BAe-Saudi corruption case: government win in the Lords

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

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

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

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

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

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

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

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

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

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

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

Answer: yes.

Result: Government win.

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

"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MacKinnon appeal to House of Lords fails

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Curse of the DNA Register

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

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

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

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

Other majority recommendations included:

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

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

The Independent says:

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

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

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

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

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

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

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

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

Briefing on the 42 detention bill

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

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

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

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

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

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

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

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

Swedish ISPs criticise UK deal

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

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

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

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

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

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

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

Achieving your dreams

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



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

Electoral Commission report on 2008 London election

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

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

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

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

Balanced interpretation of copyright exceptions

From LawFont:

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

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

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

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

Monitoring elections

Here's a really interesting idea via Heather K. Gerken at Balkanization.

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

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

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

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

UK Commons report casts doubt on US denial of torture techniques

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

"The Human Rights Annual Report 2007 [text, PDF] released Sunday by the UK House of Commons Foreign Affairs Committee [committee website] recommended that the UK not rely on any assurances made by the US that it does not use torture. The report also calls on the UK to fully investigate US interrogation tactics to ensure that no torture techniques are being used on US detainees. The report's section on torture focuses on waterboarding [JURIST news archive] and the disconnect between US statements that the practice does not constitute torture and testimony by UK Foreign Secretary David Miliband [official website] that "water-boarding [sic] amounts to torture." The Foreign Affairs Committee wrote in the report:

We conclude that the Foreign Secretary's view that water-boarding is an instrument of torture is to be welcomed. However, given the recent practice of water-boarding by the US, there are serious implications arising from the Foreign Secretary's stated position. We conclude that, given the clear differences in definition, the UK can no longer rely on US assurances that it does not use torture, and we recommend that the Government does not rely on such assurances in the future. We also recommend that the Government should immediately carry out an exhaustive analysis of current US interrogation techniques on the basis of such information as is publicly available or which can be supplied by the US. We further recommend that, once its analysis is completed, the Government should inform this Committee and Parliament as to its view on whether there are any other interrogation techniques that may be approved for use by the US Administration which it considers to constitute torture.

BBC News has more."

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

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

The unbelievable new NHS booking system

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

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

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

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

BAe Saudi corruption case: appeal result due Wednesday

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

"Serious Fraud Office APPEAL to House of Lords

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

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

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

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

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

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

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

The relevant legal documents have all been posted on The Corner House
website: http://www.thecornerhouse.org.uk/subject/corruption/

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

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

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

best wishes from all at The Corner House

SERIOUS FRAUD OFFICE APPEAL to House of Lords

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

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

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

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

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

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

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

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

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

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

Winer Lakoff podcast

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

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

The hollow ring of Mosley's win

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

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

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

OpenID gets the third degree at OSCON

From Nathan Willis at Linux.com: OpenID gets the third degree at OSCON

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

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

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

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

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

Millions of profiles from DNA database passed to private firms

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

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

Government p2p target: cut illegal file sharing by 70-80%

Following the widely reported deal between big UK ISPs and the music industry, it seems that the government is keen to cut down on copyright infringement via p2p networks by 70-80%. (Thanks to Glyn at ORG for the link).

If you want a sensible analysis of the implications of the deal though, forget the mass media and head over to Pangloss.

"So what does the MoU say? Well basically for 3 months, the industry aided by the 6 ISPs involved are going to send out letters to suspected filesharers. Lots and lots of letters. 80,000 or so over 12 weeks. But hang on. If 67% of the UK have admitted to filesharing - even only once - that's 35 million letters that need sending out. Quite a bit of scaling up there to be done after the pilot. Eco-wise let's hope they're all emails:)

But letters is only stage 1 (after all the BPI could have sent them themselves, tho this way they do aparently get ISPs to pay for half of them.) Stage 2 is what do you do next, when presumably they compare them all on a big spreadsheet, and find that eg Mr A of Aberystwyth got 220 letters from 5 ISPs? What gets done to persuade Mr A to abandon his bad ways if the shock of 220 letters isn't enough?"

Read it in full.

