while-black" incidents. Admittedly, the decision follows a decision by the European Court of Human Rights in January that the powers were too extensive and therefore unlawful. What is particularly heartening, however, is that the announcement was made only a day after the fifth anniversary of the London bombings, normally - Matron would expect - a trigger for the introduction of more security theatre like measures.

Not wanting to be outdone, the Supreme Court then decided yesterday that gay and lesbian asylum seekers have the right to remain in the UK, if there is a danger that they would be persecuted for their sexuality in their home countries. The Home Office has apparently accepted the ruling and has confirmed that the policy would be changed with immediat effect. Of course, the proof of the pudding will be in the eating, but such a quick and humble reaction is sure to be commended. Long may the civil liberties honeymoon of the coalition government continue.

Matron first read about this development in the Guardian, a paper she can generally read without the risk of increasing her blood pressure to dangerous levels. However, even as she read it she wondered what the Daily Mail would make of this. Today she checked and in true form the country's most cherished chip wrapper has its priorities dead right. Gays can stay, it quotes one of the judges (who surely should have known better) because "they must be free to enjoy Kylie concerts and cocktails". Nothing to do with the threat to their life and liberty in countries like Uganda and
Malawi.

On the other hand, Matron cannot shake off the feeling that we are paying a rather high price for these victories. With news of ever more asinine spending cuts, she fears that things in her part of the country will become very unpleasant very soon as a growing number of people experience the direct fallout of policy measures deviced by peole who have no real experience of life on the breadline. So while we still can: Kylie cocktails all round!

Pointing out the GRINDRingly obvious

Matron was happy to see that despite the England defeat, Germany’s victory against Argentina prompted much of British media to heap praise on “die Mannschaft” for the quality of their game, their organisation and their efficiency. This idea of quality, organisation and efficiency is one that Matron often encounters when talking about German virtues to her British neighbours (“German cars are the best”), handimen (“I would always only recommend a German [boiler][washing machine][shower]”) and colleagues (“I timed every stop and the train was always on time”). Surely, were we to think of an animal that best represent the national stereotype, it would have to be an ant colony.

Of course, that sort of organisation and efficiency has its downsides when put to the wrong use. Many of the atrocities against the Jews and other minorities were substantially facilitated by the well organised nature of the German authorities’ citizens archives. The totalitarian regime in the former GDR was made possible throught the giant surveillance machinery with which the Stasi controlled ever aspect of the citizens’ life. Many of the documents from the Stasi archives were shredded by the Stasi just before the Wall came down and the remains of those shredded files have been collected in thousands of black bin bags. For the last few years, the documents have been reassembled in a warehouse in Nuremberg in a painfully slow manual process that is expected to take a few more centuries unless current plans to develop a system for virtual reconstruction are successful. Such is the sheer scale of the information held by the regime.

Matron has always wondered what would have happened if both the Nazis and the Stasi had had access to modern day information and communication systems. Centralised or fully networked systems that would have allowed instant access to information to almost ever member of the regime. What would it have meant for German citizens, and what for those who dissented?

Matron – in one of the weird cross-species jumps that her mind sometimes performs - was reminded of this when she read an article in yesterday’s Observer about the rise among gay men in the use of Grindr. Grindr, for those who , like her, are hopelessly out of the popular culture loop, is a “free downloadable iPhone app” which uses GPS technology to permit its members to locate “gay, bi, curious guys for free near you!". It invites you to download its app onto your iPhone and to “upload your pic and build a profile”. After that, each time you switch on the app, up pop the pictures and profiles of any other Grindr user in your immediate vicinity. The app then lets to you chat to them or approach them in person.

Matron strongly suspects that the social encounters resulting from this groundbreaking technology will not take place over a cup of coffee (at least not in the first instance). But before coming over all Daily Mail-ish, let her assure you that it is not the corruption of sexual mores or the leading astray of impressionable young children that she is concerned with.

No, Matron’s initial as-per-usual Luddite reaction was “Are these people insane?” The privacy implications of “proximity dating” technologies like this are mind-boggling in any case. Combine that with the fact that these guys are effectively broadcasting their sexuality to the nation and this should be enough to bring anyone with a slightly above average level of paranoia out in hives.

