ECHR: UK phone tap practices illegal

Yesterday the European Court of Human Rights ruled, in a case brought by Liberty, the British Irish Rights Watch and the Irish Council for Civil Liberties, that UK phone tapping practices contravened Article 8 of the European Convention on Human Rights. Basically they noted that the practice of phone tapping under the relevant 1985 interception of communications act (now superceded by the Regulation of Investigatory Powers Act 2000) were way too broad and sweeping, had insufficient checks and balances, and breached the technical need for users of communications services to have come degree of clarity and foreseeability about the circumstances under which interception might occur.

I wonder what the court would make of the mass unconstitutional wiretapping programme sanctioned by the Bush administration and facilitated by the telcos in the US and the fact that both the main candidates for the presidential election in November are now committed to giving retroactive immunity to the organisations involved?

Extract from the court's decision yesterday:

"I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

41. The applicants complained about the interception of their communications, contrary to Article 8 of the Convention:

“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.”

A. The parties’ submissions

1. The applicants

42. The applicants complained that, between 1990 and 1997, telephone, facsimile, e-mail and data communications between them were intercepted by the Capenhurst facility, including legally privileged and confidential material.

43. Through the statements of Mr Duncan Campbell, a telecommunications expert, they alleged that the process applying to external warrants under section 3(2) of the 1985 Act embodied five stages...

44. The applicants contended that since the section 3(2) procedure permitted the interception of all communications falling within the large category set out in each warrant, the only protection afforded to those whose communications were intercepted was that the Secretary of State, under section 6(1) of the Act, had to “make such arrangements as he considers necessary for the purpose of securing that ... so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person” unless the requirements of section 6(2) were met. However, the precise nature of these “arrangements” were not, at the relevant time, made known to the public, nor was there any procedure available to permit an individual to satisfy him or herself that the “arrangements” had been followed. The Tribunal did not have jurisdiction to examine such compliance, and although the Commissioner was authorised under section 8 to review the adequacy of the “arrangements” in general, he had no power to review whether they had been met in an individual case.

45. It was plain that the alleged interception of communications constituted an interference with the applicants’ rights under Article 8 § 1. Any such interception, to comply with Article 8 § 2, had to be “in accordance with the law”, and thus have a basis in domestic law that was adequately accessible and formulated with sufficient precision as to be foreseeable. They contended that the United Kingdom legislation breached the requirements of foreseeability...

A. Admissibility

55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Whether there was an interference

56. Telephone, facsimile and e-mail communications are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 (see Weber and Saravia v. Germany (dec.), no. 54934/00, § 77, 29 June 2006, and the cases cited therein). The Court recalls its findings in previous cases to the effect that the mere existence of legislation which allows a system for the secret monitoring of communications entails a threat of surveillance for all those to whom the legislation may be applied. This threat necessarily strikes at freedom of communication between users of the telecommunications services and thereby amounts in itself to an interference with the exercise of the applicants’ rights under Article 8, irrespective of any measures actually taken against them (see Weber and Saravia, cited above, § 78).

57. The Court notes that the Government are prepared to proceed, for the purposes of the present application, on the basis that the applicants can claim to be victims of an interference with their communications sent to or from their offices in the United Kingdom and Ireland... The Court considers that the existence of these powers, particularly those permitting the examination, use and storage of intercepted communications constituted an interference with the Article 8 rights of the applicants, since they were persons to whom these powers might have been applied (see Weber and Saravia, cited above, §§ 78-79).

2. Whether the interference was justified

58. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see Weber and Saravia, cited above, § 80)...

69. In conclusion, the Court does not consider that the domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications. In particular, it did not, as required by the Court’s case-law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. The interference with the applicants’ rights under Article 8 was not, therefore, “in accordance with the law”.

70. It follows that there has been a violation of Article 8 in this case."

The court also awarded legal costs against the UK government. There's a brief report on the case in the Guardian. The other mainstream news outlets seem to have missed the decision for the moment.

Update: RTE have picked it up now, as have Reuters. Also possibly more accessible to ordinary mortals than the judgment itself is the press release related to it issued by the Court Registrar.

Update 2: I recommend the articles written by Richard Lamont, who deduced the real purpose of the 'Capenhurst Tower' interception facility at the centre of this case in 1999, available here and here. Thanks to Richard Lamont himself for the alert via the ukcrypto list.

d Data Control and Social Networking: Irreconcilable Ideas?

Lilian and Ian have just completed a chapter for a forthcoming book to be edited by Andrea Matwyshyn. They presented a really interesting talk at Gikii II last autumn about the privacy settings in Facebook, Stalking 2.0: privacy protection in a leading Social Networking Site, and this chapter serves to round off this work. I've been reading Data Control and Social Networking: Irreconcilable Ideas? this afternoon and recommend it highly.

Abstract:

" The future of both law and technology will require reconciling users' desire to self-disclose information with their simultaneous desire that this information be protected. Security of personal information and user privacy are potentially irreconcilable with the conflicting set of user preferences regarding information sharing behaviours and the convenience of using technology to do so. Social networking sites (SNSs) provide the latest and perhaps most complicated case study to date of these technologies where consumers' desire for data security and control conflict with their desire to self-disclose. Although the law may provide some data control protections, aspects of the code itself provide equally important means of achieving a delicate balance between users' expectations of data security and privacy and their desire to share information."

They raise serious concerns about the almost universal ignorance of the users of social networking sites about the uses of their sensitive private data by the owners of these sites and other third parties. They also suggest some ways forward, including privacy enhanced software/code architectures for such sites, as the abstract above notes.

The main value of this work though is in the clear and comprehensive analysis of the issues and their clarion call for an urgent review of how social networking sites might be regulated, through law and/or code, in a way which builds in a default respect for the privacy of their users and, in addition, recognises the wider value of privacy to society as a whole. Policymakers in government and industry please take note.

Programmed for control

Henry Porter was in full flow in the Observer again this past weekend.

"Rights, liberties and the liberty instinct are evaporating in this country, partly through ignorance of the historic struggle to win our freedoms - and the civilising effect this had on the world - and partly from selfishness and fear that has been remorselessly encouraged by the tabloid press. Into this gap have stepped sinister forces in the Civil Service and a government programmed to think of governance as no more than control.

We may be at the stage where we should coldly ask what is the point of personal freedom in our society? Russia has democracy without liberty and China has capitalism without democracy or liberty. Does the 21st century need to bother with the thing that tied up so much effort in the previous 250 years? Have personal freedom and rights become redundant...

Do we sacrifice the freedom to bring up children as best we can, to assembly, to protest, to free speech and privacy of communication and movement for the - unguaranteed - freedom from terror, crime and antisocial behaviour?...

Justice Secretary Jack Straw declared: 'Yes, the sun does rise in the East. And yes, we have deepened and extended civil liberties for all', sentences which should earn him a pelting with soft fruit whenever he appears in public...

Last week, the Poynter review on the loss of 25 million records from HM Revenue & Customs was published. The culprits - Gordon Brown, Dawn Primarolo MP and David Varney, the former head of the HRMC - have all moved on to other jobs, in Varney's case to the Transformational Government project that will oversee the merger of all government databases in a monstrous implement of surveillance. Forget privacy, let's just think about the appalling, and expensive, mess that this is likely to result in. And while we're about it, the waste of public funds in local government surveillance operations and CCTV systems which Detective Chief Inspector Mike Neville, Scotland Yard's CCTV expert, declared an 'utter fiasco'...

