Copyright and Copy-Reliant Technology

Matthew Sag of DePaul University College of Law has written a still-evolving and really interesting paper on a couple of the key questions facing copyright law in our digital age. The abstract is available at SSRN.

"This article studies the rise of copy-reliant technologies - technologies such as Internet search engines and plagiarism detection software that, although they do not read, understand or enjoy copyrighted works, necessarily copy them in large quantities. This article provides a unifying theoretical framework for the legal analysis of topics that tend to be viewed discretely. Search engines, plagiarism detection software, reverse engineering and Google's nascent library cataloging effort, are each part of a broader phenomenon brought about by digitization, that of copy-reliant technologies. These technologies raise two novel, yet central, questions of copyright law. First, whether a non-expressive use that nonetheless requires copying the entirety of a copyright work should be found to infringe the exclusive rights of the copyright owner. Second, whether the transaction costs associated with copy-reliant technologies justify switching copyright's default rule that no copying may take place without permission to one in which copyright owners must affirmatively opt-out of specific uses of their works."

So - should there be automatic infringement or should copyright owners actively have to opt out? Or to put it another way should copyright owners be required to opt in before search engines, plagiarism detection, Google library, archiving or reverse engineering actors can copy their works for a variety of uses? If we look at the parallels with the vast swathes of personal data hoovered up by commercial and governmental organisations for business and surveillance purposes, then civil rights groups would tend to push for a consumer opt in rule. Whereas commerce and government prefer an opt out (or preferably no option to opt out) rule in this regard, (though to me it still beggars belief that, in a modern liberal democracy, mass surveillance of the entire population is somehow considered acceptable). Getting back to Professor Sag's copyright questions though, perhaps there should be a compensation scheme - collection schemes or societies or compulsory licensing - for this mass digital, often ultimately commercial, non expressive use of copyrighted works. Then regardless of the opt in or opt out rule, copyright holders get compensated if they grant (opt out or opt in) permission for such commercial non expressive use of their works? Professor Sag draws a more nuanced conclusion, recognising the fuzzy line between expressive and non-expressive use, in addition to noting that precedent dictates that copying which does not communicate or distribute the original expression to the public should not be considered to be copyright infringement:

"In many ways, technology is the dog on copyright’s leash. In theory, and occasionally in
practice, copyright channels the direction of technological progress; but more often,
technology simply drags the law in its wake, going where it will. The pull of recent
technological change on copyright law has been demonstrated in this Article. Copyreliant
technologies – technologies that necessarily copy expressive works in large quantities, 
but do so for non-expressive purposes – are vital to the operation of the
Internet. And yet, because these technologies are so dependant on access to copyrighted
works, they are also vulnerable to claims of copyright infringement.
Recognizing the common ground shared by search engines, electronic archives,
plagiarism detection software and other copy-reliant technologies, sheds considerable
light on the application of copyright law in the Internet era. In relation to the first core
question posed by copy-reliant technology, the potential for copyright liability for the
expressive use of copyrighted works, this Article has established that acts of copying
which do not communicate the author’s original expression to the public should not be
held to constitute copyright infringement. To do so would conflict with decades of
accumulated precedent that limit the rights copyright owners to those uses of their works
that offer some threat of expressive substitution.
In spite of its centrality, the question of non-expressive use may not fully resolve all
copyright disputes involving copy-reliant technologies. While the category of nonexpressive
use is conceptually neat, it may prove messy in implementation. Inevitably,
courts will face cases where the line between expressive and non-expressive remains
ambiguous. In such cases the effect of opt-out mechanisms offered by the defendant
moves from the periphery to the center of legal analysis. Technologically enabled opt-out
mechanisms such as the Robots Exclusion Protocol play an essential role in maintaining
order on the digital frontier. Such devices are essential to overcoming the otherwise
daunting transaction costs facing copy-reliant technologies. Accordingly, to treat the
phenomenon of copy-reliant technology comprehensively requires addressing the
significance of opt-outs under copyright law.
Copyright law is fluid by design, and nowhere is that fluidity more evident than in the
development of the fair use doctrine. Even without the fair use doctrine, the mere
invocation of literary property would not settle the scope of the copyright owner’s rights
or the nature of the remedies to which she is entitled. The fair use doctrine both allows
and requires judges to consider market realities in determining the application of
copyright law in novel circumstances. To the extent that other commentators have
considered the doctrinal significance of transaction costs in relation to isolated issues
such as the Google Book project, they have largely missed the point. Judges are not state
planners; they should not attempt to use the fair use doctrine to achieve some static
allocation of uses for a given set of copyrighted works. What judges should do is apply
the fair use doctrine to fashion a set default rules which facilitate the kind of private
ordering the copyright has traditionally embraced. In the high transaction costs
environment of copy-reliant technologies, this may well mean finding in favor of the user
who provides copyright owners with the choice to opt-out."

