Brexit Needed Your Fully Informed Consent

In 2016, the Swiss parliament realised the people had made a terrible mistake in a narrow, binding 2014 vote to impose quotas on EU workers.

While Switzerland is not an EU member, it's the EU's third largest trading partner after the USA and China - so more important than the UK on its own - and has a free movement agreement for all EU citizens, meaning EU citizens can live and work there.

The EU was not intimidated by the Swiss vote in 2014. The EU (including the UK, even after the Brexit vote) continued to insist that any attempt to restrict free movement of EU citizens would automatically exclude Switzerland from the EU single market. Imposing quotas would end all of Switzerland's 120 trade deals with individual EU members and result in exclusion from the EU’s chemical regulation, research and education programmes.

So the Swiss parliament decided not to implement the quotas on EU workers. Voters had not been informed of all these consequences of voting to impose the restrictions. Conservative politicians were outraged, but that was felt to be a price worth paying to protect the Swiss economy.

UK citizens are already personally familiar with the need for consent - especially where that is the basis for processing their personal data under the Data Protection Act 1998. Indeed, the UK government was instrumental in developing the new, more stringent General Data Protection Regulation (GDPR), and has committed to retain it post-Brexit. 

Where consent is relied upon for the processing of personal data, it must be a "freely given, specific, informed and unambiguous indication of the data subject's wishes... a statement or ... clear affirmative action [which] signifies agreement to the processing of personal data relating to him or her."

The UK's own EU referendum was a non-binding vote and a simple Yes or No to leaving the EU.  No one would argue that any voters were really "informed" as to the consequences of Brexit. Only a few of those consequences are clear 18 months later.  Many people are very angry that they were misled by Leave campaigners who claimed that leaving the EU would be easy, that it would cost nothing, that there would be new trade deals by now and the UK would be able to spend its EU contributions on the NHS instead.

But it is clear that the EU does not feel the need to compromise with the UK - after all it didn't need to for Switzerland.

On this basis, the non-binding referendum vote to leave the EU was not fully informed and Parliament should now now decline to proceed with it. The Article 50 notice to leave the EU can and should be withdrawn.

Mau-Mauing The Brexiteers

In 1970 a group of indignant, physically intimidating citizens gathered in San Francisco's Office of Economic Opportunity to confront a useless bureaucrat over the fraudulent failings of the Office's poverty relief efforts. The bureaucrat's initially condescending approach soon turned to humiliation and he ended the meeting with a pathetic promise to call his absent boss for some real answers the following morning. Satisfied with the bureaucrat's humiliation, however, nobody turned up to hear him make the call. 

Re-reading Tom Wolfe's famous article on the confrontation last night, it struck me as something of a parable for the campaign against Brexit, and yet revealed a key difference that firmly points to that campaign's success. 

Wolfe called his article on the confrontation in San Francisco "Mau-Mauing the Flak Catchers" in reference to both the intimidation by Kenya's anti-colonial Mau Mau Uprising and the tendency for public officials and politicians to send an underling to 'catch the flak' rather than face it themselves. He ends it with the observation, however, that the bureaucrats were ultimately successful. The flak catcher caught the flak and everyone went on with business as usual.

Brexit was billed by the Brexiteers as a poverty relief effort, but we've since discovered it was riddled with fraud, from the claims that there would be an "extra £350m a week" to be spent on the NHS, to the claim that the Tory leader could send the Article 50 notice without reference to Parliament, to the claim that the notice could not be withdrawn and the Brexit process stopped, to the notion that the UK would not need to settle its membership tab on the way out, to the claim that new trade deals would be easy... to the now utterly hollow claim that "Brexit means Brexit".

Such lies and misinformation have cast the Brexiteers as very, very low grade officials indeed. Whether or not you applaud their elevation to cabinet minister by a weak (and faux-Remain or closet Leave) Prime Minister, that step has at least highlighted their total and complete incompetence to lead or achieve anything. Years after launching their mendacious campaign to 'free' the UK from some imagined EU 'dictatorship' they are yet to offer any concrete details for an EU trade deal, let alone a 'Global Britain'. They have even failed at the first hurdle, skewered by their bizarre denial that the UK would need to settle its membership bill before leaving. These people are simply living a fantasy.

The indignant citizens actually confronting these bureaucratic flops are an intimidating bunch. They draw strength from representing at least 16 million people, for a start. They also tend to be the very people whom the Brexiteers must have been relying on to actually achieve the impracticable task of unwinding over 40 years of British efforts to make the UK a key player within the European Union. Beyond the disaffected UK civil servants there are millions of importers, exporters, manufacturers and their workers throughout British industry, investors and investment managers, QCs, judges, academics, teachers, nurses, doctors, students... a whole civil society of people who understand how the UK works, the value of its EU membership and that it does not work in isolation and who consider themselves EU citizens as well as UK citizens. They are angry and they are fighting for their rights and in many cases their homes.

