Friday, December 05, 2008

Student 'Download 4 Free' project killed by Amazon lawyers

I'm always irritated when students get hassled by lawyers. The latest case in a long line involves a Firefox add-on, created by two students at at the Media Design M.A. department of the Piet Zwart Institute Rotterdam, which inserts a button when visiting linking to and alternative 'free' versions of the item being viewed. It won't have helped the students that the project got a lot of publicity and the button label says "Download 4 Free" but we do know that as these technologies have developed and we play with them, we trip over all kinds of existing commercial, political, social and other established interests. Should we protect those interests at the expense of exploring the possibilities of new technologies or should we trample over them to facilitate such exploration? It all depends... The course director, Florian Cramer, takes up the story on the nettime-1 list.
"Via its provider, the project received a take down request by the
lawyers of yesterday. In our point of view, the legal grounds
for that are contestable since the add-on itself did not download
anything. It only provided a user interface link between the web sites and Nevertheless, the creators complied to
the request, taking both the add-on and original web site offline.

What is perhaps more disturbing however, are the openly hostile and
aggressive Internet user comments in blogs and on Unlike in a
comparable situation only a couple of years ago, the majority of
commentators failed to see the highly parodistic and artistic nature of
"Pirates of the Amazon". The project was created by two students at the
Media Design M.A. department of the Piet Zwart Institute Rotterdam, one
of them being a student in the course, the other being an exchange
student from the New Media programme of Merz Akademie Stuttgart. The
work was part of a regular trimester project. We - jaromil, the project
tutor, and Florian Cramer, the head of the course - were the academic
supervisors of this work. We supported and encouraged it from its early
beginnings. What's more, we're proud to have such students and such
interesting work coming out of our teaching.

Apart from its humorous value and cleverness, the project is interesting
on many levels and layers: For example, not just as a funny artistic
hack of and The Pirate Bay, but also as a critique of
mainstream media consumer culture creating the great "content" overlap
between the two sites. We clearly see this project as a practical media
experiment and artistic design investigation into the status of media
creation, distribution and consumption on the Internet.

With the take down notice from, our students have been scared
away from pursuing their art, research and learning in our institute. We
do not want a culture in which students have to preemptively censor
their study because their work confronts culture with controversial and
challenging issues."
I guess doing a 'get this free elsewhere' hack on a major commercial website, in the run up to Christmas, during a global credit crunch, wasn't the best time to be trying this kind of joke, especially if you wanted to avoid the attentions of m'learned friends. Once it got noticed there was a virtually cast iron guarantee that the instigators would be hearing from Amazon's lawyers. Director Cramer has a point, though, regarding the educational value of such a project, which would potentially qualify it as meeting a substantial non infringing uses test. Whether it would pass the Grokster inducing infringement test is another matter. I'll leave to the reader to decide whether the offence to the established commercial interest (Amazon) in this case should be protected absolutely at the expense of such a project or whether the project should be protected from the established commercial interest. Perhaps the value for the students has already been realised even if they have decided to remove the add-on from the web following the cease and desist letter. At least they weren't threatened with criminal sanctions under computer crime laws. Me? I don't like students having to suffer this kind of hassle but this is probably not a set of circumstances that it would be advisable to use as the basis of a test case and students also need to learn to choose their battles wisely.

Thanks to Dan McQuillan via the ORG list for the pointer.

Thursday, December 04, 2008

European Court of Human Rights rules against UK government on DNA retention

The European Court of Human Rights has today ruled against the UK government in a test case looking into the question of whether South Yorkshire police should have retained the DNA of two men who were not convicted of any offence. The case is S. and Marper v UK. The 17 member Grand Chamber of the court unanimously declared the UK to be in breach of Article 8 of the European Convention on Human Rights. Article 8 states:


  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Liberty and Privacy International had made submissions to the court supporting the two men. The relevant extracts from the decision, from my perspective, are:
3. The applicants complained under Articles 8 and 14 that the authorities had continued to retain their fingerprints and cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued...

