2021iii3, Wednesday: data, privacy and the Golden Rule.

If people talk about changing data protection laws, always ask for their philosophy; if they won’t say, be suspicious. And two great tales about the file format that makes remote working possible.

I wouldn’t worry if it were still like this.

Short thought: On Friday, I’m giving a webinar on privacy issues in employment. It’s part of a series of employment law webinars over 15 days (two a day); the second such series since lockdown, organised by my friend Daniel Barnett. With signups come big donations to the Free Representation Unit, a splendid charity which organises advocates for people who can’t afford lawyers in employment and social entitlement cases. (So yes – if employment law is important to you, sign up. There’s still 80% of the sessions left to run, all are recorded for later viewing at your leisure, and it only costs £65 plus VAT a head. Discounted significantly the more heads you book for.)

Anyhow: prepping for it has got me thinking. There’s a lot of noise, particularly post-Brexit, about what kind of law governing privacy and data protection we should have. GDPR comes in for a lot of stick: it’s cumbersome, it’s civil rather than common law, it’s inflexible, it makes life harder for small businesses and is easy for large ones. Scrap it, some say. Other countries get adequacy decisions (that’s the European Commission saying: yes, your data protection laws give sufficiently equivalent protection that we won’t treat you as a pure third country, with the significant restrictions on cross-border data transfer that entails) with different laws. Why shouldn’t we? (Incidentally, initial signs are we should get an adequacy ruling. Phew.)

All of this, I tend to feel, misses the point. The first step to working out what data protection architecture we have isn’t common vs civil law. It’s identifying the essential philosophical and ethical – and, yes, moral – basis for why data protection is needed in the first place. When I hear people advocating for changing the onshored version of GDPR, I want to hear that philosophical basis. If I don’t, I’m going to start patting my pockets and checking my firewalls. Because the cynic in me is going to interpret that the same way I interpret – say – calls for restricting judicial review, or “updating” employment law: as a cover for a fundamental weakening of my protections as a citizen and an individual.

Here’s why. GDPR, for all its faults, did represent a root-and-branch shift, and it’s that shift rather than its shortcomings (and lord knows it has them) that has caused much of the outcry. The shift? The imposition, in clearer terms than ever before, of the idea that people’s data is theirs, unalienably so. And if you want to muck about with it, they get to tell you whether that’s OK or not.

I know this is a wild over-simplification. But in our data-rich, surveillance-capitalism world, as a citizen that’s what I want. Yes, it carries downsides. Some business models are rendered more difficult, or even impossible. But that’s a trade-off I’m happy with.

I’m aware of one case, for instance, where an employer is alleged to have accessed an ex-employee’s personal email and social media accounts (or tried to) using credentials left on their old work computer, because the credentials to a work system were missing and there might have been password re-use.

I’ll leave the reader to compile their own list of what potential problems this might give rise to. But it does bring into sharp relief what I think the core issue is in privacy and data protection, both generally and in the employment context.

And it boils down to this: don’t be (to use The Good Place’s euphemistic structure) an ash-hole.

Honestly, it’s that simple. So much of employment law (and here, as we saw in the Uber case and many others, it differs from “pure” contract law significantly) is about what’s fair and reasonable. (As employment silk Caspar Glyn QC put it in his webinar on Covid issues yesterday, he’d made a 30-year career out of the word “reasonable”.) And through the architecture of statutes and decisions and judgments, what the tribunals and courts are ultimately trying to do is apply the Golden Rule. Has this person, in the context of the inevitably unequal power relationship between them and their employer, been treated fairly?

Now, everyone’s definition of “fair” is going to differ. But that’s why we have laws and (in common law jurisdictions like ours) authority. So that we can have a common yardstick, refined over time as society evolves, by which to judge fairness.

What does this have to do with privacy in employment? Loads. For instance:

  • Can you record people on CCTV? Well, have you told them? Have you thought about whether it’s proportionate to the risk you’re confronting? Does it actually help with that risk more than other, less intrusive, means?
  • Can you record details of employees’ or visitors’ Covid test results? Well, why are you doing it? Do you really need it? If so, how are you keeping it safe – since this is highly personal and sensitive health data?

It’s difficult. But it’s difficult for a reason. Personal data is so-called for a reason. Its use and misuse have immense, and often incurable, effects. The power imbalance is significant.

We lawyers can and do advise on the letter of the law: what GDPR, the Data Protection Act, the e-Privacy Directive and so much more tell you about your obligations.

But a sensible starting point remains, always, to consider: if this was my sister, my brother, my child, working for someone else, how would this feel? How would their employer justify it to them? And if they came home, fuming about it, would I think it was fair?

