Saturday, August 02, 2008

Home schooling v schooling from someone who tried both

A home-schooled teenager went to school for a year to see what it was like.

"Some personalities are different and can endure 12 years of school plus college, most cannot. Between teachers telling them they're not good enough, and wasting years of their life on something that doesn't really matter, they get fried. Most of the time it goes unnoticed too, you just kind of evaporate. I started to feel the same thing happening to me just in those nine months. Every thought you have, dream you want to fulfill, inspiration that strikes you, it all goes on the back burner, and eventually you just forget how to live any other way altogether.

Would I recommend sending a kid to school? Absolutely not. It's much too easy to lose your way. One thing I would advise though is to find unschooling friends."

Patry's last post

William Patry has decided to stop blogging. That is a real shame. His blog has, for the past four years, been one of my first ports of call when difficult copyright issues or cases come round. Where else can you get that depth of experience and analysis freely on tap but the Internet? Mr Patry has done an invaluable public service by making his thoughts so openly available for so long. He's stopping for two reasons - the people who refuse to accept that it is a personal blog and has nothing to do with his employer, Google, and the fact that the current state of copyright law is such a mess.

"my fear that the blog was becoming too negative in tone. I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries. I accept that the level of proper doses will vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view, and that of my cherished brother Sir Hugh Laddie, we are well past the healthy dose stage and into the serious illness stage. Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately."

The public debate on the copyright landscape will be a seriously less enlightened place for the loss of his blog.

Update: There are lots of comments round the blogosphere about the loss of Party's blog. I recommend Pamela Jones's at Groklaw.

Friday, August 01, 2008

Thursday, July 31, 2008

ISP music industry deal a suicide attempt

Cory Doctorow thinks the deal between the music industry and big UK ISPs is "just the latest paragraph in the record industry's long, self-pitying suicide note, and it's left me wishing they'd just pull the trigger already and stop beating their chests and telling us all how unfair it all is."

"Ten years ago, the record industry had a simple little problem they could have solved by showing a tiny amount of future-looking flexibility. A decade of intransigence and stubborness has bred a killer strain of antibiotic-resistant filesharing technology that grows more and more difficult to police by the year. The sheet music publishers didn't get to control the destiny of the record companies, who couldn't control the broadcasters, who couldn't control the cable operators, who couldn't control the VCR makers.

The record industry will not be in charge of the characteristics of filesharing systems. They may get remunerated for their use, but they won't be able to dictate their functionality, no matter how many children they criminalise. If they want to cash in on filesharing, they'd better do it soon, before every potential licence fee payer decides to opt out of the system forever."

Higher Education Act: US Educators to become copyright police

William Patry is rightly angry at the latest piece of entertainment industry corporate welfare legislation about to get passed by Congress.

" On July 30th, the House and Senate conferees approved the Higher Education Act reauthorization conference report, H.R. Rep. 110-803, to H.R. 4137. The bill, expected to become law soon, includes the College Opportunity and Affordability Act. Some may recall efforts last year to condition federal aid to universities on those institutions employing filtering technology. Senate Majority leader Harry Reid would have also mandated that the Secretary of Education compile a 25 “worst offenders" list of those schools with the highest levels of illegal P2P file sharing. The idea wasn’t original, MPAA had already compiled its the top 25 list."

He goes on to describe the massive fantasy losses story told repeatedly by organisations like the MPAA and then:

"This raises one of the features of Washington DC that rightly baffles those outside the Beltway: how is that a trade association gets an issue so wrong, but then still manages to get legislation passed that addresses a non-problem that the association deliberately concocted? The answer, supplied by Mr. Glickman, is: leadership.

MPAA’s initial efforts were defeated fortunately, and the history of the bill during late 2007 and early 2008 is recounted in a series of very informative posts by Anne Broache for Cnet here , here, and here. Congress, in the bill that just passed, instead of mandating filtering and bad boy lists, mandated various requirements for educators to undertake, all of which involve spouting MPAA and RIAA’s propaganda."

He then goes on to reproduce the Joint Explanatory Statement of the Managers in the Conference Committee report describing the requirements. This basically says students need to be repeatedly threatened about copyright infringement and universities should use controlling technologies (including some from specific named companies) to block such abhorrent behaviour. As Patry says, the statement was probably written by the MPAA. Actually a lot of the text of the bill was probably written by them too.

And remember this legislation is called the "Higher Education Act"!

Once this law has been in place for a while the next step will be the MPAA and RIAA complaining about universities not being good enough copyright police. Then will come the calls for further legislation with more draconian (probably criminal) sanctions for students and university staff and of course mandatory blocking technologies. All backed up with the fantasy business loss figures supposedly showing that these unwashed masses of Net savvy college delinquents are destroying the entertainment business.

Wednesday, July 30, 2008

BAe-Saudi corruption case: government win in the Lords

Another important House of Lords decision today, in the BAe-Saudi arms corruption case, has gone the government's way.