Nuffield Council on Bioethics' report2
38. According to a recent report by the Nuffield Council on Bioethics, the retention of fingerprints, DNA profiles and biological samples is generally more controversial than the taking of such bioinformation, and the retention of biological samples raises greater ethical concerns than digitised DNA profiles and fingerprints, given the differences in the level of information that could be revealed. The report referred in particular to the lack of satisfactory empirical evidence to justify the present practice of retaining indefinitely fingerprints, samples and DNA profiles from all those arrested for a recordable offence, irrespective of whether they were subsequently charged or convicted. The report voiced particular concerns at the policy of permanently retaining the bioinformation of minors, having regard to the requirements of the 1989 UN Convention on the Rights of the Child...
47. The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Five States (Belgium, Hungary, Ireland, Italy and Sweden) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings. Ten other States apply the same general rule with certain very limited exceptions...

48. The retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person's death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons...

54. In the case of R v. RC [[2005] 3 S.C.R. 99, 2005 SCC 61] the Supreme Court of Canada considered the issue of retaining a juvenile first-time offender's DNA sample on the national data bank. The court upheld the decision by a trial judge who had found, in the light of the principles and objects of youth criminal justice legislation, that the impact of the DNA retention would be grossly disproportionate...

55. Article 40 of the UN Convention on the Rights of the Child of 20 November 1989 states the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society...

66. The Court recalls that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person... It can therefore embrace multiple aspects of the person's physical and social identity... Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8... Beyond a person's name, his or her private and family life may include other means of personal identification and of linking to a family... Information about the person's health is an important element of private life... The Court furthermore considers that an individual's ethnic identity must be regarded as another such element... The Court furthermore considers that an individual's ethnic identity must be regarded as another such element... The concept of private life moreover includes elements relating to a person's right to their image.

67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116). The subsequent use of the stored information has no bearing on that finding (Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000-II)...

68. The Court notes at the outset that all three categories of the personal information retained by the authorities in the present cases, namely fingerprints, DNA profiles and cellular samples, constitute personal data within the meaning of the Data Protection Convention as they relate to identified or identifiable individuals...

70. In Van der Velden, the Court considered that, given the use to which cellular material in particular could conceivably be put in the future, the systematic retention of that material was sufficiently intrusive to disclose interference with the right to respect for private life (see Van der Velden cited above)...

71. The Court maintains its view that an individual's concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference... ccordingly, the Court does not find any sufficient reason to depart from its finding in the Van der Velden case...

73. Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of this information is actually extracted or used by the authorities through DNA profiling and that no immediate detriment is caused in a particular case does not change this conclusion (see Amann cited above, § 69).

74. As regards DNA profiles themselves, the Court notes that they contain a more limited amount of personal information extracted from cellular samples in a coded form...

75. The Court observes, nonetheless, that the profiles contain substantial amounts of unique personal data... In the Court's view, the DNA profiles' capacity to provide a means of identifying genetic relationships between individuals (see paragraph 39 above) is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned...

76. The Court further notes that it is not disputed by the Government that the processing of DNA profiles allows the authorities to assess the likely ethnic origin of the donor and that such techniques are in fact used in police investigations (see paragraph 40 above). The possibility the DNA profiles create for inferences to be drawn as to ethnic origin makes their retention all the more sensitive and susceptible of affecting the right to private life...

77. In view of the foregoing, the Court concludes that the retention of both cellular samples and DNA profiles discloses an interference with the applicants' right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention...

