Do governments have effective frameworks for allowing online protests?

I remember the great demonstration of November 1997. A plea went out asking citizens to gather outside their leader's home to protest about major problems with the system. They were requested to be peaceful and law-abiding, to simply chant slogans, drink beer and remove their clothes.

This demonstration was to be in Ultima Online, a massive multiplayer online game which, when launched, had a number of bugs and issues which frustrated gamers. One gamer decided that a protest in the game would be an effective way to bring the issues to the game developer's attention.

The protest was cancelled (the developers got the message), however it was my first exposure to an online protest movement - a gathering of people in a virtual space to protest a real concern (albeit in this case a game-specific issue).

Since that time, almost fourteen years ago, there's been many other online demonstrations on a range of topics. Some of the most notable include the candlelit vigils held in Everquest and Anarchy Online following the 9/11 attacks, and the 'Dead in Iraq' protest in 2006, recognising US deaths in the war (see video below).



As the world has digitalised and more people spend more time online it is logical that the internet becomes a significant channel for demonstrations and protests, as the internet has become for entertainment, social interaction, shopping and self-actualisation. As far back as 2007 the Washington Post was reporting Where Have All the Protests Gone? Online

Today Facebook and Twitter are central channels for organising and carrying out protests. Users are regularly asked by their friends to change their profile pictures, add a 'Twibbon', join a cause or take other steps to build awareness of or indicate their support for a given cause or issue.

Online petitions are also widespread and, in some cases supported and facilitated by governments, such as the UK ePetition website.

Many of these online protest approaches are peaceful and unobtrusive, although some are a little more direct - such as the GreenPeace organised protest against Nestle via Nestle's Facebook page.

Australia, and many nations around the world, have long supported the right of citizens to stage peaceful marches and demonstrations to call attention to issues or highlight disagreements with public policy.

In some cases these protests have stepped from peaceful into legally grey areas - acts that constrain the ability of authorities or organisations to take certain actions. For example, people forming picket lines to keep out 'scabs', laying in front of bulldozers, chaining themselves to trees, placing a ship between a whaler and a whale, blockading the entrance of abortion clinics, striking, throwing shoes and custard pies or even 'fax-spamming' organisations to stop them receiving or sending business faxes.

For the most part these activities don't result in the participants receiving major legal penalties, either significant fines or gaol time.

However Australia, like most nations, doesn't always have the same tolerance for the online equivalent of these types of protest activities.

Online protests involving blockades of websites are termed 'denial of service attacks'. The goal is to restrict access to an organisation's website - slowing it down or causing it to crash and become unavailable for a period of time.

While it is in many respects similar to a picket line or 'fax-spamming', denial of service attacks on websites are illegal in Australia and many other countries.

This is for good reasons, as these attacks can be carried out by criminal organisations as part of blackmail operations, as acts of wars by foreign powers or even to break down a server's defenses in order to steal confidential information and personal details.
In fact the Australian Attorney-General's office has said that attacks such as this should not be seen as "legitimate forms of protest activity but rather are public nuisance akin to vandalism" (in the SMH article Action stations as cyber attacks on Australia soar).

(It is also worth noting that the same activity is not always illegal - Sometimes 'denial of service' is not an attack - such as when thousands flooded to government sites to find information on Victoria's fires in 2009 or the load on the Bureau of Meteorology's site during the Queensland floods.)

This leave citizens in an interesting position. Acts that are accepted as legitimate expression of freedom of speech in physical environments, and may occur incidentally online, are not always considered legitimate ways of expressing oneself on the internet.

I'm not advocating that denial of service attacks should be legal, however governments and citizens in Australia do need to continue to consider the legitimate and acceptable boundaries for protest activities online.

When does digital activism become unacceptable and illegal?

And do citizens recognise or share the same line in the sand as authorities?

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The age of microblogging has arrived - in China

Listening to the US's National Public Radio (NPR) last week, I caught a story about how Chinese citizens are now using micro-blogging services (similar to Twitter) to communicate about missing or stolen children and, in some cases to locate them.

According to The Guardian article, Chinese parents turn to microblogging in hunt for missing children, China has over 80 million micro-blog users (though very few Twitter users due to blocking).

By posting messages and pictures of missing children, and by putting photos of child beggars online, there's been at least half a dozen cases where children have been located and reunited with their parents.

In particular a Chinese professor created a microblog called "Street Photos to Rescue Child Beggars" in t.sina.com.cn. The microblog, which was only registered on 25 January this year, has already gained more than 200,000 followers, many being Chinese police officers. Thousands of photos of child beggars have been posted to the micro-blog by Chinese citizens (the criteria is that photos must show the face of the child and the location and time the photo was taken).

Of course the success of the micro-blog medium in China needs to be weighed with continuing government efforts to restrict debate on certain topics - as recently illustrated in this article in The Age, China micro-blogging sites censor 'Egypt'

Must read posts:

• Chinese professor creates microblog to end child-abduction and forced child beggars - Ministry of Tofu (warning - contains pictures of child beggars, some deliberately injured to improve their begging ability)
• How microblog is helping abducted children in China - Yoland Ma

News stories:

• Chinese microblog helps parents find abducted children - The National
• Microblogs spur action on child abduction - CMP
• Special Fund to Be Set up for Child Beggars - CRI

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How will states adapt to true telecommuters?

Today telecommuting often refers to people who work from home, logging into computer networks to prepare documents and exchange information remotely.

