05 January 2013


'The Norwegian Data Inspectorate: Between Governance and Resistance' by Kjersti Lohne in 10(2) Surveillance & Society (2012) 182-197 argues that
 The growing impact of information and communication technologies has resulted in the establishment of data protection authorities across Europe. Despite the role of these bodies as enforcers of privacy and data protection legislation, Surveillance Studies has so far offered little attention to their role in resistance. Based on a critical socio-legal examination of the Norwegian Data Inspectorate, the focus of this article is on the role of data protection authorities in resisting surveillance and threats to privacy and data protection. More specifically, the article asks what power the Norwegian Data Inspectorate has to achieve genuine resistance, and how its institutional structure affects this capability. Through a three-pronged analysis consisting of (i) institutional mapping, (ii) a typology of resistance strategies, and (iii) a review of its role in the Norwegian public debate on the EU Data Retention Directive, the article addresses the fundamental tension inherent in the Norwegian Data Inspectorate as a privacy-advocating ombudsman and an administrative body. As such, the research shows how, and to what extent, its institutional structure both strengthens and limits its possibilities for resistance. 
Lohne comments that
Taking a predominantly normative stance, scholars in Surveillance Studies direct their attention towards the legitimate need to resist surveillance, while less academic scrutiny focuses on describing how contemporary resistance is enacted. Important exceptions include Bennett (2008), Martin et al. (2009), Marx (2009), and Introna and Gibbons (2009). While their work makes a substantial contribution to a conceptualization of resistance within Surveillance Studies, in particular by drawing attention to the significance of privacy advocates, the way administrative bodies such as data protection authorities resist surveillance has remained strangely exempt from analysis, with the exception of David H. Flaherty’s seminal study from 1989. It may be, as suggested by Introna and Gibbons (2009, 238), that such bodies are ‘often seen as too close to government to be an effective mechanism of resistance’, or, that their presence causes ‘a false sense of security’ and in consequence legitimates the development of surveillance societies (Flaherty 1989, 11). Another explanation may be found in a particular methodological bias: in the case of scholars inclined to think ‘critically’ about state power, especially with regard to surveillance issues, a generally positive attitude towards the work of data protection authorities may lead to a preference for objects of study more readily––and justifiably––subject to criticism. However, while these suggestions help explain the lack of attention towards the role of data protection authorities, they also express the inherent duality of these bodies: although independent, data protection authorities are state actors yet at the same time, critics of state practices (Flaherty 1989).
Since its establishment in 1980, the NDI has played a significant role in the Norwegian discourses on privacy, data protection and surveillance. Alongside its supervisory responsibilities as a state administrative body, the NDI’s mandate is to act as an ombudsman for the interests of privacy and data protection. Although there has been some dissatisfaction with such a broad mandate, this particular institutional arrangement also provides the NDI with considerable access to the public discourse. Besides numerous consultative statements requested by state authorities on issues of privacy and data protection, its expertise and opinion is called for and disseminated through various public appearances by its representatives in the media, seminars and debates. Throughout the past decades, there has been a steady increase of administrative supervision in Norway as elsewhere. Whether the growth represents an increase in de facto supervisory activities, or results from general developments in government administration such as the expansion of administrative law in tandem with the prevailing juridification of society, remains questionable (Stub 2010).4 Through a mapping of the NDI’s development from 2000 – 2010, this article sheds light on some additional aspects of this discussion by inquiring into the nature of the NDI’s growth. How data protection authorities interpret and perform their tasks and responsibilities necessitates critical reflection. Does the NDI’s institutional development mirror its role as a privacy-advocating ombudsman, or that of an administrative supervisory body? The research strategy has involved a review of core regulatory and official reports, consultative statements and annual reports from the NDI in the years 2000 – 2010. As official sources, these documents possess methodological credibility and validity; but they are also normative and performative remnants, requiring a critical distance in their analysis (Kjeldstadli 1999). To this end, the research has included an analysis of  a semi-structured interview with the NDI’s former director Georg Apenes, as well as of seminars, debates and media reports on privacy issues, particularly concerning the EU Data Retention Directive.
The article proceeds in three parts. The first section presents the NDI as an institution and a state administrative body, addressing the parameters of its mandate, size and responsibilities. Providing the empirical background for the succeeding analysis, the mapping is also a reflection of how the trajectory of security thinking and ICT has altered the landscape of privacy and data protection since the beginning of the 21st century. Part two probes into the NDI’s practices of governance and resistance. It builds on a fourfold typology developed by Keck and Sikkink (1998) to describe the tactics employed by transnational advocacy networks: information politics, leverage politics, accountability politics and symbolic politics, which Bennett (2008) has adapted and applied to the study of privacy advocates. This juxtaposition will shed light on whether, and to what extent, the NDI’s practices resemble those of privacy advocates, and hence, how the NDI manages its twofold role in resisting surveillance and threats to privacy and data protection. The latter is also the subject of the third and final part, where a delineation of the NDI’s role in the high-profile debate on the EU Data Retention Directive illustrates the inherent tension stemming from the NDI’s institutional twofold role.