DRM strikes again as Yahoo throw away the music keys

The EFF are suitably enraged at Yahoo!'s decision to shut down their music service ('What music service?' some will ask) and effectively destroy customers' access to the songs they purchased legitimately.

"Just over a month after consumer backlash caused MSN Music to rescind its decision to deactivate the digital rights management ("DRM") servers that allowed MSN Music purchasers to "reauthorize" music files after upgrading operating systems or buying new computers, Yahoo! Music has decided to deactivate its own DRM servers.

The ironically named Yahoo! Music Unlimited Store will shut its virtual doors in September, and, as of October 1, will no longer provide license keys for music purchased from the store, nor will it authorize song playback on additional computers. That means Yahoo! Music customers will not be able to transfer songs to “unauthorized computers” or access the songs after changing operating systems. Yahoo! advises customers to back up their music to a CD if they want to be able to access it in the future. In other words, Yahoo! wants its customers to invest more time, labor and money in order to continue to enjoy the music for which they have already paid. In fact, the more music they bought, the more work they'll have to do. What is worse, this suggestion could put customers at legal risk, as they may not have documentation of purchase. Furthermore, there is no certainty that all relevant copyright owners would agree that making such backup copies without permission is lawful."

Update: Read Ed Felten's take on the whole mess.

Mirrors don't lie, they mislead

I liked this succinct NYT article about mirrors largely because it articulates nicely how what we believe is not necessarily so. Make sure you click, in particular, on the mirror images graphic just below the first paragraph.

It's a useful metaphor for digitally related regulations generally - what policymakers believe is not necessarily so but there is no room for other perspectives. The art of persuasion through a story based on empirical evidence and reason seems to be absent from the policymaking process. It's been killed off by vested interests and the rush for the soundbite and the headline.

PET awards 2008

Glyn Moody's complaint about BSA's irritations with EU privacy laws nicely links me in to the 8th Privacy Enhancing Technologies Symposium (PETS 2008) which is currently taking place in Leuven in Belgium. Every year the symposium presents an award for outstanding research into privacy enhancing technologies (PETs) and yesterday evening the 2008 winners were announced. They are:

Arvind Narayanan and Vitaly Shmatikov. Robust De-anonymization of Large Sparse Datasets. Proceedings of the 2008 IEEE Symposium on Security and Privacy (S&P 2008).

Microsoft which sponsors the award had this to say about this year's winners:

"The films we watch, the products we buy and the subjects that interest us can tell others a lot about who we are — information that, rightly, we might wish to keep to ourselves. The internet, to which we entrust so much of this information, works because of our faith in the confidentiality of the behaviours we exhibit and in a shared sense of responsibility. Work from three teams, recognised today in the Microsoft-sponsored Privacy Enhancing Technology Awards, suggests that more can be done to ensure that people can be confident that their privacy will be protected online.

Arvind Narayanan and Vitaly Shmatikov, researchers at the University of Texas, began looking into large, publicly available data sets that were cleansed of names or other personally identifiable information. They very quickly discovered a major privacy risk — anonymised data sets could be used to re-identify individuals using efficient algorithms. They took the theory and tested it in reality, examining anonymised movie ratings and dates of rating for 500,000 users published by a major online movie rental service. Narayanan and Shmatikov found that they could identify a user's ratings record with only five to ten educated guesses relating to some of those ratings. Narayanan and Shmatikov proceeded to develop a theory that shows how this applies to other data sets such as an online store's purchasing records.

Their work, which earned them the overall 2008 PET award, shows the danger in releasing apparently anonymised data without better methods to ensure that it can't be compromised. Their research will be invaluable in promoting and informing the development of ways to release data with provable privacy guarantees...

Runners-up Steven J. Murdoch and Piotr Zieliński of Cambridge University also uncovered possible dangers to our online anonymity. Their paper discusses and analyses, for the first time, the possibility of surveillance at internet exchanges (IXes). High volumes of traffic pass through these exchanges when travelling from one network to another, making them an ideal point from which to gather surveillance data. Murdoch and Zieliński first showed that a single IX could observe a large fraction of traffic on the experimental Tor network, a distributed network of relays that bounces traffic around the internet to facilitate anonymous access to information. Despite the fact that the amount of data was overwhelming, Murdoch and Zielinski's study looked into how much they could learn about users from only a snapshot of the surveillance data gathered.