However across the world we're starting to see examples of much broader and more intense forms of telecommuting.

Warfare
Take for example the RQ-1 Predator, an unmanned aerial vehicle that has been used since 1995 by the US Air Force. First used for reconnaissance and armed only with a high resolution camera, the Predator is now routinely equipped with missiles and used to attack ground targets. Predator operators may be hundreds, or even thousands, of mile away and operate their UAVs through video screens like modern computer games.

Similar unmanned devices are being developed for land and sea-based conflict, allowing operators to work normal shifts from bases close to their homes (or even from their homes), while these devices are employed in combat theatres around the world.

Emergencies
Unmanned vehicles are also being adopted in the emergency management field, with controlled robotic devices used to explore hazardous environments ahead of human teams. These devices have been used to map the Chernobyl disaster and recently the CyberQuad was introduced into Australia to support the fire brigade in mapping and fighting large blazes.

Space exploration
Many people will be aware of the Mars Rovers, two robots sent to explore parts of the red planet, seeking signs of surface water and life while expanding our store of knowledge. These robots, similar to those used in emergencies, have been used as a low-cost means of exploring a hazardous and remote environment.

Health
There are pilot programs in a number of countries exploring the potential for doctors, particularly specialists, to remotely diagnose and treat patients. In a world with too few doctors and many remote regions, the ability to have a specialist diagnose patients from a distance is an enormous cost and time saving tool, providing improved health outcomes.

Even more so, the potential for videoconferencing during surgeries, where experienced surgeons can view and collaborate with an on-the-spot colleague during a procedure - or even conduct surgery remotely, employing robotics.

Adult industry
While an area that some might find less delicate, the adult industry has a long history of innovating and employing new technologies. Much of the early innovation on the world wide web had its roots in adult pursuits. Similarly adult operators are exploring the opportunities for remote controlled devices. In fact the field even has a name, coined in 1975, 'Teledildonics' - for computer or remote operator-controlled devices for sexual pleasure.

Entertainment
Virtual worlds and Massive Multiplayer Online Games (MMPOGs) have been around now for a number of years (since 1974 in fact), some as games, some as social entertainment experiences and some as business tools. These worlds are growing in immersiveness and flexibility, providing more and more opportunities to conduct mass meetings remotely, demonstrate designs and working (virtual) prototypes and educate students.

Looking forward
With all these forms of 'telecommuting' developments there's three trends I think are important to note.

• We are increasingly able to control physical devices and perform complex actions at great differences.
• Our virtual environments are improving to the extent whereby almost-physical interaction is becoming possible, and
• we are entering a time where an increasing number of people will be able to conduct their business remotely from other states or nations, significantly complicating how taxes are assessed and laws are interpreted and enforced.

With increasing broadband speeds, such as via Australia's National Broadband Network, it will become possible for a range of telecommuting scenarios such as the following three examples.

• Remote mining exploration and analysisA geologist sitting in their Brisbane office will be able to take control of a contracted robot in the Northern Territory, remotely guide it to an exploration site and conduct a surface analysis and even a seismic survey to assess the mineral potential of the area.
  
  The information and analysis could be immediately visible to their employer, a Perth-based mining company. The site could be mapped digitally and then have geologists from around the world explore the area virtually - literally 'walking' their avatars over the landscape and discussing specific areas in real-time.

• Global industrial design
  Equally an industrial design team operating out of Newcastle as a semi-autonomous unit of a Swedish furniture manufacturer could develop new designs for bookcases and chairs and trial them via virtual worlds with other designers and potential customers around the world.
  
  When a final design is approved it could be automatically loaded into the systems of an offshore manufacturer and produced, either in a fully automatic or manual factory, then shipped to customers around the world.
  
  As a side project, the designs could also be made available for virtual sale into a range of virtual worlds and games, like the Sims - providing a secondary income.

• Remote entertainment experiences
  A resident in a nursing home in Wagga Wagga could remain an active gardener through participation in a robotised market garden in the Adelaide Hills. Every day they could go online and check how their plot was developing, using robotic devices to plant seeds, pull weeds and water. When their vegetables were grown they could be harvested and sent to market collectively, with the profits going to offset the costs of the market garden.
  
  Through virtual technology the resident could walk around, or even fly over the garden with complete mobility. Integrated sensors could simulate the smells and even the feeling of digging in the soil, keeping the resident both entertained and productive, raising their self-esteem and enjoyment of life.
  
  Residents from nursing homes around the country and overseas could work together, sharing their experience with plants and making collective decisions on how to manage the garden. (The original Telegarden was operational from 1995-2004 as a university experiment)

In all of these situations the data would pass through a variety of Australian states and through international jurisdictions. The individuals performing the actual work do not necessarily own the work, it could be a collaborative effort by individuals across different nations.

We're seeing the inklings of this process now with the increasing digitalisation of products. No jurisdictional restrictions on written, audio, visual or digital interactive material can be effectively and universally enforced when they can be transmitted almost instantaneously across the internet to virtually any country in the world.

The creators of these digital works may also be located anywhere in the world. Collaborators may each live in a different jurisdiction and be subject to different laws and regulation. Whose jurisdiction takes primacy for taxation purposes for a truly virtual organisation? What happens when a digital product is illegal in some jurisdictions and legal in others?

It is even hard to enforce regulation or taxation over physical products, unless governments wish to inspect every single mail item - adding enormous time and cost burdens to an economy.