There genuinely is a lot of life in modern copyright scholarship. What I find depressing is that little of it finds its way into policy making.

Mark Twain's plan to beat copyright law

Mark Twain considered copyright law a licence for publishers to steal from authors and their families and worked tirelessly as an unpaid lobbyist to get Congress to extend the term of copyright beyond the 42 years his own works were protected for. He saw publishers as pirates waiting for his works, which they had made no contribution to, to pass into the public domain, so they could print and sell their own versions, thereby stealing his property and depriving his family.

But he then came up with a scheme to thwart these pirates. When his copyrights expired he planned to publish new editions including extracts from his autobiography at the bottom of each page. He believed these new autobiographically enhanced editions of his works would attract another 42 years copyright protection and would kill the market for the re-printed public domain versions of the original works the 'pirate' publishers would produce.

A lovely article from the December 12, 1906, edition of the NYT explains. Twain may have got the idea from Walter Scott's commentaries - Scott published new editions of his old works with commentaries, after which the market for the works without the commentaries reportedly shrunk drastically.

Voter disenfranchisement in the US

From Empire Burlesque:

"After eight years of a veritable Ossa of evidence of gamed, thrown, fixed and finagled elections, this week the NY Times bestirred itself to notice that something might possibly be amiss in the nation's electoral process. A headline writer topped the story with weakest possible statement of the undeniable truth: "States' Actions to Block Voters Appear Illegal." And you can bet your bottom dollar (as it falls through the bottomless pit of the Beltway bailout banditry) that if the New York Times deigns to acknowledge even the "appearance" of some mischance in the divinely ordained machinery of the Establishment, the actual rot is very far gone indeed.

Thus the thoroughgoing disenfranchisement of eligible voters -- as many as three million in 2004, as Greg Palast has noted -- has finally spilled into the paper's sacred precincts. The first paragraph puts in plainly:

Tens of thousands of eligible voters in at least six swing states have been removed from the rolls or have been blocked from registering in ways that appear to violate federal law, according to a review of state records and Social Security data by The New York Times.

Hard to put it more plainly than that: voters in key states are being disenfranchised in violation of federal law. In other words, a very serious crime is being committed, a bloody shiv job to the heart of the democratic process."

Thanks to Rachel from North London for the link.

Counting electronic votes in secret

From Grayson Barber at Freedom to Tinker:

"Things are not looking good for open government when it comes to observing poll workers on Election Night. Our state election laws, written for the old lever machines, now apply to Sequoia electronic voting machines. Andrew Appel and I have been asking a straightforward question: Can ordinary members of the public watch the procedures used by poll workers to count the votes?

I submitted a formal request to the Board of Elections of Mercer County (where Princeton University is located), seeking permission to watch the poll workers when they close the polls (on Sequoia AVC Advantage voting computers) and announce the results. They said no!

The Election Board said this election is “too important” to permit extra people in the polling place.

They even went so far as to suggest that my written application was fraudulent. I applied on behalf of five people: two Princeton University students, two professors, and myself. In an abundance of caution, I requested authorization in the form of “challenger badges” which the Board of Elections can issue at its discretion. By phone, I explained our interest in merely watching the poll workers.