Parliament had better begin to address these issues soon or a chimpanzee living in Spain will have more rights than you and me."

Obama u-turn on telecomms immunity for mass wire-tapping

It appears that Barack Obama has changed his mind about retroactive immunity for telecoms companies involved in the Bush administration's mass, secret, unconstitutional wiretapping program.

During the Democratic primary campaign he made repeated commitments not to support retroactive immunity. Now he is apparently in favour of immunity for those companies.

From last Friday's Washington Post:

""To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies."

-- Obama spokesman Bill Burton, Oct. 24, 2007

That was then: Democratic primaries to be won, netroot lefties to be seduced. With all that (and Hillary Clinton) out of the way, Obama now says he'll vote in favor of the new FISA bill that gives the telecom companies blanket immunity for post-Sept. 11 eavesdropping...

Remember his pledge to stick to public financing? Now flush with cash, he is the first general-election candidate since Watergate to opt out. Some goo-goo clean-government types chided him, but the mainstream editorialists who for years had been railing against private financing as hopelessly corrupt and corrupting evinced only the mildest of disappointment.

Indeed, the New York Times expressed a sympathetic understanding of Obama's about-face by buying his preposterous claim that it was a preemptive attack on McCain's 527 independent expenditure groups -- notwithstanding the fact that (a) as Politico's Jonathan Martin notes, "there are no serious anti-Obama 527s in existence nor are there any immediate plans to create such a group" and (b) the only independent ad of any consequence now running in the entire country is an AFSCME-MoveOn.org co-production savaging McCain."

Dominic Lawson in the Independent is not impressed either but then he's never been an Obama fan. And sadly people have to realise that Obama is not bringing a new dawn. He's just a politcian and he does what modern politicians do - bend in the breeze and tell their various interests what they want to hear.

I would be interested to hear what Larry Lessig makes of Obama's opting out of the public campaign financing system though. Larry, after all, is committed to changing Congress. Not that McCain will be short of funds with lots of "independent" groups apparently spending significant funds campaigning on his behalf. Just don't go expecting massive change in US politics whichever of the two men succeeds in achieving the highest office in November's election. The paymasters will still be looking for their pound of flesh.

Just as Obama has dropped his commitment to dealing with illegal wiretapping, we can expect that David Cameron, should the Tories ever get elected this side of the pond, will drop his opposition to ID cards and other illiberal hi tech surveillance systems brought in by Nu Labour; and for the very same reason - fear of being accused of being soft on terror and despite the fact that the deployment of these systems make dealing with terror much more difficult.

Update: Jack Balkan's and Marty Lederman's posts on the substance of the new FISA amendments are essential reading for anyone interested in the subject.

NHS sinking in administrative drivel

Slightly off topic for this blog but Simon Carr has been listening to the Health Secretary's plans for the NHS and predicting that revered British institution is going to sink even deeper into an ever expanding sea of administrative drivel.

There will be "An increasing focus for GPs" on "improving the health of individuals". Hmmm. Ok. That's not exactly new but credit where credit is due.

They are committed to an improvement in the "Quality and Outcomes Framework" through the mechanism of a "clinical dashboard", annual "Quality Accounts" and "an unwavering, unrelenting, unprecedented focus on quality".

They plan "to bring clarity to quality", a "strong clinical voice elevated through the Review", "new expectations of professionalism" to "redefine their roles as practitioners" and a set of "rights and responsibilities of a newly-enhanced accountability".

We've been burdened with "quality assessment" in the education system for as long as I can remember and before that similarly during my time in industry there was an obsession with gaining external quality awards like ISO 9001 and the BSA equivalent, British Quality Awards etc. etc. An aspiration towards providing quality products and services is commendable. Unfortunately in practice the management of quality rapidly degenerates into a hugely complex box ticking paper chase, where the incentives to pretend the organisation is doing better than it is become overwhelming; and the resources expended on feeding the organisation's "quality" administrative system grow exponentially and have been known to overtake the resources spent on the core business, as sustaining the quality monster becomes an end in itself.

U.S. and Europe Near Agreement on Private Data

From Saturday's NYT, something else in the almost hard to believe category- ie hard to believe that this is the same EU that less than a decade ago was on the verge of a trade war with the US over the latter's lack of appropriate protection for personal data but eventually compromised with the data safe harbor provisions - U.S. and Europe Near Agreement on Private Data

"The United States and the European Union are nearing completion of an agreement allowing law enforcement and security agencies to obtain private information — like credit card transactions, travel histories and Internet browsing habits — about people on the other side of the Atlantic Ocean.

The potential agreement, as outlined in an internal report obtained by The New York Times, would represent a diplomatic breakthrough for American counterterrorism officials, who have clashed with the European Union over demands for personal data. Europe generally has more stringent laws restricting how governments and businesses can collect and transfer such information.

Negotiators, who have been meeting since February 2007, have largely agreed on draft language for 12 major issues central to a “binding international agreement,” the report said. The pact would make clear that it is lawful for European governments and companies to transfer personal information to the United States, and vice versa."

PM's claims about DNA database false

Speaking of fearmongering, GeneWatch UK have looked into Gordon Brown's recent claim that 114 murderers would have walked free if innocent people's DNA was not recorded on the national DNA database. They concluded, not surprisingly, that:

"

1. The Prime Minister’s claim is false;
2. Ministers are well aware that this claim is false;
3. This figure is misleading to members of the public who are concerned about the
implications of retaining innocent people’s records indefinitely on the National
DNA Database...

It is not possible – let alone probable - that 114 murderers would have walked away if
DNA profiles from innocent people were not kept on the NDNAD, because the number of
convictions is always considerably less than the number of DNA matches. In addition,
suspects in murder cases are often identified by means other than a ‘cold hit’ on the
Database: claiming that they would “walk away” if they did not have a record on the
Database is therefore highly misleading. Since the law changed, the Government has
provided no examples of murders that have been solved as a result of retaining the DNA
of innocent people beyond the period necessary to investigate whether they have
committed a past offence...

The British Academy of Forensic Sciences has noted that “in reality there are a number
of disadvantages” with profiling everyone at birth, which it lists as24:
• The scale of the operation would be disproportionate, since only a minority commit
crimes
• It would increase anxieties about ‘big brother’, already evoked by widespread CCTV
coverage and proposed biometric identity cards
• It might be seen to imply that we are all guilty until proven innocent
• There have, and will be, mistakes, chance matches and false matches with close
relatives, made even more likely where profiles are incomplete
• Links will be established all the time between the scene and innocent individuals,
leading to false inferences
• It would render every member of the population vulnerable to attack, by for example
having their DNA planted at a crime scene
• In future it is possible that profiles could also reveal confidential information about the
health of an individual
• It would be impossible to control for the large numbers of people who enter and leave
the country, both legally and illegally...

The NDNAD is a useful tool in criminal investigations, but the permanent retention on it
of everyone who has been arrested for a recordable offence raises important concerns
about privacy and rights, including:
· the potential threat to ‘genetic privacy’ if information is revealed about health or
family relationships, not just identity;
· the creation of a permanent ‘list of suspects’ that could be misused by governments
or others;
· the potential for unauthorised access, abuses and/or misuses and mistakes:
including the tracking of individuals and their relatives, and the implications of false
matches;
· the exacerbation of discrimination in the criminal justice system.
GeneWatch UK is not opposed to the existence of the DNA Database, or the use of DNA
in criminal investigations, but has questioned the benefits of its rapid expansion.