84. The Court is of the view that the general approach taken by the Convention organs in respect of photographs and voice samples should also be followed in respect of fingerprints. The Government distinguished the latter by arguing that they constituted neutral, objective and irrefutable material and, unlike photographs, were unintelligible to the untutored eye and without a comparator fingerprint. While true, this consideration cannot alter the fact that fingerprints objectively contain unique information about the individual concerned allowing his or her identification with precision in a wide range of circumstances. They are thus capable of affecting his or her private life and retention of this information without the consent of the individual concerned cannot be regarded as neutral or insignificant.
85. The Court accordingly considers that the retention of fingerprints on the authorities' records in connection with an identified or identifiable individual may in itself give rise, notwithstanding their objective and irrefutable character, to important private-life concerns.
86. In the instant case, the Court notes furthermore that the applicants' fingerprints were initially taken in criminal proceedings and subsequently recorded on a nationwide database with the aim of being permanently kept and regularly processed by automated means for criminal-identification purposes. It is accepted in this regard that, because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the Court, like Baroness Hale (see paragraph 25 above), considers that, while it may be necessary to distinguish between the taking, use and storage of fingerprints, on the one hand, and samples and profiles, on the other, in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life...
100. The Court agrees with the Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection, and therefore, prevention of crime. While the original taking of this information pursues the aim of linking a particular person to the particular crime of which he or she is suspected, its retention pursues the broader purpose of assisting in the identification of future offenders...
105. The Court finds it to be beyond dispute that the fight against crime, and in particular against organised crime and terrorism, which is one of the challenges faced by today's European societies, depends to a great extent on the use of modern scientific techniques of investigation and identification...
106. However, while it recognises the importance of such information in the detection of crime, the Court must delimit the scope of its examination. The question is not whether the retention of fingerprints, cellular samples and DNA profiles may in general be regarded as justified under the Convention. The only issue to be considered by the Court is whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under Article 8, paragraph 2 of the Convention...
109. The current position of Scotland, as a part of the United Kingdom itself, is of particular significance in this regard. As noted above (see paragraph 36), the Scottish Parliament voted to allow retention of the DNA of unconvicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the DNA sample and data for a further two years with the consent of a sheriff...
England, Wales and Northern Ireland appear to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence...
111. The Government... argued that the comparative analysis of the law and practice in other States... is... of limited importance.
112. The Court cannot, however, disregard the fact that, notwithstanding the advantages provided by comprehensive extension of the DNA database, other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life. The Court observes that the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. In the Court's view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. The Court considers that any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard...
115. Although the power to retain fingerprints, cellular samples and DNA profiles of unconvicted persons has only existed in England and Wales since 2001, the Government argue that their retention has been shown to be indispensable in the fight against crime. Certainly, the statistical and other evidence, which was before the House of Lords and is included in the material supplied by the Government (see paragraph 92 above) appears impressive, indicating that DNA profiles that would have been previously destroyed were linked with crime-scene stains in a high number of cases.
116. The applicants, however, assert that the statistics are misleading, a view supported in the Nuffield Report. It is true, as pointed out by the applicants, that the figures do not reveal the extent to which this "link" with crime scenes resulted in convictions of the persons concerned or the number of convictions that were contingent on the retention of the samples of unconvicted persons. Nor do they demonstrate that the high number of successful matches with crime-scene stains was only made possible through indefinite retention of DNA records of all such persons. At the same time, in the majority of the specific cases quoted by the Government (see paragraph 93 above), the DNA records taken from the suspects produced successful matches only with earlier crime-scene stains retained on the data base. Yet such matches could have been made even in the absence of the present scheme, which permits the indefinite retention of DNA records of all suspected but unconvicted persons.

117... the Court accepts that the extension of the database has nonetheless contributed to the detection and prevention of crime.
118. The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests.
119. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.
121... The Court... reiterates that the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data (see paragraph 67 above).
122. Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect, the Court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused's innocence may be voiced after his acquittal...
123. The Government argue that the power of retention applies to all fingerprints and samples taken from a person in connection with the investigation of an offence and does not depend on innocence or guilt. It is further submitted that the fingerprints and samples have been lawfully taken and that their retention is not related to the fact that they were originally suspected of committing a crime, the sole reason for their retention being to increase the size and, therefore, the use of the database in the identification of offenders in the future. The Court, however, finds this argument difficult to reconcile with the obligation imposed by section 64(3) of the PACE to destroy the fingerprints and samples of volunteers at their request, despite the similar value of the material in increasing the size and utility of the database. Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants' private data compared to that of other unconvicted people.
124. The Court further considers that the retention of the unconvicted persons' data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society... the Court considers that particular attention should be paid to the protection of juveniles from any detriment that may result from the retention by the authorities of their private data following acquittals of a criminal offence. The Court shares the view of the Nuffield Council as to the impact on young persons of the indefinite retention of their DNA material and notes the Council's concerns that the policies applied have led to the over-representation in the database of young persons and ethnic minorities, who have not been convicted of any crime (see paragraphs 38-40 above).
125. In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society...
126. Accordingly, there has been a violation of Article 8 of the Convention in the present case...
1. Holds that there has been a violation of Article 8 of the Convention;
2. Holds that it is not necessary to examine separately the complaint under Article 14 of the Convention;
3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;
4. Holds
(a) that the respondent State is to pay the applicants, within three months, EUR 42,000 (forty two thousand euros) in respect of costs and expenses (inclusive of any VAT which may be chargeable to the applicants), to be converted into pounds sterling at the rate applicable at the date of settlement, less EUR 2,613.07 already paid to the applicants in respect of legal aid;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants' claim for just satisfaction."
The decision should have significant implications for the UK in terms of the practice of retaining the DNA and fingerprints of suspects not charged or convicted of a criminal offence. It is interesting that court refers repeatedly to the Nuffield Council on Bioethics report, The forensic use of bioinformation: ethical issues, published in September 2007. That report, in addition to a number of others including the report of the Human Genetics Commission in July this year and Genewatch UK's report from 2006 have systematically deconstructed and undermined ministers' repeated and superficially impressive claims about the value of the DNA database in crime detection. Without accusing them of lying, the Court notes that the government's "statistical and other evidence" on the value of DNA and fingerprint retention "appears impressive" but chooses to accept the Nuffield Report's interpretation of that evidence rather than the government's, whilst still noting the practice of retention has made a contribution to crime detection. That contribution, according to the Court however, disproportionately trampled on the applicants privacy rights under Article 8 of the European Convention.