But the key difference between the #StopBrexit campaigners and the indignant citizens who gathered in the San Francisco Office of Economic Opportunity in June 1970 is that no one is letting the hapless Brexiteers off the hook.  Unlike short-sighted Leave voters and the dormant botnets of the Leave campaign, their Twitter accounts are very much alive and connected to ongoing investigations, court proceedings, official complaints and petitions. They are relentless in challenging the hollow rhetoric flowing from the Brexiteers. And unlike the Brexiteers, anti-Brexit politicians are not fighting for their credibility - they can safely rely on inertia and the vast weight reality, statistics, events and common sense to expose the Brexiteers' feeble lies and misinformation on a daily basis. They are not satisfied with the mere humiliation of May, Johnson, Gove, Davis, Fox and their supporters and apologists (including the Labour front bench!). No, they are turning up the next day, every day, day after day, demanding answers and an end to Brexit.

Why Would The #Brexiteers Lie?

Follow the money. 

Years of low interest rates have made investors desperate for higher returns, and volatile markets mean lots of big ups and downs, like the rollercoaster ride we've seen since the Brexit vote and are likely to see for many years as a result. Movement either way is an opportunity for speculators to make money, even if the longer term trend is down. And paying rock-bottom prices for UK assets could mean good profits can be made selling them to predatory trade partners in the future. 

At any rate, steady as she goes won't cut it for the wealthy investor - which is why "strong and stable" is just another #Brexiteer lie. After all, the wealthy don't have to live in Britain when the going gets tough.

So this is why the Leave campaign was largely funded by 5 wealthy financial investors, and why after the Brexit vote, George Osborne knew it was best to leap into an investment fund manager. 

And now that Brexit is hitting the buffers, guess what? Legatum, the Tory's hard-Brexit stupidity "think" tank has received £4m from a wealthy investor from New Zealand who Private Eye says made his money "by finding undervalued assets the rest of market ignored – “transition economies or distressed sectors where information is not easily available and standard metrics don’t apply”.

It's still unclear where the so-called "Institute for Free Trade" got its money, but it has similar hallmarks to the other Brexiteer stunts.

Meanwhile, the same Brexiteers are charging 55p a minute for benefits recipients to call the Universal Credit helpline... never mind that it's illegal for debt collectors to do so.

Make no mistake: Brexit is for a few, not the many who are unwitting pawns in their game. 

Are Retailers Prepared For Financial Regulation From 13 January 2018?

Three years after being announced in the UK and I suspect many retailers are still yet to realise that their loyalty/store card programmes will be regulated by the Financial Conduct Authority from 13 January 2018 - likewise across the European Economic Area. 

As the FCA now also explains, retailers who offer such programmes anywhere in the EEA will need to track the annual transaction volumes very carefully, starting with the completely arbitrary and inconvenient date of 13 January 2018. 

If the volume meets or exceeds €1 million (or the GBP or local currency equivalent) in any 12 month period (the first ending on 12 January 2019), the retailer must notify the FCA (or local regulator) within 28 days (by 10 February 2019).  Firms may also choose to register at any time from 13 October 2017.

But be sure of the outcome before you decide whether or not to register!

The regulator must then decide whether the programme is exempt from regulation as an e-money/payment service.  

If the firm fails to notify, it commits an offence under the Payment Services Regulations 2017 (or local equivalent implementing the second Payment Services Directive (PSD2)). 

If the FCA decides the programme is exempt, then it must include the retailer on the FCA's register of 'limited networks', and the name will be added to a central register of all such firms across the EEA.

If the FCA decides the programme is not exempt from regulation the retailer can appeal, but basically this means the firm will have been found to be violating the Electronic Money Regulations 2011 and/or Payment Services Regulations 2017 by issuing e-money and/or offering a payment service without being duly authorised/registered to do so. Major problem!

So retailers really have to decide now whether they should outsource the operation of the programme to an authorised firm (or the agent of one); or seek their own authorisation (or agency registration). Ultimately, they might restructure the scheme to fit the exemption, or shut it down.

Of course, the mere fact that retailers with loyalty schemes have to be mindful of these requirements and go through the process means they are in effect regulated by the FCA. Ignorance, as they say, is no defence.

BigTech Must Reassure Us It's Human

Recent issues concerning the purchase of lethal materials online, "fake news" and secure messaging highlight a growing tension between artificial intelligence and human safety. To continue their unbridled growth, the tech giants will have to reassure society that they are human, solving human problems, rather than machines solving their own problems at humans' expense. While innovation necessarily moves ahead of the law and regulation, developments in artificial intelligence should be shaped more by humane and ethical considerations, rather than outsourcing these to government or treating them as secondary considerations.