Overall, analysis of Home Office data shows that collecting more DNA from crime
scenes has made a significant difference to the number of crimes detected using DNA,
but keeping DNA from increasing numbers of individuals has not...

Examination of the evidence shows that:
· The figures cited by the Prime Minister refer to an estimate of DNA matches, not
solved crimes;
· The reported matches are not actual matches obtained with individuals’ profiles
retained on the NDNAD following acquittal or charges being dropped, but are an
estimate based on a number of unverifiable assumptions;
· DNA matches are not successful prosecutions and many matches occur with the
DNA of individuals who are not the perpetrator of the crime, including victims and
passers-by, or are false matches;
· The retention of DNA samples has not contributed to the detection and prosecution
of serious crime – only the retention of computerised DNA profiles on the NDNAD is
necessary to obtain a match. The DNA samples are stored by the commercial
laboratories which analyse them for an annual fee, and raise additional privacy
concerns because they contain unlimited genetic information.
· Misinformation about the impact of DNA retention on solved crimes is likely to
mislead the public about the recent massive expansion of the National DNA
Database. Retaining innocent individuals’ DNA is costly but has delivered no
detectable improvement in solving crimes: this contrasts with the improved collection
and analysis of crime scene DNA.

GeneWatch UK concludes that:

1.The Prime Minister’s claim that “in all probability” 114 murderers would have
walked away had innocent people’s records not been retained on the National
DNA Database is false.
2. Ministers are well aware that this claim is false;
3. This figure is seriously misleading to members of the public who are concerned
about the implications of retaining innocent people’s records indefinitely on the
National DNA Database.

"

Thanks to Glyn at ORG for the link. Sorry about the formating.

Fear of cameras

This six minute film of London community support officers hassling someone who was using his video camera on a public street is an indication of the kind of petty officialdom that gets let loose when politicians and mainstream media spend so much energy stoking up fear on a wide scale. Thanks to Mark Frauenfelder at BoingBoing for the link.



As the star of the film says, there are no restrictions on filming in public places in the UK of the type that the CSOs in the film seemed to think. There are a few specific exceptions and if you're interested in the smallprint, Linda Macpherson, a law lecturer at Heriot Watt University, has written a guide to photographers' rights in the UK.

Bert Krages' guide to photographers' rights in the US is also available on the Web.

Landmark US Supreme Court privacy decision turns 50

A landmark US Supreme Court decision on privacy, NAACP v. Alabama ex. Rel. Patterson, 357 U.S. 449 (1958), is 50 years old today. Anita Allen, professor of law at the University of Pennsylvania, has written a terrific essay on the case which privacy advocates everywhere should read.

It is almost hard to believe that the National Association for the Advancement of Colored People, the NAACP, was considered a dangerous radical group, particularly in the southern states of the US, for a large part of the 20th century, when all they were asking for was equal rights. The state of Alabama tried to expel the group on the legal technicality of not complying with corporate registration laws. There followed a series of legal proceedings which culminated in the state demanding the details of all NAACP members. The NAACP rightly refused to comply - as members faced risk of serious injury, damage to property and even death - and got fined the huge sum of $100,000 by the state courts. At this point the NAACP appealed to the US Supreme Court and the rest, as they say, is history.

From Professor Allen's esasy:

"The United States Supreme Court’s decision in NAACP v. Alabama ex. Rel. Patterson, 357 U.S. 449 (1958) turns 50 this year. For those who value privacy it is a birthday worth remembering.

In NAACP v. Alabama, the Court affirmed that the constitutional rights of speech and assembly include a right of private group association. The idea that Americans are free to join private groups was not new in 1958. However, the Court’s decision to allow private groups to keep membership information confidential was an important constitutional milestone.

In 1956, the state of Alabama demanded a copy of the NAACP’s membership list, as part of its effort to expel the group from the state for allegedly violating a state business law. But the Supreme Court held that the civil rights group had a right to keep its members’ identities secret, whether or not a technical business law had been broken. Revealing the group’s membership, argued the Court, “is likely to affect adversely the ability of [the NAACP] and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.” NAACP at 462-63.

Whether handwritten on lined paper or stored electronically in a computer system, membership data is constitutionally protected from mandatory disclosure.

Individuals who join forces with others can sleep comfortably knowing they have a constitutional right to privacy that minimizes the risk of reprisal flowing from group membership. Any peaceful religious, social or political organization with a sensitive or unpopular mission can promise meaningful confidentiality and anonymity to members.

No constitutional right is absolute, however. The right to maintain membership data in secrecy is not perfectly guaranteed. But the Court reassuringly characterized official demands for membership lists as substantial restraints on freedom of association. As such, courts must strike them down unless they are narrowly tailored and necessary to further a compelling state interest. NAACP at 463-66."

Major David J. R. Frakt's Closing Argument in Favor of Dismissal of the Case Against Mohammad Jawad

From the ACLU: Major David J. R. Frakt's Closing Argument in Favor of Dismissal of the Case Against Mohammad Jawad

"On Feb 7, 2002, President Bush issued an order. The order stated, in pertinent part “I accept the legal conclusion of the Department of Justice and determine that Common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees.”

“I determine that the Taliban detainees do not qualify as prisoners of war. . .al Qaeda detainees also do not qualify as prisoners of war.”

“Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. . . As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

With these fateful and ill-advised words, President Bush, our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of “the ends justify the means,” before plummeting further into the bleak underworld of barbarism and cruelty, of “anything goes,” of torture. It was a path that led inexorably to the events that brings us here today, the pointless and sadistic treatment of Mohammad Jawad, a suicidal teenager...

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights.

Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.

I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so."

As Michael Froomkin says:

"I’ve said many times before that the JAGs are heroes of the post-9/11 military. Here’s another extraordinary example of this: the closing argument of an Air Force Major, David J. R. Frakt, in Favor of Dismissal of the Case Against Mohammad Jawad (6/19/2008) in a ‘combat status review tribunal’ [Note 6/24/08: commentator mremer says below that this was a merits hearing, not a CSRT, and based on this aclu blog post, I think he’s right] held at Guantánamo. (Transcript via the ACLU. )There ought be be a medal for this sort of princpled powerful advocacy in service to the nation."

Major David J. R. Frakt's full speech should be compulsory reading for anyone with an opinion on the war on terror.

McCain changes of heart

Michael Froomkin won't be voting for John McCain in the November US presidential election partly due to his change of heart on a range of political issues in order to avoid alienating core Republican supporters.

Straw wrong on witness anonymity

Also worth reading in this morning's Times is David Pannick's forensic analysis of the government's position on witness anonymity at criminal trials: Witness intimidation: Judges won't be cowed into denying a fair trial

"The House of Lords decided that common law prohibited the use of such anonymous evidence because it prevented the defendant from being able to challenge in cross-examination whether the witnesses had a motive for lying or exaggerating...Mr Straw said on Wednesday that “there is a difficult balance to strike here, between giving witnesses who fear for their safety the confidence to give evidence in court and ensuring that innocent people are not convicted”.

He is wrong. There is no such balance. The law lords have repeatedly explained that Article 6 of the European Convention on Human Rights confers an absolute right to a fair trial, which cannot be balanced against other considerations, even in relation to measures taken to protect society against terrorism.