The other interesting aspect of the decision is the degree to which the Court emphasises the UK's total isolation from other member states of the Council of Europe, in relation to DNA retention practices. The UK (excluding Scotland) is the only member state that where "blanket and indiscriminate" indefinite retention of the DNA and fingerprints, "of any person of any age" suspected but not convicted of a criminal offence, takes place.

Essentially the decision is a blunt and damning indictment of UK practice of DNA data retention since 2001. The Home Secretary, Jacqui Smith is disappointed with the decision and according to a BBC report is planning to continue to facilitate police retention of the DNA of suspects not convicted of a crime. She said:
"The existing law will remain in place while we carefully consider the judgment."
The Home Office are setting up a committee to look into the implications of the decision. Well that's relatively straightforward - 17 of the top judges from all around Europe are unanimous that the UK, in England Wales and Northern Ireland, is in breach of the European Convention of Human Rights Article 8 and should stop the offending behaviour i.e. discontinue the blanket, indiscriminate and indefinite retention of the DNA and fingerprints, of any person of any age suspected but not convicted of any criminal offence.

Update: Douwe Korff has reminded me of the recent related issue paper by Thomas Hammarberg, the Council of Europe's Commissioner for Human Rights, which concluded:
"7. Conclusions
We are rapidly becoming a “Surveillance Society”. This is partly the result of general technical and societal developments, but these trends are strongly reinforced by measures taken in the fight against terrorism.
In the context of the fight against terrorism, this means individuals are at risk of being targeted for being suspected “extremists” or for being suspected of being “opposed to our constitutional legal order”, even if they have not (yet) committed any criminal (let alone terrorist) offence.
“Targets” of this kind are moreover increasingly selected through computer “profiles”. Even if some may be caught, there will always be relatively large numbers of “false negatives” - real terrorists who are not identified as such, and unacceptably high numbers of “false positives”: large numbers of innocent people who are subjected to surveillance, harassment, discrimination, arrest - or worse. Freedom is being given up without gaining security.
In addition, increasing use is made of non-criminal, yet effectively punitive, “administrative” measures against identified suspected “extremists” or new-type “enemies of the State”. This robs them of fundamental safeguards, both against the specific measures taken against them and, as groups, against such discrimination. It leads to alienation of the groups in question, and thus actually undermines security.
In the process, all of us are increasingly placed under general, mass surveillance, with data being captured on all our activities, on-line or in the “real” world. Such general surveillance raises serious democratic problems which are not answered by the repeated assertion that “those who have nothing to hide have nothing to fear.”
The response to these developments should be a re-assertion of the basic principles of the Rule of Law, as enshrined, in particular, in the European Convention on Human Rights, and as further elaborated in the case-law of the European Court of Human Rights and the European Court of Justice, as well as in European legal instruments directly or indirectly inspired by the Convention and such case-law, including in particular the still-pre-eminent Council of Europe recommendation on data protection in the police sector (Recommendation R(87)15 of the Committee of Ministers).
The basic principles are well-established, and indicate the way forward:
I. Under the European Convention on Human Rights, the interferences with fundamental rights inherent in the measures described in this paper must be justified by the state as being:
    · in accordance with the law; · necessary in a democratic society:
      o in the interests of national security, public safety or the economic well-being of the country; o for the prevention of crime or disorder; or o for the protection of the right and freedom of others;
    · proportionate; and · non-discriminatory.
II. The applicable data protection principles are equally well-developed, in Council of Europe Convention No. 108, Committee of Ministers Recommendation R(87)15, the main EC directive on data protection (Directive 95/46/EC), and in the case-law of the ECHR and the ECJ. They require inter alia that:
    · All processing of personal data for law enforcement and anti-terrorist purposes must be based on clear and specific, binding, published legal rules. · The collection of data on persons not suspected of involvement in a specific crime or of posing a threat, the collection of information through intrusive, secret means and the use of “profiling” techniques must be subject to a particularly strict “necessity” and “proportionality” test. · Factual and intelligence data, and data on different categories of data subjects should be clearly distinguished. · Access to police and secret service files should only be allowed on a case-by-case basis, for specified purposes and be under judicial control in the Member States. · There must be limits on the storing of old information and on the time for which new information can be retained. · The collection of data on individuals solely on the basis that they have a particular racial origin, particular religious convictions, sexual behaviour or political opinions or belong to particular movements or organisations which are not proscribed by law should be prohibited.
· Reliance by private or public bodies on computers to take decisions on individuals, without human input is fundamentally contrary to the requirement of respect for the human identity and should only be allowed exceptionally under strict safeguards.
    · There must be strong safeguards established by law which ensure appropriate and effective supervision over the activities of the police and the secret services - also in the fight against terrorism. This supervision should be carried out by the judiciary and through parliamentary scrutiny. All personal data processing operations should be subject to close and effective supervision by independent and impartial data protection authorities.
III. In the fight against terrorism and organised crime, these principles should not be abandoned but, rather, re-asserted. Anti-terrorist “profiling” and EU cooperation on the basis of the “availability” principle as currently construed risk breaching these established standards. These policies and proposals should be reviewed to ensure that they comply with accepted European law, including the European Convention on Human Rights (as applied by the Strasbourg Court), CoE Convention 108 and CoE Recommendation R(87)15, and EC Directive 95/46/EC."

