B2fxxx

      Thursday, May 07, 2009

 

Well I have to admit to underestimating Home Secretary Jacqui Smith's determination to find loopholes in the law on the retention of fingerprints and DNA of innocent people.

"The genetic profiles of hundreds of ­thousands of innocent people are to be kept on the national DNA database for up to 12 years in a decision critics claim is designed to sidestep a European human rights ruling that the "blanket" retention of suspects' data is unlawful.

The proposed new rules for the national DNA database to be put forward tomorrow by the home secretary, Jacqui Smith, include plans to keep the DNA profiles of innocent people who are arrested but not convicted of minor offences for six years.

The proposal would also apply to children from age 10 who are arrested but never successfully prosecuted."

I haven't seen the Home Office consultation paper - not due to be officially published until tomorrow - so this is still second hand from journalists who have seen it. Alan Travis at the Guardian reports:

"The package includes:

DNA samples

This is the physical sample of individual DNA material from a mouth swab, hair root or blood sample taken on arrest for a recordable offence. There are DNA ­samples held by the police on more than 4.5 million people as of 31 March. Ministers now propose to destroy samples for all existing and future cases for the unconvicted and convicted. Samples are to be retained for a maximum of six months to allow their profile to be loaded on to the database.

DNA profiles

Adults: serious sexual and violent offences For the most serious offences, the Home Office proposes the profiles of those arrested but not convicted should be kept for 12 years. For the convicted the period will be indefinite.

Adults: minor offences For less serious crimes the period for the unconvicted will be six years for a "recordable" offence, ie carrying a potential prison sentence and more serious than littering. Those convicted but also those given a caution, warning or reprimand will have their DNA retained indefinitely.

Legacy cases Existing 850,000 profiles on the database of innocent people who have been arrested but not convicted of any offence are to be re-examined by the police over the next two years to see if they have since been convicted of another crime. The Home Office says it has been ­established that 350,000 of these 850,000 DNA profiles are already linked to entries on the police national computer and so have a criminal record.

Dealing with the other 500,000 is the "biggest challenge and has the greatest resource implication", says the Home Office. It says that those who are linked to an entry on the police national computer will be kept for between six to 12 years ­depending on the seriousness of the offence. They say they can't estimate how many will be deleted.

Children The Home Office proposes a "one-strike" policy for those 11 to 18 with the profile of a child deleted at 18 if they have only one minor conviction.

Those convicted of a serious crime or two minor offences will have profiles retained for life. For those arrested but not convicted of minor offences the profile will be deleted after six years or when they are 18, whichever is earlier. For serious offences the 12-year rule will apply.

Exceptions Members of the public may request immediately removal of their DNA profile in cases of wrongful arrest, mistaken identity or where it turns out no crime has been committed."

All of these proposals are disproportionate to varying degrees in a country where a fundamental principle of law used to be that people were innocent until proved guilty. But the most objectionable has got to be the two strikes and you're out proposal for children. How many under 18s who do find themselves on the wrong end of a minor conviction only face those circumstances once? To stigmatise someone for life for indiscretions in childhood is just plain wrong. But this government's obsessive desperation to win over the average Daily Mail editor/reader, through passing multiple draconian laws superficially aimed at being tough on crime, seems to have left them unable to tell the difference between right and wrong.

I would just hope that there is a fast-track process and those with the means and determination to issue contempt of court proceedings before the Grand Chamber of the European Court of Human Rights. That's what these proposals, if Mr Travis's reporting of them is accurate, represent - contempt of the Court, contempt for the rule of law, contempt for the wrongly accused, contempt for the public and contempt for the historical tradition of the (albeit, in practice, imperfect) British justice system.

Ray 9:10 AM [ Permalink ] 0 comments [ Links to this post ] Make a New Post

      Wednesday, May 06, 2009

 

From David Isenberg, insightful as ever, Broadband without Internet ain't worth squat.

"We communications professionals risk forgetting why the
networks we build and run are valuable. We forget what we're
connecting to what. We get so close to the ducts and splices
and boxes and protocols that we lose the big picture.

Somewhere in the back of our mind, we know that we're
building something big and new and fundamental. We know, at
some level, there's more than business and economics at
stake.

This talk is a 30,000-foot view of why our work is important.
I'm going to argue that the Internet is the main value
creator here - not our ability to digitize everything, not
high speed networking, not massive storage - the Internet.
With this perspective, maybe you'll you go back to work with
a slight attitude adjustment, and maybe one or two concrete
things to do.

In the big picture, We're building interconnectedness. We're
connecting every person on this planet with every other
person. We're creating new ways to share experience. We're
building new ways for buyers to find sellers, for
manufacturers to find raw materials, for innovators to rub up
against new ideas. We're creating a new means to distribute
our small planet's limited resources.