The Justice Secretary and Parliament are bound by the UK's international obligations in this respect. Those echo and were strongly influenced by the common law traditions of our legal system"

Destructive school inspections

You can probably tell I read the Times this morning and another story that struck a chord was Melanie web's rant against school inspections, or as she describes them: the malevolent web that traps our teachers.

"Above all, it seemed as if Ofsted and Her Majesty's Inspectorate of Education (in Scotland) had, like malevolent spiders, woven a sticky web of bureaucracy...inspection wasn't an exercise in validation; it was about a profession that had started to eat itself.

I was told the kind of stories that do not normally circulate outside families - the private misery of dedicated people; young teachers with flair denied promotion; unnecessary early retirements; hugely experienced head teachers brought to the edge of breakdown by the “heartless bastards” who came in and decreed that whatever they did wasn't good enough...

Even more chillingly, I was told about the new breed of teacher that has emerged, genetically altered to thrive in such an culture."

Dissection by inspection leads to a culture where there is huge pressure on even the most gifted teachers to pretend things are better than they are. The risk and consequences of a poor Ofsted report are too high, so the cracks are papered over, problems (which can't be admitted too lest the school be labeled a failure) fester, teachers and children lose out.

Our education system is, and has been for too long, more about sustaining the huge bureaucratic educational infrastructure than nurturing the children it is charged with educating.

Henley and the fringe

The Nu Labour candidate has come in a distant fifth in the Henley by-election and even the BNP polled higher.

There really is something wrong in a country where a lunatic fringe group can do better than the organisation we have charged with running the state. But honestly you sometimes wonder if it is the lunatic fringe who are currently holding the high offices of state, as the government makes a renewed commitment to clamp down on criminal 5-year-olds.

Never mind though. We are advised to cheer up because we are apparently winning the war on terrors... er sorry... war on terrorism.

ICANN, the Net and the media

ICANN's recent machinations are being widely reported in conventional media circles as an indication that the Internet is facing a radical overhaul.

One of the things that irks me about these reports is the throwaway wild speculation reported as facts such as this from the Independent:

"The pornography industry, which accounts for around 12 per cent of all internet content..."

I mean what precise empirical evidence is such a claim based on? Nobody knows what percentage of internet content is porn but a figure like 12 % is a very convenient handle for campaigners wanting to control or regulate the technology in some way. That quote btw goes on to say that the porn industry:

"... is also hoping to be allowed to use the .xxx domain name."

Long time readers will know that this blogger has suffered regular censorship by commerical software filters due to the xxx in the title and url, so I've never been a big fan of the notion of the porn industry having an exclusive Web red light district under the .xxx banner. It'll be just another reason to make wild and unsubstantiated assumptions about what might be likely to be found at b2fxxx.

Genetic tests to id risk of breast cancer

In spite of Myriad Genetic's patents on the BRCA1 and BRCA2 genes having a widely reported chilling effect on research in this area, some scientists have continued to work on the genetic predisposition to develop breast cancer.

Cambridge researchers say there are seven common gene sites that elucidate the risk of developing cancer. From the Independent today:

"The chances of getting breast cancer vary more than sixfold among women because of their genetic inheritance but the breast screening programme fails to target those at highest risk, scientists have found. Researchers at the University of Cambridge say it may soon be possible to offer women a genetic test based on the seven common gene sites that determine cancer risk and to focus prevention efforts accordingly.

Currently doctors only test women with a very strong family history of breast cancer for the high-risk genes such as BRCA1 and BRCA2. These gene faults increase the chances of a woman developing cancer from around 9 per cent to 80 per cent. But they are rare and few women benefit from such testing.

There are other common genetic variations that modestly increase the risk – but when they occur together they have a substantial effect. Around 3,300 women in the UK carry the low risk genes for each of the seven gene sites identified, who have less than half the risk of breast cancer of the general population – a 4.2 per cent lifetime risk compared with a 9.4 per cent risk.

At the other end of the scale, around 400 women have high risk genes for each of the seven sites, giving them a 23 per cent risk of developing breast cancer – two and a half times that of the population as a whole."

From the original study published in the New England Journal of Medicine this week:

"Background New developments in the search for susceptibility alleles in complex disorders provide support for the possibility of a polygenic approach to the prevention and treatment of common diseases.

Methods We examined the implications, both for individualized disease prevention and for public health policy, of findings concerning the risk of breast cancer that are based on common genetic variation.

Results Our analysis suggests that the risk profile generated by the known, common, moderate-risk alleles does not provide sufficient discrimination to warrant individualized prevention. However, useful risk stratification may be possible in the context of programs for disease prevention in the general population.

Conclusions The clinical use of single, common, low-penetrance genes is limited, but a few susceptibility alleles may distinguish women who are at high risk for breast cancer from those who are at low risk, particularly in the context of population screening...

Although the clinical use of single, common low-penetrance genes is limited, a small number of susceptibility alleles could distinguish women at high risk for breast cancer from women at low risk, particularly in the context of population-screening programs. Moreover, stratifying women according to genetic risk may improve the efficiency of screening programs.

There are many questions to be answered and barriers to be overcome, however, before such potential could be realized. The simple models we described make several assumptions, some of which may not be robust. For example, the assumption that the benefit of mammographic screening for an individual woman is merely a function of absolute risk is clearly an oversimplification. The sensitivity of mammography is reduced in women younger than 50 years of age, and the true benefit is more likely to be a complex interaction between age and absolute risk. Furthermore, the complexity of a population-oriented prevention program that is based on individual risk might outweigh its marginal improvement in efficiency. As more risk alleles are identified, however, our ability to predict risk will improve, and the gain in efficiency will increase.

If it were feasible to implement a program for women with a genetic risk of breast cancer, public (and professional) education would be necessary, and even then the concept might not be acceptable. However, new and expensive forms of screening or screening tests with marginal clinical benefits to the individual woman may be possible only in subgroups of the population at high risk. Screening for breast cancer by means of MRI may be more effective than mammography, but it would be prohibitively expensive unless it was targeted to patients at highest risk.

Effective use of genetic profiling depends on the best available set of markers. Most reported genetic associations have been false positive results and would be worthless for risk prediction.³¹ The evidence providing support for some loci that were recently identified in genomewide studies, such as those used in the above calculations, is strong, but it will still be important to base profiling on accurate estimates of the risks associated with these loci, either singly or in combination.

Our understanding of the genetic susceptibility to breast cancer and other complex diseases is likely to change rapidly over the next decade. Policymakers should start to consider how this knowledge could be used to make a polygenic approach to disease prevention a reality."

It's a challenging but rewarding read and at a little over 3000 words is relatively brief. In addition, you're always likely to get a more accurate picture of what the scientists have discovered through reading the actual paper rather than the mass media's interpretation of the research. (Note that I'm not a geneticist but an 'allele', as I understand it, is one variety of a series of possible alternative forms of a particular gene. So with the gene controlling eye colour, for example, one allele could be the code for blue eyes, another the code for brown eyes.)

Nu labour cheer whilst pm hums

I don't think Simon Carr is too keen on our esteemed Prime Minister.

"Day by day it's harder to pay attention to the PM. He sounds like the air-conditioning. But if you think about something else you can stop hearing the drone after a time...

Gordon's every answer is a triple as he has to do three things. 1) show that whatever it is, it's not his fault, 2) that the Government is doing things, and 3) the Tories are wrong...

There's another factor: if we can't understand him, he thinks, we'll blame ourselves and credit him with superior intelligence. Is that how it works for you? Me neither. He knows he's boring but he equates that with sober government. We equate it with twisted, paranoid drivel offered up as a dialogue of the deaf."

