Friday, December 24, 2004


I've just realised why the Intelligence Reform and Terrorism Prevention Act, (IRTPA) could not just be called the Intelligence Reform Act. It would have been commonly referred to as the IRA. I wonder if that was an option that was considered before somebody spotted the irony?

Interestingly enough I've noticed EPIC have referred to the act as the National Intelligence Reform Act of 2004, that's NIRA and Intelligence Reform Law, that's IRL. (Scroll down to item 2 in the latest EPIC alert)

Thursday, December 23, 2004

BBC Creative Archive

Alison Perrit has a nice article on the BBC Creative Archive Project at Spiked magazine, "Bringing the past to life
The pros and pitfalls of the BBC's attempt to digitise its archives."

"At the Royal Television Society on London's South Bank on 28 October 2004, Paula Le Dieu, co-director of the Creative Archive Project, described the aim as to 'provide fuel for a truly creative nation', helping the public to become active participants in the BBC's creative output. Although works enjoying ongoing financial reward might never make it on to the archive, Le Dieu argues that television classics such as Fawlty Towers have a high profile and vibrant commercial life already. It is programmes that have not been aired for years that are of concern - without digitisation, the investment and knowledge contained in these works may go to waste.

Le Dieu acknowledges the difficulties of copyright clearance, describing rights ownership in BBC archival works as a 'complex ecology' through which 'we must know how to negotiate a path with rightholders for the dusty library to see the light'. "

HMV lock out iPod

More entrenchment nonsense in the music sector, as HMV plan to sell downloadable music that will only play with Microsoft software. iPod owners need not buy from HMV, then.

Wednesday, December 22, 2004

Software patents stymied again

It looks as though Polish undersecretary of science and information technology, Wlodzimierz Marcinski, has scuppered the EU Council's attempts to sneak the software patents directive through on the nod at an agriculture meeting.

The tactics were not particularly subtle but it still requires someone to stand up and be counted and congratulations for Mr Marcinski for being that person. If this thing is to go through then for some remote semblance of basic respectability at least let it be subject to appropriate scrutiny and debate.

There is an argument to be made that patents should possibly be allowed on something that could previously only have been created as a peice of hardware but can now be effected purely in software, such as a particularly cleverly architected media player, which is novel and includes the requisite inventive step. There is also an argument that someone who creates a novel invention should not be precluded from obtaining a patent, just because that invention happens to include a software component. But to allow blanket patenting of software, essentially because it is software and yet if the particular item was created in any other way would be obvious, is stupid policy.

Wrapping something in the cloak of apparently clever technology is does not make it new, inventive or necessarily better but it might. And the generally poor level of undertanding of technology and its architecture often and inevitably leads to poor decision making in the choice, regulation and deployment of that technology. This rule applies whether the context of the decision under consideration is the compulsory use of computers in all courses or the blind allowance of software patents.

Intelligence Reform and Terrorism Prevention Act

Have you heard of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004? It was signed into law in the US by President Bush last week. The EFF are not pleased. They're characterising it as the latest versions of the now defunct Total(/terrorism) Information Awareness (TIA), CAPPS II, PATRIOT III and a biometric national identity card system all rolled into one.

The 235 pages of the act are available online. The table of contents runs to 6 pages and the Act undertakes to reform the intelligence community, the FBI, transportation security, cross border travel, terrorism prevention and implement the recommendations of the 9/11 Commission. That's quite an undertaking for one piece of legislation.

Section 7212 deals with ID cards and says that Federal agencies will not be allowed to accept any form of "personal identification card newly issued by a State more than 2 years after the promulgation of the minimum standards" to set for these documents by the US Secretary of Transportation in consultation with the Secretary for Homeland Security within the next 18 months. It goes on to say these standards should include a requirement for various personal details to be included on the cards, including a digital photo, "common machine-readable identity information" and "capable of accommodating and ensuring the security of a digital photograph or other unique identifier." (Emphasis mine). This later requirement will probably be what has the EFF concerned about biometric national ID cards, especially in the light of an earlier part of the act which emphasises biometrics in airline security.

So it looks as though the US are going for a national ID card too, though the finer details are in the hands of the relevant Secretaries.

The Act does also seem to provide the statutory grounding for the US government's replacement for the defunct CAPPS II programme, the new programme being labeled Secure Flight and heavily focuses biometric technology in connection with aviation security in section 4011. I've only scanned this quickly but it doesn't appear to refer to "Secure Flight" by name but by a rather more generic handle, "Advanced Airline Passenger Pre-Screening."

Tuesday, December 21, 2004

Mad Kane's Gift Contract

In the spirit of Christmas, Madeline Kane's gift contract :-) Sample:


1. Husband won't buy their son a toy gun, provided Wife doesn't buy him a doll. Puppets, however, are permissible.

2. Wife won't buy anything that requires assembly.

3. Husband won't buy children toys he plans to play with.

4. Whoever picks the gift must make the emergency trip for batteries.
Lord Hope:

"I would quash the Human Rights Act 1998 (Designated Derogation) Order 2001. I would declare that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with the right to liberty in article 5 of the European Convention on Human Rights on the ground that it is not proportionate, and that it is incompatible with article 14 of the Convention on the ground that it discriminates against the appellants in their enjoyment of the right to liberty on the ground of their national origin."

Lord Scott:

" It has not been suggested, nor could it be suggested, that the 2001 Act is otherwise than an effective enactment made by a sovereign legislature. It was passed by both Houses of Parliament and received the Royal Assent. Whether the terms of the 2001 Act are consistent with the terms of the European Convention on Human Rights ("the ECHR") is, so far as the courts of this country are concerned, relevant only to the question whether a declaration of incompatibility under section 4 of the Human Rights Act 1998 should be made. The making of such a declaration will not, however, affect in the least the validity under domestic law of the impugned statutory provision. The import of such a declaration is political not legal...

A ruling that an Act of Parliament is incompatible with the ECHR does not detract from the validity of the Act. It does not relieve citizens from the burdens imposed by the Act. It provides, of course, ammunition to those who disapprove of the Act and desire to agitate for its amendment or repeal. This is not a function that the courts have sought for themselves. It is a function that has been thrust on the courts by" the 1998 [Human Rights]Act.

"The Secretary of State is unfortunate in the timing of the judicial examination in these proceedings of the "public emergency" that he postulates. It is certainly true that the judiciary must in general defer to the executive's assessment of what constitutes a threat to national security or to "the life of the nation". But judicial memories are no shorter than those of the public and the public have not forgotten the faulty intelligence assessments on the basis of which United Kingdom forces were sent to take part, and are still taking part, in the hostilities in Iraq. For my part I do not doubt that there is a terrorist threat to this country and I do not doubt that great vigilance is necessary, not only on the part of the security forces but also on the part of individual members of the public, to guard against terrorist attacks. But I do have very great doubt whether the "public emergency" is one that justifies the description of "threatening the life of the nation". Nonetheless, I would, for my part, be prepared to allow the Secretary of State the benefit of the doubt on this point and accept that the threshold criterion of article 15 is satisfied."

Ouch - no punches pulled on exaggerated presentation of intelligence claims on Iraq.

"Section 23 constitutes, in my opinion, a derogation from article 5(1) at the extreme end of the severity spectrum. An individual who is detained under section 23 will be a person accused of no crime but a person whom the Secretary of State has certified that he "reasonably … suspects … is a terrorist" (section 21(1)). The individual may then be detained in prison indefinitely. True it is that he can leave the United Kingdom if he elects to do so but the reality in many cases will be that the only country to which he is entitled to go will be a country where he is likely to undergo torture if he does go there. He can challenge before the SIAC the reasonableness of the Secretary of State's suspicion that he is a terrorist but has no right to know the grounds on which the Secretary of State has formed that suspicion. The grounds can be made known to a special advocate appointed to represent him but the special advocate may not inform him of the grounds and, therefore, cannot take instructions from him in refutation of the allegations made against him. Indefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and made by a person whose identity cannot be disclosed is the stuff of nightmares, associated whether accurately or inaccurately with France before and during the Revolution, with Soviet Russia in the Stalinist era and now associated, as a result of section 23 of the 2001 Act, with the United Kingdom. I can understand, conceptually, that the circumstances constituting the "public emergency threatening the life of the nation" might be of such an order as to justify describing section 23 as a measure "strictly required by the exigencies of the situation". But I am unable to accept that the Secretary of State has established that section 23 is "strictly required" by the public emergency. He should, at the least, in my opinion, have to show that monitoring arrangements or movement restrictions less severe that incarceration in prison would not suffice." (Emphasis mine).