Of course we understand that they might not want extra people getting in the way on Election Night -- that’s why we took measures to get special authorization. To ensure that we could be lawfully present, we asked for challenger badges as non-partisan proponents and opponents of two Public Questions on the ballot, as permitted by NJSA 19:7-2. My request was entirely in compliance with state law, as all the prospective challengers are registered to vote in Mercer County.

In spite of this, the Board expressed reluctance, based on the identities of the prospective challengers. In particular, they cited Andrew’s status as an expert on Sequoia voting machines as a “concern,” and provided assurances that Sequoia has fixed all the problems he identified in past elections.

Other counties in New Jersey permit members of the public to watch the poll workers “read” the election results. Combined with Judge Feinberg’s decision to suppress Andrew’s report on the security of the Sequoia machines, Mercer County conveys the unfortunate impression it does not welcome scrutiny of its electronic voting process."

Quote of the day

One of my favorite quotes, which I happened across again today, comes from Norman Mailer:

"Once a newspaper touches a story, the facts are lost forever, even to the protagonists."

Lords crush 42 day detention bill

The most important news coming out of the UK yesterday was not the rescue of the banks but the House of Lords crushing defeat of the government's plans for pre-charge detention of up to 42 days and Home Secretary Jacqui Smith's announcement late last night that the government would now drop the measure from the latest anti-terror bill. Naturally it is buried on the inside pages of the papers and doesn't even make an appearance at all in some of them.

"Plans to give police up to 42 days to question terrorism suspects were crushed by the House of Lords last night, halting a three-year, high-wire political battle begun in the aftermath of the 7/7 bombings.

The Government conceded defeat after peers voted against the measure by 309 votes to 118 – the biggest loss since hereditary peers were forced to give up their seats in 1999 – and in a humiliating climbdown announced that the provision would be removed from the Counter-Terrorism Bill.

This came after opposition to the proposals from all quarters, with 24 Labour rebels including two former Lord Chancellors, Lord Irvine of Lairg and Lord Falconer of Thoroton, as well as Baroness Manningham-Buller, the former head of MI5, Lord Justice Woolf, the former Lord Chief Justice, and Lord Condon, the former Metropolitan Police Commissioner.

The Government moved swiftly to limit its embarrassment and in an emergency Commons statement last night, Jacqui Smith, the Home Secretary, announced that the 42-day proposal would be published in a separate draft Bill that could be voted on in the event of a national emergency. "

The checks and balances of the unwritten British constitution may yet have some life in them in the war on the politics of fear.

Update: Liberty's 42 WRITERS FOR LIBERTY is excellent. Phillip Pullman for example:

"

Why 42 days?

What they mean is six weeks, of course. Six weeks! Six weeks in prison without being charged! Anything could happen in six weeks. Wars have lasted less than six weeks. In six weeks, Christopher Columbus crossed the Atlantic and discovered the New World. Six weeks was enough time for Mozart to write three of his greatest symphonies. William Faulkner took six whole weeks to write his novel As I Lay Dying; John le Carré wrote The Spy Who Came In From The Cold in five. In six weeks, on average, each of the 2,710 Liberty Ships were built in the USA during the Second World War to supplement the Allied merchant fleets. Robert Louis Stevenson took three days to write Dr Jekyll and Mr Hyde, but six weeks to revise and polish it. In six weeks the Wright brothers’ mechanic, Charlie Taylor, built from scratch the light and powerful engine that powered their first flight. In one month in 1819 the poet Keats wrote his Ode to a Nightingale, Ode on a Grecian Urn, Ode on Melancholy, and Ode on Indolence.

I could multiply the examples a hundredfold, taking in every sphere of human activity, but you get the point: people can do complex, extraordinary, profoundly difficult things in 42 days or less. Six weeks is a long time.

And now we learn that among the almost insuperable obstacles needing the full majesty of the human mind to overcome is the task of interrogating a prisoner and gathering enough evidence to bring a conviction. Apparently it’s so subtle and complex a process that it too needs no less than six weeks to complete. What makes it even more impressive is that this discovery has only been made in Britain. No other democracy has realised the profound difficulty of this process; some countries appear to think so little of the intellectual challenges of the task that they allow only two days for its completion. 48 hours! Preposterous.