So, before everyone lines up in an orderly queue to follow Stephen Fry over a cliff (God knows, Matron loves the guy, but his gadget obsession and his love for all things Apple make her despair sometimes), here’s a few questions, Matron would like Grindr users to ask themselves:

1. How much do you actually know about the guys you’re about to meet? It’s a free app that requires little in terms of identity verification, least of all verification of the fact that they are actually “gay, bi, curious”. It can be used by anyone. That hot guy coming on to you? His mates could be waiting around the corner and their sole aim of using Grindr may be to kick your head in. According to the BBC, homophobic crime in London has risen by nearly a fifth in 2008/09 with gangs attacking people outside gay bars in east London on a number of occasions. In the US, which in these things - as with most new technologies - is a step ahead of us, LGBT groups have already voiced concern about an increase in “pick-up violence” targeting gay men “who use websites, chatlines and phone applications to meet other men for dates”. Of course one could argue that you take a similar risk by using other gay dating services. But at least those services do not require you to emit a rainbow coloured beeping signal to every passing thug looking for a bit of fun on a Saturday night.
   
2. How long is it going to take until technology like this is used by younger people, particularly those still in school? And how much longer, again, until it becomes a tool for homophobic bullying? Cyber bullying is on the rise in the UK. A recent survey showed that 20% of Year 6 students had experienced some form of online harassment from other students. At the same time, according to Stonewall, “almost two thirds (65 per cent (75% in Faith schools)) of young lesbian, gay and bisexual people experience homophobic bullying in Britain’s schools”. Put the two together and you have a potentially explosive combination.
   
3. What is Grindr going to do with your data? And who might be interested in that data in the future? Remember, you are effectively adding yourself to a giant list of gay people that is held in a database owned by someone over whom you have no control. Grindr, Matron repeats, is a free service. How does it make money? It will most likely be able to track with whom you have been chatting, thus building up a picture of your social network that it may be able to exploit commercially. It may decide to sell that information (have you read the Terms & Conditions?). Its database might be hacked. The police, security services or other public authorities may decide that they should have access to it (there are already developments under foot to force social media providers to retain, and provide public authorities with access to, certain traffic data generated by their members). It’s the sort of information, for which homophobe totalitarian governments would literally kill. Imagine how convenient this would be for a government in a place like Uganda?

Of course one could argue that the existence of an app like this is also a sign that we may finally have reached a point where gay people feel able to live openly in a society that has become more acceptable of homosexuality. It is true, homosexual acts are no longer criminalised, we have anti-discrimination laws and the straight community has at long last agreed to share their constitutional right to state-sanctioned misery with us by granting us the right to enter into civil unions (and to dissolve them pronto, as we see fit). Some of us may feel a slight feeling of unease at the thought of the ConDem Alliance, but very few seriously believe that the new coalition will try to turn back the tide on gay equality. But it ain’t all cavorting bluebirds and melting lemon drops yet, folks. We are still a long way from Emerald City. Religious fundamentalism is on the rise in Britain. Certain employers can still sack you or refuse to employ you because of your sexuality. The social stigma prevails in many communities. In the US, gay men are still not allowed to give blood. And the number of people who are too afraid to be out to their families remains far too high.

And we none of us have a chrystal ball to show us what the future brings either. Things have gotten better for so long now, that we have forgotten that there may come a time where they get worse again. It seems unlikely now but shouldn't we at least be prepared for the possibility? So this is a reminder to all gay men out there to not let yourself be ruled by your appendage to a point where it clouds your sense of caution and self-preservation. It’s a brave new world out there. Be safe, don’t be stupid!

Notes from under a virtual stone

With the inevitability of English summer rain the footballing scenario that Matron most feared has come to pass. On Sunday, England will once more play Germany in the World Cup and for Matron this means that the time has arrived where it is prudent for members of her national persuasion to hide under a stone. Despite manifold assurances by her English chums that not everyone will be filled with feelings of hostility towards her breed (though, bless you all for saying it and keep’em coming) those of us who have lived here for a while know that this is no time to be an out and proud Kraut in these parts (and if anyone could tell Beckenbauer to shut up, that would also help).