"The differentiation between suspected terrorists who are immigrants with no right of residence and suspected terrorists who are British nationals is, in my opinion, plainly discriminatory. The difference between the two groups, namely, that one group has the right of residence and the other group does not, seems to me to be irrelevant to the issue as to what measures are required in order to combat the threat of terrorism that their presence in this country may be thought by the Secretary of State to present...

In my opinion, however the article 15 requirement does not justify a discriminatory distinction between different groups of people all of whom are suspected terrorists who together present the threat of terrorism and to all of whom the measures, if they really were "strictly necessary" would logically be applicable. If those who are suspected terrorists include some non-Muslims as well as Muslims, it would, in my opinion, be irrational and discriminatory to restrict the application of the measures to Muslims even though the bulk of those suspected are likely to profess to be Muslims. Some might well not be professed Muslims. Similarly, it would be irrational and discriminatory to restrict the application of the measures to men although the bulk of those suspected are likely to be male. Some might well be women. Similarly, in my opinion, it is irrational and discriminatory to restrict the application of the measures to suspected terrorists who have no right of residence in this country. Some suspected terrorists may well be home-grown."

Lord Rodger:

"I consider it right to defer to the Government's considered judgment that it would be difficult to justify taking draconian powers to detain British suspects. In other words, the Government believe that they could not show that the indefinite detention of British suspects was justified, and hence strictly required, in terms of article 15(1), in order to meet the threat that they pose to the life of the nation. Starting from that premise, SIAC's conclusion, that the threats posed by the foreign and British suspects are comparable, leads to the further conclusion that the detention of the foreign suspects is not strictly required either."

Lord Walker:

"As my noble and learned friend Lord Rodger of Earlsferry pointed out in the course of argument, a portentous but non-specific appeal to the interests of national security can be used as a cloak for arbitrary and oppressive action on the part of government. Whether or not patriotism is the last refuge of the scoundrel, national security can be the last refuge of the tyrant. It is sufficient to refer (leaving aside more recent and probably more controversial examples) to the show trial and repression which followed the Reichstag fire in Berlin and the terror associated with the show trials of Zinoviev, Bukharin and others in Moscow during the 1930s. It is therefore important to note that in this appeal no attack is made on the good faith of the Secretary of State, or any other individual or group of individuals in the executive or legislative arms of government. It is not suggested that the Secretary of State or any of his officials has given misleading or disingenuous reasons for their actions. What is said is that they have asked themselves the wrong questions, and have reached irrational and disproportionate answers."

(He could be talking about ID cards - they've asked themselves the wrong questions and have reached irrational and disproportionate answers!).

"For my part I think that in a case of this sort the court has to proceed at two different levels. The court should show a high degree of respect for the Secretary of State's appreciation, based on secret intelligence sources, of the security risks; but at the same time the court should subject to a very close scrutiny the practical effect which derogating measures have on individual human rights, the importance of the rights affected, and the robustness of any safeguards intended to minimise the impact of the derogating measures on individual human rights. In doing so the court must allow for the fact that it may be impossible for the intelligence services to identify the target or predict the scale of a violent attack by international terrorists (whose methods involve secrecy, deception and surprise). The likely effects of a natural disaster (such as a hurricane or a volcanic eruption) are, within limits, more easily predictable than those of attacks by terrorists who (on the evidence) may have access to biological, chemical or even radiological or nuclear weapons."

Lord Walker goes on to set the background for his caution against detention without trial, by citing works that outline the downside, Professor A T H Smith in the chapter on offences against the state in English Public Law (edited by Professor David Feldman, 2004), p 1334, Professor Clive Walker's Blackstone's Guide to the Anti-Terrorism Legislation (2002) and Professor Brian Simpson's work, In the Highest Degree Odious: Detention Without Trial in Wartime Britain, (1992); as well as hinting at problems created by internment in Northern Ireland.

He agrees, however, that the 2001 Act was passed at a time of "public emergency threatening the life of the nation" and goes on to dissent from the majority judgement saying discrimination between nationals and foreign nationals in this context is "rational."

"In this case a power of interning British citizens without trial, and with no option of going abroad if they chose to do so, would be far more oppressive, and a graver affront to their human rights, than a power to detain in "a prison with three walls" a suspected terrorist who has no right of abode in the United Kingdom, and whom the government could and would deport but for the risk of torture if he were returned to his own country. Detention of non-national suspects is still a cause of grave concern, and I share the anxieties expressed by Lord Woolf CJ in para 9 and by Brooke LJ in para 86 of their respective judgments in the Court of Appeal. But in my view Part 4 of the 2001 Act is not offensively discriminatory, because there are sound, rational grounds for different treatment."

Baroness Hale:

"Executive detention is the antithesis of the right to liberty and security of person...

We have always taken it for granted in this country that we cannot be locked up indefinitely without trial or explanation...

There is every reason to think that there are British nationals living here who are international terrorists within the meaning of the Act; who cannot be shown to be such in a court of law; and who cannot be deported to another country because they have every right to be here. Yet the Government does not think that it is necessary to lock them up. Indeed, it has publicly stated that locking up nationals is a Draconian step which could not at present be justified. But it has provided us with no real explanation of why it is necessary to lock up one group of people sharing exactly the same characteristics as another group which it does not think necessary to lock up."

She also quotes Thomas Jefferson:

"Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable . . . The minority possess their equal rights, which equal law must protect, and to violate would be oppression."

and rounds off:

"No one has the right to be an international terrorist. But substitute "black", "disabled", "female", "gay", or any other similar adjective for "foreign" before "suspected international terrorist" and ask whether it would be justifiable to take power to lock up that group but not the "white", "able-bodied", "male" or "straight" suspected international terrorists. The answer is clear."

Complex case. Not easy for any of the parties involved. I would guess that the government's response to the decision, when it gets round to dealing with it, will be to broaden the scope of the legislation to facilitate the indefinite detention, without charge or trial, of terrorist suspects who are British nationals too.

More from A and X and others v Home Secretary

Lord Nicholls:

"Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law...

In the present case I see no escape from the conclusion that Parliament must be regarded as having attached insufficient weight to the human rights of non-nationals. The subject matter of the legislation is the needs of national security. This subject matter dictates that, in the ordinary course, substantial latitude should be accorded to the legislature. But the human right in question, the right to individual liberty, is one of the most fundamental of human rights...

The difficulty with according to Parliament the substantial latitude normally to be given to decisions on national security is the weakness already mentioned: security considerations have not prompted a similar negation of the right to personal liberty in the case of nationals who pose a similar security risk. The government, indeed, has expressed the view that a 'draconian' power to detain British citizens who may be involved in international terrorism 'would be difficult to justify': Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society (February 2004, Cm 6147), para 36. But, in practical terms, power to detain indefinitely is no more draconian in the case of a British citizen than in the case of a non-national."

Lord Hoffmann again:

"This is one of the most important cases which the House has had to decide in recent years. It calls into question the very existence of an ancient liberty of which this country has until now been very proud: freedom from arbitrary arrest and detention. The power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom...

In any case, suspicion of being a supporter is one thing and proof of wrongdoing is another. Someone who has never committed any offence and has no intention of doing anything wrong may be reasonably suspected of being a supporter on the basis of some heated remarks overheard in a pub. The question in this case is whether the United Kingdom should be a country in which the police can come to such a person's house and take him away to be detained indefinitely without trial.

88. The technical issue in this appeal is whether such a power can be justified on the ground that there exists a "war or other public emergency threatening the life of the nation" within the meaning of article 15 of the European Convention on Human Rights. But I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.

89. The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history...

Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom..."

And he rounded off with gusto, as I mentioned earlier:

"The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory."

House of Lords on ATC&S

There are lots of interesting snippets in the judgement from the House of Lords on the anti-terrorism legislation I mentioned earlier today.

Lord Bingham quotes the EU's Commissioner for Human Rights comments on the Anti-Terrorism Crime and Security Act, Opinion 1/2002 (28 August 2002):

"36. The proportionality of the derogating measures is further brought into question by the definition of international terrorist organisations provided by section 21(3) of the Act. The section would appear to permit the indefinite detention of an individual suspected of having links with an international terrorist organisation irrespective of its presenting a direct threat to public security in the United Kingdom and perhaps, therefore, of no relation to the emergency originally requiring the legislation under which his Convention rights may be prejudiced.