I live here. Or so my family would probably say.

Someone is right on the internet: I haven’t been in my Chambers since September. My workplace is my home office. It’s evolved into a decent environment over the past year. Furniture, tech, habits: they’ll keep changing, but they’re in a pretty good place right now.

But in many senses, the single biggest enabler of my remote working isn’t a piece of kit, or even a piece of software. It’s a data format. The PDF.

PDFs have been around for decades. Adobe came up with it, and in one of the smarter bits of corporate thinking, gave it away. Not entirely, of course. But anyone can write a PDF app (my favourite being PDF Expert) without paying Adobe a penny; while Adobe, rightly, still makes shedloads from selling Acrobat software for manipulating PDFs as a de facto, rather than de jure, industry standard.

And I rely on PDF entirely. I convert almost everything to PDF. All my bundles. All my reading matter. Practitioner texts. Authorities. Everything. Even my own drafting gets converted to PDF for use in hearings. That way, I know I can read them on any platform. Add notes, whether type or scribble (thank you, Goodnotes, you wonderful iPad note-taking app), highlight, underline. And have those notes available, identically, everywhere, in the reasonable confidence that when I share them with someone else, they’ll see precisely what I see, on whatever platform and app they themselves have available. They’re now the required standard in the courts, with detailed and thoroughly sensible instructions on how PDF bundles are to be compiled and delivered. (Note that some courts and tribunals have their own rules, so follow them. But this is a good starting point.)

My utter reliance on, and devotion to, PDF means I’m interested in its history. And two excellent pieces tell that story well. One describes Adobe’s long game. The other describes PDF as “the world’s most important file format”. Neither are terribly short, but neither really qualify as long reads. And given how much we now rely on this file format, they’re both well worth your time.

(If you’d like to read more like this, and would prefer it simply landing in your inbox three or so times a week, please go ahead and subscribe at https://remoteaccessbar.substack.com/.)

Bundles. Blasted bundles.

As I may have mentioned, I can’t say I’m upset at the demise (at least for the moment) of the paper bundle, and the normalisation of delivering a soft one. But what if you’re instead faced with all kinds of disparate files, and you’re the one who needs to sort it?

I’ll try to keep this quick. I’m going to assume that you know how to turn documents into PDFs (because we already covered that). And that you’ve got them all sitting named in some kind of sensible order in a folder somewhere that you want to combine. And – the big one – that you’re using PDF Expert.

Because if you are, putting the documents together for yourself or the Court is child’s play.

The easiest way is this:

  1. Open PDF Expert.
  2. Choose “Merge Files…” from the File menu at the top of the screen.
  3. Navigate to whichever folder you’ve got your stuff in.
  4. Hold down the Command key (the one immediately next to the Space bar, with the funny little four-leaf clover symbol on it) and click once on each file you want to join together into your bundle. (NB: this is where it’s critical to have your files in a sensible naming scheme, because Merge will combine them in alphabetical order.)
  5. Click the “Merge” button.
  6. Choose “Save As…” from the File menu to save the new, combined file somewhere sensible.
  7. And you’re good.

There are other ways of doing this – dragging and dropping, for instance – but this is the easiest way to start.

What if you need to add something later? Well, you could do this again – but remember the alphabetical order point. Your new file might have the wrong name. Sure, rename it if you like. But there’s an alternative:

  1. In your open PDF document, click the Thumbnails button on your toolbar: it’s the one that looks like a 2×2 grid of little squares. You’ll see little versions of all the pages in that open document.
  2. On the toolbar you’ll see an option labelled “Append file”. It’s the second one from the left. Click it.
  3. Now choose the file you want to add to the end of your bundle, and click “Add”.
  4. And that’s it. Save, and you’re good. (And click “Close” to get back to looking at the pages themselves. Don’t forget that.)

I recognise this isn’t everything you need to do. You’ll need a table of contents. An index. Page numbers. Highlighting. And some way of replacing all those post-it notes your lever-arch bundles were festooned with.

It’s all doable. More to come. And in the meantime, these two techniques will give you everything in the same place, in the right order. A good start.

So you’ve turned everything into a PDF. What next?

There are far too many PDF apps out there. Pick one, learn it inside and out, and make it work for you. Although I do have my preference. And it’s not Adobe Acrobat. This is in essence a shameless plug for the app that, more than anything else, made my paperless life possible.

OK. Well done. You’ve spent a boring 10 minutes or so turning everything into PDFs. What are you going to use to do anything with them?

