Commissioner McCreevy on Copyright

Charlie McCreevy has been speaking to the European Parliament's Legal Affairs Committee (JURI) about company law, accounting & auditing and intellectual property rights. One the latter he had this to say:

"The second key area in my portfolio of issues under the responsibility of this Committee is Intellectual Property Rights. IP is a central competitive asset in Europe's ability to compete in the global economy. There are perhaps many reasons for this, the main one though is that through innovation, high quality design, effective branding and top quality production, EU companies have the ability to remain at the top of the value chain. We are progressing well on the initiatives announced before.

Let me start by looking at copyright protection for performers. European performers do not enjoy sufficient term protection. 95% of them do not earn enough from their profession and have to take up parallel jobs. I want all performers, whether featured artists or session musicians, to be able to earn more from their work. This allows them to spend more time doing what they do best – namely performing.

Authors enjoy copyright protection that lasts for 70 years after their death. Performers on the other hand enjoy protection for 50 years from the time of their performance. This means that an increasing number of them are seeing their performances fall into the public domain during their lifetimes. Not only do they no longer have a say in how their performances are used, but also their royalty payments and their airplay remuneration dry up.

And it usually happens at a time in their lives when they are getting older and not working as much. The music business is not the type that comes with a pension scheme. The principal beneficiaries of our proposal are the thousands of anonymous session musicians who contributed to sound recordings at that time.

That is why I propose is to extend protection for performers and sound recordings from the current 50 to 95 years. I aim to present a proposal for an amendment to the Directive on term protection by this summer.

By doing this we will go some way towards solving a number of problems. Firstly, performers will be able to control how their performances are used. This will allow them to object to their work being abused or used in a way they do not agree with. Secondly, they will continue to receive royalties and airplay remuneration for their entire lifetime, and as for authors, their heirs will benefit a little after their death.

Extending the term is not enough in itself. I also propose that each record company set up a special fund specifically devoted to session musicians. The company will have to pay a percentage of its increased revenues in the extended period into this fund. This will mean that the thousands of session musicians will increase their earnings.

Another area of work at present in the Intellectual Property field is private copying levies. You will be aware I re-launched work some months back on this issue. Some have suggested that I want to trade off term extension with private copying levies. I want to clearly dispel this rumour. Both initiatives have their own independent merit.

I perceive a clear need for the societies that administer the levies, and the industry that have to pay them, to get together and find a way out of their current disagreements. The latest round of consultation took place between February and April of this year. This consultation yielded some 120 replies, primarily from collecting societies that administer levies and from the industry that has to pay them. This response rate shows that the issue is still very much alive.

I have decided to organise a public hearing on 27 May to discuss the results of this public consultation. I would like to see this public hearing leading to the setting up of a structured dialogue between the stakeholders in the search for common ground in addressing this complex issue.

My ultimate wish would be that everyone that is concerned with levies could be able to agree on some basic principles to apply to the calculation of the different levies.

A third area of work in the IP field is Community trade mark fees. The Commission is currently preparing a proposal for a further substantial reduction of these fees. The Community Trademark Office in Alicante is an agency financing itself, independently from the Community budget. The Office is financially very well off and is generating considerable cash every year. This is partly due to its attractiveness, as companies continue to submit more and more trade mark and design applications. However, the Agency has to balance its revenues and expenditure. I intend to present this proposal in the next months. We have also started working on the evaluation of the trademark systems in the EU with a view to identify potential needs for improvement and future developments.

Work continues on the patent litigation system and on the Community patent. Since the Commission adopted the Communication "Enhancing a patent system in Europe" in April 2007, we have been actively working towards a consensus on the key elements among Member States in the Council under the German, Portuguese and now the Slovenian Presidency. I hope the encouraging progress made over the past year continues and it is something we can come back to a little further down the line.

Work is also continuing on the Green Paper on Copyright in the Knowledge Economy. The purpose of this Green Paper is to encourage debate on how copyright legislation can continue to serve the objective of the dissemination of knowledge for research, science and education – particularly in the online environment. The Green Paper aims to set out a number of issues connected with the role of copyright in the "knowledge economy", relying as it does not on natural resources such as land or minerals, but on intellectual resources such as know-how and expertise. It could be adopted just before or just after the summer break and it is intended to launch a public consultation.

A last point on intellectual property rights is the fight against counterfeiting and piracy. This is a key priority for the Commission. Last week's high-level conference marked the starting point for our efforts in order to find practical solutions to combat counterfeiting and piracy. We need all stakeholders to engage in working on practical and concrete ways to fight off fakes rather than camping on positions of principle. More regulation is certainly not the answer. I am grateful to the Parliament's support on this issue and for your active participation at the conference.

Finally, I wish to say a few words on the Annual Policy Strategy for 2009.

The time has come to assess how the existing copyright legislation works. It has been in place for more than 10 years now. The issue is whether and how we need to adapt thee rules to new technological and market developments. We will launch a consultation process next year on these questions to arm my successor with the necessary elements for deciding on concrete initiatives.

All of our actions are part of our single market policy. A key element of last year's Single Market Review is to make the Internal Market rules function on the ground. Member States' actions are crucial in achieving this objective. In this context we will prepare an initiative in early 2009 to give guidance to Member States on how to improve the practical functioning of the Internal Market.

Ladies and gentlemen, let me conclude. It is crucial that the European regulatory framework responds to market needs. Where there is no proven need for EU intervention, I will not make proposals or add further layers of EU requirements. We are updating existing legislation in the area of company law and intellectual property rights to make it simpler, flexible and more dynamic. Your support and active engagement are essential if we are to deliver what EU business needs."

There is nothing new in the statement but his final paragraph statement to the effect that "Where there is no proven need for EU intervention, I will not make proposals or add further layers of EU requirements" bears serious scrutiny. There is simply a massive black hole where empirical evidence informing intellectual property policy making should be. Solid evidence on whether IP regulations should be strengthened or weakened is sparse to non-existent. So, in other words, there is no proven need for EU intervention.

Supreme Court uphold anti-child porn PROTECT Act and other stories

Busy times at the moment with a lot going on in my day job and a lot going on in cyberlaw as ever. Yesterday the US Supreme Court, in a 7-2 decision, upheld Congress's latest effort to tackle child abuse facilitated by the Net, the 2003 PROTECT Act. Kevin Russell has a full analysis over at Scotusblog.

Today the Times has a front page story on the communications bill which contains the seeds of the government's latest big database surveillance plans. This one's been doing the rounds of the cyber rights communities for a while now but it's interesting that the mainstream media does occasionally notice and provide prominence to such matters, however ephemerally.

Declan McCullagh tells us that a couple of congress men have cottoned onto the probable technical illegality of the widespread clandestine commercial monitoring and profiling of online behaviour. They probably wouldn't like shopping centers secretly tracking people's movements via their mobile phones either. Politicians, like their mainstream media cousins can also be a bit slow on the uptake.

William Patry is indignant at the US labeling Canada a pirate nation just because it has not yet implemented a version of the DMCA into domestic law.

The NYT, of all auspicious bodies, is supporting net neutrality.

"Users of the Internet take for granted their ability to access all Web sites on an equal basis. That could change, however, if Internet service providers started discriminating among content, to make more money or to suppress ideas they do not like. A new “net neutrality” bill has been introduced in the House, which would prohibit this sort of content discrimination. Congress has delayed on this important issue too long and should pass net neutrality legislation now...

Cable and telecommunications companies are fighting net neutrality with lobbyists and campaign contributions, but these special interests should not be allowed to set Internet policy. It is the job of Congress to protect the Internet’s democratic form."

Larry Lessig is worried about little orphan works and proposed changes to US copyright law.

The Sunday Telegraph has been speculating that the government's huge and dangerously insecure NHS Care Records System could be scuppered.

The Dutch have banned electronic voting.

"On May 16, 2008 the Dutch government decided that elections in the Netherlands will be held using paper ballots and red pencil only. A proposal to develop a new generation of voting computers was rejected.

The paperless voting computers had been creeping into our election systems since the mid-1980s, creating a deeply rooted everything-is-just-fine-with-them feeling. This made the task we had set ourselves that much more difficult. We examined the Dutch voting computer, the Nedap/Groenendaal ES3B previously in use in about 8 out of 9 poling stations, and proved it insecure. For political reasons, with general elections in the near future, the responsible Minister did not want to make the decision at that time. Although frustrating for us, he basically did the next best thing: two commissions were formed the first was to see who, if anyone, was to blame for the current debacle. The other would, effectively, determine if we were right and election systems in the Netherlands as flawed were as we had made them out to be. The first committee determined that, basically, no one in particular was to blame and everything concerning voting computers was wrong. The second, the Election Process Advisory Commission, issued its report which basically states that we were right all along and the system needed to be changed.