37. Another anomaly arises in so far as an individual detained on suspicion of links with international terrorist organisations must be released and deported to a safe receiving country should one become available. If the suspicion is well founded, and the terrorist organisation a genuine threat to UK security, such individuals will remain, subject to possible controls by the receiving state, at liberty to plan and pursue, albeit at some distance from the United Kingdom, activity potentially prejudicial to its public security.

38. It would appear, therefore, that the derogating measures of the Anti-Terrorism, Crime and Security Act allow both for the detention of those presenting no direct threat to the United Kingdom and for the release of those of whom it is alleged that they do. Such a paradoxical conclusion is hard to reconcile with the strict exigencies of the situation."

The Newton committee which reviewed the Act raised similar concerns and recommended the section dealing with indefinite detention of foreign terrorist suspects be replaced:

" We consider the shortcomings described above to be sufficiently serious to strongly recommend that the Part 4 powers which allow foreign nationals to be detained potentially indefinitely should be replaced as a matter of urgency. New legislation should:

a. deal with all terrorism, whatever its origin or the nationality of its suspected perpetrators; and

b. not require a derogation from the European Convention on Human Rights."

Lord Bingham may have been quietly irritated by the government's (a favorite of David Blunkett) tactic of criticising anyone who disagreed with them as not having the appropriate standing/authority or just belonging to a group that could be appropriately pejoratively labelled. After going through some neat legal reasoning on proportionality and accepting the government and parliament's remit to make political decisions he comes out with the following:

"The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic." And...

"the central complaint made by the appellants: that the choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al-Qaeda, may harbour no hostile intentions towards the United Kingdom. The conclusion that the Order and section 23 are, in Convention terms, disproportionate is in my opinion irresistible."

Which inevitably brings me back to my current hobby horse of ID cards and inspired by Lord Bingham - the choice of ID cards to address a security [or immigration or social cohesion or etc etc] problem(/s) will have the inevitable result of failing adequately to address that(/those) problem(/s).

He concludes his judgement at paragraph 73 thus:

"I would allow the appeals. There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. The Secretary of State must pay the appellants' costs in the House and below."

BitTorrent Hubs Shutting Down

Major BitTorrent hubs such as SuprNova have gone offline in the wake of the MPAA legal action against such sites. Whereas most of the conventional P2P software is now decentralised, BitTorrent relies on tracker hub servers to facilitated the parallel transfers of all the pieces of the large files being distributed. That makes the architecture such that these hubs are relatively easy to find, so if they are facilitating copyright infringement they could be sued by the offended party eg the movie industry.

The stuff of nightmares

The day after David Blunkett resigned as Home Secretary, the House of Lords full panel ruled on the case of terrorists suspects detained without trial under the anti-terrorism crime and security act. It's pretty strong stuff and no doubt Mr Blunkett would have responded by labelling the law lords "woolly liberals" (like Charles Clarke on the opponents of ID cards yesterday) or "out of touch" or some such pejorative nonsense.

Lord Scott:

"Indefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and made by a person whose identity cannot be disclosed is the stuff of nightmares, associated whether accurately or inaccurately with France before and during the Revolution, with Soviet Russia in the Stalinist era and now associated, as a result of section 23 of the 2001 Act, with the United Kingdom."

Lord Hoffman:

"The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory."

Legal judgements from the highest court in the land don't come any stronger than this. The technical outcome is that the legislation allowing detention without trial, under the anti-terrorism legislation was declared to be in conflict with the Human Rights Act. Unlike the US supreme court, though, the law lords can't strike down the legislation as unconstitutional. New Home Secretary, Charles Clarke, will have to look again at the conflict and figure out, with his officials, how to resolve it.

Software patents and ID cards sneaking through

More democracy in action in the EU. As was reported recently, the Council are sneaking the software patents directive through during a meeting on Agriculture and Fisheries today.

It will go back to the EU parliament, which opposed it in its current form, once the Council has approved it but don't expect the parliament to have much influence.

The ID cards bill was "debated" in the House of Commons yesterday and the chamber was virtually empty. Compare that with the sessions on MPs salaries when the same chamber is bursting at the seams with MPs and it gives you some indication of the state of our democracy in the UK. Our political representatives are more concerned about their own salaries than an issue of fundamental importance such as the introduction of national identity cards. No other Western democracy has introduced ID cards in peacetime and we're passing it through without interest or debate.

Paraphrasing Edmund Burke (and various others since, including Albert Einstein), for evil to prosper it requires only that good people do nothing. Most MPs are basically decent people but in this instance they are doing nothing.

Monday, December 20, 2004

ID Cards Again!

MPs are debating the ID card bill in the House of Commons today and sadly new Home Secretary, Charles Clarke, has labelled opponents "wooley liberals." I can see the standard of the debate is not going to rise to the merits and demerits of the cases for and against.

I've also just heard an interview with Jean Corston, MP, on Radio 5 live's Drive programme. This lady is "Chairman" of the parliamentary Joint Committee on Human Rights.

She dismissed a question about the reliability of the ID card database by suggesting it was irrelevant and that databases do work too, you know. Well that puts my concerns that the ID card system won't work well and truly to rest. After all this woman is the "chairman" of the Human Rights committee.

She was apparently against ID cards until two years ago when she did a consultation exercise in her constituency, during which she "learned" that some women in ethnic minority communities were desparate to have an ID card, so they could identify themselves. They were absolutely desparate because they didn't have passports which were taken away and they didn't have bank accounts or anything like that.

She conceded there might be privacy issues associated with the ID card but the thing that convinced her to change her mind was an interview with a "terrorist" on BBC television. Apparently this terrorist claimed he had moved to the UK from France because it was easier to get around the UK, since we don't have ID cards like the French.

A "terrorist" on a TV programme says ID cards make life more difficult for terrorists and this is sufficient evidence for the "chairman" of our parliamentary Joint Committee on Human Rights to change her mind on years of opposition to ID cards.

Even if I wasn't against the scheme on the pragmatic basis that the system will not work, won't address any of the problems it is claimed to be addressing, will create a huge range of other problems, will cost a fortune that could be more effectively spent elsewhere, I would want to hear from the "chairman" of such a committee questions as to whether there was any substance to the charges of principle made by opponents of the scheme.

It seems that "I ran a few focus groups and saw a TV programme" can be the deepest level of scrutiny we can expect of our parliamentary representatives, when it comes to matters of fundamental importance to the future of our democracy. Well we get what we deserve in parliamentarians and if we're prepared to put up with this superficiality, then we may take the consequences uncomplainingly. It is, however, a pretty appalling reflection on the state of our democracy.

One Just one more time in brief, then, for Mr Clarke and Ms Corston,

1. What problem does your proposed solution (ID cards) solve?
A: Lots allegedly - terrorism, immigration, benefit fraud, social cohesion etc - all ill defined.
2. What architecture has your proposed solution got - what does it look like?
A: Complicated - high tech cards, massive database which no computer scientist in the world could secure, decentralised networked registration centres, huge numbers of decentralised verification devices for police, GPs etc.
3. How well does it solve your problem(/s)?
A: Not at all.
4. How can it fail and what other problems does it create?
A: It can fail in many ways and cause lots of other problems - errors in database, failure of remote verification and registration devices, unreliable biometric technology etc etc.
5. How much does it cost?
A: Billions of pounds.
6. Is it worth it?
A: No, the money could be more effectively spent on [well trained] extra police, security service, customs and immigration staff.

Google and academic libraries

James Grimmelmann on the Google academic library scan project:

"The program will scan some 15 million books to create searchable electronic versions. Public domain ones will simply be placed online outright. Estimates place the cost at $10/book. $150 million sounds like a real fistful of change, but when you think about it, it's astonishingly little. By way of comparison, it's less than EA paid the NFL for exclusive rights to make NFL-branded football video games, the daily cost of the occupation in Iraq, or the price tag to make and market Battlefield Earth. In exchange, we get the remade Library of Alexandria.
What's in it for Google? The same thing that's in open source for IBM. Vendors who contribute to open source software sell hardware and services whose value is enhanced by having a productive commons. Software, hardware, and support are natural complements. As I see it, Google sells search, and search and content are natural complements.

I look forward tremendously to having all that public domain material online: watch out publishers, because you're about to have to start competing with free in a whole new way."

Blunkett's successor supports ID cards

Unfortunately it seems that even though David Blunkett has gone, his ID card disaster plan has not gone with him. New Home Secretary, Charles Clarke is planning on pushing it through with cosmetic "concessions."