However, while dwelling on the good fortunes (or not) of the 11 “Lions” is bound to be the water cooler moment of choice until at least Monday, the yearning to hide under a stone actually reminded Matron that this is a concept she has mentally employed for some time in another context, namely her online existence. Those of her readers who paid attention (all three of them then) will have noted that Matron blogs under a pseudonym and that her blogger profile includes exactly zero information about her real life persona. She has taken the same approach to her Twitter existence where she has so far admitted a total of two followers – both of them known to her in real life - to her otherwise strictly private account. In other word, she lurks.

Now, the question of online anonymity (or pseudonimity) is an interesting one. Does it serve a purpose or is it a hindrance to fame, fortune and lucrative consultancy contracts? Should all online activity be open, transparent and accountable or is there something to be said for reticence and inscrutability? Matron wonders and ponders and has done so for some time. While many of her academic friends have made names for themselves as bloggers and Twitter power users (and encouraged her to do likewise), she has chosen to remain shrouded in obscurity - largely out of a nagging feeling of unease about what this particular “coming out” would mean for her. So what is the problem? Well, as far as she can tell there are several:

1. As Daniel Solove pointed out in his excellent book “The Future of Reputation”, all online information is ubiquitous and permanent. Once it’s out there, it cannot be recalled nor can access to it be properly limited. With powerful search engines and information aggregators working to their own rules and algorithms, individuals no longer have any control over the way in which information about them is presented to the inquisitive onlooker, how it is prioritised and what it will be used for. This means that there is a real risk that a false or distorted picture is painted of an individual which is then accessible to an audience of millions, and based on which others (like employers or potential dating partners) will make value judgements. We all do it, and yet, Matron asks herself, is there not a moral question in there somewhere that needs to be answered. At what point does our ability to freely access information about other people make us incapable of judging them in an unbiased fashion, particularly if someone’s online persona is not actually representative of the person that they really are. When does “googling someone” turn into a human rights violation, for example because our accumulated prejudice means we don’t grant them equal treatment? Matron can’t help thinking that until rules or social mores are established that limit the way in which and the purposes for which information available online is used, any attempt to minimise the information available about oneself online seems a sane approach.
2. Blogging under a pseudonym creates a feeling of relative freedom. The blogger may work in a position where his or her opinions would not be well received or they may actually enjoy being someone completely different online. A pseudonym makes this possible. It also encourages playfulness. Using her pseudonym, Matron can try out ideas that she may not always be ready to discuss online under her real name yet. It allows her to have a full and frank exchange of opinion with others that often help her clarify specific issues in her mind which she then addresses in her academic writing. But what about accountability, some may ask. Shouldn’t people who sound off on things have the courage of their convictions and don’t others, when they engage in discourse with them, have a right to know who they are talking to? Matron would answer “what does it matter?”. If the discussion is on a specific topic, why is it important who the discussants are? As long as both stick to acceptable standards of human interaction, arguments can be made, examined and countered without one person necessarily knowing who the other person is. Of course, the identity of the speaker may weigh either in favour (if they are a known expert) or against (if they are a renowned crank) the argument they are making. But doesn’t this knowledge also (again) lead to bias and prejudice? Don’t we sometimes find that the best ideas come from people from whom we did not expect them? Should we not be able to examine a statement on its merits, rather have our judgement clouded because we know it was made by a particular person? But what if people hide behind their pseudonym while distributing hate speech or false or defamatory statements? Well, this is where the difference between a pseudonym and full anonymity comes into play. Matron is fully aware that if she made, say, a defamatory statement, the person so defamed would probably have a right to find out her identity from the online provider whose service she used. Matron has not made up a fake identity for this blog and she does (she thinks) support a level of online traceability rather than a right to full anonymity. The reasons for this are simple: while the bloggosphere and the Twitterverse are relatively new developments, the right to free speech (and its limitations) are established legal concepts in the offline world. There are very few offline scenarios, where speech, in order to be free, would have to be made anonymously. In most contexts, the speaker would be, if not immediately identified, then identifiable and the right to participate in public discourse is, in most cases, subject to an understanding that commonly accepted norms (whether legal or social) will be in place which enable the detection and prevention of the kind of speech that is not covered by the human right. (Advocating a traceability requirement does, of course, only work if the relevant statement is made within a liberal democratic context. Citizen journalists operating in countries with autocratic or totalitarian governments will hardly be able to do their job properly, if they are traceable.)
3. Social media have managed to blur the distinction in the heads of many users of what is public and what is private space. As the recent furore around Facebook’s privacy settings shows, providers have created platforms that feel intimate, yet are often accessible by many more people than the individual is aware of. It seems that most users have not yet found a way to deal with the resulting confusion when sharing information about themselves and others. Twitter is a point in case. Unbeaten as a modern form of news feed cum commentary tool, many people have started to use their open tweets rather than the direct messaging function for direct communication with other users. This means that – with a few extra clicks - the “conversation” between those two users can be followed by all their followers, of whom there may be hundreds if not thousands. Are we always aware when we’re doing it? Heck, no! Do we care? Well, in some cases we may. In some cases, we probably should, particularly if we don’t at all times personally know all of our followers. Members of social networking sites also distribute far more and far more intimate information about themselves and others than they would ever be willing to share offline. At this point, we still seem to lack social norms equivalent to those in the offline realms that govern the sharing of information about each other. Matron believes that we do not yet have an internal censor that tells us that certain information “is not for the internet” or social sanctions enforced by our friends if we violate an unwritten code of online conduct (she may be wrong here and, particularly younger, people may well feel that they are well on their way to such norms. If that ewere the case, Matron would be happy to receive examples). Nor do we have a proper understanding of just how widely the information we disclose about others is being distributed or the speed with which that can be done. A pseudonym that is only known by people we know and trust ( and that is respected by them, see below) enables us to protect ourselves against the worst effects of compulsory over-sharing until the necessary social norms have developed and are properly enforced. Gossip about something that happened to “X” remains gossip about the event rather than the individual.
4. A pseudonym provides limited protection from trolls. Of which there are many in the online world. Indeed, it seems to Matron that one of the bigger problems with the regulation and governance of online social spaces is that – despite all the attempts at netiquette - there is as yet no common understanding regarding the social norms with which individuals should comply. Things are commonly said on online discussion boards that would never be said, if the people involved were making those statements face-to-face (by the same token, we wouldn’t send a double-glazing sales man round to a friend’s house, but we give him their e-mail address for the chance to win a competition). What is the reason for that? Well, Matron would hazard a guess that the online medium removes us from the immediate vicinity of the other person. We do not have the unmediated experience of witnessing the effect our actions have on them first hand. Naturally, unqualified comments can be made even if the blogger’s real identity is unknown. But a pseudonym is at least likely to deter those who play the person rather than the ball.