We don’t know how lucky we are, to live in a nation where police officers have all of six weeks to discover why they’ve locked us up. Ask them after 41 days why a prisoner is still behind bars, and they can honestly and innocently say “No idea, mate.” But give them that extra day, and they’ll crack it, and be up there with Mozart and Christopher Columbus."

And Terrance Blacker:

"In the end, it is a matter of trust and terror.

The government says, ‘Trust us. There are people out there who want to use terror to kill innocent people. They threaten our values and our way of life. They are so dangerous that the normal, basic liberties of citizens must be suspended in order to protect you and your family.’

But the lesson of this century has been that the more a government asks you to trust them, the less you should.

The last time we were asked to put our trust in their confidential information, the great secret truth that we were promised turned out to be a convenient lie. By then, the country was at war and thousands died.

A government who tries to frighten its people into giving up hard-won human rights almost always has something to hide.

It is using terror in order to threaten our values and our way of life.

Now why does that sound so familiar?"

And Rachel North:

"

7/7/05: The Westbound Piccadilly line train was at crush capacity as it pulled away from Kings Cross. To travel on it was to be uncomfortably intimate with strangers; to feel the warmth of their backs, bellies, shoulders pressed into your own body, the smell of rain-damp clothing, the prod of elbows, umbrellas, bump of handbags and rucksacks. When you are so close to your fellow passengers that you can feel their breath on your cheek, it is considered polite not to meet their eyes.

Perhaps that was how he was able to do it; the nineteen year old man with the home-made bomb held close to his body. Perhaps he did not look at the faces of the men and women around him as he set off the detonator.

We will never know because the 26 people closest to him were killed.

The acts which we call most evil are those which display a pitiless lack of empathy towards fellow-humans. In the wake of such acts, anger, outrage and fear follow our shock.

Terrorism is the dark art of wielding fear as a political weapon. To provoke a horrified reaction, to seed fear and hatred and division is the goal of the bomber. He harnesses our nightmares and uses them against us. It gives him power when we deem him our terrible enemy and demand the government respond.

But the unspoken truth is that it is not possible to keep us safe. There is no legislation that can protect us from the man who moves amongst us with a bomb on his back and hate in his heart.

Even if every man and woman and child is watched over and monitored every moment of every day. Even if every conversation, every email, every transaction is recorded; if armed police and sniffer dogs travel on every bus and train and stand guard outside pubs and schools and shops and stadiums. It still would not keep us safe.

Accepting this is hard but it is the price of our freedom.

We walk out of our homes and into the world every day as free men and women. We are protected by ancient liberties that thousands have died to protect. They are to be cherished as much in the age of the suicide bomber as in the age of the threatened enemy invasion.

To give them up is to let terrorists win."

And Mohsin Hamid

"Before moving to Britain in 2001, I had lived in the United States for over a dozen years. I came and went from America with little difficulty. Not long after the events of 9/11, I had my first experience of “secondary inspection.” Although I possessed a green card, I was taken out of the regular immigration line and put in a separate room. There I waited. I was asked whether I had ever been to Afghanistan. I answered in the negative. I was asked whether I had ever had combat training. I answered in the negative. I was told to wait some more. I was not allowed to use my mobile phone. Two hours passed. Eventually I was permitted to proceed into the United States. But two hours of detention without charge was enough time for my imagination to run free.

I wondered if I had been mistaken for someone else. I wondered if that mistake might see me denied entry to the country. I wondered if I might be held incommunicado and questioned before being deported. I wondered if I might be held incommunicado and questioned indefinitely – and have to plead to be deported.

Two hours of detention without charge caused me, an innocent man, to change my behaviour thereafter. I began carrying copies of my books and articles whenever I flew. I found excuses to travel to the United States less often. I became slightly nervous days in advance of my trips there. I ceased to think of myself as an individual at airports and began to think of myself as a suspect.

I have experienced firsthand the toll that one twelfth of a day can take on a man. It is perhaps for this reason that I see in 42 days of detention without charge a horror our society must find the strength to resist."

No opt out from filtered Net for Aussies

It seems that the Australian government plans for filtering the internet are to leave no room for opting out.

