Academia and digital rights litigation: from observation to collaboration

By Ot van Daalen, 17th July 2019

“I expect to be in observation mode,” was what I wrote when I was asked to participate in DFF’s workshop on connecting the digital rights field with academia. Not because I didn’t want to contribute, but because the Glushko & Samuelson Information Law and Policy Lab (ILP Lab) of the Institute for Information Law (IViR) at the University of Amsterdam was founded only a few months ago. Stef van Gompel and I, the co-directors, are in the process of finetuning the topics that the ILP Lab focuses on, how we work with students, and how we manage projects. For this, the workshop couldn’t have come at a better moment. Let me share three take-aways from the workshop that we hope will develop our thinking in these areas and open up opportunities for us to engage with the digital rights field in the context of their work.

The ILP Lab develops and promotes research-based policy solutions that protect fundamental rights and freedoms in the field of European information law. It is a student-run, IViR-led institution, which aims to convert insights from academic research into practical policy solutions that are then shared more widely. In carrying out this work, it provides students with hands-on training under the supervision of experienced academics.

The ILP Lab works on selected projects at the initiative and in close consultation with selected partners with a public interest mission, such as non-governmental organisations, policy think-tanks, public authorities, government agencies, and local and (inter)national governments. Students work closely with their peers and members of staff at the University of Amsterdam. Under the supervision of staff members, students will, depending on the project, draft position papers, public briefings, legislative proposals, responses to consultations, policy impact assessments and amicus briefs.

In relation to amicus briefs, I wasn’t yet convinced the ILP Lab could provide added value in this area. The precedential value of court decisions in civil law countries is more limited than in common law jurisdictions and it is difficult to assess to what extent amicus briefs have an impact in the decision-making process of European courts. More importantly, I wasn’t sure whether drafting an amicus brief was something that students would be able to finish in a semester.

The workshop changed my view. While the impact of amicus briefs is difficult to assess, this does not mean that they cannot influence the outcome of a case. Civil law courts do indeed attach less value to precedent, but it is obvious that regional courts in Europe can have a major impact on policymaking (see Digital Rights Ireland and Schrems as two examples). What was abundantly clear is that writing an amicus brief is doable in one semester – in fact, it could provide for a nice, well-rounded project for this timeframe.

The second take-away had to do with working with students. I learned that, in the US, universities have appointed clinical professors who are fully dedicated to supporting the clinical students. These professors determine the projects the clinic will work on, and, more importantly, they co-ordinate and mentor students quite intensively. This also has to do with the fact that clinical professors are simultaneously practicing lawyers, and all the work produced by the clinical students is done in the name of the professor – so the bar license of the professor is on the line. This means, for example, that all outgoing communication of the students is approved by the clinical professor. I’m not entirely sure the ILP Lab could provide this level of support, but for me it underlined that we should further clarify our policy on this point.   

Lastly, I learned that we’re on the right track. Practice-based learning can be immensely valuable for students, as decades of US experience with the clinical model demonstrates. Simultaneously, initiatives like the ILP Lab can serve to bridge the gap between academia and civil society, and the projects our students have been working on for the past few months have been a testament to this.

We are very grateful to the Digital Freedom Fund, the Amsterdam Legal Practice of the University of Amsterdam and the Cyberlaw Clinic at the Berkman Klein Center of Harvard University for organising the workshop. For the ILP Lab, the workshop laid the groundwork to shift from observation to collaboration mode, something we very much look forward to!    

About the author: Ot van Daalen is the co-director of the Samuelson & Glushko InformationLaw and Policy Lab of the Institute for Information Law. He is also the founder of privacy law firm Root Legal.