Mr Blunkett's resignation is a real opportunity for the government to extract itself from this fiasco before it does any real damage. That requirement within government to focus on the next headline and be seen to be "doing something" (whatever that something is) could have been deftly turned to their advantage from a PR perspective; but of course they're terrified of being seen as "soft on" crime, terrorism, immigration, benefit fraud [take your pick from these or a long list of other issues], so will probably be too scared to take the "risk."

So let's step away from the simplistic soundbites on all sides and look again (as I have done ad nauseum here, with apologies to regular readers) at the practicalities. Mr Clarke, please just ask yourself a series of logical questions:

1. What problem does your proposed "solution", in this case biometric national ID cards solve? Or to put it in security terms: what assets are you trying to protect?
A: Well the list seems to grow by the day. Mr Blunkett's favourite problems for the ID card solution were - terrorism, public service access, immigration, benefit fraud, social cohesion and citizenship. In the security context - what assets are you protecting - well, translating Mr Blunkett's problems to assets, you're trying to protect everything and everyone from every negative consequence. That's quite an undertaking. (And remember attackers only have to focus on weak spots and get lucky once)

2. What technical infrastructure does your proposed solution require?
A: (a) High tech. cards for everyone. (Just as a matter of interest, since these cards are to be embedded with biometric data, why do we need a card at all? Sure we will all be our own walking ID and we don't lose our irises or fingerprints as easily as we can lose a card.)
(b) A massive central database which contains a great deal of information on everyone registered
(c) A registration process, involving a large number of decentralised registration centres, suitably technically equipped and with a networked connections to the central database
(d) Huge numbers of robust local systems (in hospitals, local council offices, hospitals, every police officer, GP surgeries etc etc) for checking ID cards and verifying/validing via appropriate networks with the central database.

3. How well does this system (the ID card solution) solve the problems identified in question 1.?
A: Not at all.

4. How can this complex ID card "solution" fail and what other problems does it create?
A: It can fail in an untold number of ways because it is so complex and it depends on so many people having access remotely and centrally just for day to day construction and operation. The database can fail - there is not a computer scientist in the world who knows how to secure, in practice, a database as big and complex as the one required to underpin this system. It will have errors, it will become outdated; database staff will make mistakes; remote card verifiers will make mistakes; the biometric technology underpinning all of this is unreliable (despite many vendors claims to the contrary); the system will be misused accidentally and deliberately (in the latter case by a small number of so called bad actors, internal and external); people will lose their cards; people will forget to get their details changed as necessary eg change of address; the system has to "talk to" other government ID systems, which are prone to catastrophic technical failure (eg the Dept for work and pensions IT systems crash from a couple of weeks ago).
There will be a huge incentive for organised crime to engage in forging these cards (since they are allegedly the key to so many services) and they will be forged on a large scale. The database may well be used like the electoral roll to sell personal details to direct marketers. Maintenance of the system will be labour-intensive.
And that is just scatching the surface.

5. How much does it cost?
A: in pure monetary terms, not taking into account just some of the negative consequences listed above, it will cost billions of pounds.

6. Is it worth it.
A: Clearly not. If we have billions of pounds to spend on tackling terrorism, etc. it would be better spent on higher numbers of well trained police, security services, customs and immigration staff. The latter is not, however, a positive headline grabber with the Daily Mail or the Murdoch press and does not provide apparently instant results.

And just back to the list of some of the planned verification uses written into the government's draft bill: enforcing parking fines, preventing underage selling of cigarettes, alcohol, DVDs and lottery tickets, banking services (eg mortgage) applications, TV licence, benefits, driving test and car tax applications, access to public sevices eg GP or hospital, gun licence applications. How will verification for these things tackle terrorism, immigration, benefit fraud or problems of social cohesion?

Just one more time in brief, then,

1. What problem does your proposed solution (ID cards) solve?
A: Lots allegedly, all ill defined.
2. What architecture has your proposed solution got - what does it look like?
A: Complicated.
3. How well does it solve your problem(/s)?
A: Not at all.
4. How can it fail and what other problems does it create?
A: Many ways and lots of other problems.
5. How much does it cost?
A: Billions.
6. Is it worth it?
A: No.

Mr Clarke has an opportunity to step away from what will probably become New Labour's political disaster equivalent of the poll tax. I hope he takes it.
"MILLIONS of e-mails to civil servants at the heart of government will be automatically wiped on Monday, 11 days before freedom of information laws come into force.

The Cabinet Office, which supports the Prime Minister and co-ordinates policy across government, has ruled that e-mails more than three months old must be deleted from December 20, The Times has learnt."

Speaks for itself and as the Assistant Information Commissioner has said in response this just creates a big risk that important information will be lost. I've worked for organisations who mistakenly believed they needed to blindly purge information which had existed in files for longer than some arbitrary nominal period and chaos inevitably ensues. No doubt some in government are feeling a little sensitive about the email that led to David Blunkett's resignation last week and although it won't have been the determining factor in making this decision it will have featured. Pity. When it comes to complex systems, simplistic blanket policies rarely if ever work as intended and this one will return to haunt in due course.

Chip and pin, EDonkey Raids and FoI Charges

Ross Anderson is warning that chip and pin cards may not be the boon to tackling fraud that the banking industry are selling them as.

Prof Anderson said: "What this does is dump liability on the merchant in some cases and on the customers in others. If you use it in a cash machine, the banks will probably say you were to blame.

The introduction of pins for general retail, the co-existence of magnetic strips and smart chips and the underlying change in liability that means banks no longer have incentives for reducing risk is a recipe for card fraud not going down by anything as much as was predicted. If I take my debit card to the supermarket, I use my signature."

And that is one of the fundamental points about security that rarely gets raised in public discourse on the subject - security depends on agenda. If the system can be arranged so that the agent with the most power, eg banks, do not bear the cost of any security failure (onus on cardholder to prove it was not fraud), then that agent (bank) has no incentive to improve security. Sure thene's fraud, sure it's widespread and sure it's somebody else's problem.

From The Register:

"Dutch anti-piracy organisation BREIN, along with FIOD-ECD (Economic Inspection Service of the Fiscal Intelligence and Investigation Service), has raided two popular sites in the Netherlands that offered links to allegedly copyright-infringing content. FIOD-ECD has arrested eight people and seized eleven servers."

The UK government have laid out the rules for charging to discharge freedom of information requests.

Friday, December 17, 2004

Acacia grow with takeover

Acacia have agreed to take over Global Patent Holdings.

"On Thursday, the company agreed to buy Global Patent Holdings, an umbrella company whose various divisions, including TechSearch, have sued or struck patent licenses with Intel, Sony, Samsung and a myriad of smaller technology companies.

The deal would create a patent powerhouse which would own small pieces of dozens of different technologies, many of which are fundamental components of everyday Internet and personal technology businesses. The company said more acquisitions are likely."

These kinds of patent portfolio companies are going to have a major impact on the balance, such as it is, of the markets underpinned by intellectual property and I'm not sure it will be too positive.

Freedom and ID cards

If you value your freedom reject this sinister ID card says Henry Porter in the Guardian.

Google and the libraries

Scott Rosenberg at Salon has some interesting comments on Google's project to digitise the contents of 5 famous academic libraries.

"Since we are, after all, talking about digitizing the entire body of published human knowledge, I can't help thinking that a public-sector effort -- whether government-backed or non-profit or both -- is more likely to serve the long-term public good. I know that's an unfashionable position in this market-driven era. It's also an unrealistic one given the current U.S. government's priorities.

But public investment has a pretty enviable track record: Think of the public goods that Americans enjoy today because the government chose to seed them and insure their universality -- from the still-essential Social Security program to the interstate highway system to the Internet itself. In an ideal world, it seems to me, Google would be a technology contractor for an institution like the Library of Congress. I'd rather see the company that builds the tools of access to information be an enabler of universal access than a gatekeeper or toll-taker.

The public has a big interest in making sure that no one business has a chokehold on the flow of human knowledge."

I think he may be reading a little too much into the Google initiative, since it's really only a small first step but you don't see too many liberal US journalists advocating public investment in preference to letting the market take its course.

Movie industry complaints v BitTorrent et al

Findlaw have copies of the movie industry complaints P2P lawsuits launched this week.