"30. It is common ground in these proceedings that the Director is a public official appointed by the Crown but independent of it. He is entrusted by Parliament with discretionary powers to investigate suspected offences which reasonably appear to him to involve serious or complex fraud and to prosecute in such cases. These are powers given to him by Parliament as head of an independent, professional service who is subject only to the superintendence of the Attorney General. There is an obvious analogy with the position of the Director of Public Prosecutions. It is accepted that the decisions of the Director are not immune from review by the courts, but authority makes plain that only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator: R v Director of Public Prosecutions, Ex p C [1995] 1 Cr App R 136, 141; R v Director of Public Prosecutions, Ex p Manning [2001] QB 330, para 23; R (Bermingham and others) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), [2007] QB 727, paras 63-64; Mohit v Director of Public Prosecutions of Mauritius [2006] UKPC 20, [2006] 1 WLR 3343, paras 17 and 21 citing and endorsing a passage in the judgment of the Supreme Court of Fiji in Matalulu v Director of Public Prosecutions [2003] 4 LRC 712, 735-736; Sharma v Brown-Antoine and others [2006] UKPC 57, [2007] 1 WLR 780, para 14(1)-(6). The House was not referred to any case in which a challenge had been made to a decision not to prosecute or investigate on public interest grounds...

35. The evidence makes plain that the decision to discontinue the investigation was taken with extreme reluctance. As the Director put it in his second witness statement (para 11):

“The investigation and prosecution of serious crime is a major public interest that the SFO exists to promote. My job is to investigate and prosecute crime. The Al Yamamah investigation was a major investigation. The idea of discontinuing the investigation went against my every instinct as a prosecutor …”

The Attorney General on 13 December 2006 was said to be “extremely unhappy” at the implications of dropping the investigation at that stage. What determined the decision was the Director’s judgment that the public interest in saving British lives outweighed the public interest in pursuing BAE to conviction. It was a courageous decision, since the Director could have avoided making it by disingenuously adopting the Attorney General’s view (with which he did not agree) that the case was evidentially weak. Had he anticipated the same consequences and made the same decision in the absence of an explicit Saudi threat it would seem that the Divisional Court would have upheld the decision, since it regarded the threat as “the essential point” in the case...

41. The Director was confronted by an ugly and obviously unwelcome threat. He had to decide what, if anything, he should do. He did not surrender his discretionary power of decision to any third party, although he did consult the most expert source available to him in the person of the Ambassador and he did, as he was entitled if not bound to do, consult the Attorney General who, however, properly left the decision to him. The issue in these proceedings is not whether his decision was right or wrong, nor whether the Divisional Court or the House agrees with it, but whether it was a decision which the Director was lawfully entitled to make. Such an approach involves no affront to the rule of law, to which the principles of judicial review give effect (see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 73, per Lord Hoffmann).

42. In the opinion of the House the Director’s decision was one he was lawfully entitled to make. It may indeed be doubted whether a responsible decision-maker could, on the facts before the Director, have decided otherwise...

43. It is common ground that had the Director ignored article 5 of the OECD Convention, an unincorporated treaty provision not sounding in domestic law, his decision could not have been impugned on the ground of inconsistency with it. But the Director publicly claimed to be acting in accordance with article 5. The claimants accordingly contend (1) that it is open to the domestic courts of this country to review the correctness in law of the Director’s self-direction; (2) that our courts should themselves interpret article 5; (3) that the Director’s interpretation should be held to be incorrect; and (4) that the Director’s decision should be quashed. Each of these steps in the argument is, in the judgment of the House, problematical...

47. In my opinion, it is unnecessary and undesirable to resolve these problematical questions in this appeal, for two reasons. First, it is clear that the Director throughout based his adherence to article 5 on a belief that it permitted him to take account of threats to human life as a public interest consideration. Secondly, the Director has given unequivocal evidence that he would undoubtedly have made the same decision even if he had believed, which he did not, that it was incompatible with article 5 of the Convention. I cannot doubt, given its conclusion in para 41 above, that he would indeed have done so."

There will be all kinds of excitable commentary on this case and rightly so but again the decision has been taken, as would be expected, on narrow technical grounds -

Question: did the director of public prosecutions have the authority to take the decision to call a halt to the corruption case?

Answer: yes.

Result: Government win.

The Corner House who pursued the case along with the Campaign Against the Arms Trade say:


Today, the law lords ruled that the Director of the Serious Fraud Office had acted legally in terminating the SFO's investigation into alleged corruption by BAE Systems in its dealings in Saudi Arabia. The SFO's decision followed lobbying by BAE and threats from Saudi officials to cut off intelligence links with the UK if the investigation proceeded.

The law lords' ruling overturns a judgment by the High Court in April 2008, which ruled in favour of Campaign Against Arms Trade and The Corner House in their joint judicial review of the SFO's decision.

During the High Court hearing, Lord Justice Moses posed a key question: if a powerful foreign state makes a threat against our legal system, is there anything a lawyer or court can do? Or is the law powerless in the face of threats from abroad?

His answer, based on access to unedited secret documents that were disclosed because of the court proceedings, was that it is unlawful for a prosecutor to surrender to such threats unless every other option had been exhausted and unless the threat was imminent. The High Court therefore quashed the SFO decision.

The SFO immediately appealed, and the law lords -- who did not see the unedited secret documents -- have now given a definitive answer on the law as it stands. Their conclusion? The law is indeed powerless.

The law lords have done what was asked of them. They have clarified the law, ruling that national security always trumps the rule of law. The implications are clear: under UK law, a supposedly independent prosecutor can do nothing to resist a threat made by someone abroad if the UK government asserts that the threat endangers national security. The unscrupulous with friends in high places overseas who are willing to make such threats now have a legally valid 'Get Out of Jail Free' card. With the law as it is, a government can simply invoke 'national security' to drive a coach and horses through international anti-bribery legislation, as the UK has done in this instance, to stop corruption investigations. The dangers of abuse are obvious.