Identifying which jurisdiction's guidelines apply can already be difficult - is it in the jurisdiction that the work originates, where the servers storing the information live, where the organisation is registered or where the goods and services are sold (at least for physical products, who taxes and regulates virtual items)? What if jurisdictions don't agree?

As teleconferencing becomes more prevalent and more global in nation, governments will increasingly have to reconsider their state-based laws, regulations and taxes to contend with hyper-mobile individuals, workers who can deliver a service using remote assistance anywhere in the world, from driving a delivery vehicle to performing operations, without leaving their own home or neighbourhood.

Perhaps governments should already be taking great strides towards normalising their regulatory approaches,to reduce inefficiencies and ensure that their laws and taxes will remain enforceable as telecommuting rises.

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No one ever got fired for buying Microsoft...

It used to be said that no-one ever got fired for buying IBM products.

More recently much the same sentiment has been expressed about Microsoft.

However that perception now appears to be under challenge.

ReadWriteWeb reports in its article Google Sues US Government Agency Over Using Microsoft Only that,

Google has filed a lawsuit against the U.S. Department of the Interior for requiring that messaging technologies must be part of the Microsoft Business Productivity Online Suite in order to be considered for procurement.

Apparently the case has some merit (the article goes on to say). While the Department had justified a Microsoft preference due to 'enhanced security', Google Apps were recently the first cloud service certified by the US Federal government's Federal Information Security Management Act certification.

This case, if successful, might see other software makers challenging US government requirements for vendor-specific solutions. Internationally it could even, over time, help open source and cloud application developers gain greater consideration in government procurement processes.

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Legal benefits of social media use

I've been speaking with a few lawyers and solicitors lately regarding the risks of various social media initiatives and tools.

Today, over lunch, it struck me that lawyers rarely - if ever - speak about the legal benefits of social media, the ways in which the use of social media can provide better outcomes for organisation, in a legal sense, than 'traditional' approaches to listening, communication, consultation and engagement.

So I've made a stab below at identifying some of the legal benefits of social media - please feel free to add your own, or debate my views, in comments.


Identifying potential legal risks early
The first legal benefit is the capability to monitor social media to identify any emerging concerns or issues that could lead to future legal risks for an organisation.

People often speak openly online about their concerns and frustrations. A trend of similar issues can represent an emerging issue with a policy, system or service delivery function that could eventuate as a court case or even a class action.

Social media provides an avenue to identify these trending issues quickly and gives organisations an opportunity to address them before they 'blow up' into the media and legal action.


Audit trails
One of the major benefits of the online channel is the capability to capture and track user behaviour - particularly when a user is registered and signs into a service. This can provide legal benefits through a clear audit trail of an individual's online activities to either verify their story, or prove it untrue.

Where an individual claims to not have viewed particular material, or to not have agreed to certain terms and conditions, a digital trail can provide veracity - for example when signing up to a particular online service, changing contact details or revealing personal information.

I have seen cases in government where an individual has claimed that their online account had been fraudulently modified by another party however, through auditing the digital records, it became possible to prove that it was a relative authorised to use the account who had made the changes, preventing any type of legal action against the agency providing the service.

In a case unrelated to government, recently an iPhone log was used to prove that an individual was being falsely accused of rape and in other cases email records and the logs from websites have been used to prove or disprove an individual's involvement in particular matters.

Where government employs social media tools for activities such as stakeholder or community engagement or consultation and some form of log-in or other way to recognise users (such as through a Facebook or Twitter identity) is in use, it becomes much harder for individuals to falsely claim that they were unaware of certain information or otherwise prove statements that could lead to agency legal liability.


Accessibility
The internet can be a cost-effective way to provide documents and discussions during a consultation process in an accessible manner, avoiding the legal risk of breaching the Disabilities Act.

Rather than holding a consultation by mail, where mailed submissions are scanned in and either not provided online at all, or presented as images - totally inaccessible to screen readers - government can hold online consultations where every submission is typed directly into the consultation site.

These submissions can be reviewed and published online in a manner accessible to all internet users. They can also be printed (maybe in braille) or read out by a machine over a phone line for non-users.

This use of the internet for consultations is a very cost-effective way for organisations to meet their obligations under the Disabilities Act and avoid legal action for providing submissions in a non-accessible manner.


Inclusion (equalising access)
Using the internet in engagement activities, alongside other approaches, allows a much broader range of people to participate - minimising the legal risks of decisions where some audiences claim they were not consulted.

Often those who work nights, have day jobs, young children, are physically less mobile, geographically distant or otherwise have commitments are less able to participate in face-to-face discussion with a government agency or its representatives.

Where these people are affected by the outcomes of a face-to-face engagement process these people could feel excluded and unheard. In some situations, could lead to legal action against certain policies or decisions.

By using the internet alongside other approaches within an engagement process - via a forum, blog, facebook page, or similar means - a government agency can ensure that audiences unable to attend a physical event are heard and their views considered.

This increases their feeling of inclusion and lessens the risk of developing poor policy, reducing the risk of policy failures which could lead to legal action.


So there you are - four legal benefits from using social media that can reduce an organisation's legal risks (versus not using social media).

Can you think of any others?

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UK redevelops legislative database to support and encourage reuse

Brought to my attention by Mia Garlick via Twitter, the UK has redeveloped its legislative database with a focus on reuse by external parties.