This is a tricky one. For Apple users, there are a huge number of options. I’ve only tried a few, and I’m not going to attempt a comparative review. No point. (And I’m sorry – I’ve used PCs all my working life, but mostly corporate locked-down ones, so no experimenting to find apps I like. This is one of those areas where this is gonna get really aggravating for Windows users. Again – apologies.)

Instead, this simply covers three options:

  1. A specialised PDF app;
  2. A dedicated legal bundle-handling app or website; or
  3. Adobe Acrobat Pro.

Me? I go for option 1, and in my case a lovely app called PDF Expert:

  • It does highlighting, annotation, tables of contents and bookmarking really well, which are the core things we need (and it allows you easily to view or extract just your highlights and annotations, which makes it easy to dump them into skeletons etc).
  • It’s child’s play to combine PDFs, mess about with page order, rotate pages, and so on. It works just about identically on Mac and iPad.
  • All the table-stakes PDF stuff like form-filling and signing is pretty much entirely pain-free.
  • And for those of us who keep all our stuff in some form of secure cloud storage, it’s great at syncing it all between offline iPad storage and the cloud.

Seriously – if there’s one app which made it possible for me to go paperless and stay there, it’s this one.

Now, there are loads of others. Just off the top of my head: PDFPen and PDF Element (for both Mac and iOS). iAnnotate and GoodReader for iPad. Even Preview, which comes installed as standard on Macs. Seriously: there are shedloads. And none of them are less than good (well, except Preview – that’s just OK). You won’t go wrong. Just so happens that PDF Expert solves for my pain points and (to my mind) does so better than the alternatives, if sometimes not by much. Particularly on the critical combine-files-together thing, which (on the Mac) you can do by dragging and dropping. Multiple files. All those ones you PDFed and carefully named. In one go. Bliss.

Now, I have to admit there’s one serious fly in the PDF Expert ointment. It doesn’t do OCR – optical character recognition, also known as “turning a scan into something searchable and highlightable”. PDFPen does, for instance. As does Adobe Pro (see below). That’s a big downside. So I have a separate OCR app. Again, there are several – but ReadIris has worked well for me so far.

And then there’s price. PDF Expert isn’t cheap – nor are PDFpen and PDF Element. If price is a real issue, you should definitely look at GoodReader, which (I think) costs about a fiver.

(Update, later in the day: I feel slightly dirty. I’ve just advised a non-geek colleague to go for PDFPen because it does OCR etc all in one. I still think PDF Expert is the better app usability-wise. But there you go: perhaps for people who need OCR, the all-in-one solution wins out…)

So how about option 2? I have to admit I don’t know much about these. I’ve dabbled, no more, in three of them – Casedo, Bundledocs and Hyperlaw – so take my comments with a sizeable pinch of salt. But they’re not for me. Yes, they make bundling a doddle, and in Casedo’s case have some nifty ways of highlighting and linking between parts of different documents. But while Hyperlaw solves one big pain point – you can dump an email full of various attachments into it and it turns them all magically into PDF (yay!) – it’s also browser-based, and despite claims to the contrary, is simply substandard on an iPad. Bundledocs is also browser-only, and only really handles bundle generation, not all the other PDF-handling we need. So that’s a no. And Casedo is app-based – but the app is Mac/PC only. Again, no. I can’t do this without my iPad. Sue me. (Don’t.)

OK. Elephant time. Why not option 3? Why don’t we simply go for Adobe Acrobat Pro? After all, Adobe invented PDFs. Surely they know what they’re doing?

Yes. They do. It’s excellent software. Again, fully cross-platform, and a single subscription covers everything. Including OCR built in.

But there’s part of the rub. That subscription is £15 a month – if you sign up for a whole year. If you want to keep your options open, it’s £25 a month on a month-by-month basis. Ouch. I have to say, I also find its highlighting/bookmarking/annotating simply less good than most of the competition. That may be simply me backing what I’m used to, but it’s still a hard pass.

As with everything, your mileage may vary. What’s critical is you find something that works. Something you feel comfortable with.

And then there’s option 4. The one I didn’t mention. The apps that do it completely differently.

Two in particular stand out: LiquidText (iOS only) and MarginNote (iOS and Mac). Both allow you to take one or more PDFs, drag bits of text or pictures (or whatever) out onto a scratchpad to one side, and connect and arrange those bits in any way you please, adding commentary and comparing different bits of documents side by side. I’ve tried both, and I absolutely love the concept. Just haven’t quite managed to make it work for me. But people for whom it does absolutely swear by it. Give it a go. Might be your idea of perfection.