Let's take a step back from the ducts and splices and boxes
and protocols. Let's go on an armchair voyage in the opposite
direction -- to a strange land . . . to right here, right
now, but without the Internet.

In this world we have all the technology of today, but no
Internet Protocol, that is, there's no packet protocol that
all proprietary networks can understand.

In this alternate reality, every form of information can be
digitized, BUT there's not necessarily a connection between
all this information and all the users and services that
might discover it and use it to their advantage."

Ray 2:36 PM [ Permalink ] 0 comments [ Links to this post ] Make a New Post

 

Just because I haven't highlighted it here before and should have done, can I draw your attention to the Durham Statement on Open Access to Legal Scholarship. And thanks to Michael Carroll for reminding me.

"

About

On 7 November 2008, the directors of the law libraries at the University of Chicago, Columbia University, Cornell University, Duke University, Georgetown University, Harvard University, New York University, Northwestern University, the University of Pennsylvania, Stanford University, the University of Texas, and Yale University met in Durham, North Carolina at the Duke Law School. That meeting resulted in the "Durham Statement on Open Access to Legal Scholarship," which calls for all law schools to stop publishing their journals in print format and to rely instead on electronic publication coupled with a commitment to keep the electronic versions available in stable, open, digital formats.

Particularly now, with growing financial pressures on law school budgets, ending print publication of law journals deserves serious consideration. Very few law journals receive enough in subscription income and royalties to cover their costs of operation. The Statement anticipates both that the costs for printing and mailing can be eliminated, and that law libraries can reduce their costs for subscribing to, processing, and preserving print journals. There are additional benefits in improving access to journals that are not now published in open access formats and in reducing paper consumption.

Each of the directors who signed the Statement agreed to take it to the dean of their school for discussion and signature. It has also been signed by the chief information officers at top U.S. law schools. The Statement is being posted and publicized in hopes that more signatures can be gathered and that all law schools will begin to moving toward accomplishing its goals.

We hope that you too will agree that this is a worthwhile endeavor, and will sign the Statement, help us gain more support for it, and work to effect its goals.

For further information, please read our answers to these Frequently Asked Questions or contact:

Richard Danner
Rufty Resesarch Professor of Law
Senior Associate Dean for Information Services
Duke Law School

Statement

February 11, 2009

Objective: The undersigned believe that it will benefit legal education and improve the dissemination of legal scholarly information if law schools commit to making the legal scholarship they publish available in stable, open, digital formats in place of print. To accomplish this end, law schools should commit to making agreed-upon stable, open, digital formats, rather than print, the preferable formats for legal scholarship. If stable, open, digital formats are available, law schools should stop publishing law journals in print and law libraries should stop acquiring print law journals. We believe that, in addition to their other benefits, these changes are particularly timely in light of the financial challenges currently facing many law schools.

Rationale: Researchers – whether students, faculty, or practitioners – now access legal information of all sorts through digital formats much more frequently than in printed formats. Print copies of law journals and other forms of legal scholarship are slower to arrive than the online digital versions and lack the flexibility needed by 21st century scholars. Yet, most law libraries perceive a continuing need also to acquire legal scholarship in print formats for citation and archiving. (Some libraries are canceling print editions if commercial digital versions are available; others continue to acquire print copies but throw them away after a period of time.)

It is increasingly uneconomical to keep two systems afloat simultaneously. The presumption of need for redundant printed journals adds costs to library budgets, takes up physical space in libraries pressed for space, and has a deleterious effect on the environment; if articles are uniformly available in stable digital formats, they can still be printed on demand. Some libraries may still choose to subscribe to certain journals in multiple formats if they are available. In general, however, we believe that, if law schools are willing to commit to stable and open digital storage for the journals they publish, there are no longer good reasons for individual libraries to rely on paper copies as the archival format. Agreed-upon stable, open, digital formats will ensure that legal scholarship will be preserved in the long-term.

In a time of extreme pressures on law school budgets, moving to all electronic publication of law journals will also eliminate the substantial costs borne by law schools for printing and mailing print editions of their school’s journals, and the costs borne by their libraries to purchase, process and preserve print versions.

Additionally, and potentially most importantly, a move toward digital files as the preferred format for legal scholarship will increase access to legal information and knowledge not only to those inside the legal academy and in practice, but to scholars in other disciplines and to international audiences, many of whom do not now have access either to print journals or to commercial databases.

Call to Action: We therefore urge every U.S. law school to commit to ending print publication of its journals and to making definitive versions of journals and other scholarship produced at the school immediately available upon publication in stable, open, digital formats, rather than in print.

We also urge every law school to commit to keeping a repository of the scholarship published at the school in a stable, open, digital format. Some law schools may choose to use a shared regional online repository or to offer their own repositories as places for other law schools to archive the scholarship published at their school.