The Corner House and CAAT accept that the Government has a duty to protect the public from threats to national security. It is critical that the public has absolute confidence and trust that the Government is not abusing national security arguments in order to avoid embarrassment (in this instance, offending Saudi Arabia) or to pursue the commercial interests of favoured companies, such as BAE, or to get out of its obligations under international law. Such confidence and trust is especially important at a time of heightened concern about international terrorism.

Under current constitutional arrangements, however, the courts give wide discretion to the Government on decisions that invoke national security. For that reason, the evaluation of the national security threat upon which the Serious Fraud Office based its decision was never considered in the judicial review hearings.

It is known, however, that the UK's Secret Intelligence Service (SIS) was not itself the author of the assessment of the risks posed by the Saudi threats upon which the SFO Director based his decision. The SFO Director states himself that he never saw any of the national security assessments. Moreover, documents released during the judicial review proceedings clearly indicate that national security concerns were raised only after the SFO had turned down commercial and diplomatic arguments for stopping the investigation into the BAE-Saudi arms deals.

If the public is to be assured that criminal investigations and prosecutions are dropped only in the face of genuine national security threats, and if the rule of law is not to be compromised, CAAT and The Corner House believe that Parliament should urgently review the political, legal and constitutional issues raised by this judicial review.

The Corner House and CAAT are calling for changes in the law so that prosecutors are given explicit powers to resist threats to the rule of law unless those threats create "a situation of necessity".

There is also an urgent need to strengthen parliamentary scrutiny of the advice upon which any decision to halt a criminal prosecution or investigation on national security grounds is taken. In that regard, CAAT and The Corner House believe there is an overwhelming case for modernising the current constitutional arrangements between the government, the judiciary and parliament in order to give the courts greater scope to hold the government to account if it misuses its power in the name of national security.

Since The Corner House and CAAT launched this legal challenge, we have received massive public support. 125 MPs from all the main political parties, along with over 130 NGOs, have called for the investigation to be reopened. We know that these issues are of widespread concern to many people not only up and down this country but also throughout the world. But far from acting on the public concerns, the Government is instead seeking to remove national security decisions still further from judicial and parliamentary oversight by new clauses in its draft Constitutional Renewal Bill.

At the same time, supporters of BAE have repeated highly questionable statements and statistics about the number of British jobs dependent on Saudi arms deals. The reality is that BAE, a multinational company, has made considerable cuts in its UK workforce over recent years, while shifting its focus to the USA. Once the SFO investigation had been dropped, and the latest Saudi arms deal signed, BAE admitted that most of the jobs generated by the sale would not even be based in the UK.

The SFO, BAE and the Government might think that with today's judgments from the law lords, all is now over. But the real challenges have only just begun. We call on all those who are alarmed at the gaping holes in the law revealed by the judgments today to join us in:

  • Pressing for changes to the law to ensure that our prosecutors can remain independent and are empowered to resist threats from abroad.
  • Ensuring that national security advice can be scrutinised by the courts and by parliament so that the Government cannot arbitrarily invoke national security -- without effective checks and balances -- to trump the rule of law.
  • Opposing the clauses in the draft Constitutional Renewal Bill that would prevent a judicial review like ours from ever being taken in the future and that would give the Government 'carte blanche' to invoke national security to stop a fraud investigation or criminal prosecution without effective checks and balances.
  • Insisting that the Government fulfil its international obligations to cooperate with requests for assistance from the US and Swiss authorities in their investigations into BAE's dealings with Saudi Arabia.
  • Pressing the OECD to clarify the circumstances under which national security concerns can legitimately be invoked to exempt signatories from fulfilling their obligations under the OECD Anti-Bribery Convention.
  • Pressing the Serious Fraud Office to re-open its investigation into BAE's dealings with Saudi Arabia given that circumstances have changed since the investigation was dropped in December 2006. Much of the information that Saudi Arabia was apparently concerned to keep out of the public domain is now public knowledge.
  • Exposing the preferential access of arms companies, such as BAE, to the Government, and campaigning to end public subsidies to the arms industry."

MacKinnon appeal to House of Lords fails

Gary McKinnon, facing extradition to the US for hacking into Pentagon computers, has lost his appeal to the House of Lords.

US prosecutors are on record as wanting to see him 'fry' and his legal representatives are now planning to appeal to the European Court of Human Rights. The unanimous judgment is available online and was written and delivered by Lord Brown of Eaton-Under-Haywood.

The case seems to have hinged on the legal technicality of whether US threats, as part of the plea bargaining that has taken place in the case, would amount to an abuse of process, thereby undermining the validity of the extradition. The Lords used a parallel Canadian Supreme Court case from 2001, USA v Cobb [2001] 1 SCR 587, in which the extradition proceedings were blocked, to guide their decision. They distinguished the two cases, effectively saying that the threats in the Cobb case were much more scary and they were made by a judge as well as a prosecutor. The relevant paragraphs from the decision from my perspective were 28-31 and 39-42. It is a relatively short and accessible judgment and it will be interesting to see the ECHR's take on it.