A pseudonym does, of course, only work if it is effective. And herein, as they say, lies the rub. With every piece of information that Matron discloses about herself - her nationality, her gender, her profession and her whereabouts at any given time - she makes it easier for those who know her in “real” life (and any halfway talented private eye, where they to make it their business to look for her) to identify her as the person behind the blog. She expects that, over time, the anonymity that the pseudonym provides will simply melt away and with it some of its protection. However, Matron is not actually too worried that friends, colleagues and even passing acquaintances may know who she is. Many do already and include references to her pseudonym in their online conversations. What Matron – admittedly very subjectively - is concerned about is the transition of that knowledge from (wo)man to machine, that is the creation of an online link between her real name and her pseudonym which would make it possible for the search engines and information brokers mentioned above to incorporate anything she says in this blog into the profile they create for her real life identity. This will only be possible if one of the people in the know makes that connection public or if the provider of the blogging platform makes Matron’s personal information accessible for that purpose. Should either her friends or her service provider be permitted to do this? Matron thinks not. Some people like to blog openly and benefit from the reputation they build, some prefer to remain anonymous and enjoy the freedom and the feeling of safety this gives them. It’s about choice and it’s about control. It’s about what the Germans call informational self-determination. They protect in their Constitution and we over here enjoy some protection through existing data protection laws. However, what we also need is an equivalent social norm that requires each of us to respect the other’s choice. We do it offline, because there'd be hell to be pay from our friends if we didn't. By and large social pressures keep us in line. We need to work on an online version of that subtle control mechanism.