"Dialogue of the deaf" - you've got to like that one.

Start-up sues Google over e-mail switching tool

From the Washington Post: Start-up sues Google over e-mail switching tool

Boyle: A Czar for the Digital Peasants

James Boyle is in cracking form in the FT again.

"One sure sign of a lack of political vision is a rise in the number of pieces of acronymic legislation. After September 11, the US Congress passed the euphoniously named “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act” the initials of which spell out “USA – Patriot.” The Patriot Act is a pretty bad piece of legislation, but at least its drafters worked hard on the acronyms so that opponents could be labelled “anti-patriot” – a perfect level of analysis for Fox News. Admittedly, in this administration, having public officials torturing acronyms rather than detainees might be counted as a plus, but I still find the whole practice distasteful. I'd suggest that politicians vow to vote against any piece of legislation with its own normatively loaded acronym, no matter how otherwise appealing. It might make them focus a little more on the content.

In any event, Congress has been at it again. The House just passed, and the Senate is considering, the Prioritizing Resources and Organization for Intellectual Property Act of 2008 – or “Pro-IP” Act. (If it passes, a version is sure to be urged on Europe as a matter of “harmonisation.”) Are you pro-intellectual property? Then surely you must be for this piece of legislation! The name says it all.

Actually, there is more than a linguistic reason to dislike this nasty little industry wish-list. Bill Patry, a senior lawyer at Google and a respected copyright scholar said it may be the "most outrageously gluttonous IP bill ever introduced in the US"...

...the central feature remains – the creation of a White House level “intellectual property czar”... The czars were good at a lot of things, including autocracy, the toleration of pogroms and a fondness for having their cossacks sabre the peasants. None of these springs to mind as the ideal quality for a contemporary leader...

The point of having a czar, particularly a White House level czar, is to...“codify.. political interference in the independent exercise of .. prosecutorial judgment”... This Act would make political interference with prosecutorial judgment something that is not aberrant, it is ubiquitous and legally required. We could call it the “Politicize Responsibilities Of Independent Prosecutors” Act, I suppose. That at least would be truth in labelling. Whatever acronym we put on the title page it isn’t “Pro-IP,” merely “anti-balance.” This is one czar the digital peasantry should reject. "

Lessig: Change Congress

Larry Lessig delivered another impressive speech a couple of weeks ago on his plan to change Congress. This time at the National Conference for Media Reform.



Lessig followers will be familiar with the message - Congress is bought and paid for by vested interests and needs to be helped towards independence and acting for the public good. It's still well worth the 30 minutes or so to watch it.

Is Google Making Us Stupid?

From Nicholas Carr: Is Google Making Us Stupid?

Good question.

Shirky at the RSA

Clay Shirky gave a terrific talk at the RSA last month.

Always good value Shirky talks about the ideas in his new book Here Comes Everybody: The Power of Organizing Without Organizations, illustrating his points with stories about collective protest with the aid of Web technologies that couldn't have happened without those technologies - students v HSBC, students v dictator in Belarus, business v mafia.

The interesting thing for me was that he also described the moment he stopped being a cyberutoptian. This was when a student who worked for a teen magazine explained they had decided to shut down their online discussion forums because they were being dominated by pro-anorexia girls, evangelising starving themselves. Yet when the forums closed down the girls just moved to another web site. It struck Shirky fairly forcefully that the destructive use of the technologies was not just a side effect but a feature. Just as they can be used to peacefully protest against brutal dictators by eating ice cream in Minsk, they can are are being used by organised groups for much more socially and politically destructive purposes.

Is Google the next Microsoft

Rufus Polllock has been working on an empirical study of search engines and has recently released his first complete version of his paper.

"Abstract

Internet search (or perhaps more accurately ‘web-search’) has grown exponentially over the last decade at an even more rapid rate than the Internet itself. Starting from nothing in the 1990s, today search is a multi-billion dollar business. Search engine providers such as Google and Yahoo! have become household names, and the use of a search engine, like use of the Web, is now a part of everyday life. The rapid growth of online search and its growing centrality to the ecology of the Internet raise a variety of questions for economists to answer. Why is the search engine market so concentrated and will it evolve towards monopoly? What are the implications of this concentration for different `participants’ (consumers, search engines, advertisers)? Does the fact that search engines act as ‘information gatekeepers’, determining, in effect, what can be found on the web, mean that search deserves particularly close attention from policy-makers? This paper supplies empirical and theoretical material with which to examine many of these questions. In particular, we (a) show that the already large levels of concentration are likely to continue (b) identify the consequences, negative and positive, of this outcome (c) discuss the possible regulatory interventions that policy-makers could utilize to address these."

Empirical research in this area is still very thin on the ground so this is recommended.

Open ID security

Kim Cameron does a terrific job of explaining why "Open ID leads to information cards"

(Be patient - it takes about 30 seconds to load on a fast connection)

Lisbon treaty dead or alive?

There's been a lot of traditional media column inches, broadcast media speculation and politicians' hot air expended on whether the Lisbon treaty is finished now that my homeland has rejected it in a referendum. I'm inclined to think the treaty has reached corpsedom since article 6 of said treaty states:

"1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

2. This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step."

IANAL but that's as clear as you can get really - it enters into force when "all" states ratify it, preferably by January next year and if not then in the first month after the "last" member state ratifies it. Ireland have rejected it; "all" and "last" =>The treaty is legally dead. QED.

Fewer rules better behaviour

From David Bollier:

"Imagine what would happen if you took down road signs and traffic signals. More accidents would surely result, or at least significant confusion and slower traffic. Or would it? The surprising thing is that a number of cities around the world have actually done this, and experienced dramatic declines in traffic accidents...

The Dutch town of Drachten adopted this “unsafe is safe” approach in 2007 and found that casualties at one junction dropped from thirty-six over the previous four years to only two in the two years following the removal of traffic lights. Traffic jams no longer occur in the town’s main junction, which handles 22,000 cars a day. The town is “Verkeersbordvrij,” meaning “free of traffic signs.” (I am grateful to Jonathan Zittrain’s reference to Drachten’s experiment in his new book, The Future of the Internet and How to Stop It, and to Wikipedia for its account of “shared space.” )...

The idea is to return public spaces to people in order to encourage them to take greater personal responsibility. Monderman explained, “We’re losing our capacity for socially responsible behavior….The greater the number of prescriptions, the more people’s sense of personal responsibility dwindles.”"

He's right. Too many decision makers subscribe to the notion that human variability can be eliminated if only you create enough rules. The result is that intelligent people spend inordinate amounts of time circumventing the rules to get things done. When such circumvention is noticed the "solution" is more and tighter rules, including the outlawing of the circumvention. Eventually circumvention becomes too onerous or risky and even the intelligent and dedicated find it hard to take personal responsibility for the emergent chaos wreaked by the rules. As Bollier notes:

"Who could have thought that the wisdom of Lao-tsu, in the Tao Te Ching, could be applied to traffic safety engineering?

Stop trying to control. Let go of fixed plans and concepts, and the world will govern itself.

The more prohibitions you have, the less virtuous people will be.

….If you don’t trust the people, you make them untrustworthy.

Jonathan Zittrain mentions the shared-space design philosophy as a way to explain the success of Wikipedia. I would extend the principle to many other commons – water management, lobster harvesting, free software projects, scientific database commons, and much else. We naturally have greater respect for rules that we have had some role in formulating – and a willingness to punish those who misbehave — than we have for rules that have been imposed upon us by some higher authority."