We are proud to have made this impact. Democratic Elections are Really Really Really important. Paperless voting computers enable election fraud on a frightening scale, a tiny group of people can throw elections in which ever way they want. Our initiative, which is one of many similar movements around the world, has removed that risk from our country."

Google has done a Yahoo!-China in India by handing over the personal details of a man to the authorities after he posted a comment to the effect that he hated Sonja Ghandi on Google's Orkut social networking site. The man has since been arrested.

The UK Home Office website has been struggling to stay online.

Cory has yet another nice explanation why he releases his books under a creative commons licence in the context of his teen novel, Little Brother.

Lots going on on the ID card and identity front; likewise on the US constitutional scene.

Yet another inadvertent indication from government quarters of how you can't make better kids by measuring them, or pretending to measure them. The chief inspector says standards have "stalled" and it is "unacceptable that 20% of pupils go from primary to secondary not fully functional in literacy and numeracy". For goodness sake the idea that you can measure a child... how insane is that and yet the whole education system is built on the notion... says yours truly, a university teacher in exam season.

Teachers should be storytellers, curiosity stimulators (remember curiosity is the cure for boredom), observers, listeners, challengers (in the sense of posing challenges for their charges), confidence builders, and practitioners prepared to get their hands dirty in any area they or their pupils/students decide to explore. Not bloody administrators with the incentive to fill in forms which say the child was useless when they arrived in this administrative miracle worker's class and have progressed the requisite number of points on the SATS scale by the time they leave the class. And if the form says that's what happened, then the reality of a child struggling to learn, getting bullied and in fact regressing in all areas is completely irrelevant to the system. Scott Adams has it pegged:





Ho hum. Yes blogging is displacement activity. Now I'd better get back to assessing scripts and filling in forms.

Judge may have erred in Jammie Thomas $222,000 file sharing award

The judge in the Jammie Thomas trial has found a precedent which indicates he may have mistakenly directed the jury to conclude that Ms Thomas had infringed the copyright in the 24 songs she was found to have made available on Kazaa, merely by making those songs available. He suggested in summation for the jury that no prove that these 24 songs had actually been copied from Ms Thomas's computer was actually required.

"A Minnesota woman ordered to pay $222,000 in the nation's first music download trial may get another chance with a jury.

The issue is whether record companies have to prove anyone else actually downloaded their copyrighted songs, or whether it's enough to argue that a defendant made copyrighted music available for copying.

The recording industry has sued thousands of people who shared music online, and has argued that all they have to prove is that the defendant made the music available. They compared it to someone displaying pirated DVDs for sale on a table.

Music-sharers have argued that the only proven downloaders of their music were investigators working for the record companies themselves.

That was the case in the trial last fall of Jammie Thomas of Brainerd. U.S. District Court Judge Michael J. Davis instructed jurors that making sound recordings available without permission violates record company copyrights "regardless of whether actual distribution has been shown."

On Thursday Davis said that may have been a mistake...

The question of how much the record companies must prove to win their lawsuits seems destined for more dates with appeals court judges.

Different judges have ruled different ways on the matter. Last month a federal judge at a pretrial ruling in Boston said that merely making the songs available online is not copyright infringement. But a ruling by a New York judge took the opposite position.

Ray Beckerman, an attorney who has represented other downloading defendants and runs a blog tracking the most prominent cases, said the Recording Industry Association of America has been using the Thomas verdict to support its side.

"We've been saying all along that it was submitted to the jury on an improper theory, and now the judge recognizes his error and he realizes he was misled by record industry lawyers," Beckerman said."

The Anti-Counterfeiting Trade Agreement (ACTA)... the wha...?

Few people other than intellectual property geeks and stakeholders will be aware of the Anti-Counterfeiting Trade Agreement, ACTA. And why should they? It is an abstract proposal about a complicated area of law, the very mention of which induces a glazed-eyed stupor in the listener's demeanor.

Nevertheless, ACTA, should it ever come to pass, will become a hugely important global instrument governing the flow of information and information-based products around the world. Aaron Shaw, writing for the Knowledge Ecology Studies journal, provides a critical perspective of what he sees as this latest information feudalist's charter, as well as an emotive call to arms to oppose said charter. Though severely critical, it is, nevertheless, the most comprehensive and accessible analysis of the still scarcely available details of ACTA that I've come across. Thoroughly recommended for those who support and oppose ACTA, in addition to the wider general public, who really should be aware of initiatives likely to have a fundamental impact on downstream access to information.

"In mid-February 2008, the Office of the United States Trade Representative (USTR) issued a request for public comments on the proposed “Anti-Counterfeiting Trade Agreement” (ACTA). However, with the exception of a handful of press releases, information about the proposal itself remains scarce. Mainstream media outlets have printed USTR officials' talking points about the importance of winning “the fight against fakes,” but have failed to analyze either the origins or the nature of the ACTA in any detail. What is ACTA? Where did it come from? How would it affect the trade and governance of the knowledge-based economy? In what follows, I provide preliminary answers to these questions and argue that ACTA would impose a narrow trade agenda at the expense of global cooperation and evidence-based policies.

ACTA is a proposed “plurilateral” agreement that would apply new, stricter legal and enforcement standards to the trade in informational goods. These new standards would extend far beyond those required by the WTO TRIPS Agreement. In addition, some of the proposals for the ACTA include sweeping provisions to criminalize information use practices currently allowed under U.S., European, and international law. In these proposals, the agreement would be obligate states, law enforcement officials, and private firms to intrude on the privacy of “alleged” infringers without sufficient legal due process.[1] A small coalition of powerful states supports ACTA, led by the trade representatives of the United States, Japan, Switzerland and the 27 member states of the European Union, represented by the European Commission. These states have also invited representatives from Canada, New Zealand, Mexico, Australia and South Korea to participate in the negotiations. Although ACTA remains in pre-negotiation stages, the signatories would likely seek to impose the terms of the agreement onto developing countries in subsequent bilateral negotiations...

So why is ACTA such a big deal? If signed, the agreement would constitute a diplomatic putsch by a handful of wealthy states and corporations against the rest of the world. Already, it signals an overt and troubling rejection of multilateralism. The so-called “plurilateral” approach represents an outdated model of international treaty-making whereby the unelected representatives of Northern states and a few corporate lobbyists dictate the rules of global markets. Such arrangements were commonplace during the 1990s under the neo-liberal “Washington Consensus” and prior to the Doha Round of negotiations in the WTO. Today, however, this kind of blatant disregard for global consensus and the needs of developing regions poses a threat to the world's prosperity, security and health.

ACTA would create unduly harsh legal standards that do not reflect contemporary principles of democratic government, free market exchange, or civil liberties. Even though the precise terms of ACTA remain undecided, the negotiants' preliminary documents reveal many troubling aspects of the proposed agreement.[6] For example, ACTA advocates intend to further criminalize non-commercial copyright and trademark infringements. They also aim to reinforce so-called “Digital Rights Management” (DRM) technologies that currently prevent the personal, legal reproduction of optical discs like DVDs and trample on “fair use” rights. In addition, rights owner lobby groups want the agreement to undermine legal safeguards that protect Internet Service Providers (ISPs) from liability for the actions of their subscribers. It would also facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process...

ACTA would require signatories to undertake an unprecedented expansion of customs and law enforcement officials' abilities to police goods and information.[9] It would also create a dispute settlement system outside of existing multilateral institutions such as the WTO Tribunal or TRIPS Council to enforce these new powers. Rather than promote cooperation, ACTA signatories would seek to impose a one-sided vision of the knowledge-based economy on the rest of the world. They do so with no regard for the costs of their actions.

In the absence of widespread support for their position, the states behind the ACTA proposals have restricted participation to those organizations that already share their views... Much recent research in economics, law, sociology, business, and political science examine the claim that strict IP-rights regimes promote growth, innovation, and well-being.[10] Several of these empirical studies suggest that alternative regulatory and enforcement practices allocate public goods more efficiently.[11] Of course, other studies contradict the claims of these authors. The point, however, is precisely that such disagreement exists; the prospective ACTA signatories appear to have ignored any findings that do not reflect their ideological agenda."

Indictment sought in MySpace suidcide case

From AP via Findlaw: "Indictment sought in MySpace cyberbullying case"

Federal prosecutors are reportedly going to pursue a mother who allegedly helped her daughter set up a MySpace account to victimise another girl. Tragically th victim committed suicide.

There are no details available yet as to the legal grounds for the prosecution.

Update from SiliconValley:

" Lori Drew of suburban St. Louis, who allegedly helped create a MySpace account in the name of someone who didn't exist to convince Megan Meier she was chatting with a 16-year-old boy named Josh Evans, was charged with conspiracy and fraudulently gaining access to someone else's computer... Drew was charged with one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress on the girl."

RIAA explain to the Chronicle how to track file sharers

The RIAA has outlined to the Chronicle of Higher Education how it tracks files sharers.