For as long as powers imbalances exist between different individuals, individuals and companies and individuals and the state, most of us will prefer to keep some information about ourselves private or within the domain of a few trusted individuals. Everybody has something to hide. Information about ourselves and others is not something with which we do, or should should, part unthinkingly. In our networked society we are now all data controllers so the responsibility falls on all of us. Within the realms of free speech, press freedom and the public interest we must begin the discussion of how to establish and enforce online social norms that respect individual's freedom to choose their own level of openness. If we don't, we may at some stage feel like the England goal keeper as he watched that ball slowly finding its way into his own goal.

Q: When is a fine not a fine? A: When it’s legal fees.

Although she is late off the mark with this, Matron can’t help being somewhat irked about the level of cross-cultural misinformation surrounding the German Supreme Court’s decision on open wi-fi networks. A number of commentators, including Outlaw and the SCL Editor’s blog reported that the court has "fined" the owner of a wi-fi network because he did not secure it with a password and it was used to download music without the copyright holder's permission. Even though Outlaw then makes it clear that the “fine” consisted in the payment of legal fees, this does little to divert from the sense of uproar instilled by the article’s headline. So what actually happened?

A musician had sued the owner of a (private) unsecured wi-fi connection because his connection was used to illegally download that musician’s music. The owner of the wi-fi network could prove that he had been away on holiday at the relevant time and was understandably upset at being held responsible for that unlawful activity. As far as Matron could ascertain (the full decision has not yet been published), the musician sued the owner on two counts: (1) for payment of damages in respect of the unlawful use of his music and (2) for omission of the behaviour that enabled the unlawful activity to take place (that is, leaving his wi-fi open). The claimant's lawyers, who had been instructed to enforce the claim, also requested payment of their legal fees, incurred in relation to the sending of the letter requesting payment of damages and omission.

The court held that:

1. The owner of an open wi-fi network did not have to pay damages unless the claimant could prove that the owner himself was involved in the unlawful activity (rather than just enabling it by leaving his wi-fi network unsecured).

2. The owner of an open wi-fi network was under an obligation secure his wi-fi network by taking the technical steps deemed adequate at the time of installation.

3. The owner of an unsecured wi-fi connection was liable for the legal fees of a claimant who could prove that this enabled behaviour that damaged the claimant’s rights. However, the court capped the fees that a claimant can claim in this respect at 100 Euro.

There has been a lot of huffing and puffing about this decision from all corners of the internet with many predicting that this is going to be the thin end of the wedge as far as online copyright enforcement is concerned. But before we all jump to that conclusion, lets put the judgement into its proper legal and cultural context.

To start with, the fact that the defendant in this case was not found liable to pay damages to the claimant is surely a positive and well-reasoned step in the right direction. The owner of a wi-fi network may be under an obligation to secure that network, but he will not become vicariously liable for any unlawful activity that other people use it for. Claims that the court has created a new intermediate liability for private individuals are therefore wildly exaggerated.

Of course, the decision is not without its problems. In this particular case, the defendant could prove that he was on holiday when the illegal activity took place. But what happens in cases where that isn’t possible? What level of proof will be required from the claimant? Might there even be, heaven forbid, a reversal of the burden of proof whereby the owner of an unsecured wi-fi network will have to exculpate himself? For the answer to those questions we will have to wait for the next judgement, I’m afraid. But stranger things have happened at sea and in German case law and we would do well to keep a watchful eye on developments.

Secondly, the German court has unequivocally stated that he who runs a wi-fi network must secure it. This is the point that many find disturbing, but given the existence of certain longstanding private law concepts (in particular the concept of “Störerhaftung”), it will not come as a surprise to anyone qualified in German law. “Störerhaftung” effectively means that if you create or operate something that is likely to infringe the rights of a third party, then that third party has the right to request you to stop creating or operating that something (the right to claim an omission).

Other examples for this type of claim include the right of a property owner to stop someone from building a factory next door which emits dangerous fumes or preventing the owner of a neighbouring property to set up a building that blocks all his light or television reception. In relation to online activity, this concept has long been the basis of intermediary liability of ISPs, website hosts and platform owners (whose liability is then in turn limited through the provisions implementing Articles 12 to 14 of the E-commerce Directive). We may not appreciate the end result, but like the courts in other countries German courts must enforce and interpret statute law (in this case section 1004 of the German Civil Code), and with a lot of interpretative history in this area, it is relatively easy to see why the Supreme Court decided as it did.