Using techniques that are realistic with today's network technology, they showed that this method of looking at a small sample of data was surprisingly effective and could uncover a lot of information about Tor users. This research is notable because it could change the way researchers think of the security of network privacy systems, and is likely to be influential in future research about internet surveillance."

One of the runners up, Steven J. Murdoch notes his and his colleagues success at Light Blue Touchpaper.

ACTA 3 strikes

Now todays UK p2p deal doesn't mandate a 3 strikes regime but in very timely fashion Glyn Moody reminds us that the music industry are still working behind the scenes to get it incorporated into the Anti-Counterfeiting Trade Agreement (ACTA).

"The name of the “Anti-Counterfeiting Trade Agreement” – ACTA – is indicative of the overall approach being taken. First, this is a trade agreement, which means that it by-passes many of the more open processes for drawing up international agreements. This has allowed it to be discussed in secret, amongst a cosy club of interested parties and their chums – notably, those in industries based on exploiting intellectual monopolies . Moreover, this is an invitation-only club, which has led to the exclusion of most developing countries, and hence most of the world in terms of population...

The approach that ACTA will take is hard to discern from the generalities of the briefing document, but fortunately we have some clear hints in the published submissions from interested parties in which they express they hopes for ACTA.

Here, for example, is what the record industry would like to see:

ensure that ISP's are required by law to engage in reasonable business practices with respect to the detection and removal of infringing files, preventing access to their networks on the part of known infringers; terminating the accounts of repeat or serious infringers

In other words, the old “three strikes and you're out” idea mandated across most of the developed world – and ultimately beyond."

He also takes the BSA to task for attempting to eviscerate privacy protections in order to protect their members. (It you want a considered view of why this is a bad idea, read Daniel Solove's terrific book The Future of Reputation which is now freely available online.)

Whichever side of the IP debate you fall on Moody's article is well worth reading in full.

Government consultation on P2P law

The UK government are going ahead with their consultation on legislative options to address illicit P2P file-sharing. The consultation document is worth a read.

Update: ORG's take on this and the industry deal is available on their blog.

ISPs and music Industry reach a deal

Six major UK ISPs seem to have reached a government brokered deal with the music industry to send nasty letters to anyone suspected of copyright infringement on via peer to peer file sharing.

"Six of the UK's biggest net providers have agreed a plan with the music industry to tackle piracy online.

The deal, negotiated by the government, will see hundreds of thousands of letters sent to net users suspected of illegally sharing music.

Hard core file-sharers could see their broadband connections slowed, under measures proposed by the UK government.

BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse have all signed up...

The plan commits the firms to working towards a "significant reduction" in the illegal sharing of music...

The six internet service providers have signed a Memorandum of Understanding drawn up by the Department for Business, Enterprise & Regulatory Reform (BERR)...

At the same time the government has started a consultation exercise that could result in laws that force net firms to tackle music piracy. A working group will be set up under the auspices of regulator Ofcom to look at effective measures to tackle persistant file-sharers...

The consultation document proposed that hard core file-sharers could have technical measures imposed, such as "traffic management or filtering and marking of legitimate content to facilitate identification"."

Apparently the MPAA has signed up too.

Evan Davis interviewed several people about the deal on the Today programme this morning, including Becky Hogge of ORG and musician Billy Bragg. It was really disappointing to hear someone like Davis suggesting repeatedly that cutting people off the Net for suspected file sharing was a proportionate option. Becky Hogge did her best to explain it to him in a paint-by-numbers way but I'm afraid he didn't get it. He could get his head round the idea that cutting off someone's electricity would be disproportionate but seemed to be completely baffled by the notion that cutting someone and their family off the Net - and possibly damaging their livelihood - could be even remotely equivalent. Someone needs to introduce the affable Mr Davis to Lilian Edwards' clinical dissection of precisely how seriously disproportionate such a response is. But that is the problem with modern public debate - there is no time or space set aside for serious analysis. It all has to be done in sound bites.