"To catch college students trading copyrighted songs online, the Recording Industry Association of America uses the same file-sharing software that online pirates love, an RIAA representative told The Chronicle at the organization's offices during a private demonstration of how it catches alleged music pirates. He also said the group does not single out specific colleges in its investigations.

The demonstration was given by an RIAA employee who would speak only on condition of anonymity because of concern that he would receive hate e-mail.

The official explained that one way the RIAA identifies pirates is by using LimeWire, a popular peer-to-peer file-sharing program that is free online and used by many college students (there is also a more-robust version of the program sold for a small fee).

Here's how the process works: The RIAA maintains a list of songs whose distribution rights are owned by the RIAA's member organizations. It has given that list to Media Sentry, a company it hired to search for online pirates. That company runs copies of the LimeWire program and performs searches for those copyrighted song titles, one by one, to see if any are being offered by people whose computers are connected to the LimeWire network. For popular songs, the search can turn up dozens, if not hundreds, of hits. A search on Madonna's latest release, "4 Minutes," turned up more than a hundred users trading various copies of the song.

The LimeWire software allows users who right-click on any song entry and choose "browse host" to see all of the songs that a given file sharer is offering to others for download. The software also lists the IP address of active file sharers. (An IP address is a unique number, assigned by Internet-service providers, that identifies every connection to the Internet.) While the names of the people associated with particular IP addresses are not public, it is easy to find out which IP addresses are registered to each Internet-service provider. Using public, online databases (such as those at arin.net or samspade.org), Media Sentry locates the name of the Internet-service provider and determines which traders are located at colleges or universities."

BECTA complain to EU about OOXML

Apparently the British Educational Communications and Technology Agency (BECTA) are complaining to the EU Commission about Microsoft's OOXML. I've never been a big fan of Becta but they are claiming that Microsoft's lack of interoperability is costing the UK education system a fortune.

"The British commission has asserted that because of Microsoft products’ lack of interoperability, the British Educational System is paying more money on software products than it should. In 2005, the same commission published a study according to which British primary schools could save up to half their costs if they would choose open source software products, and give up the proprietary ones.

Another issue raised by the commission is the way Microsoft licenses its products to the schools. The company’s policy is that all computers in a campus must have Microsoft license. BECTA has considered this an anticompetitive practice.

According to the Associated Press, Microsoft’s spokeswoman Anne-Sophie de Brancion stated that “Microsoft is deeply committed to education and interoperability”, and that the company has started to develop tools that will enable Office to work better with files in ODF."

Thanks to Manon Ress via the A2K list for the pointer.

NJ Voting Machine Tape Shows Phantom Obama Vote

Also from Freedom to Tinker, this time from Ed Felten: NJ Voting Machine Tape Shows Phantom Obama Vote.

"I’ve written before (1, 2, 3) about discrepancies in the election results from New Jersey’s February 5 presidential primary. Yesterday we received yet another set of voting machine result tapes. They show a new kind of discrepancy which we haven’t seen before — and which contradicts the story told by Sequoia (the vendor) and the NJ Secretary of State about what went wrong in the election.

The new records are from three voting machines in Pennsauken, District 6. We have the result tapes printed out by all three voting machines in that district (1, 2, 3). As usual, each result tape has a “Candidate Totals” section giving the vote count for each candidate, and a separate “Option Switch Totals” section giving the voter turnout in each party. We also have the Democratic vote totals reported by the county clerk for that district (and some others), which were apparently calculated from the memory cartridges used in the three machines.

The county clerk’s totals show 279 votes in Pennsauken District 6. The per-candidate counts are Clinton 181, Obama 94, Richardson 2, Edwards 1, Kucinich 0, Biden 1, which adds up correctly to 279. The turnout sections of the three result tapes also show a total Democratic turnout of 279 (133+126+20).

But the Candidate Totals sections of the tapes tell a different story. Adding up the three tapes, the totals are Clinton 181, Obama 95, Richardson 2, Edwards 1, Kucinich 0, Biden 1, which adds up to 280. The Candidate Totals on the tapes show an extra Obama vote that doesn’t appear anywhere else.

(Everything seems to add up on the Republican side.)

The State claimed, in response to some (but not all) of the discrepancies I pointed out previously, that I had misread the tapes. This time the tapes are absolutely clear."

Ed provides scanned images of the tapes in his blog entry and the conclusion as he suggests is inescapable:

"It is inconsistent with Sequoia’s explanation for the previously-noticed discrepancies. It is inconsistent with the State’s theory of what went wrong in the election.

It’s time for an independent investigation."

F.B.I. Says the Military Had Bogus Computer Gear

From the NYT: F.B.I. Says the Military Had Bogus Computer Gear

"Counterfeit products are a routine threat for the electronics industry. However, the more sinister specter of an electronic Trojan horse, lurking in the circuitry of a computer or a network router and allowing attackers clandestine access or control, was raised again recently by the F.B.I. and the Pentagon.

The new law enforcement and national security concerns were prompted by Operation Cisco Raider, which has led to 15 criminal cases involving counterfeit products bought in part by military agencies, military contractors and electric power companies in the United States. Over the two-year operation, 36 search warrants have been executed, resulting in the discovery of 3,500 counterfeit Cisco network components with an estimated retail value of more than $3.5 million, the F.B.I. said in a statement.

The F.B.I. is still not certain whether the ring’s actions were for profit or part of a state-sponsored intelligence effort. The potential threat, according to the F.B.I. agents who gave a briefing at the Office of Management and Budget on Jan. 11, includes the remote jamming of supposedly secure computer networks and gaining access to supposedly highly secure systems. Contents of the briefing were contained in a PowerPoint presentation leaked to a Web site, Above Top Secret."

Dan Wallach makes the point over at Freedom to Tinker that the key story here is the integrity of the supply chain.

"The really interesting story is all about the supply chain. Consider how you might buy yourself a new Mac. You could go to your local Apple store. Or you could get it from any of a variety of other stores, who in turn may have gotten it from Apple directly or may have gone through a distributor. Apparently, for Cisco gear, it’s much more complicated than that. The U.S. government buys from “approved” vendors, who might then buy from multiple tiers of sub-contractors. In one case, one person bought shady gear from eBay and resold it to the government, moving a total of $1M in gear before he was caught. In a more complicated case, Lockheed Martin won a bid for a U.S. Navy project. They contracted with an unauthorized Cisco reseller who in turn contracted with somebody else, who used a sub-contractor, who then directly shipped the counterfeit gear to the Navy. (The slides say that $250K worth of counterfeit gear was sold; duplicate serial numbers were discovered.)

Why is this happening? The Government wants to save money, so they look for contractors who can give them the best price, and their contracts allow for subcontracts, direct third-party shipping, and so forth. There is no serious vetting of this supply chain by either Cisco or the government. Apparently, Cisco doesn’t do direct sales except for high-end, specialized gear. You’d think Cisco would follow the lead of the airline industry, among others, and cut out the distributors to keep the profit for themselves.

Okay, on to the speculation. Both the New York Times and the FBI presentation concern themselves with Trojan Horses. Even though there’s no evidence that any of this counterfeit gear was actually malicious, the weak controls in the supply chain make it awfully easy for such compromised gear to be sold into sensitive parts of the government, raising all the obvious concerns.

Consider a recent paper by U. Illinois’s Sam King et al. where they built a “malicious processor”. The idea is pretty clever. You send along a “secret knock” (e.g., a network packet with a particular header) which triggers a sensor that enables “shadow code” to start running alongside the real operating system. The Illinois team built shadow code that compromised the Linux login program, adding a backdoor password. After the backdoor was tripped, it would disable the shadow code, thus going back to “normal” operation.

The military is awfully worried about this sort of threat, as well they should be. For that matter, so are voting machine critics. It’s awfully easy for “stealth” malicious behavior to exist in legitimate systems, regardless of how carefully you might analyze or test it. Ken Thompson’s classic paper, Reflections on Trusting Trust, shows how he designed a clever Trojan Horse for Unix. [Edit: it's unclear that it ever got released into the wild.]

[...]

In summary, it’s probably a good thing, from the perspective of the U.S. military, to discover that their supply chain is allowing counterfeit gear into production. This will help them clean up the supply chain, and will also provide an extra push to consider just how much they trust the sources of their equipment to ship clean software and hardware."

Bell accused of privacy invasion

From CBC news (thanks to Michael Geist for the pointer):

"The Canadian Internet Policy and Public Interest Clinic, a University of Ottawa legal clinic specializing in internet- and other technology-related law, has joined the assault on Bell Canada Inc. and its traffic-shaping practices, urging an investigation by the country's privacy commissioner.

The group says Bell has failed to obtain the consent of its retail and wholesale internet customers in applying its deep-packet inspection technology, which tells the company what subscribers are using their connections for. Bell is using DPI to find and limit the use of peer-to-peer applications such as BitTorrent, which it says are congesting its network.