The recently released site legislation.gov.uk covers 800 years of legislation from England, Scotland, Wales and Northern Ireland.

According to an article from Cornell University Law School, Legislation.gov.uk, John Sheridan, Head of e-Services and Strategy at The National Archives says that the site was designed to meet two objectives,

to deliver a high quality public service for people who need to consult, cite, and use legislation on the Web; and to expose the UK’s Statute Book as data, for people to take, use, and re-use for whatever purpose or application they wish.

The Crown Copyright for the site specifies that,

You are encouraged to use and re-use the information that is available on this site freely and flexibly, with only a few conditions.

This type of approach makes legislation vastly more accessible to the public and, through an API provided by the site, supports the development of applications and services that assist the public, organisations and lawyers to understand and apply the law.

More information on why and how the site was designed is available in the article referenced above.

Australia isn't yet at the same point. Our legislation, detailed at Comlaw, is not yet supported through APIs or other machine-readable data formats and is covered under a more restrictive licensing regime,

This work is copyright. You may download, display, print and reproduce this material in unaltered form only (retaining this notice) for your personal, non-commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved.

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New Zealand government moves to encourage use of Creative Commons licensing for public sector data

New Zealand's government has just launched a Creative Commons-based approach for the standardisation of the licensing of government copyright works for re-use.

Named the New Zealand Government Open Access and Licensing framework (NZGOAL), the approach outlines the licensing government agencies should use when releasing copyright works and non-copyright material for re-use by third parties (preferablt 'no restriction').

The licensing approach does not apply for content containing personal or in-confidence information and various restrictions may be applied to content by using one of the variant Creative Commons licenses, though the government has specified that most public sector information should be released without restriction.

The launch announcement states that re-use of government material by individuals and organisations may have significant creative and economic benefit for New Zealand, a position that has been reflected by the UK, US and other governments.

While use of the licensing approach is not mandatory, the NZGoal document states that hoped that the NZ government hopes that agencies will embrace NZGOAL; license more of their copyright works on open terms; and open up access to more of their non-copyright material that may be of interest to the public, bearing in mind the potential benefits of doing so for both the public and agencies alike.

The Australian Government is also beginning to release material under Creative Commons licensing, with the Australian Bureau of Statistics, Geosciences Australia and the Department of Finance and Deregulation leading the way.

However at this stage no whole-of-government framework exists to provide guidance on how and when to release material in this fashion at federal level - although the Government Information Licensing Framework (GILF) is in place in Queensland.

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The legislative challenges of Gov 2.0 - such as enrolling to vote online

Government 2.0 has a number of challenges in Australia and around the world - developing the appropriate public sector culture, getting the right policies and technologies in place and, often overlooked, ensuring that our laws allow for the innovative use of online channels.

The latter challenge is being faced right in the ability for Australians to enrol online to vote.

Due to the Federal election the Australian Electoral Commission (AEC) has been inundated with people wanting to enrol at the last minute. The matter of online enrolment has been raised by GetUp!'s enrolment website which states "Enrol to vote: It should be easy!". Get Up! initially attempted to provide a web-based enrolment system, however this was disallowed by the AEC.

This was also discussed in a Sydney Morning Herald article, Hitch in plan to get voters on a roll a sign of the times.

This is a clear example of how our laws have not kept pace with technology. Australia's 1918 Commonwealth Electoral Act's section 101 (1) states that people must "fill in and sign a claim". The AEC has interpreted this as meaning that a physical signature is required to enrol to vote in Australian elections.

This makes it necessary for Australians enrolling to vote 'online' to print and hand sign their forms, either hand-delivering or posting them to an Electoral Office.

In one concession to modern technology, it is possible to scan a signed form and email it to the AEC - however a photograph of the form (which is for all intents and purposes a scan) emailed to the AEC is not acceptable.

There are likely to be many other areas where our laws are not designed for a digital society - with other clear examples being our copyright and defamation laws which are struggling to cope in a world where digital copies are cheap and fast to make and private comments are publicly visible online.

Based on these legal issues, beyond the work to adjust public sector culture or simplify online engagement, one of the real tests of many governments' commitment to Gov 2.0 will be in how they adapt their laws to suit a changing society.

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UK Government switching Crown Copyright to be Creative Commons friendly

The UK government has announced that the UK will be phasing out the 'Click-Use' online licenses for the reuse of Crown and Parliamentary Copyrights by May this year with a new license modelled on Creative Commons 3.0.

A review by the UK Office of Public Sector Information in 2009, reported in an article in CreativeCommons.org, Public (UK) perception of copyright, public sector information, and CC, found that,

Among the general (UK) public, 71% agree that government should encourage re-use of content it provides, and only 4% disagree.

Developed by the Office of Public Sector Information (OPSI) for use in data.gov.uk, the revised Click-Use license will allow the public to reuse and mash-up government data in a more active way.

More background about the move is covered in Personal Computer World's article Crown Copyright switches to Creative Commons.

More information is available at the OPSI's Perspectives blog.

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What does the White Pages ruling mean for Australian government data?

There is a trend towards greater openness in the licensing of Australian government data. Queensland's government a few years ago put in place a framework (GILF) for Creative Commons licensing and Victoria's government recently committing to using Creative Commons as its default copyright licensing system.

Some steps have taken place at a federal level, with both the ABS and Geosciences (see their footer) moving in the same direction.