"Australians will be unable to opt-out of the government's pending Internet content filtering scheme, and will instead be placed on a watered-down blacklist, experts say.

Under the government's $125.8 million Plan for Cyber-Safety, users can switch between two blacklists which block content inappropriate for children, and a separate list which blocks illegal material.

Pundits say consumers have been lulled into believing the opt-out proviso would remove content filtering altogether. "

So given the problems this blog has had with filter software over the years, it may be that my Australian readers will no longer be able to get through to my remote corner of the blogosphere.

Court of Appeal rules no defence for refusing to hand over encryption keys

The Court of Appeal has ruled that someone refusing to hand over decryption keys, having been served with a s49 Regulation of Investigatory Powers Act (RIPA) notice, can be prosecuted (under RIPA s 53), notwithstanding the protections which exist in the UK against self incrimination.

Caspar Bowden and FIPR repeatedly warned that this would be the case when RIPA was being considered by parliament but I think this is the first case where a definitive Appeal Court ruling has been made, (appealing the decision of Judge Martin Stephens QC at the Central Criminal Court in June this year). The ruling, made by Mr Justice Penry-Davey and Mr Justice Simon, is available in full at BAILII and the case is S & Anor, R. v [2008] EWCA Crim 2177 (09 October 2008). The whole thing hinges on the right to avoid self incrimination not being an absolute right - a number of exceptions are quoted in the decision - and the appellants being terrorist suspects, whose application to avoid handing over the decryption keys, according to the judges, proceeded on the assumption that what would be uncovered in the decryption would indeed be incriminating evidence. In addition there was no question of the keys being extracted by torture ("inhuman or degrading treatment") which would 'give rise to the exercise of the court's jurisdiction, under section 78 of the Police and Criminal Evidence Act 1984, to refuse to allow evidence to be given by the prosecution when the circumstances in which it was obtained undermined the fairness of the proceedings.'

The decision is quite short and accessible. The key parts being:

"2. During 2007 H was made the subject of a control order under the Prevention of Terrorism Act 2005. The order obliged him to live and remain in Leicestershire, and not to leave his home address without the consent of the Secretary of State for the Home Department. The present appellants are alleged to have conspired together, and with H and others, to breach that order. The objective of the conspiracy was to assist H to abscond from his address in Leicester and to convey him to a new, secret address in Sheffield. On 9 September 2007 S collected H and drove him there. Shortly after their arrival in Sheffield the police entered the premises.

3. H was found in one room, and S in another. S was alone in the same room as a computer. The key to an encrypted file appeared to have been partially entered. He was arrested, and when interviewed, made no comment. In the meantime his home address in London was searched. The search revealed computer material. Various documents had been deleted from the computer hard drives, but when retrieved, they provided the basis for charges against S under section 58 of the Terrorism Act 2000, that is, possessing documents or records of information of kind likely to be useful to a terrorist or potential terrorist. However without the encryption keys for the encrypted files present on the computer hard drives, and indeed the full key for encrypted file on the laptop on which the encryption key appeared to have been already partially entered in Sheffield, the encrypted files could not be accessed and their contents examined.

4. A was also arrested on 9 September. Computer material was later seized from his address by the police. One of the discs seized has an encrypted area. Without the encryption key access cannot be gained to it.

5. Both appellants were charged on 10th September 2007 with conspiracy to breach the control order imposed on H In December 2007 S was arrested while in custody, and following an interview in which he declined to answer any questions, he was charged with offences under section 58 of the 2000 Act. While subject to these charges, on 16 January 2008, S was served with two notices under section 53 of RIPA, and a similar notice was served on A on 15 March 2008.

6. The first notice served on S immediately identified the purpose, the "investigation of protected electronic information", and after explaining that the notice imposed a legal obligation, failure to comply with which was an offence, it continued:

"Disclosure requirement

… I hereby require you to disclose a key or any supporting information to make information intelligible

the information to which this notice relates is:

the full encryption key in order to access the encrypted volume of the laptop computer that is exhibited as exhibit AM/1 under file path: C:\Documents and Settings\Administrator\My Documents\My Videos, within a file called Ronin.wma. This was found in the room where you were arrested at 386 Abbeydale Road, Sheffield".