Having said that Billy Bragg had a nice sound bite: "Criminalising our audience is not going to help musicians make a living." He was also very convincing when Evan Davis couldn't get away from the idea "you're going to have to go in, monitor what people are doing" and stop them. Bragg's response was "are you really?" - after all his first real collection was taped from a friend and he loved the album so much he has bought loads of copies in various formats since then, so the artists eventually got their money. Davis chuckled at that in a way that suggested he may have done likewise and at least understood the point. Will it have a lasting effect on him? We'll have to wait and see.

Update: The Guardian is on the case, if only to have a dig at the Independent.

ECHR medical privacy landmark ruling

From Ross Anderson:

"In a case that will have profound implications, the European Court of Human Rights has issued a judgment against Finland in a medical privacy case.

The complainant was a nurse at a Finnish hospital, and also HIV-positive. Word of her condition spread among colleagues, and her contract was not renewed. The hospital’s access controls were not sufficient to prevent colleages accessing her record, and its audit trail was not sufficient to determine who had compromised her privacy. The court’s view was that health care staff who are not involved in the care of a patient must be unable to access that patient’s electronic medical record: “What is required in this connection is practical and effective protection to exclude any possibility of unauthorised access occurring in the first place.” (Press coverage here.)

A “practical and effective” protection test in European law will bind engineering, law and policy much more tightly together. And it will have wide consequences. Privacy compaigners, for example, can now argue strongly that the NHS Care Records service is illegal. And what will be the further consequences for the Transformational Government initiative - the “Database State”?"

Update: William Heath, whilst pointing out the court ordered the Finnish government to pay out €34k also wonders (given the HMRC data Chernobyl) how much 25,000,000 x €34,000 is. It would certainly wake up a few government ministers about the down side of the surveillance society they are so blithely constructing.

Researchers have no right to study terrorist materials

It seems that the student who was arrested for downloading an al-Qaida manual from a US government website is now back at Nottingham University, the Vice Chancellor of which has declared that researchers have no right to study terrorist materials.

"In a statement issued to the university last week, Sir Colin Campbell says: "There is no 'right' to access and research terrorist materials. Those who do so run the risk of being investigated and prosecuted on terrorism charges. Equally, there is no 'prohibition' on accessing terrorist materials for the purpose of research. Those who do so are likely to be able to offer a defence to charges (although they may be held in custody for some time while the matter is investigated). This is the law and applies to all universities."

Sir Colin issued the statement to advise staff to note "additional points" that have emerged since the arrest in May of a Nottingham masters student and a clerk on suspicion of possessing extremist material.

The student, Rizwaan Sabir, who is studying Islamic terrorism, said he had downloaded a copy of an al-Qaeda training manual for use in his MA dissertation and PhD application and had forwarded it to the administrator, Hicham Yezza, for printing. After six days in detention, neither was charged...

Hicham Yezza, the clerk arrested with Rizwaan Sabir, was re-arrested on immigration-related grounds after his release and was due to be deported until proceedings were stayed pending judicial review."

In response to the comments by the V.C. at Nottingham, Professor Scott Lucas, at Birmingham University, has written an open letter.

"This is not a question of “access and research [to] terrorist materials”. No page or picture frame or moving image is “terrorist” in and of itself. It is how that material is used, let us say, to fan the flames of division and hostility that can lead to acts of violence. The problem was never the type-set pages of Mein Kampf; rather, it was in the use of those pages to justify bigotry, racism, war, genocide. The problem was never Marx’s Das Kapital or Mao’s Little Red Book or Adam Smith’s The Wealth of Nations or the Koran or the Bible. It was, still is, and always will be the manipulation of those texts to justify the taking of lives."

Further details of the story are available at the Support Hicham Yezza website.

ID cards to blame for passport service job cuts

From ComputerWorld:

"The Public and Commercial Services Union said human processes were being automated, and resources were being “diverted” from passport processing to the introduction of ID cards. The government plans to close a key passport office in Glasgow, and has offered passport staff a below-inflation 2.5 percent pay rise.

In May, five IT suppliers were selected for the ID cards project. The PCS complains that the pay rise comes at a time when the IPS has spent “nearly £50 million” on consultants.

Some 3,000 staff at the Identity and Passport Service will strike over the next three days."