The CIPPIC, which is made up mainly of lawyers and law students from the University of Ottawa, says Bell has not only failed to show that its network is congested and that its actions are necessary, but it has also run afoul of the Personal Information Protection and Electronic Documents Act (PIPEDA) in doing so.

"Practices [such as] those involving the collection and use of personal information are not necessary to ensure network integrity and quality of service," wrote CIPPIC director Philippa Lawson in a letter to the commissioner dated May 9."

The CIPPIC's news release and a copy of their letter to Canadian Privacy Commissioner Jennifer Stoddart, are available on their website.

"Large ISPs including Bell Canada and Rogers Communications Inc. may be monitoring internet
subscribers’ online activities contrary to Canada’s privacy legislation, and the Canadian Internet
Policy and Public Interest Clinic has asked Canada’s Privacy Commissioner to investigate.
The Canadian Internet Policy and Public Interest Clinic (CIPPIC) today filed a complaint with
Canada’s Privacy Commissioner about Bell Canada’s alleged practice of monitoring internet
subscribers’ internet activities without their knowledge or consent. Bell began to apply “deep
packet inspection” to its own Sympatico retail customers late in October 2007, but only admitted
this practice late in March 2008, after it began applying the same practice to subscribers of other,
independent internet service providers.
Bell claims it is respecting the privacy of ISP subscribers, but has refused to describe just what its
deep packet inspection of subscribers’ activities really uncovers. “Millions of Canadians use the
Internet every day,” said Philippa Lawson, Executive Director of the Clinic. “How can they
know if their privacy is being respected, if Bell won’t disclose what it is actually doing?”
There is evidence that other large ISPs such as Rogers, Shaw, and Cogeco may be engaging in
similar practices, said Lawson. “Our complaint focuses on Bell, but we are asking the
Commissioner to investigate all ISPs who engage in traffic-shaping practices.”
“Canada has privacy legislation that Bell and other ISPs must follow,” Ms. Lawson pointed out.
“We’re asking the Privacy Commissioner to investigate just what Bell’s use of deep packet
inspection involves. Canadians have a right to know who is looking over their shoulders, and
why.”
CIPPIC is based at the University of Ottawa, Faculty of Law. The clinic seeks to ensure balance
in policy and law-making processes on issues that arise as a result of new technologies."

French 3 strikes bill struggling to get on the statute books

According to Danny O'Brien of the EFF, the process of getting a file sharing 3 strikes law on the statute books in France is proving to be slightly more problematic than supporters of the move had hoped, despite the signing of a memorandum of understanding by the French government, the ISPs and the music industry earlier in the year.

"Six months on from the original Olivennes report, with growing objections across Europe, collapsing support for Sarkozy's administration at home, and still no "three strikes" law on any statute books, the entertainment industry is getting a little antsy. Last week, the French RIAA, le Syndicat national de l'édition phonographique (SNEP), announced a deadline to Sarkozy's ministers. Hervé Rony, SNEP spokesman, said "it would not be acceptable" for the three strikes law to miss the French Parliament's Summer schedule.

It looks like SNEP's demands are not going to be met. Before the "Loi Olivennes" can even reach parliament, it has to be examined by the French Counseil d'Etat, the senior jurists that advise the French executive and acts as France's supreme court.

They are not rushing their analysis. Just why might be gleaned from the leaked copy of the law sent to them for consideration (provided by Squaring the Net in French). Even after being moderated from earlier drafts, the document still describes a stunning shift in judicial and enforcement, both offline and on."

Thanks to Glyn at ORG for the pointer.

ISAP report on UK ID card scheme

Jamie Doward in the Observer has picked up on the recent ISAP report criticising the government's plans for their ID card scheme.

"A government-appointed panel of experts is warning that the new ID cards system will be open to fraud by the people running it.

In a potentially damaging revelation, which undermines claims that the scheme will enhance national security, the group has concluded that it will be prone to corruption.

A new report by the Independent Scheme Assurance Panel (Isap), set up to advise the government on the implementation of ID cards, states: 'Based on the likelihood that the scheme will aggregate a lot of valuable data, there is the risk that its trusted administrators will make improper use of this data.' It adds: 'The scheme will be subject to data errors and errors in decisions made.'

The acknowledgements come as the government has admitted it is to contract out the taking of fingerprints and photographs of ID card applicants to the private sector to save money."

Lessig TED talk

Just because I haven't mentioned him in a while, here's Larry Lessig's talk at TED last year.

IceTV analysis

The blogosphere is great when it works... Kim Weatherall has saved me the heavy lifting involved in needing to quickly dissect the IceTV v Channel Nine legal judgment I mentioned yesterday, in the dispute about the copying of TV programme guides in Australia.

"There’s a couple of reasons why Nine (and other channels) are keen to control this information: first, because they license it to lots of people (presumably for money), and second, because control means they can impose licensing conditions on use of the information. And that is important because personal/digital video recorders (PVRs/DVRs) need programming information to work. If you can control use of the information, you can start to control what functions will be allowed on these devices (subject to market power type stuff). And that means you can impose some limits on functions like ad-skipping. Which of course is something that Free to Air channels are very concerned about...

So, what do we think?
In summary? A judgment that is consistent with the trend of Australian authority, and entirely consistent with the reasoning of the (identical) Full Federal Court in Desktop Marketing. But a judgment which also illustrates how far away, in some respects, Australian copyright law is from copyright law in other countries, including the US (with its concepts of thick and thin copyright), and the UK now that the UK has the Database directive. And a judgment that emphasises that Australian copyright law truly does protect information, and not just expression (the judgment is notable for not even talking about that issue). Those would be my preliminary thoughts...

I’m inclined to think that the most interesting aspect of the judgment is how it builds on the Desktop case. For those who are not copyright geeks, Desktop is the 2002 decision of the Full Federal Court which held that a person who copy-typed the White Pages into a database and distributed that was infringing copyright. Importantly, it held that sweat-of-the-brow compilations are protected copyright works in Australia. But in infringement terms, it really was a pretty simple case: it involved wholesale copying.

Where IceTV different is [on the facts and arguments accepted and focused on by the courts - ie on the assumption that the initial template of the programming guide was produced in a non-infringing way] is that in this case, the company copied bits of the compilation - basically, the time and title information of updates to the basic program guide. They did this repeatedly and consistently, but these were, in the end, a series of bits of information necessary to keep the information current and correct. What the judgment of the Full Federal Court essentially says is that if that information is important enough, then taking it can infringe. This approach, I think, potentially gives quite ‘thick’ protection to factual and other elements of compilations...

So the issue is: are you copying the program guide when you write down what was broadcast? Or has the causal link between the original and your version been ‘broken’ by the fact that you are writing down what was shown, not copying from the compilation? Now, that’s a hard question. I don’t think it’s obvious at all. To address it would require delving into some quite tricky issues.

So it’s very notable that the Full Court says, in effect, nothing about that argument...

What are the implications?
For the broadcasting area, obviously, the implication is that pretty much no matter what you do (and IceTV really did do quite a lot to try to avoid copyright infringement here, on the facts found by the trial judge) - you simply cannot produce a television program guide without the cooperation of the broadcasters. Maybe from a policy perspective it’s a good thing that broadcasters get to license (and get to get paid) for this stuff - in the sense that licensing it clearly is a part of their business model.

On the other hand, it has some pretty strong implications for related markets. As I mentioned at the start, the obvious one is the market for DVRs/PVRs. If we do end up with less fully-featured devices in the Australian market (which seems to be the situation now, at least) - well, you know what to blame. Copyright law, of course (and the broadcasting regulation system which has given, and continues to give, such power to the free to air channels)."

Update: See also What Are You Missing Out On? Big Media, Broadcasting, Copyright and Access to Innovation by Kathy Bowrey (2007) for an interesting academic perspective on copyright's influence on the development of digital broadcasting services in Australia.

Internet Archive challenge FBI national security letter

Michael Geist points me to another important story in the US: the Internet Archive challenged the FBI's serving of a national security letter late last year and the FBI has now withdrawn the request for a patron's details.

"The FBI presented the San Francisco-based Internet Archive with a national security letter in November asking for a library patron's records. The group sued the agency a month later, alleging the letter violated free speech rights because they prohibit recipients from talking to anyone else about them.

The Internet Archive said today the FBI agreed to withdraw the letter last week and make the case, which was filed under seal, public. Sections of the now public lawsuit and supporting documents detailing what and who the FBI were looking into were blacked out.

National security letters are investigative tools used to compel businesses to turn over customer information without a judge's order or grand jury subpoena. They are most typically served on Internet service providers and telephone companies demanding billing records, subscriber information and other electronic communication transactional records.

The companies receiving the letters are barred from telling customers who are the targets of the FBI demands."