7. The reason for the notice was explained, with particulars given of the precise circumstances in which the interests of national security and the prevention or detection of crime were said to arise.

8. The notice then described how

"disclosure can be verbal or written provided the information is sufficient to unlock the encryption, and that the person to whom the notice is given may select which of any relevant keys or combination of keys should be disclosed provided the information is put into intelligible form."

The remaining notices were in identical terms, appropriate to the electronic information identified in them.

9. Neither S nor A complied with the notices. Their position was that the notices which compelled them to disclose the passwords or "keys" to the encrypted computer files were incompatible with the privilege against self-incrimination. Their refusal formed the basis of the counts in the indictment which Judge Stephens was invited to stay on the basis that "the requirement to provide information to the police under Part III of RIPA constituted an impermissible infringement of the …privilege against self-incrimination" and contravened article 6 of the European Convention of Human Rights. In a careful ruling Judge Stephens rejected the applications. Applications for leave to appeal against his decision were referred to the full court by the Registrar of Criminal Appeals. After full argument leave was granted but the appeals dismissed...

20. On analysis, the key which provides access to protected data, like the data itself, exists separately from each appellant's "will". Even if it is true that each created his own key, once created, the key to the data, remains independent of the appellant's "will" even when it is retained only in his memory, at any rate until it is changed. If investigating officers were able to identify the key from a different source (say, for example, from the records of the shop where the equipment was purchased) no one would argue that the key was not distinct from the equipment which was to be accessed, and indeed the individual who owned the equipment and knew the key to it. Again, if the arresting officers had arrived at the premises in Sheffield immediately after S had completed the process of accessing his own equipment enabling them to identify the key, the key itself would have been a piece of information existing, at this point, independently of S himself and would have been immediately available to the police for their use in the investigation. In this sense the key to the computer equipment is no different to the key to a locked drawer. The contents of the drawer exist independently of the suspect: so does the key to it. The contents may or may not be incriminating: the key is neutral. In the present cases the prosecution is in possession of the drawer: it cannot however gain access to the contents. The lock cannot be broken or picked, and the drawer itself cannot be damaged without destroying the contents.

21. As it happens, in the present cases, the only persons who know how to access the data to which access is being sought are the appellants themselves. Assuming, as for present purposes we have, that the computers contain material which may incriminate each appellant, whether by lending weight to the Crown's case against them on the remaining counts in the indictment, or providing a basis for further criminal charges whether contrary to the Terrorism Act or otherwise, disclosure by them of the keys would tend to make material available to the prosecution which would incriminate them. Non-disclosure would altogether prevent the incriminating material from coming to light. In short, the notice issued under section 49 of RIPA requires the appellants, under threat of criminal proceedings for non-compliance, to speak or write or otherwise convey sufficient information to the police to enable them to access the contents of their computers. The actual answers, that is to say the product of the appellants' minds could not, of themselves, be incriminating. The keys themselves simply open the locked drawer, revealing its contents. In much the same way that a blood or urine sample provided by a car driver is a fact independent of the driver, which may or may not reveal that his alcohol level exceeds the permitted maximum, whether the appellants' computers contain incriminating material or not, the keys to them are and remain an independent fact. If however, as for present purposes we are assuming, they contain incriminating material, the fact of the appellants' knowledge of the keys may itself become an incriminating fact. For example, to know the key to a computer in your possession which contains indecent images of children may itself tend to support the prosecution case that you were knowingly in possession of such material. This was the approach adopted in Re Boucher, a decision of the District Court in Vermont [2007] WL 4246473, where the reasoning acknowledged that some "acts of production" such as fingerprints, blood samples or voice recordings would not attract the privilege against self-incrimination.