"28. The appellant’s main argument focuses on the wide disparity between on the one hand the predicted likely outcome if the appellant cooperated with the US authorities—a sentence of 3-4 years of which 6-12 months would be served in a low security prison in the US after which there were good prospects of repatriation with the expectation of release after serving only half the sentence—and on the other hand the threatened likely outcome if the appellant refused to cooperate—a sentence of 8-10 years or more in a US high security prison with remission of only 15%. Such a disparity, it is submitted, is disproportionate and subjected the appellant to impermissible pressure to surrender his legal rights, particularly his right to contest extradition. Pressure of this kind, it is submitted, indeed plea bargaining generally, runs flatly counter to the principle of English law recently clarified in the judgment of the five-judge Court of Appeal delivered by Lord Woolf CJ in R v Goodyear [2005] 1 WLR 2532: essentially that a judge may respond to a defendant’s request that he be told the maximum sentence that would be imposed on a plea of guilty but is not to volunteer such information unasked nor to indicate what sentence might be passed on the defendant’s conviction by the jury. As the Court stated at para 54: “With some defendants at any rate, the very process of comparing the two alternatives would create pressure to tender a guilty plea.”

29. Where, as here, the respondent government is seeking the assistance of the English courts to extradite an accused, it must, submits the appellant, comply with the legal principles of this jurisdiction. True it is that he has in fact resisted the pressure improperly put upon him but that, he submits, is no answer to the contention that it constituted an abuse of process: it was calculated to interfere with the extradition proceedings.

30. For this submission and indeed more generally in support of the abuse of process argument the appellant relies principally upon the judgment of the Supreme Court of Canada in USA v Cobb [2001] 1 SCR 587. The USA there had indicted a large number of defendants, including the two Canadian appellants, on mail fraud charges. Many had submitted voluntarily to the Court in Pennsylvania and on sentencing one of them the trial judge had said (p 593):

“I want you to believe me that as to those people who don't come in and cooperate and if we get them extradited and they are found guilty, as far as I am concerned they are going to get the absolute maximum jail sentence that the law permits me to give.”

About a week before the Canadian extradition hearing the American prosecuting attorney was interviewed on Canadian television and said:

“I have told some of these individuals, ‘look, you can come down and you can put this behind you by serving your time in prison and making restitution to the victims, or you can wind up serving a great deal longer sentence under much more stringent conditions’ and describe those conditions to them.”

Asked by the interviewer “How would you describe those conditions?", the attorney replied: “You are going to be the boyfriend of a very bad man if you wait out your extradition". That was understood by the Court to mean that they would be subject to homosexual rape. Asked then: “And does that have much of an impact on these people?", the attorney answered: “Well, out of the 89 people we have indicted so far, approximately 55 of them have said, ‘We give up'".

31. In allowing the appeal and reinstating the extradition judge’s order staying the extradition process, Arbour J, giving the judgment of the Supreme Court, said, at paragraphs 52 and 53:

“By placing undue pressure on Canadian citizens to forego due legal process in Canada, the foreign state has disentitled itself from pursuing its recourse before the courts and attempting to show why extradition should legally proceed. The intimidation bore directly upon the very proceedings before the extradition judge . . . [The judge] was also correct in concluding as he did that this was one of the clearest of cases where to proceed further with the extradition hearing would violate ‘those fundamental principles of justice which underlie the community’s sense of fair play and decency’ (Keyowski [1988] 1 SCR 657, 658-659), since the requesting state in the proceedings, represented by the Attorney General of Canada, had not repudiated the statements of some of its officials that an unconscionable price would be paid by the appellants for having insisted on exercising their rights under Canadian law.”...

33. Did the US prosecuting authority here “attempt to interfere with the due process of the Court"? Did it place “undue pressure [on the appellant] to forego due legal process” in the UK and so disentitle itself from pursuing extradition proceedings? Would extradition in this case “violate those fundamental principles of justice which underlie the community’s sense of fair play and decency"? Would the appellant following extradition be paying “an unconscionable price . . . having insisted on exercising [his] rights under [English] law"? These are the questions plainly raised by the Supreme Court’s judgment in Cobb (and by the closely related case of USA v Shulman [2001] 1 SCR 616). They are also to my mind the essential questions underlying the single question certified for your Lordships’ determination on this appeal...

39. The differences between this case and Cobb are striking. In Cobb it was the judge who stated that non-cooperation would result in “the absolute maximum jail sentence that the law permits me to give” and he, after all, unlike the prosecuting authority, had the power to pass sentence. And in Cobb the prosecutor, so far from forewarning the defendant of the differing consequences which could be expected to follow (perfectly properly) from his decision whether or not to cooperate, effectively threatened (and here I use the word advisedly) those not cooperating with homosexual rape.

40. The high watermark of the appellant’s case here consists of Mr Lawson’s recollection that, unless the appellant consented to extradition (as opposed merely to pleading guilty if extradited), the prosecuting authorities would oppose his repatriation. That, however, even were it to be regarded as an unlawful threat, has now been expressly repudiated by Mr Wiechering, again in marked contrast to the position in Cobb.

41. In my judgment it would only be in a wholly extreme case like Cobb itself that the court should properly regard any encouragement to accused persons to surrender for trial and plead guilty, in particular if made by a prosecutor during a regulated process of plea bargaining, as so unconscionable as to constitute an abuse of process justifying the requested state’s refusal to extradite the accused. It is difficult, indeed, to think of anything other than the threat of unlawful action which could fairly be said so to imperil the integrity of the extradition process as to require the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him.