UK government plan to open the floodgates on data sharing

From today's Independent:

"Personal information detailing intimate aspects of the lives of every British citizen is to be handed over to government agencies under sweeping new powers. The measure, which will give ministers the right to allow all public bodies to exchange sensitive data with each other, is expected to be rushed through Parliament in a Bill to be published tomorrow.

The new legislation would deny MPs a full vote on such data-sharing. Instead, ministers could authorise the swapping of information between councils, the police, NHS trusts, the Inland Revenue, education authorities, the Driver and Vehicle Licensing Authority, the Department for Work and Pensions and other ministries...

Thomas Hammarberg, the Council of Europe's commissioner for human rights, said he believed Britain had gone too far in helping to bring about a "surveillance society". In a report drawing on personal data infringements across Europe but "inspired" by Britain's plan for a new internet, email and telephone database, he added: "General surveillance raises serious democratic problems which are not answered by the repeated assertion that those who have nothing to hide have nothing to fear. This puts the onus in the wrong place: it should be for states to justify the interferences they seek to make on privacy rights.""

The government are rolling out the same old tired and empty excuses - efficient data sharing is needed for delivering public services etc. What they fundamentally refuse to get is that sharing everyone's data with every department in the vague hope that the public servants swamped with these mountains of electronic data noise will be able to do something useful with it, actually gets in the way of the delivery of efficient services. Delivering appropriate and timely information, in accessible form, to the right people in a way that enables them to do their job is not the same as saying - "here's a computer, they're very clever you know, and here is all the data we've ever gathered, now go do something useful; and if you can't do something useful then at least tell people that we're doing a good job because we've spent a lot of money of those computers you know."

Wednesday, December 03, 2008

Teenage transplant patient sued by music industry

In another PR disaster for the music industry's industrial scale pursuit of individuals for copying on the Net,
"A young Pittsburgh woman who needs a transplant has another fight on her hands. She's being sued by the music industry for illegally downloading music from the Internet.But 19-year-old Ciara Sauro strongly denies the charge and says she and her mother are overwhelmed with medical debts."

Obama AG pick defended Guantanamo policy

President-elect Obama's choice to be the next Attorney General, Eric Holder, has reportedly changed his mind over Guantanamo Bay detainees having originally supported the Bush administration's approach.

Mr Holder was Deputy Attorney General during the Clinton administration.

Potential threat to national security lead to shadow cabinet member arrest

The government are spinning again. The Home Secretary Jacqui Smith is claiming that opposition spokesman on immigration, Damien Green, was arrested due to the potential threat to national security. She is due to make a statement to the House of Commons on the affair tomorrow.

