When Very Important Principles Collide
There is a couple of very important principles that build what we consider a modern democracy: freedom of speech, freedom of the press, privacy of citizens, transparency and accountability of government, and due process or law. In a few cases, all of these come head-on together at once into a serial traffic wreck. Let’s see how that can happen, and what we learn from it.
There are many principles that are required to be in place if we are to call a society somewhat modern. Let’s take a look at some of the most important:
There is the freedom of the press – that a free press has the authority and ability to report on what the authorities are doing, how they are executing the power vested in them. Closely linked to freedom of speech, that you have the right to state any opinion, and to communicate anything that you observe, among others.
There is due process of law – that somebody accused of a crime is presumed innocent until proven guilty beyond reasonable doubt, but equally important, that once they have served their sentence and paid back their debt to society, they are once again a fully innocent citizen.
There is accountability and transparency of government, which means that all three branches of government – legislative, executive, and judiciary – must exercise their power in a way that makes it possible for the citizenry to hold them accountable to their wielding of power.
There is privacy of citizens, which says that citizens have a right to their seven privacies (privacy of body, correspondence, data, economy, identity, location, and territory).
This week, all of these principles collided head-on in a train wreck event that makes for a very interesting case study.
Ten years ago, I argued that while all court verdicts must be available on request as public documents, because citizens and the press must be able to hold the judiciary branch accountable for their wielding of power, there was a point to not making court verdicts accessible in digital format. The instant court verdicts were downloadable from the courts, it would take less than a day for somebody to put them in a database and make them searchable for eternity, making a small infraction never go away.
After all, if we sentence somebody to 30 days in jail, we don’t also sentence them to five years of unemployment and maybe even homelessness because nobody wants to deal with them. If that’s the effect, then the system has a severe malfunction and due process of law doesn’t work.
This is exactly what happened this week in Sweden, as the company Lexbase opened a fully-searchable database of all verdicts, putting red dots on a map if a house had been involved in a court document. Acquitted, convicted, suing your local utility company, even being a witness – no matter, if you were named in a court document, your house got a red dot on it. Also, Lexbase has registered as an online newspaper, giving them formal authority to republish official documents from authorities (courts) in this manner.
When people look at the map, it doesn’t even have to be the person living there today that was involved in some form of court action – only the person living there at the time of the court proceedings.
The kicker? If you want to read the reason for that red dot on a house, Lexbase wants about $9.95. Until then, it just indicates “has been in some sort of contact with the law, probably troublesome”.
This is a very interesting case study where tons of interesting principles collide head-on. It’s technically a newspaper, so it does have a right to publish court documents – even excerpts from them such as dots on a map – that’s what a free press does. You can’t outlaw this without severe consequences. Yet, many other principles were shot in the process.
Due process – that somebody is innocent until proven guilty. People who had served their debt to society were once again declared guilty of an undetermined something through this publication, and lots of people who were not in court proceedings at all were called into suspicion just by living somewhere that happened to be involved in a court case earlier. Not to mention the fact that ALL court documents made a red dot – even if you had been acquitted of something.
Privacy – this would be part of due process: if you had served your debt to society for a crime, then that’s nobody’s business any longer.
Accountability and transparency – the courts must provide documents of their verdicts, because if not, the violence-wielding branch of government can’t be held accountable. We can’t have a society with secret courts and secret verdicts.
Today, it is far from clear where the line goes when important principles collide like this, and the ability to mass-process and mass-visualize data has turned a lot of assumptions on their head. Sorting this out will be one of the major challenges for our governmental checks and balances in the next decades.
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6 Comments
I only recently started following this blog, keep up the great work Rick.
Thank you for the kind words!
It’s not a perfect conundrum: if the purpose is to extort money, one can act on that basis. Courts are good at winkling people out from behind their excuses and punishing them for their misbehaviour.
Indeed, if the organization’s purpose is extortion, then it’s misrepresenting itself as a newspaper, which is independently actionable as a fraud,
It is, alas, a brilliant evil stunt, and one which I understand is also being used in the ‘states with collected consumer complaints.
These are the sorts of things that make lawyers rich, and drive legislative draftspeople (ie, programmers) to distraction.
Rick, that thing about “if you had served your debt to society for crime, then that’s nobody’s business any longer” gets broken every day. For many types of jobs, it is customary for employers to check on the criminal record of applicants.
And while it may be true on an official level that once you have done your time in jail (or paid your fine), you are entitled to a new chance in life, it will never be true for me. If someone harms me or mine, or steals from me or mine, then I will forever call that person a criminal, no matter what the state thinks. And I will think of ways to get revenge.
That depends entirely on where you live. These fundamental principles – that once you served your sentence, you’re innocent anew – are indeed broken in some places around the world.
While it’s in the employer’s interest to make such a background check, that doesn’t mean it should be any kind of permitted, because it goes against fundamental principles. There are many things employers would like to do that would go against fundamental liberties – that doesn’t mean we let them just because they want to.
The one accepted exception is typically somebody who’s working with children, but such a background check can easily be done without looking at somebody’s conviction or acquittal record. Check the concept of Blue Cards in Australia, for example.
Cheers,
Rick
Make citizen arrest against everyone associated with the company for the small misdemeanor under Swedish law. See how they like their property value plummet due to innuendo.