42. In my judgment this is far from being such a case and accordingly I would dismiss the appeal."

There you have it. They considered one question: did the plea bargaining threats - to call for a more severe sentence to be served entirely in a US prison by compared to a shorter sentence during which the defendant would be repatriated to the UK to serve the latter part of his sentence - amount to an abuse of process. Their Lordships thought no, taking into account the fact that the US prosecutor who allegedly made the threats denied having done so. Gary McKinnon's supporters are, needless to say, disappointed with the decision.

Curse of the DNA Register

The front page of the Independent today headlines the report of the Human Genetics Commission which points out that the National DNA database is out of control.

"The police National DNA Database should be placed under the control of an independent statutory authority. And there should be a vigorous nationwide information campaign to explain why DNA samples are taken, how they are used and why they are retained.

These are two of the key recommendations in a report published today (Wednesday) from an independent Citizens’ Inquiry instigated by the Human Genetics Commission (HGC) in collaboration with the ESRC Genomics Policy and Research Forum in Edinburgh and the Policy, Ethics and Life Sciences Research Centre (PEALS) in Durham and Newcastle...

The Citizens’ report concludes that there is a need for the National DNA Database to be put on an independent statutory footing at one remove from Government and the Police. Most participants, although not all, felt that it would not be practical or desirable to have the whole population registered on the database, however.

Other majority recommendations included:

* People who are acquitted should have their names removed from the database.
* People providing DNA samples at police stations should have a clear explanation of why this is being done and what it means for them.
* There should be special arrangements for situations where DNA samples have to be taken by force.
* People providing samples should not have their ethnicity recorded.

The release of the Citizens’ Inquiry’s conclusions marks the beginning of a new phase of information gathering and broader consultation for the HGC, which will all contribute to the development of a final report, to be published in early 2009."

The Independent says:

"A generation of young Britons is being criminalised for life by the relentless expansion of the national DNA database, ministers are warned today.

Alarm and hostility over the massive scale of the collection of DNA has been uncovered by groundbreaking research funded by the Home Office among panels of members of the public.

The Human Genetics Commission found there was widespread mistrust among people presented with evidence of the size of the database, which now contains the genetic records of more than four million people. It called for the database to be taken out of the control of the Home Office and police altogether, with one panel member warning that the database was a "first step towards a totalitarian state".

Britain now has by far the largest DNA database in the world. It includes an estimated one million people who have never been found guilty of any offence, some 100,000 of whom are children.

About 40 per cent of young black men have been forced to provide samples, compared with 13 per cent of Asian men and 9 per cent of white men.

Genetic material is now taken from all people arrested by police, regardless of whether they are subsequently charged or convicted, and remains on file for life."

Remember also that GeneWatch UK recently published a report demonstrating that ministers' repeated claims about the value of the DNA database in crime detection are false and most likely deliberately misleading; and despite all the claims about how useful it is for murder investigations, for example, that:

"the Government has provided no examples of murders that have been solved as a result of retaining the DNA of innocent people beyond the period necessary to investigate whether they have committed a past offence"

Briefing on the 42 detention bill

Human Rights Watch have produced a must read briefing on the government's latest anti terror bill, including the 42 day pre-charge detention. From the executive summary:

"The British government has an obligation to protect everyone living in the UK from terrorist violence. But counterterrorism measures that violate international human rights and undermine fundamental values are wrong in principle and counterproductive in practice. Simply put, they will not make Britain safer.

This briefing paper analyzes those measures in the Counter-Terrorism Bill 2008 Human Rights Watch believes are incompatible with the UK’s obligations under international human rights law. The bill is the sixth major piece of counterterrorism legislation since 2000.

Much of the debate around the bill has focused legitimately on the government’s renewed effort to extend pre-charge detention beyond the already excessive 28-day period. Human Rights Watch is convinced that UK law in this respect already violates the right to liberty under the European Convention on Human Rights and the International Covenant on Civil and Political Rights. Further extension would be unnecessary, disproportionate and counterproductive.

However, it is also important to recognize that the bill contains other provisions that raise serious human rights concerns. The idea of broadening of police powers to question terrorism suspects after they have been charged with a crime was initially proposed by parliamentary committees and others as an alternative (rather than a complement) to extended pre-charge detention. But the measure in the bill lacks adequate safeguards against violations of the right to silence and against oppressive questioning, undermining the right to a fair trial.

The bill creates problematic notification requirements for those convicted of a terrorism or terrorism-related offence. Anyone sentenced to five years or more for a terrorism offense or a terrorism-related offense would be subject to these notification requirements for the rest of their lives. Any breach would be punishable by up to five years in prison. The requirements could be imposed on persons convicted outside the UK, without any regard to whether the conviction was the result of a fair trial according to international standards.

The bill adopted by the House of Commons also gives the Home Secretary (Interior Minister) the power to declare an inquest closed to the public and appoint a special security-cleared coroner to investigate in cases of death by the use of force. This procedure is unlikely to be compatible with the UK’s obligation under international human rights law to ensure independent and impartial investigations into wrongful deaths."

For something a bit more bite-sized, Joanne Mariner of Human Rights Watch has an article on the bill at Findlaw.

Swedish ISPs criticise UK deal

Swedish ISPs have criticised the deal between UK ISPs and the music industry as a gross invasion of privacy.