Thursday, December 16, 2004

Finalists -- Short Movie Competition

From James Boyle (William Neal Reynolds Professor of Law, Duke University Law School):

A documentarian trying to cover army recruiters in the North Carolina Piedmont...
A Polish animator's science fiction vision of music's apocalytic future...
A college student's efforts to make a Public Service Announcement about the Civil Rights movement..
A dissection of the law behind "Supersize Me"....
These and other finalists have been posted in the Short Video Contest sponsored by Duke's Center for the Study of the Public Domain. You can find (and vote for) the 8 films, all of which are under Creative Commons licenses, at
Please have a look and pass the word on to your friends.
The competition was an international one for the best 2 minute video or animation about the ways that intellectual property affects art -- specifically music or documentary film. The winners -- both Judges' Selections and "the People's Choice" -- will be announced on January 15th.
The Arts Project is supported by a generous grant from the Rockefeller Foundation.
(Apologies for any cross posting)

Center for the Study of the Public Domain

Ethics are the new craft

"Ethics are the new craft" by Cory Doctorow in the latest edition of SCRIPT-ed. He's in full flow:

"It's one thing to be a conservative company offering copy-restricted digital music players in a world of open MP3 players (you'd get clobbered)," [which is the point I was making about drm in the context of the Apple v Real spat yesterday] "but it's another entirely to inhabit a market where every firm is part of a gentlecompany's agreement not to roll out any really disruptive, novel, dangerous features.

Of course, there's another word for that kind of agreement: cartel. Or, possibly, conspiracy. Not an explicit back-room conspiracy (though the tech world has its share of those), but rather, an emergent conspiracy of risk-aversion and overstuffed comfort that has turned our once-heroic, envelope-pushing defenders into a race of cowardly, timid toymakers whose wares put-put along alongside of the roaring engines of progress in the world of general-purpose computers and networks...

Technology is commodity...

in the past, the thing that stood between a trade and commodification was *craftsmanship*. Bespoke suits, hand-made clocks with jeweled movements, hand-carved fripperies on a cuckoo clock.

But no one wants a bespoke USB thumb-drive (after all, you'll be throwing it out and replacing it with one twice as capacious and half as massy in a year)...

How do you differentiate yourself from your competitors, then?

By giving users the one thing you're better equipped to provide than they are: Freedom...

Once your customers get wind of the fact that all the features they've dreamt of are possible, cheap, and on offer in the high street, you'll find yourself in a category all your own."

And that's precisely the point. Locked down technology depends on too many people accepting that that is all that's possible and too many other people (within what Cory might consider the entertainment cartels) keeping the secret. It is impossible to lock down the knowledge that something can be done better or a piece of gadgetry can be improved.

That first mover in the generic digital music/video/entertainment player market will have an early advantage, as Cory suggests, but once the secret is out, expect the big players to follow rapidly. But don't bet on them downsizing their legal departments or scrapping drm any time soon - the lawyers, the lobbyists and the drm are currently doing an effective job of slowing down the pace of change.

There is a range of really interesting articles in this edition of SCRIPT-ed, probably the most important being the draft text of the lecture by South Africa's Supreme Court Judge Cameron held at the University of Edinburgh, Tuesday 19 October 2004. Highly recommended and lucidly indicative of the incredible importance in the modern world of the arcane, obscure, abstract subject with the eye-glazing label "intellectual property."

"Without patents or a comparable system of rewards and/or incentives, the drugs that can save six million lives in the developing world would probably not exist. Yet the system that made possible their creation helps ensure that the drugs remain inaccessible to those who need them most desperately.

The rights to exclusivity that lie at the heart of patent enforcement were developed in conditions of affluence that ill suit the conditions of most of the world’s people: in particular, those nations most severely affected by the world-wide AIDS pandemic. Yet despite significant progress in asserting the entitlement of poor nations to exploit knowledge productively to counter the ill effects of AIDS, those nations themselves have done relatively little to expand access.

Some, at least, of this inaction must be ascribed not to the formal constraints of international patent enforcement – for they after courageous activist interventions have been significantly relaxed – but to the constraining power of those with most to gain from continuingly rigid enforcement of that system.

True appreciation of the value of the patent idea demands resistance to this trend. In some cases, this could entail the comprehensive adoption and active use of the public health safeguards identified at Doha. In others, it could entail a departure from certain forms of IP protection in respect of certain innovations, such as product patents for pharmaceuticals. But in many – if not most – developing country scenarios, this might require much more, quite possibly including the adoption of new methods to encourage innovation and commercialisation.

One possibility is to replace market exclusivity with a royalty-based system in which any company that produces safe and effective generic medicines can sell its product and pay a percentage of the sale price to the patent holder. What constitutes a reasonable royalty would have to be determined to ensure a careful balancing of incentives to innovate versus increasing access. This would mean particularly low – or no – royalties in respect of products produced for developing countries."

Wednesday, December 15, 2004

Apple shut Real out of the iPod

As predicted by James Boyle in August, following the ridiculous dispute between RealNetworks and Apple over Real selling songs for the iPod, Apple have updated the iPod's software. Songs purchased from Real's online retail store will apparently no longer play on the iPod. As James said,

"You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Palo Alto Zen-chic the company normally projects. “We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA [Digital Millennium Copyright Act] and other laws.” What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real’s Music Store and play them on their own iPods. That’s it...

Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do. As an ethical matter, is figuring out how things work, in order to compete with the original manufacturers, breaking and entering? In the strange netherland between hardware and software, device and product, the answer is often a morally heartfelt “yes!” I would stress “morally heartfelt”. It is true manufacturers want to make lots of money, and would rather not have competitors...

n the material world, when a razor manufacturer claims that a generic razor blade maker is “stealing my customers” by making compatible blades, we simply laugh. The “hacking” there consists of looking at the razor and manufacturing a blade that will fit. But when information about compatibility is inscribed in binary code and silicon circuits, rather than the moulded plastic of a razor cartridge, our moral intuitions are a little less confident. And all kinds of bad policy can flourish in that area of moral uncertainty...

Though this is an entirely unnecessary, legally created mess there is one nicely ironic note. About 20 years ago, a stylish technology company with a clearly superior hardware and software system had to choose whether to make its hardware platform open, and sell more of its superior software, or whether to make it closed, and tie the two tightly together. It chose closed. Its name: Apple. Its market share, now? About 5 per cent. Of course, back then competition was legal. One wishes that the new generation of copyright laws made it clearer that it still is."

And this is why this kind of drm will ultimately fail.

You'd like an expensive digital music player, sir/madam? Well we have a nice range in stock. What's that? Will it play songs from all the music shops you frequent? Good heavens! What an idea! Of course not! But I can certainly sell you a full range of expensive music players that will probably play songs from an approved selection of the major retailers. Pardon? Oh, seems rather extravagant and nonsensical to need 7 different players, when one should do the job? Oh sir/madam, if I may be so bold, that's a somewhat outdated notion surely? Perhaps with mergers and consolidations we may be down to two or three formats in a few years but the technology does move so quickly you know...

MPAA sue BitTorrent

The MPAA launched lawsuits against BitTorrent and others yesterday in the US and the UK.

Micheal Geist's BNA highlights also points me at a story updating developments in the RIM Blackberry patent infringement case. Apparently an appeal court has ruled against RIM which means Blackberry sales and manufacture could be halted.

Vitual enclosures and neoliberalism

One of my students has pointed me at this paper by a James Lindenschmidt which uses Larry Lessig's and James Boyle's notions of a commons and a second enclosure movement to rail against capitalism and neoliberalism in general and also the war in Iraq. Nothing new here as he articulates the benefits of an information commons but interesting to see Lessig and Boyle layered with ideological political rhetoric.

Schneier on Kafka and the Digital Person

Bruce Schneier has a lovely essay on the collection of personal information in the latest version of his excellent Crypto-gram newsletter, Kafka and the Digital Person. A sample:

"In the United States, information about a
person is owned by the person collects it, not by the person it is
about. There are specific exceptions in the law, but they're few and
far between. There are no broad data protection laws...

As a result, enormous databases exist that are filled with personal
information. These databases are owned by marketing firms, credit
bureaus, and the government. Amazon knows what books we buy. Our
supermarket knows what foods we eat. Credit card companies know quite
a lot about our purchasing habits...

All of this data is being combined, indexed, and correlated. And it's
being used for all sorts of things. Targeted marketing campaigns are
just the tip of the iceberg. This information is used by potential
employers to judge our suitability as employees, by potential landlords
to determine our suitability as renters, and by the government to
determine our likelihood of being a terrorist...

And with alarming frequency, our data is being abused by identity
thieves. The businesses that gather our data don't care much about
keeping it secure. So identity theft is a problem where those that
suffer from it - the individuals - are not in a position to improve
security, and those who are in a position to improve security don't
suffer from the problem.