However the recent court case where Telstra sued the publishers of Local Directories over the republishing of Yellow and White pages information - and lost - marks a further step in the process.

In the case, Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 (8 February 2010), the judge found that Yellow and White Pages listings were not covered under copyright law as they were not original and that (requoting from the news.com.au article Telstra loses copyright case over Yellow Pages and White Pages,

"None of the people said to be authors of the Works exercised 'independent intellectual effort' or 'sufficient effort of a literary nature' in creating the (directories)."

"Further, if necessary, the creation of the Works did not involve some 'creative spark' or the exercise of the requisite 'skill and judgment'."

This case follows a related decision in the IceTV case in 2007, where Channel Nine claimed that its TV Guide was a literary work and IceTV could not create a copy of it through independent effort.

So what does this mean for similar forms of government information released under Crown Copyright such as transport timetables, budget accounts, lists of elected officials, statements of interests and other lists and statistics which did not require 'creative spark', 'independent intellectual effort' or 'sufficient effort of a literary nature'?

I am not a lawyer and don't trawl all the legal cases reported online on a regular basis, however to my knowledge no Australian state or federal government department has recently gone to court against individuals or corporations replicating and reusing statistical data of these types. So there is no actual ruling I am aware of to test whether this government data remains legally protectable under Crown Copyright.

In at lease one case, involving NSW RailCorp in early 2009, cease and desist letters were sent by RailCorp's lawyers (to three iPhone application developers). This didn't end up in court as the resulting publicity brought the situation to the attention of the then NSW Premier who ordered RailCorp to negotiate arrangements to share timetable data with less stringent copyright provisions.

I believe that a reasonable supposition at this time is that where publicly released government data does not meet the required tests in the copyright case, it would be difficult to prove why it should be protected under Crown Copyright.

This would make copyright over lists of names and figures very hard to justify.

I do appreciate that government departments have concerns over information being used in inaccurate or misleading ways, or that people may rely on out-of-date information through third party sources (a particular concern for transport networks). However Crown Copyright may not be the most appropriate tool to mitigate these risks anymore.

Maybe we need to look at other approaches, such as making it easier for third parties to use data in the way intended - such as providing data feeds at consistent URLs for reuse (which means third-party applications will be as accurate as the government figures), ensuring that data labels are human readable and clear (to reduce misinterpretations) and including date stamps in data so it is clear when it is current from and to.

In cases where data is used inappropriately, government still has recourse through Creative Commons type licensing and other aspects of Australia's legal system to restrain this usage while supporting appropriate use.

Further comments and legal views by lawyers and interested parties are heartily welcome!

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Safe and effective social media use by government agencies

There's been a very active and engaging discussion in the Gov 2.0 Australia group regarding safe and effective social media use by government agencies.

I thought it was a topic worth discussing in this blog.

One of the challenges government agencies face is whether or not to get involved with the discussions already occurring about their programs, activities and actions.

Whether departments like it or not, we do come under public scrutiny in forums, blogs and social networks regarding our decisions and conduct. There are very active discussions on how to correctly engage with agencies and interpret particular departmental policies and guidelines (The Child Support Agency forum at the Family Law WEB Guide is one example).

One result of all of this discussion is that misunderstandings occur. Helpful people offer suggestions and interpretations that are inaccurate. This can grow into misinformation and can spread quickly across social media channels - where it remains publicly findable for years.

This information can even become more findable in search engines than the relevant information in our own agency websites. This can easily lead to people making decisions which later affect them in negative ways.

Traditionally government's approach has been to communicate repeatedly that people need to call us or seek out our official documents and web pages on topics to get the correct information.

However this doesn't reflect human behaviour. Many studies have indicated that people trust information from their peers more highly than information from institutions or corporations.

In my view when organisations chose to not engage in legitimate social media discussions they could be causing damage. Damage to individuals who rely on inaccurate advice from online sources and damage to their own reputations due to misinformation.

I believe that the best way to combat this is to counter misinformation at its source - in this case within the same social media channels. Note that this doesn't mean responding to EVERY comment in EVERY online network (which isn't feasible for any organisation), but it does mean responding to well-trafficked legitimate online channels where the impact is most significant.

Many agencies, particularly service delivery agencies, inform and advise the public every day by phone, email or postal mail, providing one-on-one information to support citizen decisions.

I have come across views that while this is fine, placing the same information in public channels (such as via social media) would create extra legal risks. If an agency representative provides incorrect information over the phone the error (and risk) is limited to that person, whereas if incorrect information is provided in a public forum it affects many people.

I don't agree that it is necessarily true that the legal risk is less via phone conversations (or similar one-to-one channels).

Firstly if information is provided over the phone it can still be shared publicly. People discuss phone calls and letters, sharing the information they have been given. Sometimes they even record and publish them online.

Secondly where a phone call is to an agent such as an accountant, lawyer or social worker the advice they pass on to their clients can affect many people. The risk is not limited simply to the person at the other end of the phone.

Also government already publishes information publicly. It does so in its website, in publications, through presentations and through advertising.

Simply providing accurate information in response to questions in social media channels, or in response to misinformation can go a long way towards helping customers achieve the best outcomes for them.

It also helps others who find the information through searches. They will find the correct information alongside the misinformation and have a better chance of making the best decision.

So where is the real distinction

Someone suggested in the Gov 2.0 Australia discussion that it was between information and advice. It was suggested that much of the risk occurred when people mistook information for advice specific to their circumstances. Several general examples were given where information provided by phone or face-to-face was misinterpreted as advice, acted on and resulted in legal action.