"A number of Swedish ISPs have been quick to criticize the plan and have made plain their opinions that it's a flagrant violation of customer privacy.

“We don’t want to act like police and feel that a system similar to that in the UK is a deep invasion of privacy," said Annika Kristersson of internet and telecommunications company Tele2 to the Svenska Dagbladet (SvD) newspaper.

"It would entail us having to spy on our customers."

It's also observed that the plan negatively impacts the Internet subscribers for the sake of a mediocre return - that is that it's simply not a good idea to target Internet connections when it has become such a vital tool for education, communication, and more. Disconnecting users means also removing them from what has become a global town square and is a poor way to combat illegal file-sharing.

“To try to restrict connections and reduce connection speeds shows a high degree of amateurism,” said Bahnhof CEO Jon Karlung to SvD."

Thanks to Sheila Thompson via the ORG list for the link.

Tuesday, July 29, 2008

Achieving your dreams

Carnegie Mellon computer science professor Randy Pausch died last week of pancreatic cancer. He gave an inspiring last lecture in September 2007...

... which has also been released as a book.

Electoral Commission report on 2008 London election

The Electoral Commission’s report into the London Elections is now available. Many of the concerns, issues and recommendations echo those of the Open Rights Group's report on those same elections.

The Commission is seriously concerned about the lack of access to the partial audits of the system done by KPMG, the excuse (as has been the case in the US) being software vendors' desire to protect commercial secrets. It is simply inexcusable for a key element of an electoral process to be a commercial secret - it totally kills transparency. As the Commission says:

"We recognise that commercial suppliers… may wish to protect their commercial interests. However, such wishes should never take priority over the interests of electors"

Becky Hogge has also just posted a short commentary on the report at the ORG blog.

Balanced interpretation of copyright exceptions

From LawFont:

"A group of European IP Professors have drafted a Declaration, available from the Max Planck Institute, which offers ‘a balanced interpretation of the “three step test” in copyright law’.

The Three Step Test is a provision found in various treaties on IP and particularly copyright - the Berne Convention, TRIPs, and the Australia-US Free Trade Agreement. It states that countries are allowed to introduce exceptions to copyright law, provided those exceptions are confined to ‘certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder’.

The initial declaration was a collaborative effort, and it has been signed by a long list of specialists, including some names generally considered authoritative.

Part of the point of the Declaration is to offer an alternative to some of the more narrow views taken of the test thus far, including some court and tribunal decisions on the test. These narrow views tend to be put forward to limit the extent to which governments can protect users’ rights and interests when drafting (or extending) copyright law."

Monday, July 28, 2008

Monitoring elections

Here's a really interesting idea via Archon Fung, one of the most interesting thinkers at Harvard's Kennedy School, has just come up with an intriguing idea for monitoring elections: a teched-up, wiki-based system for reporting problems on election day. It's modeled on the award-winning British site,, where people report maintenance problems (graffiti, potholes, broken street lights), locating the problem on a map and often attaching photographs to the entry. The site is interactive; it reports when a problem has been fixed and maps where current problems are so that you can figure out how things are working in your neighborhood. As you'll see from his introductory site, Fung envisions a much bigger version of this idea -- a national "weather map of election conditions" that would show you where the biggest problems are occurring based on real-time entries by trained election monitors and everyday citizens. You could then drill down into the map, figuring out exactly where problems were occurring in your state, city . . . even your polling place. The visuals would look something like this map of gas prices.

What makes Fung's idea promising is that it’s a "here to there" solution. It doesn't directly change how our elections are run. But it helps create an environment in which change is possible."

Neat and there has got to be the seed of an exercise there for the students obliged to read my electronic voting case study...?

Update: Prof. Gerken also links to one of her posts at Balkanization last year which makes a lot of sense. It goes to the heart of the practicalities of implementing electoral reform and could really be applied to any kind of political reform. Politicians and academics tend to ignore the practicalities of getting from where we are to where we would like to be, even when the destination is a positive one. There is no kudos in process. The trouble with this lack of interest in practicalities is that it is dangerous when the destination is also dangerous. Blair/Brown decide they are going to "fix" terrorism and immigration, for example; they jump on the "solution" of ID cards, say here's £10 billion now fix terrorism by spending it on those magic new fangled computer technology thingies; they don't want to know that it just won't work and expend vast amounts of energy selling what a good idea it is to fix terrorism with ID cards; and jumping up and down with their fingers in their ears yelling "not listening, not listening" when it is repeatedly pointed out that it can't be done that way.

UK Commons report casts doubt on US denial of torture techniques

Via the Jurist: UK Commons report casts doubt on US denial of torture techniques. A week on the whole thing has been forgotten by the mainstream media, which didn't pay enough attention to it in the first place.

"The Human Rights Annual Report 2007 [text, PDF] released Sunday by the UK House of Commons Foreign Affairs Committee [committee website] recommended that the UK not rely on any assurances made by the US that it does not use torture. The report also calls on the UK to fully investigate US interrogation tactics to ensure that no torture techniques are being used on US detainees. The report's section on torture focuses on waterboarding [JURIST news archive] and the disconnect between US statements that the practice does not constitute torture and testimony by UK Foreign Secretary David Miliband [official website] that "water-boarding [sic] amounts to torture." The Foreign Affairs Committee wrote in the report:
We conclude that the Foreign Secretary's view that water-boarding is an instrument of torture is to be welcomed. However, given the recent practice of water-boarding by the US, there are serious implications arising from the Foreign Secretary's stated position. We conclude that, given the clear differences in definition, the UK can no longer rely on US assurances that it does not use torture, and we recommend that the Government does not rely on such assurances in the future. We also recommend that the Government should immediately carry out an exhaustive analysis of current US interrogation techniques on the basis of such information as is publicly available or which can be supplied by the US. We further recommend that, once its analysis is completed, the Government should inform this Committee and Parliament as to its view on whether there are any other interrogation techniques that may be approved for use by the US Administration which it considers to constitute torture.
BBC News has more."