Meanwhile the Speaker of the House has just declared that he did not authorise the police search of Mr Green's office. It seems that the police had warrants to search 3 premises connected to Mr Green including his home but they didn't have a warrant to search his office in parliament. So they got signed authority to do so from the Serjeant at Arms.

Marcel Berlins thinks the fuss surrounding this case has been excessive.

Police and immigration given powers to demand to see identification

The government's favorite newspaper, the Torygraph, is reporting that police and immigration are to be given powers to demand to see identification.

"Clauses in the draft Immigration and Citizenship Bill give state officials the power to make anyone who has ever entered the country, at any time, prove who they are without needing any suspicion of a potential crime.

Civil liberty groups warned that the catch-all clauses would effectively cover any British citizen who has ever left the UK, even for a holiday, because they will have "entered" the UK on their return.

Refusing to hand over the necessary documents would be a criminal offence with a maximum penalty of almost a year in prison and/or a hefty fine."

I'm reminded of the comments of Lord Goddard in the famous ID card High Court case, Willcock vs. Muckle, in 1951, Wilcock having been prosecuted for failing to produce his ID card on demand to Officer Muckle:
"This Act was passed for security purposes, and not for the purposes for which, apparently, it is now sought to be used. To use Acts of Parliament, passed for particular purposes during war, in times when the war is past, except that technically a state of war exists, tends to turn law-abiding subjects into lawbreakers, which is a most undesirable state of affairs. Further, in this country we have always prided ourselves on the good feeling that exists between the police and the public and such action tends to make the people resentful of the acts of the police and inclines them to obstruct the police instead of to assist them."
Wilcock's conviction was nevertheless upheld but promises to ban ID cards in the wake of the case became one of the planks on which Winston Churchill's Conservative Party fought the general election later that same year. The conservatives won the election and in 1952 abolished ID cards.

Tuesday, December 02, 2008

Canadian Voices on Copyright Law

Michael Geist has made a terrific film Why Copyright? Canadian Voices on Copyright Law giving the perspective of a who's who of creators, public officials, business folks (including the CEO of Skylink which got sued under the DMCA by Chamberlain for making interoperable garage door openers), archivists, librarians, academics and others on the need for balance in copyright laws.

Recommended. Many of the contributors refer to the importance of the public domain and if you really want to get a handle on the concept of the public domain then James Boyle's just published new book, The Public Domain, is bound to become the standard text.

Update: Prof. Geist made the film with Daniel Albahary, a law student at Ottawa and Michigan State universities. The film is available in several formats at

Streamed versions are online elsewhere:

A full version at

An annotated version at YouTube

A version for sub-titling at Dot-Sub

In addition, the full DVD can be downloaded using BitTorrent. It's at
<> or via Vuze at

Mozart the teenage pirate

Was Mozart the first teenage music pirate, ar ar?

Well Gregorio Allegri's Miserere was composed exclusively for services in the Sistine Chapel and apparently the Catholic Church threatened anyone who performed or wrote it down outside the Vatican with excommunication.

In 1770, when Mozart was 14, he visited the Vatican and heard the music two or three times (as I understand it, though legend has it he only heard it once). He duly returned home the following year and transcribed it all from memory.

I'm not aware of any record of his excommunication for his piracy. Perhaps the relatively newly inaugurated Clement XIV was too pre-occupied with politics to think about a boy genius pirate? One of the reasons Giovanni Vincenzo Antonio Ganganelli was elected Pope Clement XIV, at the end of three months of Machiavellian manouevres in the papal conclave, was that he was not a Jesuit and a variety of European monarchs had been heavily lobbying against having a Jesuit Pope.

Damian Green’s family meets Merlin

Terri Dowty raises yet another risible side effect of shadow cabinet member Damien Green's arrest last week.

"I’ve just been scanning the latest news on the disgraceful arrest of Damian Green, and a random thought occurred to me, triggered by this bit in the Independent:

His wife, Alicia, told friends how nine officers had looked “sheepish” as they had rifled through personal papers at the couple’s home in west London, even examining letters she and her husband had exchanged as students, and leaving with three folders of bank statements.

She had feared her husband had been in an accident when the officers asked if there were children in the house before starting the search. Her teenage daughter had burst into tears when she had come home from school to see their home filled with police.

There’s a reason for the officers’ question: the Metropolitan Police operate a database called ‘Merlin’ which records details of all children ‘coming to notice’ for any reason. As we’ve said on our old database masterclass blog, and at greater length on page 73 of the FIPR report to the Information Commissioner, one of the criteria for entering a child on Merlin is their being ‘present when police are searching premises’...

