|Dr. Joris van Hoboken is
a research fellow at the
Information Law Institute of the New York
University. At IViR he is
a guest researcher and supervisor of PhD-theses.
His research addresses law and policy in the field of
digital media, electronic communications and the
internet. His interests include the implications of the
fundamental right to freedom of expression and privacy
online as well as the transatlantic comparison of
different regulatory approaches to the online
environment. He is a specialist in the field of search
engine law and regulation and regularly writes, teaches
and presents on the issues of data protection and
intermediary liability on the Internet.
He graduated cum laude in
bo th Theoretical Mathematics (2002, M.Sc.) and Law
(2006, LL.M.) and serves as the chair of the Board of
Bits of Freedom, a Dutch digital civil rights
organization. Joris was awarded a Ph.D.
by the University of Amsterdam (2012) for his thesis
examining the implications of the right to freedom of
expression for the legal governance of
In 2014 he received a
prestigious award for his thesis by the
Praemium Erasmianum Foundation.
(with A.M. Arnbak,
N.A.N.M. van Eijk)
Obscured by Clouds or How to Address Governmental Access
to Cloud Data From Abroad, draft paper presented at
Privacy Law Scholars Conference 2013, 6-7 June,
Berkeley, United States.
Snowden saga reveals gaps in protection of European data,
Financial Times, 29 July 2013, p. 2.
(with A.M. Arnbak,
N.A.N.M. van Eijk
with the assistance of N.P.H. Kruijsen,
Cloud Computing in Higher Education and Research
Institutions and the USA Patriot Act, November 2012.
Institutions have started to move
their data and ICT operations into the cloud. It is
becoming clear that this is leading to a decrease of
overview and control over government access to data
for law enforcement and national security purposes.
This report looks at the possibilities for the U.S.
government to obtain access to information in the
cloud from Dutch institutions on the basis of U.S.
law and on the basis of Dutch law and international
co-operation. It concludes that the U.S. legal state
of affairs implies that the transition towards the
cloud has important negative consequences for the
possibility to manage information confidentiality,
information security and the privacy of European end
users in relation to foreign governments.
The Patriot Act from 2001 has started to play a
symbolic role in the public debate. It is one
important element in a larger, complex and dynamic
legal framework for access to data for law
enforcement and national security purposes. In
particular, the FISA Amendments Act provision for
access to data of non-U.S. persons outside the U.S.
enacted in 2008 deserves attention. The report
describes this and other legal powers for the U.S.
government to obtain data of non-U.S. persons
located outside of the U.S. from cloud providers
that fall under its jurisdiction. Such jurisdiction
applies widely, namely to cloud services that
conduct systematic business in the United States and
is not dependent on the location where the data are
stored, as is often assumed. For non-U.S. persons
located outside of the U.S., constitutional
protection is not applicable and the statutory
safeguards are minimal.
In the Netherlands and across the EU, government
agencies have legal powers to obtain access to cloud
data as well. These provisions can also be be used
to assist the U.S. government, when it does not have
jurisdiction for instance, but they must stay within
the constitutional safeguards set by national
constitutions, the European Convention on Human
Rights and the EU Charter.
This is the English translation of a
report that was released in September 2012 in The
Netherlands. It was covered extensively in Dutch
newspapers, on Radio1 and the 8 PM news bulletin of
public broadcaster NOS. Politicians across the spectrum
reacted on the report, both directly in the media and
through Parliamentary questions. Meanwhile, the State
Secretary of Security and Justice has responded to the
Parliamentary questions on 15 October 2012. References
can be found on the Institute for Information Law
website. The report is also available on
Patriot Act can "obtain" data in Europe, researchers say,
CBS News, 4 December 2012.
Search engine freedom: On the implications of the Right
to Freedom of Expression for the Legal Governance of Web
Search Engines, Information Law Series 27,
Alphen aan den Rijn:
Kluwer Law International 2012.
In this book, the
author explores how search media can be incorporated
into freedom of expression doctrine, as well as
media and communications law and policy more
generally. And the book develops a theory of the
legal relations between national governments and
search media providers on the one hand and between
end-users and information providers on the other.
Among the many issues covered are the following:
- role of
government under the right to freedom of
- lack of
transparency about the ranking and selection of
- search engine
and ISP intermediary liability;
- filtering by
- freedom of
expression and the governance of public
- the search
engine market, its business model and the
separation rule for advertising;
- search engine
- user profiling
- decisions and
actions for which search engines should be able
to claim protection.
The analysis draws
on specific legal developments under Article 10 of
the European Convention on Human Rights and the
United States First Amendment, and investigates
issues of diversity, pluralism, and freedom of
expression as they relate to editorial control in
other media. The author concludes with
recommendations regarding search engine governance
and the proper role of government, indicating which
existing elements of the regulatory framework for
search media can be improved and offering directions
for future legal and empirical research.
Considering the ever-growing cultural, political,
and economic importance of the Internet and the
World Wide Web in our societies, and the societal
interests involved in the availability of effective
search tools, this first in-depth legal analysis of
search engine freedom will prove indispensable to
the many practitioners and policymakers concerned
with freedom of expression in the digital age.
The Right to be Forgotten and the Media Exception in the
Proposed Data Protection Regulation, Contribution to
the European Parliament Hearing on Data Protection for
the Digital Age, 28 June 2012, Brussels.
Little Brother Is Tagging You - Legal and Policy
Implications of Amateur Data Controllers,
Computer Law International (CRi), 2010-4, p.
This article argues
that the instances in which amateur users will fall
under the ambit of data protection law are not the
exception, but rather the rule. Based on an analysis
of the provisions of the European Data Protection
Directive, the article demonstrates that existing
data protection law burdens amateur users with
provisions that exceed the personal, technical and
financial capacities of most Social Network Sites
(SNS) users, that do no fit the SNS context or that
users are simply not able to comply with without
assistance from the SNS provider. While it is
unacceptable to burden amateurs with a number of
obligations that exceed their capacities, it is also
not feasible to place all the burdens on SNS
providers, since many of the privacy problems of
SNSs are in fact user-made. All this points to a
concept of joint-responsibility of SNS users and
providers. The article concludes with a number of
concrete suggestions on how such a concept of joint
responsibility could be given form.
The Importance of Privacy. Confusion about the Civil
Right of the Twenty-First Century, Open, nr.
19 (Beyond Privacy. New Notions of the Private and
Public Domains), NAi Uitgevers, 2010.
E.H. Janssen, N.A.N.M. van Eijk,
Angelopoulos, E. Swart, et al.)
User-Created-Content: Supporting a participative
Information Society, Final Report, Study carried
out for the European Commission by
IDATE, TNO and IViR, 2008.
Space for Innovative Ordering. On the Need to Update
Selection Intermediary Liability in the EU, International
Journal of Communications Law & Policy,
Ahead—Future Issues when Reflecting on the Place of
the iConsumer in Consumer Law and Copyright Law, Journal
of Consumer Policy 2008-31, p. 489-96.
Freedom of Expression
Implications for the Governance of Search, in Searching
for Audiovisual Content, IRIS
Special, December 2008.
Angelopoulos) Workshop on Audiovisual Search:
Summary of the Discussion, in Searching for Audiovisual
Content, IRIS Special, December 2008.