It is also worth noting the following from page 25 of the report (it's actually the paragraph immediately preceding the one above quoted by The Jurist):

"52. There appears to be a striking inconsistency in the Government’s approach to this matter. As noted above, it has relied on assurances by the US Government that it does not use torture. However, it is evident that, in the case of water-boarding and perhaps other techniques, what the UK considers to be torture is viewed as a legal interrogation technique by the US Administration. With the divergence in definitions, it is difficult to see how the UK can rely on US assurances that it does not torture. As Amnesty International argues, “what the USA considers torture does not match international law”.86 Human Rights Watch adds that “President Bush’s statements on torture need to be considered in the light of the memoranda from his legal advisers that re-defined torture so narrowly as to make the prohibition virtually meaningless.”87"

The unbelievable new NHS booking system

I've been meaning to describe what happened recently when we found ourselves in need of using the new fangled NHS hospital appointment booking system. But I see William Heath has done a lovely job of articulating his almost identical experience. I hope he doesn't mind me copying his post here almost in full but it is probably something you have to go through yourself to believe.

"I finally got to experience Choose and Book. Some teething problems:
1. Need referral to orthopaedic consultant. GP says she’ll make referral (can’t do choose and book in the surgery for some reason)
2. A week later I receive a letter with a special number to ring. It tells me I will have been given a password by my GP. But I haven’t, it’s included on the next piece of paper (does that undermine the security procedures somewhat I wonder?)
3. The letter has 3 sections. Section one tells me my details, my reference number etc. Section 2 tells me I have 3 options to get info to help me make my choice - I can use the phone, the textphone or the internet. Section 3 gives me the same 3 choices for booking my appointment, but points out that the online option is not yet available.
4. I ring the phone number (0845....). I am waiting for ages… (meanwhile the recorded message tells me I may prefer to use the online option - though given the info above about non-availability of the internet version, I am now too scared to lose my place in the queue so I keep holding)
5. I get through. They tell me that appointments for Kings don’t use the 0845 number, and I am given another number to call. *sigh*
6. When I speak to the bookings people at Kings, they offer me an appointment for early August. grin
Unfortunately I am on holiday in Scotland then. :-( I ask if I can have an appointment at the end of the month. ‘NO, unfortunately we aren’t allowed to book appointments that far away, because we have to meet the target of giving people appointments within 5 weeks’. Errr, even if I can’t make the appointment because I am away? ‘Yes, it’s rubbish isn’t it. Patient choice has gone out of the window’.... Tell you what love, I’ll ignore the system, and let’s book you an appointment that suits your diary.’ "

When my wife and I first read the paperwork that arrived in the post we both did a double, then a triple take and decided it must have taken one incredibly convoluted mindset to create this particular systemic administrative camel out of the original horses considered by the relevant committees. I'm sure the study of the process that created this unbelievable system would and could form the basis of more than a few academic papers. (If there are any insiders reading this I'd be happy to hear from you!)

Luckily for William Heath and for us we eventually made contact with a human being with an ounce of common sense. But don't worry that common sense will be weeded out when the system gets properly bedded in. Can't have people showing initiative, now, can we?

BAe Saudi corruption case: appeal result due Wednesday

The House of Lords decision in an important case is due on Wednesday this week. The result of the Serious Fraud Office's appeal against the High Court judgement that they acted illegally in stopping the BAe-Saudi corruption inquiry will finally be settled. The Corner House says:

"Serious Fraud Office APPEAL to House of Lords

**Judgments to be handed down this Wednesday, 30 July 2008**

Back in April this year, the UK High Court ruled that the Director of the
Serious Fraud Office, acting on government advice, acted unlawfully when
he stopped its BAE-Saudi corruption investigation in December 2006.

The ruling followed the judicial review of the Director's decision sought
by The Corner House and Campaign Against Arms Trade (CAAT).

The Serious Fraud Office appealed against this ruling to the House of
Lords, the UK's highest court, on two principles of law:

* the Rule of Law;
* compliance with the OECD Anti-Bribery Convention.

The appeal was heard three weeks ago on 7-8 July.

Below is a summary of the main arguments put forward by the Serious Fraud
Office as to why the High Court's ruling should be overturned, and
responses from our lawyers as to why it should be upheld.

The relevant legal documents have all been posted on The Corner House

(Send us an email if you would like a more detailed account of the appeal
hearing: enquiries AT

We've just learnt that the judgments on the appeal from the five law lords
will be handed down this week, on Wednesday 30 July in the morning. We'll
let you know what they are as soon as we can.

Many thanks for all your messages of support; they are much appreciated.

best wishes from all at The Corner House


On 7th-8th July 2008, the Appellate Committee of the House of Lords heard the appeal by the Director of the Serious Fraud Office (SFO) against the High Court ruling on 10 April 2008 that the SFO acted unlawfully in December 2006 when it terminated its investigation into alleged corruption by BAE Systems in recent arms deals with Saudi Arabia.