A police officer must now also complete a ‘pre-assessment checklist’ or PAC when they encounter a child in the course of searching premises. This is to check whether the child is achieving the Every Child Matters five outcomes, and so the officer should assess whether the child is healthy, staying safe, enjoying and achieving, making a positive contribution and achieving economic wellbeing."

Monday, December 01, 2008

Blackboard sue US Patent Office

Blackboard are now suing the Director of the US Patent and Trademark Office, John W. Dudas, to block the re-examination of their learning management systems patent. From the Desire2Learn patent blog:

"Because of time restraints (not to mention the uninteresting nature of the filings), we've not posted the underlying documents, but Blackboard a few months ago renewed its efforts to suspend the reexamination of their Patent at the PTO. Of course, we opposed it, and on November 17, the PTO denied Blackboard's efforts. (We will post the documents, but it may take some time – as for now, they're available on the Patent & Trademark Office website). Remember, this is the 2nd time Blackboard tried to suspend the re-examination --- yes this is in fact the exact same one that Blackboard previously claimed that it welcomed. (Update: on the May 30 posting, we included a link to Blackboard's website. That link is now a "page not found" on Blackboard's site, but you can still find it on Inmagic's site (thanks, Jim Farmer). Blackboard's document stated, in part: "[W]e remain very confident in the validity of our patent and that the Patent Office will agree . . ." Guess they changed their mind.)

A new development: Blackboard has taken its attempts to stop the reexam to another level. It has now sued the Patent and Trademark Office, asking the Court for a ruling that the PTO's refusal to suspend or terminate the reexam was improper. Blackboard filed its case in the U.S. District Court for the Eastern District of Virginia, where the PTO is located. The Complaint makes for an interesting read, and has at least one surprising omission: Blackboard somehow forgot to mention that on March 25, in a non-final action, the PTO rejected each of the 44 claims of the patent.

Desire2Learn isn't a party to Blackboard's latest litigation, but we'll continue to monitor it and keep you posted."

The basic argument in the suit is that once the court decided someone had breached the patent, the Patent Office no longer have any legitimate right to re-examine it:

"Cause of Action
The Director's Decision Is Contrary to Law.
21. Blackboard incorporates by reference all preceding paragraphs as if set forth
22. The Decision constitutes a final agency action within the meaning of 5 U.S.C
§ 704.
23. The Texas district court entered final judgment against Desire2Leam on its
counterclaims of invalidity of claims 36, 37, and 38 of the '138 patent. The final judgment
constitutes a "final decision ... in a civil action arising in whole or in part under section 1338 of.
title 28" under 35 U.S.C. ~ 317(b). Consequently, the final judgment prevents the PTO from
maintaining an inter partes reexamination requested by Desire2Learn of those claims.
22. The holding of the Decision that inter partes reexamination of claims 36, 37, and
38 of the '138 patent may be maintained notwithstanding the final judgment entered by the
Texas district court is contrary to law and is arbitrary and capricious and an abuse of discretion
under 5 U.S.C. § 706(2)(a)."

The natural conclusion of such an position is that if you can manage to keep prior art secret long enough to get a court judgment, then it doesn't matter that the patent was originally invalid, it will still stand. I can't imagine that's a sustainable legal argument. Desire2Learn are also technically correct that the Blackboard court brief fails to mention the Patent Office's preliminary invalidation of the patent on the 25th of March 2008. Given that the judge in the patent trial didn't enter the 'final judgment' in the case until the 7th of May 2008, there may be technical room for manoeuvre for patent office lawyers, even if the dodgy premises of Blackboard case did have some basis in law. After all the patent was declared invalid before the final judgment.

Blackboard want the court to declare the patent re-examination unlawful, an order terminating the re-examination of the patent and banning the Patent Office from re-examining it, and a declaration that the court case that went in their favour is the 'final decision' in the matter.

"Blackboard requests the following relief:
a. An order holding unlawful and setting aside the Director's Decision;
b. An order enjoining the PTO from maintaining an inter partes reexamination of
claims 36, 37, and 38 requested by Desire2Leam and directing the Director to terminate the
pending inter partes reexamination of claims 36, 37, and 38;
c. A declaratory judgment that the final judgment of the Texas district court is a
"final decision" for purposes of 35 U.S.C. § 317(b); and
d. All other such relief as this Court may deem necessary and just."