22. Mr Ryder highlighted the decision of the Grand Chamber of the Court in Jalloh v Germany (2007) 44 EHRR 32 where it was recently asserted that even evidence which may properly be described as "independent of the will of the suspect" which has been obtained by inhuman or degrading treatment may constitute a breach of the entitlement to a fair trial. In this jurisdiction such an issue would be likely to give rise to the exercise of the court's jurisdiction, under section 78 of the Police and Criminal Evidence Act 1984, to refuse to allow evidence to be given by the prosecution when the circumstances in which it was obtained undermined the fairness of the proceedings. In making such a decision, the court would no doubt attend very closely to any circumstances amounting to oppression as defined in section 76 of the 1984 Act, or inhuman or degrading treatment to which the suspect was subjected, and if such circumstances were found, would step in to protect the defendant's entitlement to a fair trial. When an examination of the jurisprudence of the European Court into the principles relating to self-incrimination and the fairness of any subsequent trial is conducted, this common law discretionary power, which long pre-dated its incorporation into statute, should not be minimised.

23. Mr Ryder suggested that the protection provided by section 78 did not arise at this stage in the argument: it could only arise for consideration at trial after the appellant had been forced to incriminate himself. In our judgment, however, as Lord Bingham explained in Brown v Stott, the jurisprudence of the European Court is directed at the overall fairness of the trial and Jalloh should be seen as a decision which maintains the same principle. Evidence obtained by ill-treatment of the kind to which Jalloh was subjected may, and normally would be excluded. That is precisely why the common law rule, now embodied in section 78, exists. In this context, Jalloh is no more than an illustration of precisely the same point.

24. In our judgment the correct analysis is that the privilege against self-incrimination may be engaged by a requirement of disclosure of knowledge of the means of access to protected data under compulsion of law. If Judge Stephens ruling treated this knowledge as identical to the key to it, we respectfully disagree. But where, in the end, would this take the appellants? It is noteworthy that, although the detailed arguments purported to address the means of access to what would otherwise be protected data, the reality is that it is the contents of the equipment containing that data, lawfully in the possession of the police, which the argument is designed to protect from disclosure and possible use in the course of a prosecution, rather than the keys to it. In short, although the appellants' knowledge of the means of access to the data may engage the privilege against self-incrimination, it would only do so if the data itself – which undoubtedly exists independently of the will of the appellants and to which the privilege against self-incrimination does not apply – contains incriminating material. If that data was neutral or innocent, the knowledge of the means of access to it would similarly be either neutral or innocent. On the other hand, if the material were, as we have assumed, incriminatory, it would be open to the trial judge to exclude evidence of the means by which the prosecution gained access to it. Accordingly the extent to which the privilege against self-incrimination may be engaged is indeed very limited.

25. In these appeals the question which arises, if the privilege is engaged at all, is whether the interference with it is proportionate and permissible. A number of issues are clear and stark. The material which really matters is lawfully in the hands of the police. Without the key it is unreadable. That is all. The process of making it readable should not alter it other than putting it into an unencrypted and intelligible form that it was in prior to encryption; the material in the possession of the police will simply be revealed for what it is. To enable the otherwise unreadable to be read is a legitimate objective which deals with a recognised problem of encryption. The key or password is, as we have explained, a fact. It does not constitute an admission of guilt. Only knowledge of it may be incriminating. The purpose of the statute is to regulate the use of encrypted material, and to impose limitations on the circumstances in which it may be used. The requirement for information is based on the interests of national security and the prevention and detection of crime, and is expressly subject to a proportionality test and judicial oversight. In the end the requirement to disclose extends no further than the provision of the key or password or access to the information. No further questions arise. The notice is in very simple form. Procedural safeguards and limitations on the circumstances in which this notice may be served are addressed in a comprehensive structure, and in relation to any subsequent trial, the powers under section 78 of the 1984 Act to exclude evidence in relation, first, to the underlying material, second, the key or means of access to it, and third, an individual defendant's knowledge of the key or means of access, remain. Neither the process, nor any subsequent trial can realistically be stigmatised as unfair.

26. In these circumstances we can find no basis for interfering with Judge Stephens' indication of how he would have exercised his discretion if, contrary to his view, an issue of self-incrimination arose. In the circumstances of this particular case his conclusion was obviously correct. Furthermore, by way of emphasis, we can see no possible ground for a successful application that the prosecution under section 53 of RIPA should be stopped as an abuse of process.