Movie studios win $111 million judgment v TorrentSpy

From SiliconValley.com :

"The six major Hollywood studios have won a $111 million judgment for copyright infringement against file-sharing Web site TorrentSpy.com, which has been shut down.

The judgment, filed Monday in U.S. District Court in Los Angeles, fined the operators of the Web site, Valence Media LLC, $30,000 per violation for nearly 3,700 illegal movie and TV show downloads."

Dr Who fan gets C&D on knitting patterns

According to Andres Guadamuz, a Dr Who fan has been hearing from m'learned friends acting on behalf of the BBC. The victim has been creating and posting knitting patterns of Dr Who characters on the web; and it seems that the good folks at the BBC don't approve.

Andres's post is worth reading in full as it constitutes an interesting and accesible analysis of the legalities. He concludes:

"I strongly believe that BBC Worldwide's claims are over-reaching. While there could be infringement, I submit the hypothesis that Mazz has done enough transformation to the Adipose character to claim copyright over their design...

Concluding, the BBC may not have a straightforward case if they decide to sue, and they could very well lose. I also believe that they are misplacing their energies pursuing a fan who has done nothing more than to display their love to the show by making a highly original design. While commercial use is not relevant to the infringement case, it should be noted that Mazz was not selling the design, and had actually licensed it under a Creative Commons licence."

Genealogy of a biometrics company in pole position for ID card scheme

The company in pole position to get major contracts on the UK government's ID card fiasco has a chequered history according to David Moss over at Ideal Government. I hope he doesn't mind me quoting him in full:

"Once upon a time, there was a company called Visionics Corp. Visionics specialised in biometrics based on facial geometry. Their product, FaceIt, could compare the image of someone’s face, caught on camera, with a database of stored images, at the rate of four million per minute, and identify that person whether or not he or she had grown a beard, started to wear glasses, gone bald, been photographed at an angle in poor light, etc ... At least, that’s what it said on the Visionics website.

The Visionics website is no longer available.

According to The Times, whereas Visionics claimed 99.3% accuracy, when it was tested independently FaceIt actually managed to identify people only 51% of the time. That was in November 2003. A year earlier, the New Scientist reported the experience of Palm Beach International Airport in Florida when they tried to use FaceIt to clear recognised staff through security. It worked 47% of the time. The airport would have done better to toss a coin.

The same New Scientist article records also that, back in 1998, FaceIt was used in the London Borough of Newham to match images of people, caught by CCTV cameras in the street, to a database of known villains. FaceIt drove crime off the streets of Newham, it said on the now defunct Visionics website. That’s not how the New Scientist tells it: “the police admitted to The Guardian newspaper that the Newham system had never even matched the face of a person on the street to a photo in its database of known offenders, let alone led to an arrest”.

What with one thing and another, Visionics Corp. disappeared into Identix, Inc., a biometrics company specialising in fingerprinting. And when Atos Origin organised the consortium to conduct the UKPS biometrics enrolment trial in 2004, guess who they chose to supply the facial geometry and fingerprinting systems.

This time, FaceIt failed 31% of the time, with able-bodied participants in the trial, and 52% of the time with disabled participants, i.e. it was wrong more often than it was right. And the Identix fingerprinting system failed 19% of the time with the able-bodied and 20% with the disabled.

The UKPS (now IPS) trial tested not only facial geometry and fingerprinting biometrics, but also iris scanning. 10% of able-bodied participants could not even register their iris scan in the first place, using the system supplied by Iridian, let alone be subsequently matched/identified. For the disabled, that figure rose to 39%. In a national identity scheme based on iris scans, these people wouldn’t even exist, they would have no electronic identity.

In December 2005, DVLA appointed Viisage, another facial geometry biometrics specialist, to conduct a trial to see if their collection of photographs could be used to automate driver identification. The answer seems to be no and nothing came of it.

Except that Viisage then merged with Identix, Inc., to form ... L-1 Identity Solutions, Inc.. And L-1 Identity Solutions, Inc. subsequently completed the family when it bought ... Iridian.

With its vital statistics of 51-47-31-52-19-20-10-39, L-1 Identity Solutions, Inc. is described by the FT as being in “pole position” to win the biometrics contract for the National Identity Scheme, a scheme on which the nation’s security could one day depend.

And they all lived biometrically ever after.

Question: why did the Prime Minister say, as he did on 17 January 2008, that biometrics “will make it possible to securely link an individual to a unique identity”?"

Wonderful.

Banning laptops from the classroom

The University of Chicago Law school has banned laptops from classrooms essentially because of 'the teacher knows best' meme.

"A certain amount of paternalism comes out in the school's justifications for the policy: Dean Levmore explained, "the question is, 'How do you best learn? That's for the faculty to decide.'"...

Professors at U of C (and elsewhere) think what they have to say is important. Professors think (and should think, or they would have trouble doing their jobs) that listening to what professors have to say really is the best use of law student time. And things have gotten to the point that you don't have to be a "hip young pRAWf" to sense that the student clicking furiously during another student's question isn't taking notes on that question.

As more and more law schools consider and embrace wireless deactivation (or the even more draconian laptop ban), I'd urge them to be honest. Telling students you know what's best for them -- whether we're talking about attendance policies or wireless -- only gets you so far. Be honest, and admit that you're banning wireless access because the plugged-in student is usually a disengaged one and has sucked the fun out of the classroom experience. Students are more likely to accept a top-down policy change if it's justified based on faculty morale than student learning."

Yes many of the students may well be checking their email, social networking pages, twittering or blogging etc. So if that's what they're doing anyway, why not engage them in actively using those tools to tune into your subject matter. Banning laptops in class is a bit like the education sector's equivalent of the entertainment industry wishing the Web had never happened.

Yet it is not just the teachers that don't like laptops in the room. Colleagues have recently grumbled at me using my laptop in meetings, saying it is disrespectful and the clicking of my keyboard is distracting (that's just two of the polite complaints) and participants in the OU's Making Connections conference recently were on the receiving end of similar grumbles.

With a real portable laptop (i.e. one that doesn't weigh half a tonne) I don't have to print out and carry reams of paper around, I can call any document up at a few seconds notice (well maybe not a few seconds as I'm still on XP), I can search, make notes, double check sources and frankly for the large portions of certain meetings when I just do not need to be there I can be getting on with real work, remotely supporting my staff on the broad ecology of issues they have to address on a daily basis - issues that wouldn't otherwise get dealt with until I got back to the office later in the day/week. And although I understand that multi-tasking is primarily the domain of the female of the species and I'm still a mere amateur in that regard, I guess that's why evolution gave us computers - to help us catch up. :-)

Update: I see Martin had some similar thoughts on the complaints at Making Connections.

"I think some people feel it shows disrespect to the speaker that you aren't giving them your full attention. In fact, thinking through the act of people having laptops or other devices operating during a talk I give, I'm of the completely opposite view. If what I'm saying isn't interesting enough for you to want to liveblog, twitter, look up sources or take notes on it, then I'm doing something wrong. And, if by some freak chance what I'm saying isn't interesting, then I'd rather people were doing their email or reading blogs than sitting in my session feeling resentful because they are trapped. Hey, I've had people sleeping during a talk before - I'd rather they were tapping away on their keyboards."

IceTV

There's been an interesting copyright case going on in Australia, Nine Network Australia Pty Ltd v Ice TV Pty Ltd., dealing with copyright protection in compilations of facts. Under Australian law, copyright can effectively subsist in a compilation of factual information if enought effort is put into collecting, verifying, recording and assembling the data. So there's a kind of "sweat of the brow" test. This is a much broader protection that even the EU database directive provides; and such compilations are not protected under US law, according to the defintive US Supreme Court case Feist Publications Inc. v Rural Telephone Service Co., 499 U.S. 340 (1991), dealing with extent of copyright protection available to telephone directory white pages.

"The basic facts are these: Ice TV compiles a TY program guide that subscribers can use to record TV shows. (Once a program has been recorded, subscribers are able to fast forward ads in 30 second blocks.) The Nine Network believes that Ice TV has breached its copyright by creating a TV program guide that looks like its own. Accordingly, Nine has sued Ice TV for copyright infringement and is seeking a permanent injunction and unspecified damages."

To the surprise of most legal commentators IceTV actually won at first instance but it seems that the federal court has overturned that decision on appeal; and the case is to be sent back to the original judge to reconsider her opinion. A quick scan of the opinion indicates the court felt that the judge at first instance had misinterpreted some technicalities in the application of the facts to the law; but splitting hairs on the interpretations of providing intellectual property protection to compilations of facts just ignores the elephant in the room - why is copyright protection being allocated to compiliations of facts in the first place?

Race and media double standards on the presidential race

Frank Rich on the media establishment and US presidential candidates' associations with embarrassing preachers is well worth a read.

J.K. Rowling wins privacy case appeal

AP via Findlaw: J.K. Rowling wins privacy case appeal

"A court ruling in favor of Harry Potter author J.K. Rowling has set the stage for a trial on whether publication of photos taken of her young son violates his privacy.