In the latest demonstration of this concern, Channel 4 researchers were able to assemble a 'shopping basket' of potentially lethal bomb ingredients on Amazon, partly relying on Amazon's own suggestion features or 'algorithms' ("Frequently bought together” and “Customers who bought this item also bought...”), which even suggested adding ball-bearings. This follows the phenomenon that emerged during the Brexit referendum and US Presidential election whereby purveyors of 'fake news' received advertising revenue from Facebook while targeting gullible voters.

Neither business is keen to proactively monitor or police its services for fear of conceding an obligation to do so and rendering itself liable for not doing so where the monitoring fails.

Channel 4 quoted Amazon as merely saying that:

"all products must adhere to their selling guidelines and all UK laws. [We] will work closely with police and law enforcement agencies should they need [us] to assist investigations." [update 20.09.17: Amazon is reported to have responded the next day to say that it is reviewing its website to ensure the products “are presented in an appropriate manner”.]

Amazon makes a valid point. After all, the same products can be bought off-line, yet unlike an offline cash purchase in a walk-in store, if they are bought on Amazon there is likely to be a digital 'audit trail' showing who bought what and where it was delivered. Indeed, it's conceivable that Amazon had alerted the authorities to the nature of the items in Channel 4 researchers' shopping basket and the authorities may have allowed the session to run as part of a potential 'sting' operation. It is perhaps understandable that neither Amazon nor the authorities would want to explain that publicly, but it would be comforting to know this is the case. Channel 4 is also somewhat disingenuous in suggesting this is an Amazon problem, when less well-resourced services or other areas of the Internet (the 'dark web') may well offer easier opportunities to purchase the relevant products with less opportunity for detection.

At any rate, the main difference, of course, is that no one from an offline store is likely to help you find missing ingredients to make a potentially lethal device (unless they're already part of a terror cell or perhaps an undercover operative) - and this is the key to Amazon's enormous success as a retail platform. It's possible, however, that a helpful employee might unwittingly show a terrorist where things are, and Amazon might equally argue that its algorithms don't "know" what they are suggesting. But whether it's because of the 'promise' of the algorithms themselves, there is a sense that the algorithm should not be vulnerable to abuse in this way.

Similarly, in the case of Facebook, the social network service has become a raging success because it is specifically designed to facilitate the exchange of information that generates passionate connections amongst like-minded people far more readily than, say, the owner of a bar or other social hang-out or a newspaper or other form of traditional media. Equally, however, Facebook might argue that the helpful algorithms aren't actually "aware" of the content that is being shared, despite use of key words etc. Meanwhile, WhatsApp seems to have declined to provide a terrorist's final message because it could not 'read' it (although the authorities seem to have magically accessed it anyway...).

Just as we and the online platform owners have derived enormous benefit from the added dimensions to their services, however, we are beginning to consider that those dimensions should bring some additional responsibilities - whether merely moral or legal - possibly on both users and service providers/developers.

In many ways the so-called 'tech giants' - Apple, Amazon, Alphabet (Google), Facebook and others - still seem like challengers who need protection. That's why they received early tax breaks and exemptions from liability similar to those for public telecommunications carriers who can't actually "see" or "hear" the content in the data they carry. 

But while it's right that the law should follow commerce, intervening only when necessary and in a proportionate way to the size and scale of the problem, the size and reach of these platforms and the sheer pace of innovation is making it very hard for policymakers and legislators to catch up - especially as they tend to have wider responsibilities and get distracted by changes in government and issues like Brexit.  The technological waves seem to be coming faster and colliding more and more with the 'real world' through drones and driverless cars, for example. 

The question is whether these innovations are creating consequences that the service providers themselves should actively address, or at least help address, rather than ignore as 'externalities' that government, other service providers or society must simply cope with.

The tech giants are themselves struggling to understand and manage the scale and consequences of their success, and the relentless competition to attract the best talent and the race to push the boundaries of 'artificial intelligence' sometimes presents as a declaration of war on the human race. Even the government/university endowed Alan Turing Institute seems to consider the law and ethics as somehow separate from the practice of data science. Maybe algorithms should be developed and tested further before being released, or be coded to report suspicious activity (to the extent they might not already).  Perhaps more thought and planning should be devoted to retraining commercial van and truck drivers before driverless vehicles do to them what the sudden closure of British coal mines did to the miners and their communities (and what the closure of steel mills has done since!).

In any event, the current approach to governance of algorithms and other technological leaps forward has to change if the 'bigtech' service providers are to retain their mantle as 'facilitators' who help us solve our problems, rather than 'institutions' who just solve their own problems at their customers' expense. They and their data scientists have to remember that they are human, solving human problems, not machines solving their own problems at humans' expense.

[update 20.09.17 - It was very encouraging to see Channel 4 report last night that Amazon had promptly responded more positively to researchers' discovery that automated suggestion features were suggesting potentially lethal combinations of products; and is working to ensure that products are "presented in an appropriate manner". The challenge, however, is to be proactive. After all, they have control over the data and the algorithms. What they might lack is data on why certain combinations of products might be harmful in a wider context or scenario.]