Those who seek to control should be made to repeat Lao-tsu's mantra every day:

If you don’t trust the people, you make them untrustworthy.

The forgotten Web of Paul Otlet

From the NYT: The Web Time Forgot

"MONS, Belgium — On a fog-drizzled Monday afternoon, this fading medieval city feels like a forgotten place. Apart from the obligatory Gothic cathedral, there is not much to see here except for a tiny storefront museum called the Mundaneum, tucked down a narrow street in the northeast corner of town. It feels like a fittingly secluded home for the legacy of one of technology’s lost pioneers: Paul Otlet.

In 1934, Otlet sketched out plans for a global network of computers (or “electric telescopes,” as he called them) that would allow people to search and browse through millions of interlinked documents, images, audio and video files. He described how people would use the devices to send messages to one another, share files and even congregate in online social networks. He called the whole thing a “réseau,” which might be translated as “network” — or arguably, “web.”

Historians typically trace the origins of the World Wide Web through a lineage of Anglo-American inventors like Vannevar Bush, Doug Engelbart and Ted Nelson. But more than half a century before Tim Berners-Lee released the first Web browser in 1991, Otlet (pronounced ot-LAY) described a networked world where “anyone in his armchair would be able to contemplate the whole of creation.”"

Thanks Ian for the link.

IP law Centres write to Commission on copyright term extension

My friend and colleague, Mark Rogers, is amongst the signatories of a Letter to the President of the European Commission warning of the damage Charlie McCreevy's proposed extension of copyright term in sound recordings will do to the Commission.

The letter is accompanied by a full impact assessment of the empirical affects of the extension produced by the leading centres for IP policy research in the EU at Cambridge, Oxford, London, Queen Mary College, Amsterdam, Edinburgh, LSE and a whole host of others, coordinated by Martin Kretschmer and Philip Hardwick at Bournemouth University.

They suggest:

"It is a spectacular kowtow to one single special interest group: the multinational recording industry...

The proposed Copyright Extension Directive will damage European creative endeavour and innovation beyond repair."

They go on to say that competition will be impeded, consumers harmed and the EU's balance of trade damaged.

"If the European Commission wishes to support European artists, there are many possible measures that would not result in monopolising the back catalogue of recorded music for another 45 years. At the level of member states, policies include (i) the regulation of copyright contracts, and (ii) social security and insurance schemes; at the European level, policies include (i) equitable remuneration rights only available to living performers, and (ii) the regulation of collecting societies and licence tariffs, such as the nature and distribution of income from any copyright levy scheme.

The record industry was offered a generous commercial bargain when investing in recorded music under the current exclusive term of 50 years. This already far exceeds the protection available to other R&D intensive industries. It cannot be the job of the European Commission to protect the revenues of incumbent companies at the cost of consumers, creativity and innovation."

This is pretty hard hitting stuff from academics who usually use much more neutral language.

AP wants payment to license 5-word quotations

Cory is in full flow over the AP's decision to charge bloggers for 5 word quotations from stories.

"In the name of "defin[ing] clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt" the Associated Press is now selling "quotation licenses" that allow bloggers, journallers, and people who forward quotations from articles to co-workers to quote their articles. The licenses start at $12.50 for quotations of 5-25 words. The licensing system exhorts you to snitch on people who publish without paying the blood-money, offering up to $1 million in reward money (they also think that "fair use" -- the right to copy without permission -- means "Contact the owner of the work to be sure you are covered under fair use.").

It gets better! If you pay to quote the AP, but you offend the AP in so doing, the AP "reserves the right to terminate this Agreement at any time if Publisher or its agents finds Your use of the licensed Content to be offensive and/or damaging to Publisher's reputation."

Over on Making Light, Patrick Nielsen Hayden nails it:

The New York Times, an AP member organization, refers to this as an “attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt.” I suggest it’s better described as yet another attempt by a big media company to replace the established legal and social order with with a system of private law (the very definition of the word “privilege”) in which a few private organizations get to dictate to the rest of society what the rules will be. See also Virgin Media claiming the right to dictate to private citizens in Britain how they’re allowed to configure their home routers, or the new copyright bill being introduced in Canada, under which the international entertainment industry, rather than democratically-accountable representatives of the Canadian people, will get to define what does and doesn’t amount to proscribed “circumvention.” Hey, why have laws? Let’s just ask established businesses what kinds of behaviors they find inconvenient, and then send the police around to shut those behaviors down. Imagine the effort we’ll save."

I hope Cory and Mr Hayden don't mind me quoting such a large part of their posts. ;-) Jeremy at IPKat is, as you might expect, slightly more measured:

"As an active part of both the blogging community and the IP community, the IPKat is understandably concerned. Neither the Berne Convention or TRIPs, nor indeed any other international instrument of copyright law provide for a blanket "bloggers' right" to make use of protected materials for ephemeral purposes or for subsequent archiving -- and it is optimistic to hope for any such blanket use to be explicitly sanctioned. But blogging has to make a responsible use of all materials. The IPKat welcomes debate on this topic and wonders what his readers think. Merpel asks, there aren't any collecting societies out there, offering easy licences to use materials for blogging purposes, are there?"

Update: David Bollier's take on this is well worth a read at On the Commons, which I notice has had a facelift since my last visit.

French 3 strikes laws comes closer

From The Times:

"Anyone who persists in illicit downloading of music or films will be barred from broadband access under a controversial new law that makes France a pioneer in combating internet piracy.

“There is no reason that the internet should be a lawless zone,” President Sarkozy told his Cabinet yesterday as it endorsed the “three-strikes-and-you’re-out” scheme that from next January will hit illegal downloaders where it hurts.

Under a cross-industry agreement, internet service providers (ISPs) must cut off access for up to a year for third-time offenders.

In a classical French approach the scheme will be enforced by a new £15 million a year state agency, to be called Hadopi (high authority for copyright protection and dissemination of works on the internet)."

Spy's simple sabotage manual

This is quite funny. A section of the Simple Sabotage Field Manual for US spies, declassified on 16 June 1976, reads:

"(11) General Interference with Organizations and Production
(a) Organizations and Conferences
(1) Insist on doing everything through "channels." Never permit short-cuts to be taken in order to expedite decisions.
(2) Make "speeches." Talk as frequently as possible and at great length. Illustrate your "points" by long anecdotes and accounts of personal experiences. Never hesitate to make a few appropriate "patriotic" comments.
(3) When possible, refer all matters to committees, for "further study and consideration." Attempt to make the committees as large as possible — never less than five.
(4) Bring up irrelevant issues as frequently as possible.
(5) Haggle over precise wordings of communications, minutes, resolutions.
(6) Refer back to matters decided upon at the last meeting and attempt to re-open the question of the advisability of that decision.
(7) Advocate "caution." Be "reasonable" and urge your fellow-conferees to be "reasonable" and avoid haste which might result in embarrassments or difficulties later on.
(8) Be worried about the propriety of any decision — raise the question of whether such action as is contemplated lies within the jurisdiction of the group or whether it might conflict with the policy of some higher echelon."

I do also like these bits:

"(9) Communications
(a)
Telephone
(1)
At office, hotel and exchange switchboards
delay putting enemy calls through, give them wrong numbers, cut them off "accidentally," or forget to disconnect them so that the line cannot be used again."

"(11) General Interference with Organizations and Production...