This type of misunderstanding can clearly occur through any channel and doesn't, in my view, mean we should treat social media as a special case. In fact social media may provide some advantages over phone or face-to-face conversations, as in a public forum your disclaimer can be clearly seen alongside the information. In a conversation the other person may misunderstand and there's potentially no record for the courtroom.

However this risk does highlight the need to be very clear in how we are communicating via different channels and clearly differentiate between advice and information.

I believe this can be covered in social media by providing clear disclaimers in messages outlining who is speaking, what is being posted and the terms of the interaction.

I've provided some examples below of what I mean. Please not that the example text below is illustrative only and is not approved by any Australian government department or agency. Please have appropriate disclaimers for any online engagement you undertake approved through your own agency. Please ensure all online engagement is pre-approved by your agency.

• Identify your agency affiliation clearly (and if possible establish an official account to post through): "Hi, I am XXXX from the Dept of XXXX, posting on behalf of the Department."

• Make it clear that you are posting information, not advice: "In response to the comments in this thread/XXXX's comments about XXXXXX, here is some information that might be useful."

• Link to available official information (where it addresses the topic) rather than repeating it in the forum (in case the information changes over time): "Information on this topic can be found in our website at WEBADDRESS."

• Make the nature of your comments clear: "This is general information only, if you wish specific advice on your circumstances, please call us on XXXX XXX XXX or email XXX@agency.gov.au."

• Make the limits of your engagement clear in a standard disclaimer: "The Dept of XXXX monitors this forum and may respond from time to time to provide information to support customer decisions. We do not provide personal advice through this forum for privacy reasons. If you require advice on your specific circumstances, please call us on XXXX XXX XXX or email XXX@agency.gov.au."

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South Australian Premier vows to repeal internet censorship over election comments

As a follow-up from my post yesterday,South Australia bans anonymous election comments online, South Australia Premier Mike Rann has twittered that the South Australian government has decided to repeal the January 6 amendment to the state's Electoral Act which made it illegal to publish anonymous comments online during an election campaign.

Reported in a post in Ars Technica, Internet uprising overturns Australian censorship law (which is an excellent read), South Australian Attorney-General Michael Atkinson sent a statement yesterday to AdelaideNow, where many citizens were protesting the new law, stating that,

"From the feedback we've received through AdelaideNow, the blogging generation believes that the law supported by all MPs and all political parties is unduly restrictive. I have listened. I will immediately after the election move to repeal the law retrospectively... It may be humiliating for me, but that's politics in a democracy and I'll take my lumps."

Note that I assume this statement is based on the assumption that the present South Australian government is re-elected. If another party wins power, the law may stand.

Australian online pundits are labelling this a victory for democracy over censorship and I expect to see the example of South Australian's decision used by opponents to the Australian federal government's planned mandatory internet filter.

I've included the key tweets from Premier Rann's validated twitter account below...

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South Australia bans anonymous election comments online

I've been alerted by CloCkWeRX in a comment in my post, Australian Labor Party launches social media website, that the South Australian government has passed a law banning anonymous online comments about the South Australian election.

According to the article South Australian Government gags internet debate in News.com.au,

The new law, which came into force on January 6, requires anyone making an online comment about next month's state election to publish their real name and postcode.

Intended to force media outlets to police the publication of online comments in their sites in order to prevent anonymous comments or comments involving fake names, this revision to the South Australian Electoral Act potentially could be interpreted broadly across any websites hosting public comments.

This could mean the provision would apply across blogs, forums, social networks, Twitter and other online services that support public comments.

If this is the case, and the ACT is enforced across South Australian hosted sites containing public comments, this may encourage organisations to move their website hosting away from South Australia to other Australian states or overseas. It is also unclear whether or how the South Australian government would enforce the Act across other jurisdictions hosting social media websites containing public comments about the South Australian election.

It is also unclear how the law applies to online opinions posted by those aged under 18 years old, who might still have an interest or school assignment involving state politics. There could be privacy issues in having a state government government force minors to publicly publish their real full name and postcode when commenting on electoral issues during election periods.

Privacy and security issues may also apply for people in witness protection programs, who would avoid using their real name and postcode on online comments to avoid detection by criminals.

Whilst not a lawyer, it appears to me that this amendment will be very difficult to enforce - a view shared by the South Australian Attorney-General, Michael Atkinson, who is responsible for overseeing state laws.

Mr Atkinson is known for his opposition to a national 'R' rating for computer games, despite the average age of Australian gamers being over 30 and 'R' rated movies being legal in Australia. He was also involved in a recent South Australian law which prohibits the display of promotional material for 'R' rated movies in areas children may enter. My understanding is that this ban is despite whether the promotional material itself portrays 'R' rated images.

Quoting the AdelaideNow article, Outrage as Rann Government, Opposition unite to gag internet election debate,

In a press conference today, Mr Atkinson said the law was "all about honesty''.

He conceded it would be difficult to police but the most "egregious and outrageous'' breaches of the new laws would be identified.

As none of the news articles actually quote the relevant section of the South Australian Electoral Act, you can find it at the Electoral Act page in the South Australian Legislation. Refer to Section 116.

 I apologise for not published the relevant section of the Act here in my blog, I am currently unclear on whether this would be considered a breach of copyright.