At the same time, one could argue that the court has also set the bar for avoiding this sort of liability fairly low. All it requires is that, at the time of installation, owners install the most recent form of security (which should normally be what the router comes with anyway) and change the factory-set password to a personal one. If they do that, owners can run the thing for as long as they want, security measures can improve vastly during that time, but they are under no obligation to upgrade or even check it. They only have to do it once.

Now, this comes as no relief to:

• people like Matron’s mother who would not know how to install security if it hit her in the face with a large stick (fortunately the nice man from Deutsche Telekom did it for her, and Matron expects that ISPs will take this judgement as an opportunity to widen their service offerings in this area),
• cafes and other outlets who run open wi-fi systems (although the question here is whether the court will accept other ways to secure those networks, like an additional requirement to sign in), or
• individuals who believe in open wi-fi.

However, maybe we should put our preconceptions aside here for a bit and ask ourselves whether, all things being equal, it is not a fairly rational demand to ask people to secure their wi-fi? Matron is all for an open network, but the fact of the matter is that that network can be used for good or ill. We are not only talking unlawful downloads here, but other things like the organisation of criminal networks, terrorist activity and the distribution of child pornography (and if readers could please take a moment here to comprehend Matron’s pain at having to play the kiddie porn card).

It is very nice that we may want to share. Sharing is good and fun and kind and we should all do it more often. But if we left our car unlocked with the keys in the ignition, knowing that any passer-by could help himself to it, would we really expect to escape liability if that passer-by turned out to be someone without a driving licence who then causes an accident? Of course we wouldn't! We accept that we are expected to take certain precautionary measures, both to protect our own property (and lets not forget that an unsecured wi-fi is also an open door to our own information) and that of others. Why should things be different online? Go on folks, move with the time!

Finally, let us turn to the small question of the “fine”. Of course, if you categorically believe that owners should be allowed to run unsecured wi-fi networks, then having to pay someone else’s legal fees just adds (financial) injury to (ideological) insult. However, those of us who see some wisdom in a requirement to secure a wi-fi network must try to evaluate this part of the judgement more reasonably. For this Matron has to dig a little deeper into the way German lawyers are paid.

Lawers’ fees are generally calculated on the basis of the “case value”. A fee table exists which sets out the amount a lawyer can charge for a particular action (for example, sending a letter before action or serving a writ) relative to the case value. The way that case value itself is calculated is relatively easy in cases like debt collection (the amount of the debt owed) but more complicated in relation to other situations. Before 2008, the way in which the case value of copyright cases was calculated had more to do with the premise of “what-can-I-get-away-with?” than any comprehensible tabulation and the courts in fact accepted case values of 10,000 Euro (proposed by the lawyers for the claimant, of course) for relatively minor infringements. This meant that potential infringers of copyright who received a lawyer’s letter requesting them to cease their infringing behaviour were, at the same time, asked to pay hundreds if not thousands of Euro in legal fees for the pleasure. This, is turn, led to something that can only be described as “fee-farming” with law firms sending hundreds of similarly phrased letters to people accused of infringement (for example, if they displayed photographs of a protected mark on eBay to sell their old household goods) just for the money it brought in. In September 2008, a new law was adopted to counteract this practice. It limited the fee that lawyers can charge for such letters to 100 Euros. The “fine” the court imposed in our wi-fi case was therefore nothing more than the application of a new law that was brought in specifically for the purpose of consumer protection.

This doesn’t change the fact that 100 Euro is still a lot of money for some people. But it beats the hell out of the threatening effect that a bill for 1,000 Euro would have had. And - Matron must come back to this fact - it can be avoided by taking a few simple security measures when you first set up your wi-fi network.

So here we are then. Was this a scary and dreadful judgement? Matron doesn’t think so. In an ideal world we could of course all leave our windows open and our front doors unlocked while we swan off for a three-week holiday in the Caribbean. But that ideal world we have yet to create. Back in the real world, we make damn sure that we have left our car in a secure car park, engaged our five-lever mortice locks and switched on the alarm. It’s common sense, really, and maybe we could do with a bit more of that online.