(b)
Managers and Supervisors
(1)
Demand written orders.
(2)
"Misunderstand" orders. Ask endless questions or engage in long correspondence about such orders. Quibble over them when you can...

(11) Hold conferences when there is more critical work to be done.

(12)
Multiply paper work in plausible ways. Start duplicate files...

(13)
Multiply the procedures and clearances involved in issuing instructions, pay checks, and so on. See that three people have to approve everything where one would do.
(14)
Apply all regulations to the last letter.
(c)
Office Workers (^L) Make mistakes in quantities of material
when you are copying orders. Confuse similar names. Use wrong addresses.
(2)
Prolong correspondence with government
bureaus.
(3)
Misfile essential documents.

(d)
Employees
(1)
Work slowly...

(2)
Contrive as many interruptions to your work as you can...

(4)
Pretend that instructions are hard to understand, and ask to have them repeated more than once...

(7)
Snarl up administration in every possible
way. Fill out forms illegibly so that they will have to be done over; make mistakes or omit requested information in forms.
(8)
If possible, join or help organize a group for presenting employee problems to the management.
See that the procedures adopted are as inconvenient as possible for the management, involving the presence of a large number of employees at each presentation, entailing more than one meeting for each grievance, bringing up problems which are largely imaginary, and so on...

(12) General Devices for Lowering Morale and Creating
Confusion
(a)
Give lengthy and incomprehensible explanations
when questioned.
(b)
Report imaginary spies or danger to the Gestapo or police.
(c) Act stupid...
(i)
Cry and sob hysterically at every occasion, especially when confronted by government clerks."

Thanks for the link Tony.

How the U.S. got its Canadian copyright bill

From Michael Geist: How the U.S. got its Canadian copyright bill

"Last week's introduction of new copyright legislation ignited a firestorm with thousands of Canadians expressing genuine shock at provisions that opposition MPs argued would create a "police state." As opposition to the copyright bill mounts, the most common question is "why"?

Why, given the obvious public concern with the bill stretching back to last year, did Industry Minister Jim Prentice plow ahead with rules that confirm many of the public's worst fears?

Why did a minority government introduce a bill that appears likely to generate strong opposition from both the Liberals and NDP with limited political gain?

Why did senior ministers refuse to even meet with many creator and consumer groups who have unsurprisingly voiced disappointment with the bill?

While Prentice has responded by citing the need to update Canada's copyright law in order to comply with the World Intellectual Property Organization's Internet treaties, the reality may be that those treaties have little to do with Bill C-61.

Instead, the bill dubbed by critics as the Canadian Digital Millennium Copyright Act (after the U.S. version of the law) is the result of an intense public and private campaign waged by the U.S. government to pressure Canada into following its much-criticized digital copyright model.

TechCrunch ban AP stories due to IP over-reaching

From TechCrunch: Here’s Our New Policy On A.P. stories: They’re Banned

"They do not want people quoting their stories, despite the fact that such activity very clearly falls within the fair use exception to copyright law. They claim that the activity is an infringement.

A.P. vice president Jim Kennedy says they will issue guidelines telling bloggers what is acceptable and what isn’t, over and above what the law says is acceptable. They will “attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright.”

Those that disregard the guidelines risk being sued by the A.P., despite the fact that such use may fall under the concept of fair use.

The A.P. doesn’t get to make it’s own rule around how its content is used, if those rules are stricter than the law allows. So even thought they say they are making these new guidelines in the spirit of cooperation, it’s clear that, like the RIAA and MPAA, they are trying to claw their way to a set of legal property rights that don’t exist today. And like the RIAA and MPAA, this is done to protect a dying business model - paid content.

So here’s our new policy on A.P. stories: they don’t exist. We don’t see them, we don’t quote them, we don’t link to them. They’re banned until they abandon this new strategy, and I encourage others to do the same until they back down from these ridiculous attempts to stop the spread of information around the Internet."

Blackboard patent Bollywood style

Blackboard patent aficionados with a sense of humour should check out Randy Thornton's The Adventures of Bollywood Blackboardwala

"The mashups are made with snippets of classic Hindi Bollywood films, overlaid with user created subtitles, from a fun online tool called BombayTV from Grapheine.

The role of Blackboardwala is played by none other than Amitabh Bacchan, of course.

• Ep. 1 Paying The Annual Licensing Fee
• Ep. 2 Dealing with Customers Looking at the Open Source Alternative"

There are 9 amusing short episodes. Highly recommended.

EU Digital Libraries Initiative on orphan works

From the newsroom of the EU Commissioner on the Information Society:

"An agreement on copyright was signed today by libraries, archives and right holders, in the presence of Commissioner Viviane Reding. The Memorandum of Understanding on orphan works will help cultural institutions to digitise books, films and music whose authors are unknown, making them available to the public online.

(04/06/2008) This Memorandum is a major step for bringing Europe's rich literary and audiovisual heritage online, as it deals with the issue of orphan works – books, films, photographs or songs for which it is impossible to identify or locate the rightholders. As a consequence, rights cannot be cleared and therefore the works cannot be digitised or made available to the public. It clarifies how searches for rightholders have to be handled for libraries and archives and representatives of publishers, photographers, authors, record and film companies. Orphan works represent a substantial part of the collections of Europe's cultural institutions: for example, the British Library estimates that 40 percent of its copyrighted collections are orphan works. 50,000 requests were also made for re-using orphan works in Europe's film archives according to a recent survey from the Association des Cinémathèques Européennes.

In parallel, the High Level Group on Digital Libraries, chaired by Viviane Reding, adopted practical guidelines for partnerships between cultural institutions and private organisations. These partnerships such as the existing collaboration between the British Library and Cengage Gale on historical newspapers – are essential to provide funding and expertise for digitisation projects

In relation to copyright issues, the High Level Group adopted a final report in which it endorsed a new model license for making works that are out of print or out of distribution accessible for all on the internet. It also gave guidance on copyright issues related to the preservation of web-content by cultural institutions. In the area of scientific information, publishers and scientists presented the progress of a large scale project on the effects of open access to scientific journals."

US Supreme Court: Patents are for promoting progress not creating private fortunes

The US Supreme Court ruled yesterday in an important patent case that will be unfamiliar to all but IP and Supreme Court geeks, LG Electronics Inc. v Quanta Computer Inc. The WSJ has the story (unfortunately behind a pay wall) but it is worth scanning the decision itself as there are some real gems from Justice Thomas (who delivered the unanimous opinion of the Court) in there. The WSJ says:

"The Supreme Court relaxed the grip that patent owners hold over third-party uses of their inventions, continuing a recent recalibration of intellectual-property law intended to foster competition and innovation.

The opinion delivered Monday involved a U.S. patent for computer chipsets, which South Korea's LG Electronics Inc. licensed to Intel Corp., of Santa Clara, Calif. Intel made the chips and sold them to computer manufacturers. When one of those manufacturers, Quanta Computer Inc. of Taiwan, used them in its products, LG sued for infringement, arguing Quanta needed a separate license from LG to install them in computers."

The Court essentially disagreed with LG Electronics and said the company was not entitled to control downstream use of the patent due to the doctrine of patent exhaustion. Justice Thomas said:

"For over 150 years this Court has applied the doctrine of patent exhaustion to limit the patent rights that survive the initial authorized sale of a patented item...