The issue here is not about secrecy, it's about control. The issue is
that both government and commercial organizations are building "digital
dossiers" about us, and that these dossiers are being used to judge and
categorize us through some secret process."

Tuesday, December 14, 2004

Supreme Court to Review MGM v Grokster

My students will be very pleased that the US Supreme Court have decided to review the MGM v Grokster case too late for them to have to take it into account in their final course papers, which they submitted on the same day.

Google Is Adding Major Libraries to Its Database

The NYT have picked up the story that Google are engaged in a venture with some of the major academic libraries in the world to digitise their holdings and make them freely searchable over the Web.

"It may be only a step on a long road toward the long-predicted global virtual library. But the collaboration of Google and research institutions that also include Harvard, the University of Michigan, Stanford and the New York Public Library is a major stride in an ambitious Internet effort by various parties. The goal is to expand the Web beyond its current valuable, if eclectic, body of material and create a digital card catalog and searchable library for the world's books, scholarly papers and special collections."

I should think Larry Lessig, James Boyle, Brewster Kahle, John Naughton and many like-minded contemporaries will be pleased. I think it is a great initiative but it's just a start.

Google + Harvard = Great information resource

From boingboing:

"Battelle's scoop on Google's University library project
John Battelle has the scoop on Google's "Project Ocean." From an email he received:
"Harvard University is embarking on a collaboration with Google that could harness Google's search technology to provide to both the Harvard community and the larger public a revolutionary new information location tool to find materials available in libraries. In the coming months, Google will collaborate with Harvard's libraries on a pilot project to digitize a substantial number of the 15 million volumes held in the University's extensive library system. Google will provide online access to the full text of those works that are in the public domain. In related agreements, Google will launch similar projects with Oxford, Stanford, the University of Michigan, and the New York Public Library." "

And the MPAA are about to sue BitTorrent and eDonkey.

Court decisions written in sand

I highly recommend, to those of a sufficiently legalese-robust disposition, a paper from the Texas Law Review of 1999, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, 78 Texas Law Review 269 (1999), by Stuart M. Benjamin, now a professor of law at Duke (though at the time of publication of the paper he was an associate professor at San Diego). (Warning - it's a big pdf file, so probably not worth trying to pull down over a slow modem).

It covers the impact of rapidly changing technologies and consequently changing facts on the legal appeal decision making process. Cases going through a long appellate process are not necessarily limited, of course, to areas of rapidly changing technologies and the paper outlines a couple of examples of such cases, such as the Alcoa antitrust action. (By "long" in the above sentence, of course, I mean a sufficiently long period of time to involve substantially changing facts. The actual time period will be dependent on the context and in practice could be significantly shorter than the 20 years taken by the Alcoa case).

From Professor Benjamin's conclusions:

"Bruce Ackerman introduced a useful metaphor for judging: judges as passengers in the caboose of a train, looking backward at the view behind them. One can imagine policymakers, looking boldly ahead setting the train (the American Republic) on a particular path. But the role of judges is to try to make sense of the landscape that the policymakers have carved out and the path they have chosen.

This article highlights an elaboration of the metaphor: appelate judges are not in the caboose looking at the landscape (at least insofar as the landscape represents the development of facts, as opposed to law). Trial judges are in the back of the caboose absorbing the view and writing descriptions of it; appellate judges are somewhere inside, blinds closed, relying exclusively (in theory anyway) on the descriptions that the trial judges give them. The problem on which this article focuses is that sometimes the landscape changes between the time the descriptions are written and the appellate judges get to review them."

He goes on to say that the system assumes facts don't change, so that the appeal judges can justifiably focus purely on questions of law; and even if facts do change, it is assumed that this only happens once and will not happen again. His suggestion on how to deal with this is that the appeal judges should open the blinds on their metaphorical train and make an assessment of the prevailing factual landscape themselves, even though this will involve more work for appeal courts.

Professor Benjamin rounds off the article thus:

"The larger issue, though, is that neither the appellate process nor our vision of precedent is terribly well equipped for rapidly changing facts. These situations confound not only our understanding of the role of appellate courts but the seeming permanence of appellate decisions. This article argues that fact updating will often be the most attractive response to changed and changing facts. But even if the updating of facts is necessary to ensure that appellate courts issue opinions that pertain to the world when those rulings are handed down, it is of course not sufficient to insulate appellate opinions from future factual changes. Where such transformations occur, formerly "current" appellate rulings will be out of date. Ultimately, whether we like it or not, judicial opinions are written in sand.

The use of the train metaphor is quite enlightening, don't you think?

Monday, December 13, 2004

Google sued over use of "Scholar"

The American Chemical Society have decided to sue Google:

"The complaint contends that Google’s use of the trademark “Scholar” for its Google Scholar literature-search engine constitutes trademark infringement and unfair competition."

Lessig's BOB

My Net law students will be pleased to hear (especially since they completed their end of course assessments at the weekend) that Larry Lessig's blog has won a BOB (Deutsche Welle International "Best of the Blogs" Weblog Awards 2004).

"Piracy" = "stealing" or else you get an "F"

Donna is angry that a teenager has been given an "F" by his teacher for an essay (html version here transcribed at boingboing with errors and teacher's comments.)

I'm just about to start grading end of course papers for T182 myself now. Better get on with it...

Friday, December 10, 2004


Marxist-Lessigism By Dan Hunter at Legal Affairs.

Ellison on speech

Some libertarians and civil liberties advocates won't be too impressed at Oracle CEO Larry Ellison's perspective on China's filtering of Western news services:

"The Chinese government has the right to do it. It's a sovereign country."

What you need to recognize, however, is that Mr Ellison is not in the business of protecting civil rights. He's in the business of making money. It's what businesses do. Their directors have a fiduciary duty to maximise the return to shareholders. Their bottom line, therefore, is a focus on the bottom line, so to speak.

Besides, he's right, the Chinese government do have a sovereign, political, legal and (some would argue) moral right to filter Internet content in their own jurisdiction. Whether you agree with that filtering and the extent of it are other, more difficult questions.

Trustworthy Internet

Former CIA chief, George J. Tenet, has said that the "Wild West" that is the Internet "must give way to governance and control" because it "represents a potential Achilles' heel for our financial stability and physical security if the networks we are creating are not protected," and terrorists are "undoubtedly mapping vulnerabilities and weaknesses in our telecommunications networks." He is concerned that key industries and physical infrastructure are open to attack through their networks. This article parphrases him as saying that access to the World Wide Web should be restricted to those who prove they can be trusted and take security seriously. I've no idea whether he did say that, as the reporter admits that the press were excluded from Mr Tenet's talk, at his request. So presumably the direct quotes in the article came from a source who was allowed to attend.

Mr Tenet is right in saying that networks would be more secure if only a limited number of trusted people were allowed to use them. They'd also be more secure if no one could use them; just like aeroplanes would be safer if we grounded them for good, as was done in the immediate aftermath of the 9/11 tragedies; and roads would be safer if we banned cars and other motorised vehicles.

Security is a trade off and the question is how much (lifestyle, money, time, convenience, services, freedom, access to gadgets etc) are we prepared to trade off to secure our society against the dangerous , agressive, destructive behaviour of the kind of people Mr Tenet was paid for so long to tackle; and how effective are those trade offs in actually securing us against that behaviour?

I guess it is also potentially instructive that one of the trusted attendees at the talk still leaked comments to the press, so even locked down, trusted person only access networks will have their vunerabilities...

The Future of Net Crime

Thanks to Peter Sommer at FIPR for his pointers to a new Home Office report on the future of Internet crime.

Euractv says EU members have been slow to implement the framework for electronic commumications. Belgium, France, Greece, Luxembourg and Spain are highlighted.

The EU Telecommunications Council have decided to fund a "Safer Internet Plus programme" to "empower" (I hate that word!) parents and teachers to protect children. It seems the funding is to go to hotlines (like the Internet Watch Foundation presumably), filter software (called censorware by critics), self regulation and awareness raising.

Bruce Schneier has some sound advice, as you would expect, on safe computing.

"I'm stuck using Microsoft Windows and Office, but I use Opera for Web browsing and Eudora for e-mail. I use Windows Update to automatically get patches and install other patches when I hear about them. My antivirus software updates itself regularly. I keep my computer relatively clean and delete applications that I don't need. I'm diligent about backing up my data and about storing data files that are no longer needed offline.