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Media after empire - what's next for old media?

Mark Scott, the Managing Director of ABC, has written a very interesting piece in Unleashed about the future of 'old media' empires entitled, Media after Empire.

While it's not specifically about Government, I thought it had some very interesting comments about 'empires' which resonate with some of the challenges that the public sector faces in the digital age.

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What's your view on collaborative legislation? - US Congressman piloting collaboration on Health Care Bill

Collaborative legislation is one of the potential outcomes for Gov 2.0 - a process whereby those affected by legislation can be directly involved in the process of developing it, or even write their own legislation as a 'community bill' for government to consider.

We've seen some work around the edges of this space over the last few years, with the New Zealand Wiki Police Act and even with the Gov 2.0 Taskforce in Australia, who made their beta issues paper available online for comments before finalisation.

Now one of the US Government's best know Gov 2.0 advocates, Republican Congressman John Culberson, has take a further step, making the proposed US Health Care Bill available online for comments and annotations by his constituents.

I'm very interested in whether a collaborative legislation approach could work in Australia and what could be the barriers to it being successful. Anyone have views on this?

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Does Australia need Safer Social Networking Principles?

Around the world governments are struggling to understand and address some of the age-old issues that have been accelerated by the intranet.

One attracting particularly high attention is the protection of young people from illegal and inappropriate material, cyberstalking, cyberbullying and, sometimes, themselves.

Various governments are attempting different approaches to address these issues, with the European Union using a balance of approaches including new law enforcement initiatives, legislative change, parent and carer education, young people education and industry self-regulation in consultation with government.

I have been reviewing the Safer Social Networking Principles for the EU (PDF), released in February this year, which clearly defines the unacceptable range of practices,

As with many products and services, the misuse of these technologies can present an element of potential risk to children and young people. SNS [CT: Social Network Service] providers must assess if and how these potential risks apply to their own services. Potential online risks to children and young people fall into four categories:

• ‘Illegal content’, such as images of child abuse and unlawful hate speech

• ‘Age-inappropriate content’, such as pornography or sexual content, violence, or other content with adult themes which may be inappropriate for young people.

• ‘Contact’, which relates to inappropriate contact from adults with a sexual interest in children or by young people who solicit other young people.

• ‘Conduct’, which relates to how young people behave online. This includes bullying or victimisation (behaviours such as spreading rumours, excluding peers from one’s social group, and withdrawing friendship or acceptance) and potentially risky behaviours (which may include for example, divulging personal information, posting sexually provocative photographs, lying about real age or arranging to meet face-to-face with people only ever previously met online).

With the interactivity that web 2.0 technologies enable, it is also important to remember that in addition to being victims young people can also initiate or participate in anti-social or criminal activities.

The principles make acceptable and unacceptable conduct very clear and have become a benchmark for parents, educators and governments to judge companies against.

A number of Social Network Service providers have signed these principles and taken steps to make their services compliant and supportive of the principles.

I wonder whether Australia should look at a similar approach.

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Can we use crowdsourcing to reshape democracy?

Beth Noveck, director of President Obama’s open government initiative, said in a recent essay,

Our institutions of governance are characterized by a longstanding culture of professionalism in which bureaucrats – not citizens – are the experts. Until recently, we have viewed this arrangement as legitimate because we have not practically been able to argue otherwise. Now we have a chance to do government differently. We have the know-how to create "civic software" that will help us form groups and communities who, working together, can be more effective at informing decision-making than individuals working alone.

(Quote from P&P, Beth Noveck: Wiki-Government | Democracy)

The internet is reshaping the relationship between government and citizens.

For example, the practice of 'crowdsourcing' involves using online technologies to ask a distinct group, or an entire population, to answer questions, provide insights on issues or develop solutions.

The approach is being used in increasing numbers of ways by governments to better hear their citizens, formulate more effective, consensus-based solutions, manage expectations and drive innovation.

One crowdsourcing exercise that I've previously mentioned is the New Zealand Police Act wiki, where an NZ Act of Parliament was developed by placing a seed version on the web using a wiki and allowing the public to edit and comment the Act directly for a period of time. The Act was passed by New Zealand Parliament and from all accounts it appears to have been as effective as any legislation developed by a small group of policy experts.

Similarly the US President has made use of crowd sourcing as a suggestion and prioritisation approach. Prior to his administration taking power it created an idea-sourcing site that allowed the public to suggest priorities for the new government and vote on previous suggestions in an online Citizen Briefing Book. This resulted in tens of thousands of suggestions prioritised by 70,000 participants.

President Obama's Virtual Town Hall has continued this approach, this time attracting over 90,000 participants asking and casting 1.7 million votes on 103,000 questions.

The impact of crowdsourcing isn't simply as a feedback mechanism. It offers the ability to reshape the entire governance process.

A range of local governments in Australia, New Zealand, in UK, across Europe and South America are beginning to actively engage their populations in crowdsourced discussions regarding civic priorities and improvements. For example the state capital city of Belo Horizonte in Brazil (2.3 million inhabitants) has used participatory voting since 1993 for determining civic priorities and in 2006 shifted to a digital participation model to broaden the level of involvement, with 10% of voters participating compared to 1.5% in the previous offline model.

Another example is the Future Melbourne consultation, which attracted over 30,000 comments by 7,000 visitors (and not one instance of spam, off-topic or offensive content).