The Court of Appeal in London says children of famous parents have the same right to expect privacy as children of parents who aren't well-known.

The ruling Wednesday sets aside an earlier finding in favor of Express Newspapers and Big Pictures, an agency that took the photos with a long telephoto lens."

5 Canadian Copyright Myths

Michael Geist, who has been consistently critical of the Canadian government's proposed copyright reforms believes that the latest bill is based on five myths.

"1. The Importance of Copyright. In recent months, there have been increasing attempts to link copyright reform with the government’s broader innovation agenda. While copyright and intellectual property policies are unquestionably important in this regard, an innovation strategy depends upon far more than just copyright reform. A vibrant venture capital community, competitive tax structure, highly skilled workforce, and world-class communication infrastructure all play a critical role in investment decisions and the commercialization of new innovation. In fact, the World Economic Forum recently pointed to excessive red tape in establishing a new business and the high costs of Internet and wireless access as the weakest part of Canada’s "network readiness."

2. Consultation and Reform. Given the slow pace of copyright reform, it is natural for some to mistakenly believe that Canada has widely consulted on reform with little to show for it. In fact, the opposite is true. The last national consultation on digital copyright reform took place in 2001, a time that pre-dates the introduction of the now-ubiquitous Apple iPod and the emergence of popular sites such as Facebook, MySpace, and Flickr. Although critics decry Canada's "outdated" copyright laws, the reality is that there has been a steady stream of reforms over the past two decades. The Copyright Act faced major overhauls in the late 1980s and 1990s, with smaller amendments in 1992. Moreover, Canada passed new copyright laws related to Internet retransmission in 2002 and anti-camcording legislation last year.

3. Canada in the World. A consistent theme in recent years has been the characterization of Canadian copyright law as "outdated, weak, or ineffective" in comparison to the rest of the world. Much of this criticism comes from the U.S., which has consistently placed Canada on its Special 301 list of countries with intellectual property laws that merit "watching." Yet these inflammatory claims do not withstand even mild scrutiny. The U.S. Special 301 list includes nearly 50 countries representing 4.4 billion people (about 70 percent of the planet) and 13 of the top 20 countries worldwide as measured by GDP. Viewed in that light, Canada is in good company.

Moreover, the World Economic Forum ranked Canada's intellectual property protection fourth in G8, ahead of both the U.S. and Japan. That ranking may reflect the fact that there are many areas where Canadian law is actually far stronger than the U.S., including our more limited fair dealing provision, the existence of crown copyright, the significantly higher copyright fees for broadcasters and educators, as well as Canada's the heavy reliance on copyright collectives.

4. Copyright in the World. Among the most troubling claims associated with copyright are the assertions that Canada must follow the U.S. model in order to comply with the World Intellectual Property Organization's Internet treaties. Nothing could be further from the truth. In recent months, New Zealand passed copyright legislation that includes far more flexibility that the U.S. model, while Israel - well known for an innovative technology sector - rejected the need for WIPO reforms altogether. Canada has the ability to craft a "made in Canada" solution that meets our needs but rejects reforms that have had negative effects on research, security, and consumer rights in other countries.

5. Copyright Consensus. Advocates of immediate reform argue that copyright is too contentious to achieve a broad consensus and that leadership is therefore needed to push ahead with legislation despite the opposition. However, a closer look at the publicly held positions of many key stakeholders reveals that there is an emerging copyright consensus in Canada. Artists groups (Canadian Music Creators Coalition, Appropriation Art), business groups (Balanced Copyright Business Coalition), education groups (Canadian Association of University Teachers, Canadian Federation of Students), and consumer groups have largely coalesced around principles that include a rejection of the U.S. Digital Millennium Copyright Act, preservation of user rights, greater flexibility within fair dealing, and the targeting of clear cases of commercial counterfeiting. Such an approach benefits creators, users, and the business community and therefore holds the promise of a consensus-based roadmap for reform."

A couple of links for the day

Cornell Law Library's terrific InSITE service has recommended a couple of interesting links, one I've found useful for many years and one I hadn't previously come across, the Global Legal Information Network (GLIN) and the United Nations Scholar's Workstation respectively.

"GLIN: Global Legal Information Network
http://www.glin.gov/

The Global Legal Information Network (GLIN) is a product of the Law Library of Congress that provides a freely searchable “public database of official texts of laws, regulations, judicial decisions, and other complementary legal sources contributed by [approximately thirty] governmental agencies and international organizations ... in their original languages.” Every document record includes an English summary, as well as assigned subject terms. Advanced features allow searching by jurisdiction, publication and issuance date, subject, document type, and language. Results may be sorted or narrowed by jurisdiction, relevancy, or publication date. Related legal resources are grouped together for ease of access. Where available, the original documents are scanned color PDFs. GLIN is a classic free resource for researching foreign and international law. [JJ]

[...]

United Nations Scholars' Workstation
http://www.library.yale.edu/un/

Developed by the Yale University Library and the Social Science Statistical Laboratory, "the United Nations Scholars' Workstation is a collection of texts, finding aids, data sets, maps, and pointers to print and electronic information." The Workstation is maintained by the United Nations Studies program. Topics covered include disarmament, economic and social development, environment, human rights, international relations, international trade, peacekeeping, and population and demography. The site categorizes its links into two areas, "Research Tools to Locate UN Information", which links to particular types of content (i.e. "Numeric Data" or "Maps") and "Research Approaches to UN Information", which categorizes information by different approaches such as UN organizational structure or geographic area. This multi-axis approach makes the site more accessible. The site primarily links to and aggregates external sources; no internal search engine seems to be available. The site is most valuable for demonstrating how the different UN agencies are linked to each other. [BWK, JPC]"

InSITE contributors: J.P. Cusker, J. Jones, B. Kreisler, J. Pajerek (editor)

Microsoft walk away from Yahoo! deal for the moment

Steve Ballmer has called a halt to Microsoft's attempts to takeover Yahoo!

Corner House & CAAT v SFO on BAe-Saudi Corruption heads for House of Lords

The High Court has given the Serious Fraud Office permission to appeal to the House of Lords in the case brought by The Corner House and the Campaign Against the Arms Trade relating to the SFO decision to drop the BAe-Saudi arms sales corruption enquiry.

In their judgement in the High Court on 10th April, Lord Justice Moses and Mr Justice Sullivan severely criticised the SFO's and the government's stance in the affair. From the Corner House:

"The High Court has formally quashed the Serious Fraud Office (SFO) decision to drop its corruption investigation into arms deals between BAE Systems and Saudi Arabia. This follows the Court's ruling on 10th April that the Director of the SFO, acting on government advice, acted unlawfully in stopping its BAE-Saudi corruption investigation in December 2006.

The High Court also gave the SFO permission to appeal to the House of Lords, the UK's highest court, against their ruling of 10th April. Campaign Against Arms Trade (CAAT) and The Corner House, which sought the judicial review of the SFO decision, did not oppose this, because of the public importance of the legal issues raised, but all parties acknowledged that the SFO had not identified any errors in law in the judgment itself.

In granting the appeal, Lord Justice Moses said "This is a paradigm case . . . that relates to the way this country is governed and to basic constitutional principles."

The judges ordered the SFO to pay the costs of the judicial review so far (capped and agreed in January 2008) and, recognising the public service that The Corner House and CAAT are performing, also ordered the SFO to pay all reasonable costs of the appeal, regardless of the outcome, "win, lose or draw."

A joint press release gives more detail about the quashing and the appeal."

Security through fingerprint sensors on laptops: think about it...

Kim Cameron got a new laptop a few weeks ago with a fingerprint security sensor on it.

"A couple of days later, I was at a conference and on stage under pretty bright lights. Glancing down at my shiny new computer, I saw what looked unmistakably like a fingerprint on my laptop’s right mouse button. Then it occurred to me that the fingerprint sensor was only a quarter of an inch from what seemed to be a perfect image of my fingerprint. How secure is that?"

Kim got a colleague at the conference to take a photo of the fingerprint to see if it was usable and was shocked to find that it was (see the original post for the excellent photos). Kim says:

"The net of all of this was to drive home, yet again, just how silly it is to use a “public” secret to identify someone. What kind of a lock was this? It was a lock which conveniently offered any thief the key.

At first my mind boggled at the fact that Toshiba would supply mouse buttons that were such excellent fingerprint collection devices. But then I realized that even if the fingerprint weren’t conveniently stored on the mouse button, it would be easy to find it somewhere on the laptop’s surface.

It hit me that in the age of digital photography, a properly motivated photographer could probably find fingerprints on all kinds of surfaces, and capture them as expertly as Dale did. I realized it was no longer necessary to use special powder or inks or tape or whatever. Fingerprints have become a thing of “sousveillance”."