Drove my Chevy to the levy but the levy was dry...

It's almost laughable that it took two evenings of BBC Parliament coverage to get Matron out of her work-induced hibernation. But having watched the whole sorry spectacle of the "committee stage" of the Digital Economy Bill last night she is not sure who she despises more: the (many) MPs who did not turn up at all or the ones who allowed themselves to be herded in from the pub like cattle for the final division by a defunct, decrepit government.

For those who do not know yet, the Digital Economy Bill, a most complex piece of legislation which even highly specialised experts in the field of law and IT have difficulty to understand in its entirety, was rushed through Parliament last night in a dubious process called "Wash-up" and approved in third reading by 189 to 47 votes. During the entire debate, both last night and the night before, the number of MPs present in the Chamber never seemed to veer above 40 when suddenly, around 10.30 pm, it seemed to be kick-out time in the neighbouring, alcohol-serving establishments and hordes of people streamed into the hallowed halls, laughing, joking and generally seeming to enjoy what may very well have been the last time they all got together in this format. Then they locked the doors and the backroom deal negotiated between the front benches of the two biggest parties became enshrined in Hansard history.

The problems with this Bill have been described in mind-boggling detail by brains more engaged with the subject matter that Matron's (for some of the best coverage, see the blog of the formidable Pangloss), but now that another battle against a Parliament which acts in blatant disregard of its constituency - safe in the knowledge that the constitutional concept of parliamentary supremacy (combined with modern party discipline, money-saturated lobbyists and procedural tools such as Standing Order 14) gives the governing party the right to do almost anything for as long as they are in power - it is time for the both the electorate and the elected to learn some uncomfortable lessons.

Riddle me this, dear political representative, if the signature of 23 "business leaders" on an open letter requesting the scrapping of a national insurance increase is enough to get all parties putting out endless press releases, why do 20,000 letters written by ordinary citizens to their MP about the risks and dangers of unpopular piece of legislation not have the same effect?

A look at the division list of shame should be compulsory for every media journalist and some names deserve to be mentioned in particular:

Derek Wyatt, LAB, who should know better having chaired the All Party Parliamentary Internet Group for years and who was instrumental in setting up the Oxford Internet Institute, inexplicably voted for the bill. He has nothing to fear from his front bench since he is not standing for re-election, so why?

John Redwood, CON, who harshly criticised the government in second reading for rushing the bill through wash-up, then failed to let his vote follow his political point-scoring. He did not turn up at third reading and vote against the bill as his comments would have suggested (he was in the HC in the afternoon during the debate of the Finance Bill where he made similar comments).

The 44 LIB DEM MPs who, despite their party leaders' assurance that the party would take a stand against the passage of the bill, apparently did not hear the division bell ringing: Nick Clegg, Danny Alexander, Norman Baker, Annette Brooke, Des Browne, Malcolm Bruce, Lorely Burt, Vince Cable, Ming Campbell, Tim Farron, Andrew George, Sandra Gidley, Julia Goldsworthy, Nick Harvey, David Heath, Paul Holmes, Martin Horwood, Chris Huhne, Mark Hunter, Charles Kennedy, Susan Kramer, Norman Lamb, David Laws, Michael Moore, Greg Mulholland, Mark Oaten, John Pugh, Alan Reid, Willie Rennie, Dan Rogerson, Paul Rowen, Adrian Sanders, Robert Smith, Andrew Stunell, Jo Swinson, Matthew Taylor, Sarah Teather, Steve Webb, Roger Williams, Stephen Williams, Mark Williams, Phil Willis, Jenny Willott and Richard Younger-Ross. They may not have been able to add much to the debate, but their presence (and vote against) would have made the government's victory much less impressive.

The Tory and Labour backbenchers (of whom there are to many for Matron to list them all) who will have received full postbags and e-mail inboxes from their constituents begin them to intervene and who did not feel it necessary to do the one part of their job (for which - as we all now know - they are handsomely paid) that surely is the raison d'etre for their existence: turn up, debate and vote for or against legislation. Anyone in the private sector would be sacked for such behaviour.