The longstanding doctrine of patent exhaustion provides that the initial authorized sale of a patented item terminates all patent rights to that item. This Court first applied the doctrine in 19th-century cases addressing patent extensions on the Woodworth planing machine. Purchasers of licenses to sell and use the machine for the duration of the original patent term sought to continue using the licenses through the extended term. The Court held that the extension of the patent term did not affect the rights already secured by purchasers who bought the item for use "in the ordinary pursuits of life." Bloomer v. McQuewan, 14 How. 539, 549 (1853); see also ibid. ("[W]hen the machine passes to the hands of the purchaser, it is no longer within the limits of the monopoly")...

Although the Court permitted postsale restrictions on the use of a patented article in Henry v. A. B. Dick Co., 224 U. S. 1 (1912),² that decision was short lived. In 1913, the Court refused to apply A. B. Dick to uphold price-fixing provisions in a patent license. See Bauer & Cie v. O'Donnell, 229 U. S. 1, 14-17 (1913). Shortly thereafter, in Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 518 (1917), the Court explicitly overruled A. B. Dick. In that case, a patent holder attempted to limit purchasers' use of its film projectors to show only film made under a patent held by the same company. The Court noted the "increasing frequency" with which patent holders were using A. B. Dick-style licenses to limit the use of their products and thereby using the patents to secure market control of related, unpatented items. 243 U. S., at 509, 516-517. Observing that "the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is 'to promote the progress of science and useful arts,' " id., at 511 (quoting U. S. Const., Art. I, §8, cl. 8), the Court held that "the scope of the grant which may be made to an inventor in a patent, pursuant to the [patent] statute, must be limited to the invention described in the claims of his patent." 243 U. S., at 511. Accordingly, it reiterated the rule that "the right to vend is exhausted by a single, unconditional sale, the article sold being thereby carried outside the monopoly of the patent law and rendered free of every restriction which the vendor may attempt to put upon it." Id., at 516."

That a Supreme Court Justice in a 2008 patent decision should find the need, in a unanimous decision, to cite historical Court doctrine from 1853 ("[W]hen the machine passes to the hands of the purchaser, it is no longer within the limits of the monopoly") and 1917 ("the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is 'to promote the progress of science and useful arts,' ") is really interesting.

The court was also particularly wary of patent holders voiding patent exhaustion doctrine through the use of patents on methods:

" LGE argues that the exhaustion doctrine is inapplicable here because it does not apply to method claims, which are contained in each of the LGE Patents. LGE reasons that, because method patents are linked not to a tangible article but to a process, they can never be exhausted through a sale. Rather, practicing the patent--which occurs upon each use of an article embodying a method patent--is permissible only to the extent rights are transferred in an assignment contract. Quanta, in turn, argues that there is no reason to preclude exhaustion of method claims, and points out that both this Court and the Federal Circuit have applied exhaustion to method claims. It argues that any other rule would allow patent holders to avoid exhaustion entirely by inserting method claims in their patent specifications.

Quanta has the better of this argument. Nothing in this Court's approach to patent exhaustion supports LGE's argument that method patents cannot be exhausted. It is true that a patented method may not be sold in the same way as an article or device, but methods nonetheless may be "embodied" in a product, the sale of which exhausts patent rights...

Eliminating exhaustion for method patents would seriously undermine the exhaustion doctrine. Patentees seeking to avoid patent exhaustion could simply draft their patent claims to describe a method rather than an apparatus.⁵ Apparatus and method claims "may approach each other so nearly that it will be difficult to distinguish the process from the function of the apparatus." United States ex rel. Steinmetz v. Allen, 192 U. S. 543, 559 (1904). By characterizing their claims as method instead of apparatus claims, or including a method claim for the machine's patented method of performing its task, a patent drafter could shield practically any patented item from exhaustion.

This case illustrates the danger of allowing such an end-run around exhaustion. On LGE's theory, although Intel is authorized to sell a completed computer system that practices the LGE Patents, any downstream purchasers of the system could nonetheless be liable for patent infringement. Such a result would violate the longstanding principle that, when a patented item is "once lawfully made and sold, there is no restriction on [its] use to be implied for the benefit of the patentee." Adams, 17 Wall., at 457. We therefore reject LGE's argument that method claims, as a category, are never exhaustible."

Who needs drm when you've got backward incompatibility

Last week the Open University joined Stanford, MIT, Yale and other world-class universities in publishing materials via Apple’s iTunes U service. The project, which looks great btw and congrats to all involved,


had been an open secret in the OU for a couple of months but those in the know were banned from mentioning it to anyone.

In any case, so far so good - the OU is now on iTunes

Now for reasons too long-winded and uninteresting to mention most of my day job business is conducted in my office at the Open University on an ancient Windows 2000 PC. Unfortunately that means the even more ancient Apple v Microsoft antipathy comes calling if I want to look at the OU on iTunes in the office.

If I click on the "Visit the OU on iTunes" button I get a message saying "We are unable to find iTunes on your computer". I do get a button to click to claim I have indeed got iTunes, following which I get an external protocol request asking that I launch an external application, which I agree to do and up duly comes my version 4 (yes I never got round to upgrading it on this particular computer) of iTunes with the snazzy OU frontpage.


Great. Except that when I click on one of the offerings, say the Vice Chancellor's introduction, to see what it looks like on iTunes, I get a message telling me this item needs a later version of iTunes (version 6 or higher) and offering me a click button to upgrade. The click opens a browser window on the Apple site offering me the opportunity to download iTunes 7.6. Unfortunately iTunes 7.6 is incompatible with Windows 2000...

A search for iTunes 6 (easier to find via Google btw than the Apple search facility) finally locates a 36 MB downloadable file. 4 minutes later I find myself with an executable upgrade to version 6.0.5. 14 minutes later still, having installed the software and re-started the machine as per instructions I'm now in a position, finally to view the OU material.

Well nearly. I need to go through the 'you haven't got iTunes' accusation again and the threat er... sorry... the external protocol request that I need to launch an external application. Except that on this occasion agreeing to do so brings up an iTunes software licensing agreement that I need to accept before going any further. So accepted. Followed by iTunes opening up accompanied by a message: "iTunes could not connect to the music store. The network connection was terminated unexpectedly."

Oh dear. It seems as though I'm destined not to experience the Vice Chancellor's words of wisdom from the office. Never mind.

No blast it. I won't be put off. One last try for the summit. Tap tap tappity tap. Click click clickity clicky click and iTunes 6.0.5.20 is finally showing the OU front page on my screen. I nervously push the mouse in the direction of the VC's smiling face. The cursor reaches the annointed spot... my forefinger hovers over the left button of the mouse... dare I allow it to engage? Done. Progress at last! I'm through to the screen where I can "get tracks". Again, almost subconsciously the mouse moves, I've clicked on the button, the task bar indicates it is 'accessing music store' and it's downloading 1 of 5. I'm in! The download progress bar is halfway... three quarters... done. Now click on "Vice Chancellor" in the menu to the left of my screen and I get a window with the five tracks.

Double click number 1 and she's finally there 56 minutes after I first thought I might take a quick look at our iTunes offerings. A less than smooth experience you might say and it certainly brings back compatibility problems experienced over Christmas with my wife's iPod. Interestingly, in her closing comments the VC says we at the OU don't want the technology to get in the way of accessibility, yet it is exactly monetization through controlled and pay per view/ad/click accessibility that major commercial operations like Apple, the entertainment industry, retailers like Amazon, publishers, broadcasters, the big tech companies like Google and Microsoft and trade negotiators are trying to shape the market on.