Bibliocommons

From Library Journal:

"BilbioCommons, a new social discovery system for libraries that replaces all user-facing OPAC functionality, allowing for faceted searching and easier user commenting and tagging, has gone live in Oakville, ON, a city of 160,000 outside Toronto. It is expected to be used by public libraries serving more than half of Canada’s population—and some libraries in the United States, too. “This is revolutionary, as far as I’m concerned,” Gail Richardson, Oakville PL’s acting director of online services, told LJ. “People don’t want a library that acts like just a glorified card catalog online. They want a catalog that’s as good as Google and Amazon.”

Library users, said Richardson, most want “easy reader’s advisory,” a better way to get recommendations and to connect with people online."

COPA's latest setback

The latest court decision on the Child Online Protection Act is now available. It's been ruled unconstitutional again.

Tips for iPhone apps users

Jenny Levine has some tips for enthusiastic iPhoners agog at their newly enabled permission to add Apple-sanctioned apps to their phones. Nice.

A portal to media literacy

Essential viewing for ed techies everywhere - Mike Wesch's a portal to media literacy:

Personal Internet Security: follow-up House of lords report

I've been meaning to not this from Richard Clayton for a couple of weeks:

"The House of Lords Science and Technology Committee have just completed a follow-up inquiry into “Personal Internet Security”, and their report is published here. Once again I have acted as their specialist adviser, and once again I’m under no obligation to endorse the Committee’s conclusions — but they have once again produced a useful report with sound conclusions, so I’m very happy to promote it!

Their initial report last summer, which I blogged about at the time, was — almost entirely — rejected by the Government last autumn (blog article here).

The Committee decided that in the light of the Government’s antipathy they would hold a rapid follow-up inquiry to establish whether their conclusions were sound or whether the Government was right to turn them down, and indeed, given the speed of change on the Internet, whether their recommendations were still timely.

The written responses broadly endorsed the Committee’s recommendations, with the main areas of controversy being liability for software vendors, making the banks statutorily responsible for phishing/skimming fraud, and how such fraud should be reported.

There was one oral session where, to everyone’s surprise, two Government ministers turned up and were extremely conciliatory. Baroness Vadera (BERR) said that the report “was somewhat more interesting than our response” and Vernon Coaker (Home Office) apologised to the Committee “if they felt that our response was overdefensive” adding “the report that was produced by this Committee a few months ago now has actually helped drive the agenda forward and certainly the resubmission of evidence and the re-thinking that that has caused has also helped with respect to that. So may I apologise to all of you; it is no disrespect to the Committee or to any of the members.”

I got the impression that the ministers were more impressed with the Committee’s report than were the civil servants who had drafted the Government’s previous formal response. Just maybe, some of my comments made a difference?"

Lesbians don't have to be from Lesbos

Earlier this year three residents of Lesbos sued a gay rights group to stop them using the term lesbian to refer to homosexual women. They just lost.

Quote of the day

We were having a conversation about schooling today over dinner and my elder son, fresh from his last day at school before the summer holidays, said:

"They should teach you something you don't know." (Corrigan, J. 2008)

I had to record it somewhere and given my periodic brain dumps here of my views of the education system, I figured this was as good a place as any.

ORG testify to London elections review committee

Jason Kitcat at ORG had a distinctly unsatisfactory experience testifying before the Greater London Authority’s Elections Review Committee last week, which touches on one of the problems I've been having writing a sufficiently neutral e-voting case study for Open University students. The analysis by computer scientists of the variety of available e-voting technologies and their use all over the world has been exhaustive and largely ignored by policymakers.

The substitution of a relatively simple (paper ballots) part of a complex process with complex machines (computers) provides an immediate plethora of questions, issues and problems which need to be addressed, from the availability of trained staff and reliable vendors through to voter verifiable audit trails. Failure to acknowledge let alone attempt to tackle these issues will absolutely gaurantee failure of the systems we deploy as a result.

Yet it seems that policymakers, in London at least, certainly don't want to avail themselves of the expertise of the very people who understand what computers can and cannot do. It should be a wake up call that the people who understand the machines from Princeton to London are the ones who are explaining forensically that if we use these machines this way we are potentially seriously compromising the integrity of our electoral process.