On the plus side, as many others have observed before, this bill has probably done more to bring the shortcomings of the UK's parliamentary procedure to the attention of the silent majority than any other in recent history. Thousands of people will have watched the debates on television and via the internet and it is to be hoped that those people, rather than return to their normal lives in frustration and resignation, will use their pent-up anger to come together and demand constitutional change.

The next step has to be to identify all those who did not attend or who did vote in favour of this insidious bill and who stand for re-election in May and to inform them in no uncertain terms that they will not get our vote unless they give some guarantees that they will what is necessary to ensure that the Bill is revisited as soon as possible in the next Parliament. If the ballot box is really the only way in which ordinary citizens can hope to have any effect on the political decisions made in this country, make sure that you do not pass on that right.

Here's to a hung Parliament and a lively and much needed debate about proportional representation!

Gordon Brown's been "Jim Hackered"

On a topic entirely unrelated to privacy, Matron wonders if she is the only one who thinks that Gordon Brown has been completely "Jim Hackered" by Joanna Lumley on the Gurkha issue. Watch this video of the statement she gave after her meeting with the Prime Minister today and compare her strategy with that used by the famous TV Minster at the end of the "Big Brother" episode when he finally gets one over on Sir Humphrey. To quote young Bernard Woolley: "I'd say, 'Checkmate!'"

Principiis obsta et finem respice!

After a long conference and work induced absence, Matron's blogging reflexes were triggered today not by the big important developments of the day (RIPA and IMP consultations, ICO RAND report etc. - maybe more about those later, time permitting), but by a small news piece in the Guardian, which reports that a Brazilian MP has just proposed draft legislation that would force Rio de Janeiro's state government to publish an online list of all HIV carriers. The reasoning behind this proposal is, apparently, a wish to protect medical staff and other citizens from contamination.

It reminded Matron of an ongoing discussion she has with the inimitable Lilian Edwards (currently a pleased-as-punch and fully paid-up member of the "hydra-headed gang of online privacy pirates" whose purpose is to damage behavioural advertising company Phorm. But that, again, is another story.) about the merits - or not - of a general right of disclosure of other people's personal information on the internet. The discussion centred largely on such disclosures by individuals on social networking sites, so, obviously, this potentially state-sponsored Brazilian proposal would go far beyond that and raises a completely different set of issues. But Matron can't help wondering whether some of the same considerations do apply in this context as well.

If we do accept that individual privacy can be restricted to protect some other common good (like a perceived notion of public safety) or individual right (like freedom of speech, expression and opinion), what are the limits? Indeed, are there any limits or should we be able to expose everything about another person, strip them digitally naked so-to-speak, if it serves a justifiable purpose?

As she often does, Matron looks to the German Constitutional Court's for an answer. It's case law defines individual behaviour as falling into three separate "spheres": the public, the private and the intimate sphere. Interference with an individual's privacy in the interest of competing rights is permitted, subject to certain limitations like necessity and proportionality, in the public and the private sphere, but not in the intimate sphere. The Court recognises that in relation to each individual there exists a "core area" of privacy - arising from individuals' human dignity and their right to self-determination and self-development - that must not be touched or interfered with by anyone for any purpose, however well-meaning.

In this day and age, it's a controversial concept with security-conscious state protectors on the one side and freedom of speech advocates armed with "floodgate" arguments on the other, both questioning its legitimacy.

But can there really be a right to information about another individual - and a right to spreading that information - in the same way as there should be a right to information - both collecting and disclosing it - about the activities of governments and public authorities (the latter, of course, being the notions that underpin Freedom of Information legislation and the right to the freedom of the press)?

But governments supposedly work for us and the transparency and accountability that are the ultimate objective of these rights of information gathering and disclosure are necessary to even out the unequal power relationship between the state and the individual. They are part of the system of checks and balances that is meant to stabilise our democratic political system.

Can the same really be said about our relationship with other individuals and can there be a right to gather and disclose information about our friends, acquaintances, enemies as well as people we barely know or don't know at all? Again, what would be the limits of such a right? Indeed, is there, should there be, a limit at all? Where does citizen journalism end and -seemingly inconsequential but potentially damaging - gossip begin? And what new power relationships - some open, some hidden from view - are we creating or re-creating in this brave new online world?

So resist the beginnings and consider the end. Or should it be the other way around?