I'm suspicious to the point of near-paranoia about e-mail attachments and Web sites. I delete cookies and spyware. I watch URLs to make sure I know where I am, and I don't trust unsolicited e-mails. I don't care about low-security passwords, but try to have good passwords for accounts that involve money. I still don't do Internet banking. I have my firewall set to deny all incoming connections. And I turn my computer off when I'm not using it.

That's basically it. Really, it's not that hard. The hardest part is developing an intuition about e-mail and Web sites. But that just takes experience."

And if you'd like a little more detail try the Open University's 10 week protect yourself from cyber-vandalism course, T187, written by my colleagues Dave Phillips and John Naughton.


Spyblog is a spin-off blog from the civil liberties website Watching Them Watching Us, a "UK Public CCTV Surveillance Regulation Campaign." They are bluntly critical of government, corporations and the general public and our collective lack of attention to and carelessness in the face of what they perceive to be a general erosion of civil rights. If you log onto their site, the first message you get is one indicating how much information they have gathered about you, just by virtue of the fact that you've called up their website. In my case it was "You seem to be from a UK academic institution..." etc.

There is some hard hitting stuff here and those on the receiving end of the criticism, (if they're aware of it), could be made to feel more than a little uncomfortable about it.

Their critique of the security measures deployed at Hammersmith Bus station will almost certainly not go down too well with the people responsible.

Wednesday, December 08, 2004

Aussies, copyright and US Free Trade Agreement

IF you'd like some insight into some of the dark room politics behind the changes to Australian copyright laws associated with the Australian government's free trade agreement with the US, IP academic Kim Weatherall has some details and she also has some serious concerns about the outcomes:

"when you play a pirate DVD, you are infringing copyright. This was new, of course. Usually, the purchasers of infringing copies are not infringers themselves. Suddenly, all kinds of consumers caught by the Copyright Act, when they weren't before. The Senate Select Committee was worried, saying (at para 3.200):

"[The Committee is] particularly concerned about the 'exception to the exception' anomaly which could lead to end users of infringing materials becoming infringers in their own right. This is a significant, perhaps unintentional, extension to the scope of copyright law in Australia. The Committee understands that removal of proposed subsections 43B(2) and 111B(2) would not be prevented by the AUSFTA."

They were rightly worried. The inclusion of "temporary copies" means that all the copies made in a Sony Playstation Console, or DVD player, are now within the exclusive rights of the copyright owner. The "exception to the exception" means that copyright owners can argue that playing an unauthorised game, or unauthorised copy of a movie, is an infringement. And that is important because that is exactly what has been argued in the Sony v Stevens litigation. If playing unauthorised games leads to infringements, then technological protection measures (TPMs) which prevent the playing of unauthorised games are preventing infringement. And suddenly the anti-circumvention laws - the laws that make it illegal to 'break' TPMs - have a much broader reach.

With the new Copyright Amendment Bill, this concern has been ignored. In fact, the 'exception to the exception' has been broadened. In other words, even more things will now be infringements than were before - despite what the Senate Select Committee said...

...OK. Now, I could be wrong here, but doesn't the text go further than that? Doesn't the text mean that the Government is proposing to strengthen the hand of copyright owners in preventing parallel importation, contrary to the whole policy of the government for the last few years? As I read it (please, correct me if I'm wrong), this means that if A makes an authorised copy of copyright work X in Indonesia, but B owns the copyright in X in Australia, and I buy the copy of X in Indonesia from A, and bring it to Australia, and play it in my machine, and a temporary copy is made, I'm infringing. Because if A had made the copy in Australia, they would have been infringing. Looks like strengthening the ability of copyright owners to engage in market segmentation to me. And, if I import copies from A into Australia (even if that is allowed under parallel importation law), I might be authorising infringement because all the temporary copies made by my customers are infringements."

Software patents delayed

The EU Council are delaying the decision on the software patents directive until 2005.

Communications and Copyright Policies - Tim Wu

Tim Wu has some simple conventional things to say about communications and copyright policy making. Firstly copyright law should act as an incentive scheme for authors and creators not as an innovation barrier to new technology.

Secondly, communications infrastructure regulators like the Federal Communications Commission, should forget about trying to regulate content and get back to their real job of making sure the government facilitates (or at least stays out of the way) innovations and development of communications infrastructure!

"Copyright law should limit itself to promoting authorship, and communications law should forget about content regulation. That may, again, not sound very radical, but the fact is that today the two areas of law moonlight for each other in fairly shameful ways. Copyright is used to do things that would be embarrassing to propose in communications policy circles. Meanwhile, the FCC is effectively implementing copyright laws that couldn’t get through Congress.

Government accountability is more than Congressional testimony. When laws hide their dirty laundry in other legal regimes, it becomes hard, even for legal experts, to keep track of what the government is doing. The crossover of Copyright and Communications policy is a sterling example."

He also has some sensible advice on the ever widening problem of vested interests and their supporters taking simplistic, polarised and diametrically stances in important public debates:

"I think things are even worse than Cass Sunstein predicted. What Cass wrote about in the 1990s was the basic problem of debate polarization. But I don’t think he expected that even facts themselves would come up for grabs, leaving each side living in fully constructed parallel universes of disinformation.

I don’t blame the blogs. Here is the problem: we are living with the unexpected consequences of low-cost information dissemination, or “cheap speech.” Cheapness is generally good, but it also creates strange consequences. Cheap corn, for example, makes us fat. Cheap drugs, like crack cocaine, can destroy neighborhoods. And cheap information is making us stupid.

As a society, the only answer is likely to be painful: an information diet. Consider the food analogy: in another age, food was scarce, and so everyone ate anything they could get their hands on. Today that approach will make you look like Andre the Giant. We have learned, albeit imperfectly, to eat more carefully. We similarly need to learn to regulate our information intake, or we’ll end up with brains that look like CNN Crossfire."

A balanced diet in information. We could all do with that.

DVDCCA sue Kaleidescape

The DVD Content Control Association have decided to sue a company that makes DVD jukeboxes capable of storing the contents of hundreds of DVDs. Instead of spending money on lawyers trying to outlaw this kind of home entertainment kit why aren't they spending money on filling an obvious gap in the market? At $27000 a shot these boxes are not exactly available to the average consumer but you can see that many folk would be pleased to get hold of one for a reasonable price. Think of the value of being able to store all your DVDs to avoid having to search for and slot in the relevant disc each time, not to mention avoiding having to repeatedly replace (particularly kids') DVDs that scratch easily and don't take much wear and tear.

Tuesday, December 07, 2004

Web services patent auction tell us that a bankrupt company has sold off 39 web services patents for $15.5 million as part of the process of liquidating its remaining assets.

"The patents cover a set of key technical protocols known as Web services, a popular method for exchanging business documents over the Internet. The protocols are in wide use today; Microsoft, IBM and other software companies both large and small have incorporated them into their programs.

The winning bidder was a company called JGR Acquisitions. An attorney representing JGR was mum about his client, dodging reporters' questions as he rushed out of the court room at the close of the auction."

Monday, December 06, 2004

EU Parliament Agree to Biometric Passports

The EU parliament's official response to the Council of Ministers pressure to introduce biometrics to passports:

Enhanced safeguards for "biometric" passports

Report on the Commission proposal for a Council regulation on standards for security features and biometrics in EU citizens' passports
(COM(2004)0116 – C5-0101/2004 – 2004/0039(CNS))
Doc.: A6-0028/2004
Procedure: Consultation
Debate: 01.12.2004
Vote: 02.12.2004


The European Parliament agrees with the introduction of passports containing a facial image, since this biometric element will make it very difficult to falsify passports. The biometric data will ensure that a person presenting a passport is in fact the person to whom the passport was originally issued. However, the EP believes that the implementation of biometric elements must not infringe upon privacy and data protection rights. This is why the EP opposes the setting up of a central database of European Union passports and travel documents containing all EU passport holders' biometric and other data. Such a database would increase the risk of abuse and function creep. The non binding resolution was adopted with 471 votes in favour to 118 against and 6 abstentions.

Only the authorities of the Member States that are competent for reading, storing, modifying and erasing the biometric data may have access to it. Parliament also explicitly states the purpose of the regulation: the biometric feature in passports shall be used only for verifying the authenticity of the document and the identity of the passport holder.

Parliament wants the regulation to come into effect only if and when the national data protection authorities have adequate investigative powers and resources to see to the correct implementation of the regulation's data protection requirements. In relation to this, MEPs want the deadline for implementing the regulation to be extended to 18 months (instead of one year) after the approval of the technical requirements for the passports at the latest. This means that the EU would expect the USA to extend the deadline beyond 26 October 2005 for holding a biometric passport for visa free travel.

