Open Rights Group: Response to the Consultation on the Digital Strategy for Scotland

Q1. Do you think there are opportunities to realise this collaborative approach?

Open Rights Group welcomes the publication of the discussion document, and is grateful for the Scottish Government’s continuing engagement with us as the strategy has developed.

We are broadly supportive of the approach set out in the Strategy, and of the Scottish Government’s ongoing commitment to taking a people-centred, digital rights-focused approach to the uses of public data and technology. As the consultation document notes, getting this right is about far more than ensuring Scotland’s attractiveness for international investment. As the legislative foundations of digital rights (including the right to privacy, the right to freedom of expression, and the right to freedom from surveillance) begin their own transformation on a UK-wide level outside Europe, Scotland’s determination to retain those digital rights regardless of those changes outwith its control sends a powerful message. There is no better time to start.

Q2. Of the opportunities which you have identified, which do you think are the priority ones?

See subsequent answers

Q3. Is the vision that we have set out in the supporting narrative in each of these sections the right one?

Yes

Q4. Do you think that the potential actions set out in each section will deliver the vision set out in the supporting narrative?

On a whole, we felt that each section provides a good foundation for the vision which supports it. For example, we felt that sections 5 and 6 set out a healthy technical approach to anchor the wider strategy’s visions. Section 5 on Digital Identity, for example, indicates a much stronger understanding of system architecture and aims, and the approach which citizens take to the public sharing of their data, than the industry-driven digital identity consultation recently undertaken on a UK-wide basis. Likewise, section 6 on transforming government views digital transformation as a tool to strengthen and support service delivery, rather than innovation for its own sake.

We did note, however, that the 2021 Scottish Parliamentary elections were absent from this Strategy. The technical components of elections have, quite obviously, been in the news as of late for the wrong reasons. With the pandemic approaching a second and third phase, there is now every chance that our own elections may rely on, or be, wholly digital. If, as a nation, we do find ourselves needing to stage a digital election, this Strategy should be used to underline the technical, ethical, and societal approach to carrying it out in a technically robust and socially inclusive manner. The haste the situation may require should not be used as an excuse to deviate from the Strategy’s foundations.

Q5. Are any of the potential actions more important than others?

We noted the discussion in “No One Left Behind” about developing an education system which builds digital skills. While this is a welcome commitment, it should be approached with far more ambition. This can be an opportunity for Scotland’s educational system, from primary school all the way through university, to build in digital rights into the curriculum, and to create a cohort of future professionals who consider digital rights in everything they do.

At the moment, digital education, such as it is, takes a “thou shalt not” approach centred around system administration issues such as the Computer Misuse Act or GDPR. That education is essentially negative, delivered from a legal compliance “do this or else” perspective. Digital education as a positive call to defending digital and human rights, as well as the roles which Scotland’s future professionals will play in creating systems which will protect and ensure those rights, is largely absent. This applies all the way to university level, where (for example) privacy as both an ethical and legal concept does not even figure in most computer science curricula.

In building its digital strategy for the future, Scotland has a real chance to become a world-leading nation which trains its future professionals in an entirely different way – one which puts people at the heart of technology, rather than the other way around – by reforming its approach to provide an holistic curriculum from secondary school onwards that empowers individuals in their rights online and helps contribute to other strategic goals (Ethical Digital Nation) through technical and digital education.

Q6. How realistic do you think it will be to deliver these potential actions?

We are under no illusions that the aims and ambitions within the strategy will be easily delivered. We are, after all, in the first year of a public health crisis which has the nation on an emergency footing. We are also in the midst of once-in-a-generation political upheaval caused by the UK’s exist from the European Union, and the resulting disruption this has brought to the digital economy.

However, we felt that section 9, “An ethical digital nation”, provides a solid foundation to use to address those challenges as the strategy moves from concept to delivery. The commitments contained within this section, such as improving open data, welcoming independent scrutiny, and increasing international cooperation, indicate that the Scottish Government is clearly placing the “public voice at the core”. Provided these values do remain at the Strategy’s centre, those temporary difficulties can be overcome.

We say this on the basis of having recently responded to the UK government’s National Digital Strategy, which approached the same questions which the Scottish Government has asked here from a completely opposite perspective. That perspective wrongly put data before people, wrongly detached data from the political context which surrounds it, and wrongly sought to untether data from both legal and ethical protections. The Scottish approach, which views data ethics as a supplement to rather than a substitute for legislative protection, and centres public benefit rather than commercial value at its heart, provides a much healthier framework to protect digital rights.

In our National Data Strategy consultation response, we noted that strategy’s potential to further exacerbate existing data inequalities, for example, the experiences of migrant communities already impacted by the immigration exemption. We would ask the Scottish Government to be mindful of the ways that data inequalities outwith its control impact those living in Scotland, and to take steps to mitigate them as much as is possible.

Q7. Is there anything else you wish to comment on that has not been covered elsewhere?

We would like to offer a constructive suggestion which could support the Scottish Government’s long-term legislative aims. This idea, borne of our recent engagement on the draft Hate Crime and Public Order (Scotland) Bill as well as the Defamation and Malicious Publications (Scotland) Bill, is to ensure that all legislative programmes are digitally competent before the public consultation phase.

At the moment, there is still a legislative as well as what could be called a cognitive gap between what takes place in the analogue and digital worlds; as a result, it is all too easy for laws drafted to address issues in the analogue world to fail to translate to the realities of the digital world. One example would be the unintended consequences of a rule drafted to address defamation in a newspaper article also impacting archived blog posts written years ago. The work needed to address those gaps takes up valuable time for both civil society groups as well as legislators. It can also cause unnecessarily heated and counterproductive public debate, as the experience with the Hate Crime bill has shown.

A constructive solution to this would be the creation of a technical feasibility panel to scrutinise draft legislation before the consultative phase. This panel could be drawn from internal resources, or established independently drawn from external network which already exist. Its role would be to receive legislation with a digital component to assess its practical feasibility as well as its technical competence.

By doing so, conflicts and concerns about legislative crossover to the digital worlds could be spotted before they become potential problems. External frameworks, such as the Internet Society’s internet architecture impact assessment, could be used by the group to ensure that any technical impacts do not raise concerns for internet health or digital rights.

As the lines between the online and off-line worlds become increasingly blurred, particularly in the pandemic era, the need for competent technical legislation has never been more urgent. The Scottish Government should rethink its approach to legislation with the same creative insight it has brought to this draft Strategy. The public, and digital rights, can only benefit in the end.