The ruling was a result of a judicial review brought by The Corner House and Campaign Against Arms Trade (CAAT) that was held on 14th-15th February 2008 at the High Court before Lord Justice Moses and Mr Justice Sullivan.

CAAT and The Corner House lawyers maintained that the Serious Fraud Office Director's appeal should be dismissed because his decision to stop the SFO investigation breached the constitutional principle of the rule of law in allowing threats/blackmail to influence his decision, and breached Article 5 of the OECD Anti-Bribery Convention (click Here to read our printed case).

Campaign Against Arms Trade (CAAT) submitted a second witness statement updating the Lords on the continuing US and Swiss official investigations into alleged corruption in the BAE-Saudi arms deals.

JUSTICE, the independent human rights and law reform organisation that is the British section of the International Commission of Jurists, intervened in the Appeal in writing to address the domestic legal principles by which the legality of a prosecutor's decision to halt a criminal investigation in response to a threat should be assessed, and the relevant international obligations at issue, the OECD Anti-Bribery Convention.

As part of its appeal, the Director of the Serious Fraud Office submitted three new witness statements from:

  1. Dr John Jenkins, Foreign and Commonwealth Office
  2. Helen Garlick, Assistant Director of the Serious Fraud Office (2nd witness statement)
  3. Robert Wardle, (now former) Director of the Serious Fraud Office

The two-day hearing was before an Appellate Committee of five law lords:

  • Lord Bingham of Cornhill
  • Lord Hoffman
  • Lord Rodger of Earlsferry
  • Baroness Hale of Richmond, and
  • Lord Brown of Eaton-under-Heywood

The Appellate Committee will "report to the House [of Lords] in due course.""

Winer Lakoff podcast

George Lakoff has US politics pegged. If you have an hour and want to understand how Bush or Clinton or Reagan can get elected president in spite of people not liking their policies then listen to Dave Winer's conversation with Lakoff earlier this year.

If you have two hours to spare on the other hand, then read Lakoff's little book Don't Think of an Elephant. Really smart and sensible people like Lakoff should be getting time on broadcasting networks at the expense of the party hack soundbite brigade that come up with the crackpot notions of crackdowns on 5-year-olds or sending criminals to visit their stabbed victims in A&E. Then maybe we could get a sense of substance back into public debates.

Sunday, July 27, 2008

The hollow ring of Mosley's win

Henry Porter thinks Max Mosley's win in court on privacy grounds against the tabloids has a hollow ring in the face of the government construction of a surveillance society.

Again for sensible commentary avoid the hand wringing of the mass media and read Lilian Edwards' thoughts over at Pangloss.

"So what do we think of the Mosley case? In many ways this is absolutely nothing new. We have had a long string of cases which support the idea that press intrusion into the firmly private lives of celebrities will be regarded as a serious breach of privacy. This wasn't even a difficult case: the events took place in private behind closed and locked doors, not in the more contested world of the outdoors (cf Rowling); the case wasn't contaminated as in Douglas by the existence of a thresatened revenue stream. It wasn't a contested kiss and tell dispute as in Ash where opposing rights of freedom of expression and privacy clash. This really was a pure privacy and reputation case, about as intimately private a matter as you can get, an exotic sex life, were the incentive of the newspaper was to sell lots of newspapers. It doesn't seem surprising therefore that the damages award was so high, or that the judge was so critical of the paper involved."

OpenID gets the third degree at OSCON

From Nathan Willis at OpenID gets the third degree at OSCON

"Another audience member raised a more serious issue, asking whether OpenID's security model had been reviewed and vetted by security and cryptography professionals, citing the slide in Willison's presentation that abstracted part of the OpenID authentication process as "then magic happens." Why should we trust this magic, the audience member asked, when new attack vectors still threaten even established, vetted systems like SSL?

Several of the panelists insisted that OpenID should be considered a work in progress, one that would never provide perfect security but should be actively maintained and watched for exploits. Tom said that Yahoo!'s engineering team had examined OpenID and found it to be at least as good as the company's proprietary authentication system, adding "cryptography is not rocket science."

Others asked about domain hijacking of OpenID URLs, privacy, and single-point-of-failure concerns. For some topics, the panel members had concrete answers, for others they did not. At one point Tom declared OpenID "essentially a streamlined reset-password-by-email process." And I found it amusing when, near the end, one audience member asked how many different OpenIDs the panelists had -- and the answers were "four or five," "half a dozen," and "seven or eight."

But it was all in good fun. Culver, after all, wasn't actually taking the gloves off; the panel had asked her beforehand to hassle them during the Q&A. And Kveton's opening remark was "I love OpenID, but it sucks."

There are a lot of misunderstandings about OpenID, some of which are the result of its creators, and some the result of real-world implementations that universally blur the distinctions between identity, authentication, and security. OpenID really only defines the first, but deploying a single sign-on solution involves all three. How to make that clear to the average Web user is the challenge."

Millions of profiles from DNA database passed to private firms

Via FIPR: Millions of profiles from DNA database passed to private firms

Read it in parallel with A Notice From The Bureau of Public Anomaly Screenings (Thanks for the pointer Tony). There's the bones of an exam question there - getting students to read both, assessing which is the fictional account and why.