Repositories should rely upon open standards for the archiving of works, as well as on redundant formats, such as PDF copies. We also urge law schools and law libraries to agree to and use a standard set of metadata to catalog each article to ensure easy online public indexing of legal scholarship.

As a measure of redundancy, we also urge faculty members to reserve their copyrights to ensure that they too can make their own scholarship available in stable, open, digital formats. All law journals should rely upon the AALS model publishing agreement as a default and should respect author requests to retain copyrights in their scholarship."

Ray 2:21 PM [ Permalink ] 0 comments [ Links to this post ] Make a New Post

 

It seems the Home Secretary's efforts to find a way round a European Court of Human Rights judgement last December have faltered. The full Grand Chamber of the court declared, in S. and Marper v the UK, that the UK's routine systematic retention of fingerprints and DNA of innocent people was in breach of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which covers the right to respect for private life. (Note that the court website issues transient IDs for access to the decisions, so you may just need to type 'Marper' into the hudoc search engine to locate the decision in full).

The Home Secretary Jacqui Smith and various other members of the government have routinely, since the heavy defeat in the case, declared their intentions to continue to retain the fingerprint and DNA data in their (non-sequitur-ial) determination to "maintain robust powers to tackle crime and disorder". It looks like Ms Smith's committee set up to review the case, however, finally convinced her that the judgment was so damning it left no room for manoeuvre and she had no choice other than to comply. And so the Guardian reports:

"DNA profiles of almost a million innocent people are to be destroyed as part of a major overhaul of the police national database. They include people who have been arrested and never charged, and those taken to court but found not guilty.

Civil rights groups gave a cautious welcome to the proposals - which will be announced by the home secretary, Jacqui Smith, this week - but said more needed to be done.

An estimated 800,000 of the 5.1m DNA profiles on the database belong to people in England and Wales who have no criminal conviction."

I said at the time of the decision that it should have significant implications for the UK in terms of the practice of retaining the DNA and fingerprints of suspects not charged or convicted of a criminal offence. Perhaps from Ms Smith's (and possibly even significant numbers of law enforcement folks's perspective the 800,000 innocents, as characterised by the Guardian, would be 800,000 not yet proven to have participated in criminal activity but suspicion should be enough to give them 'worthy of special attention' status.

Yet the DNA and fingerprints databases are too important as crime detention and prevention tools to pollute with the data-noise of millions of innocent people. Counter-intuitively significantly more 'DNA matches' get thrown up in large databases than might be commonly believed. One crime laboratory analyst found 122 subtantively similar DNA data pairs in an Arizona database of 65000 convicted felons. That's a roughly 1 in 2000 chance of a match compared to the standard 1 in 13 billion chance of a DNA match generally quoted ever since Alec Jeffreys developed the technique in the 1980s. That doesn't mean DNA profiling is a poor authentication technique but it does mean that the statistics surrounding this stuff are non-trivial and we should be careful about jumping to selective conclusions, something the European Court, the Nuffield Council on Bioethics, the Human Genetics Commission and several NGOs have accused the UK government of doing on the retention of DNA. The court said:

"115. ...the Government argue that their retention has been shown to be indispensable in the fight against crime. Certainly, the statistical and other evidence... appears impressive, indicating that DNA profiles that would have been previously destroyed were linked with crime-scene stains in a high number of cases."

They then go on to accept an interpretation of these statistics offered in the Nuffield Council on Bioethics report, a report which had systematically and forensically demonstrated that the government's claims were false. So though the Court did not directly accuse the government of lying they did say the government made claims about statistics that appeared impressive but the Court preferred to accept an interpretation of the numbers outlined in a report that said the government's claims were false and misleading.

It all remains a tangled tale and it will be interesting to see the details of how the government is proposing to destroy the 800,000 data sets and samples. It will have to be handled carefully. I wonder if Mark Thomas has had his details deleted yet?

Ray 12:17 PM [ Permalink ] 0 comments [ Links to this post ] Make a New Post

      Tuesday, May 05, 2009

 

Canada has joined the usual suspects, China and Russia et al, on the USTR section 301 intellectual property priority watch list.

Michael Geist comments as astutely as ever.

Ray 11:11 AM [ Permalink ] 0 comments [ Links to this post ] Make a New Post

 

SiliconValley.com reports:

"CBS's Internet unit won the right to use National Football League players' names and statistics for free in fantasy sports leagues it sponsors after a judge ruled the information is in the public domain.

A federal appeals court decision in 2007 that companies operating fantasy leagues have a First Amendment right to use names and data of baseball players without paying a licensing fee applies to football as well, U.S. District Judge Ann Montgomery said in Minneapolis."

Well done Judge Montgomery. A small victory for common sense in one particularly crackpot outpost of the copyright landscape.

Ray 11:05 AM [ Permalink ] 0 comments [ Links to this post ] Make a New Post