Under the Commission proposal, the introduction of a facial image in passports will be obligatory, while the Member States might opt for the introduction of finger prints. After the adoption of the Carlos COELHO (EPP-ED, PT) report in committee on 25 October, the Council decided to make the introduction of finger prints in passports obligatory as well. The European Parliament however, voted today on the original Commission proposal and, by doing so, agreed with the Commission position that only the facial image should be obligatory.

This Regulation will apply to all Member States except the UK and Ireland. Denmark will decide within a period of six months after the Council has adopted this Regulation whether it will transpose it into its national law.


An important driving force in the development of the biometric passport was provided by various US decisions, notably concerning the visa waiver programme (VWP). Under this programme, the nationals of certain states - among which the old EU Member States (except Greece) and Slovenia - do not need a visa upon entering the USA. But, not later than October 26, 2005, they will have to have a biometric passport. Each country that is designated to participate in the VWP, must certify to the USA that it has a program to issue to its nationals machine-readable passports that are tamper-resistant and incorporate biometric and document authentication identifiers.

Press enquiries:
Danny de Paepe
(Strasbourg) tel.(33-3) 881 73605
(Brussels) tel.(32-2) 28 42531
e-mail :

Marvel sue online game operators

Fred Von Lohmann is a bit put out that Marvel Enterprises Inc. have decided to sue NCSoft Corp. and Cryptic Studios, the operators of an online game called "City of Heroes."

"Marvel's complaint is premised on the notion that NCSoft and Cryptic should be held responsible for the infringing activities of the players in the game. According to the complaint, the players are infringing Marvel's copyrights and trademarks by creating characters that are recognizable copies of Marvel characters, including Wolverine and the Incredible Hulk.

Yes, you read that right -- Marvel's claim is based on the idea that private individuals who pretend to be Wolverine for fun in a video game are breaking the law. Since when is it illegal to pretend to be your favorite superhero? Should parents be policing their kids, lest they be caught "pretending without a license"? Were all those drawings of the X-Men on grammar school notebooks evidence of infringement? And what about all those homemade superhero Halloween costumes...

Why are everyday expressive activities in the real world -- such as joining some neighborhood kids in the backyard for a bit of superhero role playing -- suddenly exposed to the depredations of copyright and trademark lawyers when they move online?

Marvel's assertion of copyright and trademark rights over the noncommercial expressive activities of its fans is both unprecedented and unnecessary. The fundamental justification for copyright is that we must tolerate a limited statutory monopoly on expression in order to secure an adequate incentive for the creative industries. That's an adequate incentive, not the maximum conceivable incentive. Trademark law, meanwhile, is meant to protect the public from confusion in the marketplace for products and services. Measured by these yardsticks, Marvel's claims fall short. Does anyone believe that Marvel will fire its authors and close up shop if it can't prevent little Johnny from pretending to be Wolverine online? And no one is going to be confused into buying something by mistake when they run into another player in-game who has adopted the green skin and purple shorts of the Hulk.

On the other hand, if the court accepts Marvel's notion that playing Wolverine or the Incredible Hulk online is unlawful, you can expect a chill to spread through all the MMO universes. Rights holders will begin insisting that MMO operators police their games for unauthorized elements -- robots that look too much like C3PO, uniforms that look too much like Captain Kirk's, haircuts that mimic Bart Simpson's, in-game face paint that evokes KISS, or blonde vampire slayers named Buffy."

Fred does work for the EFF and as such will have some pretty strongly held views on the notion of over expansion of intellectual property but he makes a strong argument here. Why are everyday activities, such as reading a book, exposed to apparently daft complications e.g. restrictive licences saying they "cannot be read aloud", just because that book is published in an ebook form?

Harry Potter, Armoured Car DRM and the Lawyers

The IEEE Consumer Electronics have made a transcript of my keynote address to their international conference available on their website. The talk was entitled "Harry Potter, Armoured Car DRM and the Lawyers" (or linked as "IEEE talk.doc (92.0 kBytes" on the website). It covered some of the possible implications for the consumer electronics industry of developments in intellectual property law and digital technologies. The introduction gives a flavour:

"About 5 years ago I read about the music industry suing to get Diamond Multimedia’s Rio MP3 player outlawed. I was sufficiently irritated that somebody should want to kill off a neat bit of technology that I decided to look into the situation a bit more. In the end the Rio survived the assault but only on a legal technicality in the appeal court.

So the Rio case triggered my descent into a surreal nether land of lawyers and strange ideas. And in this strange lawyer-land one of the strangest outposts is an area with the eye-glazing title of intellectual property. Intellectual property covers things like copyrights and patents.

Lawyers just don’t see the world like the rest of us. A copyright lawyer thinks nothing of suing somebody for infringing the copyright in silence. Seriously. In 2002 Mike Batt, a music producer, found himself threatened with legal action by the estate of the late John Cage, for infringing the copyright in Cage’s composition 4 minutes and 33 seconds of silence. If you haven’t heard of John Cage or his silence, the Musical Score reads on an otherwise blank page:

“4 minutes 33 seconds silence for any instrument or combination of instruments”

Batt had included one minutes silence in a CD by a music group called the Planets.

Leaving aside the artistic merit or otherwise of the Cage piece and the sense of someone who would fork out the £4.50 or so that the score retails at, as Batt’s mother asked him - what part of the silence did they claim you were infringing?

Sounds funny except that the case involved substantial lawyers’ fees and eventually got settled out of court for a 5 figure sum. Possibly £10s of thousands.

Following the settlement Batt decided to register the copyrights in every period of silence between 1 second and 10 minutes, except for 4m 33s. Batt now figures he’s got Cage’s estate caged in - he’s threatened to sue anyone performing Cage’s work who overruns or underruns the 4m 33s..."

and so it continues with stories of dangerous monks, people trying to cash in on J.K Rowling's success and strange anomalies created by the state of the law and the current stage of evolution of the technologies.

The Yes Men, The BBC and Bhopal

The Yes Men managed to kid the BBC on Friday into believing they were representatives of Dow Chemicals and announced, from a Paris studio, that the company would be ploughing $12 billion into cleaning up the toxic waste and compensating victims of the Bhopal disaster in India 20 years ago. The Yes Men fake

"spokesperson appears live on the BBC World Service in front of the Eiffel Tower. He is ecstatic to make the announcement: Dow will accept full responsibility for the Bhopal disaster, and has a $12 billion dollar plan to compensate the victims and remediate the site. They will also push for the extradition to India of Warren Anderson, former Union Carbide CEO, who fled India following his arrest 20 years ago on multiple homicide charges.

When it's over, the studio technician is happy about what she has heard. "What a nice thing to announce," she says.

"I wouldn't work for Dow if I didn't believe in it," replies Andy matter-of-factly.

We expect the story to be retracted immediately, but Dow takes two hours to notice that alas and alack, it's done the right thing. The full interview therefore runs twice, and for two hours the story is the top item on After Dow notes emphatically that it is not in fact doing the right thing, the retraction remains the top Google story for the rest of the day.

Back at Andy's apartment, we help Dow express itself better by mailing out a more formal retraction: "Dow will NOT commit ANY funds to compensate and treat 120,000 Bhopal residents who require lifelong care.... Dow will NOT remediate (clean up) the Bhopal plant site.... Dow's sole and unique responsibility is to its shareholders, and Dow CANNOT do anything that goes against its bottom line unless forced to by law." For a while, this—as reprinted in something called "Men's News Daily"—becomes the top story on

"Whatever be the circumstances under which the news was aired, we will get $12 billion from Dow sooner than later," one Bhopali activist is quoted as saying. But the "false hope" question does come up in some articles. Much as we try to convince ourselves it was worth it, we cannot get rid of the nagging doubt. Did we deeply upset many Bhopalis? If so, we want to apologize. We were trying to show that another world is possible....

Throughout the day, we are deluged with email, almost all of it positive. Later, the BBC calls again: they want us back at the studio. Yeah, right! No, really—they want us on for another show, to talk about what has happened. Against our better judgment we go—and arrive to find four smiling staffers. "Where are the cops?" Andy asks, and the staffers actually laugh.

Another interview on Channel 4, and the day is finally over. Now all we can do is wait to see how it all pans out. Will our fondest hopes be met—will Dow be forced to concede? Or will the people of Bhopal have to wait twenty more years?

Visit and help them keep the pressure on Dow."

Clever but hopefully, as they note, they did not create any false hope.