Stuart Yeates's position paper

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Hey Dude - Where's my Data

Position Paper

Stuart Yeates OSS Watch open source advisory service

This position paper does not reflect the position of OSS Watch. I am not a lawyer, and this is not legal advice.

Ten years ago, everybody knew where their data was, who had access to it and who was allowed to do what with it, mainly because it typically resided on their desktop computer. As the direct connection to between the user and their data (pictures, moves, documents, etc) becomes more virtual, many users have not stopped to think about the implications of this for them.

If I have photos on my desktop computer, they are effectively inaccessible to anyone without a search warrant. If I have the same photos up on [[1]], not only are they accessible to a much wider range of organisations, but I explicitly give yahoo the rights to sell information based on my browsing habits of those photos.

Personally this isn't a problem for me, but there are a significant number of people for whom it might be. There are "private groups" on flickr, whose existence and membership are not advertised except to members and invitees. I've been invited to a number of such groups: some of which have thousands of members and almost all of which appear to be essentially pornographic in nature. Are these people, aware that yahoo is almost certainly selling information about their demographics?

It seems unlikely that direct national or EU policy will ever be helpful in this area, the field is moving substantially faster than EU or national legislation lead-times, but what can be done is to clarify existing consumer protection laws, to ensure that there is genuine informed consent. The applicability of consumer law to internet-facilitated business is something that does not appear to be always clear and where it is clear, it doesn't appear to be enforced. Considerable benefits would be gained by a combination of enforcement of consumer law and raising the bar for genuine informed consent.

EU or national legislation also needs to be tempered by the fact that some individuals have and will continue to use such data stores for storing and distributing illegal content (child pornography, copyright infringements, and so forth), and governments must trade the need to combat these off against the user needs of privacy and confidentiality.

Traditionally telecoms carriers have had protection against the content carried over their lines - because they don't look at the content, they can't be held to account for the content. But operators who are aware of the content (for example telephone answering services) have no such protection, since they are aware of the content.

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