The Swedish Offentlighetsprincipen

Thanks to David Gerard via the ORG list for for alerting me to the Finnish-Swedish Offentlighetsprincipen in the context of the EU Commission's proposals to change the rules regarding public access to EU documents. The 1996 newsgroup posting by Jon Noring that David refers to has a full explanation of the almost sacred Swedish constitutional principle relating to freedom of access to public documents.

"Swedish law has a legal principle called "Offentlighetsprincip". I've enclosed an edited private e-mail from a Swedish individual (not Zenon, and who prefers to remain anonymous), wherein it describes "offentlighetsprincip". It's an amazing principle...

The offentlighetsprincip is divided in two parts: the right for whoever it
may be, to be present as listener at court and other public proceedings. The
rule is from the 15th century, and is of course no oddity at all. Most legal
systems state the same. But the other part is it: the right, whomever it may
be, to anonymously and without giving any reason, "immediately and on the
spot" read public papers in courts and federal and municipal agencies, and
get copies, and publish them irrespective of the wishes of the original
author.

The offentlighetsprincip is part of the constitution of the Kingdom of
Sweden. It has been since 1766; thus the offentlighetsprincip for public
papers is 22 years older than the US constitution. But as Sweden has
prefered to rewrite instead of using amendments, it has since been rewritten
in 1774, 1809, 1946 and 1976. There is of course also elaborate rules, a
thick law, when public papers must be classified. But the basic principles
from 1766 have never been changed. And when the computers came, data
information became as public as information on paper.

The offentlighetsprincip is divided in two parts: the right for whoever it
may be, to be present as listener at court and other public proceedings. The
rule is from the 15th century, and is of course no oddity at all. Most legal
systems state the same. But the other part is it: the right, whomever it may
be, to anonymously and without giving any reason, "immediately and on the
spot" read public papers in courts and federal and municipal agencies, and
get copies, and publish them irrespective of the wishes of the original
author.

The offentlighetsprincip is part of the constitution of the Kingdom of
Sweden. It has been since 1766; thus the offentlighetsprincip for public
papers is 22 years older than the US constitution. But as Sweden has
prefered to rewrite instead of using amendments, it has since been rewritten
in 1774, 1809, 1946 and 1976. There is of course also elaborate rules, a
thick law, when public papers must be classified. But the basic principles
from 1766 have never been changed. And when the computers came, data
information became as public as information on paper...

And why is the offentlighetsprincip revered by even the poorest citizens?
Because in other countries the journalists are depending on leaks, but when
a whole group of politicians, judges or bureaucrats all are corrupt, there
aren't any. But in Sweden all journalists, it's part of their professional
pride, dig up the facts nevertheless...

With such an effectivness, the offentlighetsprincip is of course hated,
hated, hated among politicians and bureaucrats, but they can't even show the
slightest hint of that opinion, beause in that case, they won't be
reelected. It would be a political suicide."

Read the whole post. Can you imagine, for example, the Speaker of the House of Commons pursuing a court case to keep details of his and other MPs expenses private if such a revered constitutional principle existed in the UK?

People of Lesbos sue Lesbians over name

From AP via Findlaw:

"A Greek court has been asked to draw the line between the natives of the Aegean Sea island of Lesbos and the world's gay women.

Three islanders from Lesbos - home of the ancient poet Sappho, who praised love between women - have taken a gay rights group to court for using the word lesbian in its name.
One of the plaintiffs said Wednesday that the name of the association, Homosexual and Lesbian Community of Greece, "insults the identity" of the people of Lesbos, who are also known as Lesbians.

"My sister can't say she is a Lesbian," said Dimitris Lambrou. "Our geographical designation has been usurped by certain ladies who have no connection whatsoever with Lesbos," he said."

How scanners and PCs will choose London's mayor

The Register is raising concerns about the electronic vote counting for the London mayoral election.

"

But despite all the changes, there are still those who are concerned that introducing technology into the voting process risks compromising the integrity of the vote. One such campaigner is Rebecca Mercuri, an American expert on electronic voting and counting systems.

She is worried that equipment provided by companies with little or no experience in elections could fail to provide an accurate count because of an unintentional design flaw. She cites the example of a US election where the counting system reached a certain number, and then started counting backwards.

"It's not that easy to design [a well planned counting system]," she told us.

But Bennet says he's confident that the machines will return a result that accurately reflects the will of the people, simply because of the huge volumes of test papers that have been scanned. Over the last 18 months, almost one million ballot papers have been counted on test runs, and Bennet is so sure of his system that he is prepared to claim the machines are more accurate than people.

"When we've had to do recounts because of a discrepancy between the machine and manual counts, it has always turned out that the machines are right and the people have made a mistake," he told us.

But Mercuri questions Bennet's confidence in the voting machines. Testing, she says, is only good at spotting the problems that can be forseen. Optical scanners in the US were rejecting ballots that had been marked with gel-ink pens, for example, but this wasn't picked up in testing because no one was looking for it. Only low vote totals alerted officials to the problem.

Pre-election testing is also no good at spotting machines that develop a fault, or have been compromised on the day. It might be possible, Mercuri contends, for a hidden piece of code to be activated, or for a machine to be subverted by scanning a particular bitmap image, or even by an engineer pressing a particular sequence of keys. These so-called Easter eggs are common in electronic equipment, she says, as manufacturers commonly install them to allow engineers access to configuration or diagnostic settings...

Bennet says that such an audit would be "meaningless" and bad for voter confidence. This is because the rules that govern the counting procedure do not allow for both a manual and electronic count...

"We could do a sample manual recount, but if it turned up a problem, we wouldn't be able to do anything about it, which would be the quickest way to collapse voter confidence in the result," Bennet told us.

This is an anathema to campaigners like Mercuri. "The law should always include some percentage of manual audit and there always must be a way that a problem with the check should trigger an investigation, possibly resulting in the discarding of the electronic totals.

And she is not the only one who thinks the electronic count should be audited. Becky Hogge, executive director of the Open Rights Group, says that ORG is campaigning for the law to be changed to make a manual recount of a statistically significant sample to be mandatory in all electronically counted elections."

PIJIP 301 Watch

The Programme on Information Justice and Intellectual Property (PIJIP) at American Univerisity is "creating a new project to analyze US bilateral trade pressures against countries perceived to have inadequate intellectual property protection." They have produced a Snapshot of Industry Influence on the 2008 Special 301 Report (pdf).

The degree of apparent influence is unsurprising since the US Trade Representative's office, tasked with producing the section 301 report, has no resources to do the necessary empirical research and has since the beginning relied on outside sources - mainly the IP industries - to supply data. Peter Drahos and John Braitwaite outline the story of the mutual interdependence of the USTR and the IIPA in particular in their terrific book, Information Feudalism: Who Owns the Knowledge Economy.

The PIJIP folks in looking at the 2008 report note:

" Most of the countries which the industry groups USTR to place in the
Special 301 Report are in it.
- 86% of the nations IIPA singled out are in the USTR report.[2]
- 75% of the nations PhRMA singled out are in the USTR report. [3]"

The tables summarising the comparisons are available at the PIJIP wewbsite.

Cheaper school texts for Indonesia

A government minister in Indonesia, it seems, is intent on making school text books more accessible.

"How do you make school textbooks cheaper? The government has turned to a combination of old traditions and modern technology to beat book prices, considered one of the sources for the high cost of education in this country. Let's hope it works.

The new book policy, introduced in 2005 but for some reason still not widely known to the public, involves lengthening the shelf life of a book to a minimum of five years, buying up the copyrights of as many school textbooks as the government can afford and uploading them in digital form to the Internet and making them available for free download to those who need them.

National Education Minister Bambang Sudibyo, who explained the policy at a news conference on Friday, acknowledged there are bound to be winners and losers as a result of any new policy. In the case of the new book policy, the winners are parents and students through cheaper books. The biggest losers are book publishers and bureaucrats at the National Education Ministry who for years have colluded to make book prices expensive.

"There isn't going to be any monopoly over school textbooks. There isn't even going to be oligopolies," the minister said.

Extending the life of school textbooks to five years from the present one year would mean that books could be passed down to younger siblings, donated to poor families or sold to secondhand bookstores. The policy would also revive used textbook markets around the country."

Thanks to Vera Franz via the A2K list for the link.