27. By way of footnote: if the self-incrimination argument was taken as a matter of principle on the basis of legal advice to the appellants, and they choose, now, to disclose the relevant key, although long out of time, we suspect that the prosecution would be disinclined to proceed with the appropriate counts in the indictment, or if they chose to do so, that the judge would take a merciful view when addressing sentence, at any rate if the protected data turned out to be innocent or simply neutral. "

There are all kinds of interesting questions triggered by the judgment. I wonder, for example, why the court felt the need to mount such a robust defence of RIPA itself? (In paragraph 29. they say the act is clear, has all kinds of safeguards and was created precisely to deal with the kind of circumstances that arose in this case). It will be interesting also to see if the appellants now agree to hand over the keys or suffer the consequences - up to 5 years in prison.

Update: Spyblog makes an important point about the case in the light of s58 of the Terrorism Act 2000.

"The Court of Appeal takes the view that simply handing over your encryption key is not an admission of guilt, and that if the de-crypted material is innocent, then you have nothing to fear.

If the encrypted material was something which was hard to misinterpret e.g. a simple financial transaction, we might agree,

However, we disagree, when the encrypted material, as in this case, will be potentially misinterpreted according to the subjective interpretation and prejudices of police officers and prosecutors, in this case under the "thought crime" Terrorism Act 2000 section 58 collection of information which has the catch all wording:

(a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism,

This also goes for any encrypted data which may or may not be considered "obscene" in the opinion of a particular police constable."

Quality v originality?

Some recent favorite xkcds:




I love the flow chart that gets to the heart of drm and anti-circumvention laws and must remember to use something similar in my next IP talk!

http://xkcd.com/483/

http://xkcd.com/488/

http://xkcd.com/196/

McCain changes course

According to today's Times, John McCain is having trouble keeping some of the more extreme elements of his support under control and may be regretting choosing Sarah Palin rather than Joe Lieberman as a running mate.

"Mr McCain has been forced to appeal for calm, rebuking a man who said he was afraid of raising his child under Mr Obama. The Republican nominee said to boos from a crowd on Friday: “I have to tell you he is a decent person and a person that you do not have to be scared of as president.” He snatched the microphone later from a woman who suggested Mr Obama was an Arab...

On Saturday the civil rights leader and congressman John Lewis likened the atmosphere at Republican rallies to those of George Wallace, the segregationist former presidential candidate, saying: “Senator McCain and Governor Palin are sowing the seeds of hatred and division.” Mr McCain responded by expressing sadness that “a man I've always admired would make such a brazen and baseless attack”.

At a weekend event in Iowa, Mr McCain's campaign swiftly repudiated a pastor who introduced him with the claim that millions of foreigners were praying to “Hindu, Buddha, Allah — that his opponent wins”.

Many Republicans now openly acknowledge that his campaign has been adrift in recent weeks, ill-suited to deal with the economic storms or carry the increasingly heavy baggage of Mrs Palin. An inquiry on Friday concluded that she had abused her powers as Alaska Governor by trying to orchestrate the sacking of a state trooper who was her former brother-in-law."

Government will spy on every call and e-mail

The Sunday Times has caught up with government plans to monitor every phone call and email.

ORG and NO2ID's picture: freedom not fear

Now this is very clever.

"Thanks to everyone who came along to Parliament Square this morning and made the ORG/No2ID “Big Picture” event such a success. The sun was shining as we constructed a massive 4m x 5m collage of all the photos you’ve been uploading of UK surveillance state ephemera over the past couple of weeks.

"

Pilots' union to seek judicial review of ID cards

From today's Observer:

"Plans to build support for identity cards by introducing them among 'guinea pig' groups, such as airport staff and students, are in crisis after 10,000 airline pilots vowed to take legal action to block them and opposition swept through Britain's universities and councils.

In a move that could wreck the government's strategy for a phased introduction beginning next year, the British Airline Pilots Association (Balpa) said it would seek a judicial review rather than see its members forced to adopt ID cards at a time when pilots are already exhaustively vetted."