03 January 2013

Indigenous Legal Needs

Reading the sobering 188 page Indigenous Legal Needs Project: Northern Territory Report (2012) by Fiona Allison, Chris Cunneen, Melanie Schwartz and Larissa Behrendt. The report [PDF] presents key findings and recommendations based on research conducted in 2011 by the Indigenous Legal Needs Project (ILNP) in the Northern Territory (NT).

The ILNP involves identification and analysis the legal needs of Indigenous communities in non-criminal areas of law (including discrimination, housing and tenancy, child protection, employment, credit and debt, wills and estates, and consumer-related matters) and an understanding of how legal service delivery might work more effectively to address identified civil and family law needs of Indigenous communities.

The report is based on focus groups (149 Indigenous community members in Darwin, Wadeye, Katherine, Bulman, Tennant Creek, Alice Springs, Papunya and Alpurrurulam) and 60 interviews with legal and related stakeholders.

The authors comment that
identified issues generally followed those used in other large scale legal needs projects ... with additional questions relating to specific Indigenous concerns (for example, stolen generations, stolen wages, Basics Card). Some matters such as police complaints, native title or intellectual property were omitted from the questionnaire for practical reasons, in particular due to the size of the document and the time it takes to complete. Consistent with other civil law needs analyses, family and domestic violence was treated as a criminal matter rather than civil law. Some civil law issues not identified in the questionnaire arose in focus group discussions and in stakeholder interviews.
They go on to state that
In determining the priority areas for non-criminal law matters for Indigenous people in the NT, we have considered the responses of focus group participants in both questionnaires and discussion and the views of stakeholders and organisations delivering services to the focus sites. We also note that some areas of legal need such as child protection have such serious consequences (loss of children) that, although the percentage of participants identifying legal need in this area was comparatively low, the seriousness of the problem, the associated consequences and the views of stakeholders also influence our determination of priority areas. We also note some areas of legal need are influenced by gender. It should be noted that we do not assess whether there is an effective legal remedy available for the areas of legal need which have been identified.
There were two areas of law raised in the focus group questionnaire in which more than 25% of all participants indicated that they had experienced a legal problem in the last two years. These were:
• housing (54.1%)
• neighbourhood disputes (27%).
On the basis of focus group participant responses, we identify housing as a priority area. Issues involving neighbourhood disputes were particularly seen as a priority area of concern by Indigenous women.
There were a further four areas of law that were identified by more than 18% of respondents has having caused them some problem in the same time frame. They were:
• discrimination (22.6%)
• accident and injury (22.3%)
• employment (19.6%)
• credit and debt issues (18.4%).
We note further below the importance of discrimination and credit and debt as priority areas from the above list.
In relation to social security, 73.2% of all focus group participants were in receipt of Centrelink payments and of these 29.1% identified a potential legal problem. We identify social security as a priority area because of the significant proportion of people who are dependent on Centrelink payments, the majority of whom are also subject to Income Management.
In relation to family matters between 6.8% and 12.2% of participants identified problems with child contact etc., or child protection matters. We view child protection in particular as a priority area: legal needs relating to child protection have such serious consequences that, although the percentage of participants identifying legal need in this area was comparatively low, the seriousness of the problem and consequences also influence our view that it is a priority area, particularly, also because of the identified lack of legal assistance to parents. We also note that focus group participants identified this area as a priority in discussion, even though they may not have identified family law as an issue that they personally were dealing with.
Credit and debt, and consumer issues are also considered a priority. Overall, 18.4% of focus group participants said that they had had legal action threatened against them in the last two years for failure to pay a bill or repay a loan. Difficulty in repaying loans was the most prevalent credit and debt issue identified by focus group participants. Consumer issues were identified by stakeholders in particular as an area of unmet legal need. It is difficult to distinguish consumer issues from credit and debt because of the intertwined nature of these areas in the experiences recounted. On the basis of both participant responses to issues relating to debt and loan repayments as well as the stakeholder information relating to consumer issues we identify these areas as a priority.
Discrimination emerged as a priority issue in both focus groups and stakeholder interviews conducted in the NT. Overall, nearly a quarter of all focus group participants (22.6%) identified having experienced discrimination. There is a level of acceptance in relation to discrimination, a lack of knowledge about rights, and difficulties in ‘naming’ an incident as discrimination, potentially leading to under-reporting of this issue. Because discrimination impacts on all areas of social life from health services, to housing, to employment, to education, and because there appears to be a large unmet legal need in this area, we regard it as a priority legal need.
We raise the potential for considering wills and estates as a possible priority area because of unmet legal need: very few Aboriginal people have wills and many people indicate a desire to have assistance to complete a will.
Another way of considering priority legal areas in civil and family law is by gender. In many of the legal issues discussed in this Report there were pronounced gender differences both in the identification of issues and in the likelihood of seeking legal advice or assistance. In relation to housing, neighbourhood disputes and social security, Aboriginal women were more likely to identify an issue or problem but much less likely than men to seek assistance. The issue was particularly pronounced in relation to neighbourhood disputes and social security (women were half as likely as men to seek advice in relation to neighbourhood disputes, and four times less likely than men in relation to social security).
In relation to victim’s compensation, employment, family law and child protection, and credit and debt, Aboriginal men were less likely than women to seek assistance. The issue was particularly pronounced in relation to victim’s compensation and credit and debt (men were four times less likely as women to seek victim’s compensation, and nearly five times less likely than women to seek advice in relation to credit and debt).