Rowntree repro

The Joseph Rowntree Reform Trust yesterday published a report entitled "On the Purity of Elections in the UK: Causes for Concern" The key findings are listed in the executive summary:

"• Experienced election observers have raised serious concerns about how well UK election
procedures measure up to international standards.
• There have been at least 42 convictions for electoral fraud in the UK in the period
2000–2007.
• Greater use of postal voting has made UK elections far more vulnerable to fraud and
resulted in several instances of large-scale fraud.
• There is widespread, and justifiable, concern about both the comprehensiveness and the
accuracy of the UK’s electoral registers – the poor state of the registers potentially
compromises the integrity of the ballot.
• There is a genuine risk of electoral integrity being threatened by previously robust
systems of electoral administration having reached ‘breaking point’ as a result of
pressures imposed in recent years.
• Public confidence in the electoral process in the UK was the lowest in Western Europe in
1997, and has almost certainly declined further as a result of the extension of postal
voting.
• The benefits of postal and electronic voting have been exaggerated, particularly in
relation to claims about increased turnout and social inclusion.
• There is substantial evidence to suggest that money can have a powerful impact on the
outcome of general elections, particularly where targeted at marginal constituencies
over sustained periods of time.
• Outside of ministerial circles, there is a widespread view that a fundamental overhaul of
UK electoral law, administration and policy is urgently required."

And the conclusions:

"The relative lack of research into electoral processes in theUK, particularly prior to 2000, is striking.
In particular, it would appear that the previously widespread assumption that British elections
were ‘free and fair’ has meant that there has effectively been no research on electoral
malpractice in the UK (Stewart, 2006).Moreover, despite the enormous volume, and high quality,
of research conducted and commissioned by the Electoral Commission since 2000, significant
areas of the evidence base remains virtually non-existent. This dearth of research has
constituted a major failing in the context of rapidly changing electoral policy in the UK. All too
often, genuine concerns have been dismissed on the basis that there is ‘no evidence’ to underpin
the claims beingmade or that the only evidence available ismerely anecdotal. In actual fact,
the evidence base is arguably too deficient to establish anything other than ‘working hypotheses’
about a number of key issues such as the state of the electoral registers or trends in electoral
malpractice in the UK.

While there is no hard evidence suggesting a significant increase in electoral malpractice since
2000, the extension of postal voting has significantly enhanced the vulnerability of UK elections
to large-scale fraud. It is equally clear that absentee voting of any form significantly
increases the risk of fraud and the scale of fraud that it potentially possible. The Birmingham election
court of 2005 demonstrates that the control of a major city council or the outcome of a parliamentary
contest could be influenced by the scale of fraud that was rendered possible by postal
voting. Electoral legislation has had to play ‘catch up’ with this reality in recent years, although
there is widespread agreement that the provisions introduced by the Electoral Administration
Act 2006 still fall short of what is required. As such, it is difficult to refute the view recently
expressed by the former Chair of the Committee on Standards in Public Life that the government
appears to be ‘in denial’ about the challenges to the integrity of UK elections.

Reforms introduced with the intention of raising turnout have,without doubt, dented public confidence
in the electoral system,which as already low by European standards. Instead of engaging with
such concerns, the government reiterated its determination in November 2007 to “further
develop our electoral modernisation strategy”, using existing legislative provisions and further
piloting of alternative electoral arrangements. It is the centrality of the concern to find a relatively
‘quick fix’ to the problem of declining turnouts, particularly among ministers, that has
caused such a variety of genuine concerns, and valid evidence, to be overlooked. Randall (2005,
p.409) has argued the consistent tendency to refute the validity of such concerns suggests that
“group think was apparent in the way in which the reform of the system was proposed, accepted
and adopted in the late 1990s”. Most significantly, the likelihood of such fraud occurring
could have been predicted on the basis of evidence of growing proxy vote fraud during the 1990s.

At the same time, there is an urgent need for all those involved in UK elections to accept that
the causes of low turnout are far more fundamental that the extent to which voting procedures
are ‘modern’ or ‘convenient’, although the role of such factors should not be dismissed entirely.
Ironically, however, some of the core reasons for declining turnout may well arise from the
patterns of party funding that have become clearer as a result of the requirements of PPERA
2000. In particular, emerging evidence points to the interplay between the ‘First Past the Post’
system of elections and the geographical contrasts in local campaign spending as a potentially
significant factor in explaining low turnout in many constituencies. Appendix A to this report
presents a brief case study of the 2005General Election on Merseyside,which highlights the possible
relationship between turnout and geographical variations in local campaign spending.
One of the most damaging legacies of these reforms has been their negative impact on electoral
administration. As the Electoral Commission (2007c) state: “in many areas of the UK we
have noted concerns that the current structure for the delivery of electoral administration is
close to breaking point and we believe it is insufficiently robust and coordinated to meet the
challenges of elections in the twenty-first century”. However, the extent to which these issues
have been considered seriously by ministers and civil servants is difficult to gauge. Certainly, it
would appear that little account was apparently taken of the fragile state of electoral administration
arrangements in the Prime Minister’s initial plans to call a snap general election. The
nature of the ‘lucky escape’ represented by the ‘General Election that never was’ is underpinned
by the fact that the conclusions reached in this report reinforce the findings of a number of recent
reviews and commentaries on British electoral procedures.As such, the recommendations of the
Committee on Standards in Public Life’s review of the work of the Electoral Commission, as well
as the Commission’s subsequent response to these recommendations, and to the Gould report
on the Scottish elections in 2007, provide at least part of the route map towards future reform.
The Electoral Commission has signalled its intention to lead a detailed review of the current legal
and policy frameworks for elections in the UK. This is a welcome initiative and, outside of ministerial
circles, there is widespread appetite for such a debate.

It would be presumptuous to seek to pre-empt the conclusions which may be reached by the
Electoral Commission’s review. However, in relation to legislative frameworks, the possibility
cannot be dismissed that root and branch reform of British electoral law and administration is
required, as opposed to further consolidation of legislation and administrative procedures originating
in the nineteenth century. The nature of this task may be less onerous than it would seem.
It has been widely noted in recent reviews of UK election procedures that many viable solutions
to the problems that have emerged in recent years are already in place in one part of the UK. In
parallel with the broader reviews of electoral processes in the UK carried out after Labour came
to power in 1997, separate reviews were undertaken examining the issues arising from the experience
of elections in Northern Ireland. These reviews included the report of the Northern Ireland
Affairs Select Committee (1998) on Electoral Malpractice in Northern Ireland and the Northern
Ireland Office’s (1998) report Administering Elections in Northern Ireland. These inquiries were
undertaken because of a widespread concern that, in contrast to the rest of the UK, electoral
malpractice remained widespread in Northern Ireland, despite the measures introduced in the
Elections (Northern Ireland) Act of 1985. Yet despite the widespread perception that electoral
malpractice was taking place in specific parts of the province, concrete evidence of fraud proved
elusive...

Despite the lack of clear evidence, the Northern Ireland Select Committee took the view that it
was likely that electoralmalpractice was a serious problemin Northern Ireland and required the
introduction of urgent measures to minimise the scope for ‘vote stealing’. At the centre of this
analysis was a concern about the extent of inaccuracies in the electoral register, particularly the
‘inflation’ of the register throughmultiple and false entries. The Select Committee recommended
measures to improve the accuracy of electoral registers and tighter controls over absentee
voting in Northern Ireland. As a result, the provisions in the Representation of the People Act
2000 for absentee voting (postal voting on demand) and for electoral pilots were not extended
toNorthern Ireland. Instead, the recommendations of the Select Committeewere translated into
the 2001 White Paper ‘Combating Electoral Fraud in Northern Ireland’ and ultimately formed
the basis for the Electoral Fraud (Northern Ireland) Act 2002...

...over the past decade, electoral reforms introduced in Northern Ireland
have provided formore accurate electoral registers, strengthened the role of electoral administration,
sharply reduced accusations ofmalpractice, and raised public confidence in the electoral
process. Introducing the second reading of The Electoral Fraud (Northern Ireland) Bill in the
House of Commons on 10 July 2001, Desmond Browne MP, the Parliamentary Under-Secretary
of State for Northern Ireland, justified the new measures in the following terms:

“There has been growing concern about the perceived level of electoral malpractice in Northern
Ireland. The Government have a commitment to protecting the right to free and fair elections.
Of course, electoral fraud is a crime. Electoral abuse is an affront to democracy and we are
determined to combat it wherever it occurs. If there is a high level of abuse, or even if people
only fear that that is the case, the democratic process will be under threat.We do not want voters
in Northern Ireland to become disillusioned with politics because they fear that elections
are unfair.” (Hansard, 10 July 2001, Column 688)

Seven years on, very few of those involved in administering elections in the UK would be likely
to quibble if the very same words were used to justify significant change to electoral law in the
rest of the country."

Meanwhile ORG will be monitoring the e-count at this weeks local and mayoral elections in London.

"The Open Rights Group (ORG) will send 30 official monitors to observe the elections for the mayor and members of the Greater London Assembly (GLA).

Under an agreement with the Electoral Commission and London Elects, which manages the election on behalf of the GLA, they will monitor polling stations, and activities at the three sites where the count will take place.

ORG opposes the introduction of electronic voting in UK elections, and recommends that all electronic counts be subject to a random manual audit on count day. In May of last year it monitored e-voting and e-counting in local elections in England and Scotland, following which it published a highly critical report."