One possibility for crowdsourcing would be for every piece of legislation currently on Australian books (Federal, state or local) to be placed onto wikis or similar tools to allow Australians to publicly review, comment, suggest edits and plain english translations.

This step could also be taken with all proposed legislation. President Obama has already committed to making all US Federal legislation available for the public to comment on for a few days prior to it going to the house for approval. The next step is employ a co-creation process online.

Naturally this would need to be done in a staged approach - there's simply too much legislation and different groups would be interested in different pieces (and some pieces would have little or no interest).

It relies on changing the copyright approach taken by government. From all rights reserved to some rights reserved (handled admirably by Creative Commons licensing which is already in use by the QLD government and the ABS).

It also relies on the public being able to understand some of the complex legalities of legislation. However if the public cannot understand a piece of legislation, isn't it probably too obtuse anyway?

Of course some might say that the public simply isn't interested in reviewing and commenting on legislation, or that it would be distorted by interest groups or individuals with axes to grind.

However those doing so have not yet tried the experiment and have no evidence on which to base these claims.

I'd love to see any government in Australia - at local, state or federal level, commit to starting this process with a pilot program. Make a few pieces of high profile legislation available online in a wiki-based format. Support comments and edits from any individual, restricting it to those who register with a valid email address.

Moderate the wiki to ensure that no-one misuses their privilege of participation in the democratic process under a clear set of guidelines, and then take on board the suggestions and edits of the public in the final drafting of the legislation.

This approach would lead to the democratisation of policy development and increasing participation by the public in the democratic process.

It may also lead to better policy, and therefore better outcomes for Australians.

Here are some examples of crowdsourcing in action, and here is a slightly contrarian view arguing that Government Needs Smart-sourcing, Not Crowdsourcing.

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Making laws align with egovernment

I've come across some interesting situations recently where technology is far in advance of legal frameworks, placing governments in a position where agencies may be breaking - or at least bending - laws by using certain online tools.

Twitter is a case in point. The technology was invented after the Spam Act was passed and it is not actually email, however it does permit the sending of advertising messages out to thousands or even millions of people. How is this covered? Personally I'm not sure, however I'd hazard a guess that legal opinions will probably vary.

Another example is the use of services such as YouTube, Facebook and other social media tools. All come with terms of use attached which may in some cases contravene government legal requirements.

This hasn't yet become a pressing issue in Australia and the use of YouTube in particular has become quite widespread across government, with at least 20 agencies using it to host and distribute video.

In the US there's also a great deal of use of YouTube by local state and federal agencies.

In this case federal agencies have been in a legally gray area. While they are only answerable to federal law, YouTube's terms of service specify that its users are liable to the applicable state libel laws.

Also of concern is that in the US anything the government publishes is in the public domain and freely available for reuse (unlike in Australia where agencies generally attach copyright to their work). YouTube's terms also specify that the user posting the video is responsible for the video - which is not the approach the US government takes.

As in most situations, where new technology meets old laws it's the laws and how they are interpreted that changes. In this case the US federal government is negotiating with YouTube to change the conditions to legitimise its use of the channel.

This has been discussed quite broadly in Nextgov, particularly in the article Feds and YouTube close to reaching a deal to post video.

I wonder how Australian government agencies will handle the inevitable conflicts between laws and society in the online world - particularly when dealing with services often created, owned and managed out of overseas jurisdictions.

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Law not keeping up with internet

In an example of how law isn't keeping pace with internet developments, last week The Age published an article, Problems with courts ordering service by Facebook, which considered the potential clash between an ACT Supreme court ruling and the terms of the US social network.

While the court ordered that a default judgement could be served on defendants by notification on Facebook, the terms of the social network state that "the Service and the Site are available for your personal non-commercial use only."

The Age article, by Nick Abrahams, a Sydney-based lawyer rapidly building his profile as an internet-age expert, stated that,

It seems unlikely that the service of default judgments in relation to a mortgage default could be regarded as "personal non-commercial use".

So we have a curious situation where on one view, an Australian court has given a judgment which may have the effect of causing an Australian entity to breach an agreement between the Australian entity and Facebook, Inc. To complicate matters further, the agreement is governed by the laws of the US State of Delaware.

It is possible that if it was put on notice of another such application, Facebook, Inc may seek leave to intervene in the proceedings and object to substituted service orders being made, on the basis that they would breach its terms of use.

On top of the issue above, I wonder if a defendant on whom a notice was served via Facebook could then appeal or counter-sue on the basis that the notice was served illegally, based on the terms of use of the site.

This raises a number of interesting questions around official commercial and government Web 2.0 services. Some allow commercial use, some only allow non-commercial use and some restrict usage to personal and non-commercia.

The ATO has a Facebook group for the e-Tax application. Does this fit within the 'personal non-commercial use' terms of use of the social network?

What about companies using Facebook groups to aid in selling product - commercial use?

How do laws in Australia and internationally need to change to better suit the realities of the modern world? (a question I am sure many lawyers, judges and policy makers contend with)

Or should we, as we do with most currencies, simply ignore the lack of legal underpinning?

National currencies began on the gold standard - where the government (or a bank) held $1 worth of gold for every dollar bill printed. Now these dollars 'float freely' against other currencies, supported only by a government promise.

Legal terms of use restrict how certain services are used, if these are ignored (or not tested legally), and other types of use is accepted, what underpins our legal system?

I am neither a lawyer nor a fish (read the article), but foresee interesting legal times ahead.

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