Jason says:

"First up were representatives from Indra (the e-counting supplier) and election officials from London Elects, Greater London’s Returning Officer and two Constituency Returning Officers. A number of good, challenging questions based on ORG’s findings were directed at those present, but the responses were often less than satisfactory, resorting to assurances (because proof of the election’s validity couldn’t be provided). Members of the committee, being London Assembly members, were in the strange position of having to question whether their own election was valid. So their was little incentive to push hard for answers, with the exception of Andrew Boff (Con) who as a former systems analyst understood the severity of the problems and risks involved in e-counted elections...

On asking Indra whether the error messages ORG had observed risked the integrity of the election, Indra responded that these were isolated ‘glitches’ but that they had absolute confidence in the declared results, a view supported by Mr Mayer. Andrew Boff was prevented by the chair, Brian Coleman (Con), from pursuing this weak response further...

No such scrutiny was levelled at Indra nor London Elections. Indeed the committee seemed uncomfortable challenging the results, but happier expressing displeasure over delays or other administrative matters which, while of importance, hadn’t risked the accuracy of the result. Furthermore several attempts were made to imply ORG’s report was the work of well intentioned amateurs, perhaps not worth taking seriously.

On ORG’s behalf I then came before the committee to discuss our findings. I began by explaining my ten years of experience in the field and why I was qualified to discuss this election. Some committee members visibly raised eyebrows on hearing my brief resume. Perhaps they assumed I was a geek without knowledge of elections.

However on trying to address some of the weak or ridiculous responses from the previous participants (Indra in particular) the Committee balked at my comments. Again with the exception of Mr Boff they were incredulous of our findings, in particular challenging our maths over the maximum number of possibly unaccounted-for ballots.

The Chair claimed electoral fraud wasn’t an issue in the UK, to which I responded that candidates from all three major political parties have been convicted of electoral fraud in the last 10 years. Still Mr Coleman refused to accept that there were people with sufficient interest and capability to commit electoral fraud in the London elections. My presence was soon no longer desired and the meeting swiftly ended."

I suspect several thousand students reading an OU case study are not going to have an impact on this attitude in the short term. It might be that the UK needs a variation on the Dutch experience of one 2006 TV programme getting through when years of campaigning by computer scientists had had little effect.

If YouTube actively regulates porn it loses to Viacom

Mark Cuban makes an interesting point about the data Youtube has been forced to hand over to Viacom.

"What will really tip the balance of power in this case, now that every viewing instance will be in Viacom's possession, is the answer to how Youtube deals with porn.

Who identifies the porn on Youtube ? According to Youtube, its regular users who police the site. Personally, I dont believe it. Whether its individuals or technology that keep porn off of Youtube, it really doesn't matter. If Viacom can use this data to show that Youtube manages the presentation of porn in any way, then they lose their DMCA protection.

Which means they lose their case to Viacom."

Blackboard court setback

Blackboard and Desire2Learn have been back in court. The former asked for the latter to be held in contempt because the changes to its software to comply with the court's previous order to that effect are not to Blackboard's liking.

Desire2Learn say:

"We just received word from Texas. The Court denied Blackboard's Motion for Contempt. We anticipate we will receive the Court's written Order in a few days and will post it when we receive it."

Think about this ridiculous litigation for a minute. Blackboard get a nonsensical patent and immediately sue their biggest (though comparatively very small) competitor, Desire2Learn. The case goes through the Eastern District Court in Lufkin in Texas, (bearing in mind Blackboard's headquarters is in Washington DC and Desire2Learn is a Canadian company, the obvious place for a lawsuit is Texas), and a jury awards millions in damages for patent infringement.

Then the US Patent Office, having reviewed the patent, issues a preliminary ruling declaring it invalid. This, however, has no impact on the court case. The losers still have to pay damages and the judge, with little room for manoeuvre following the jury decision, orders them to change their software so that it doesn't infringe Blackboard's patent. Desire2Learn comply within the few weeks the judge has given them, updating the software and their customer base installations, since the judge has said the old infringing software can't be sold or used.

Blackboard are not happy that the changes go far enough and go back to court demanding their competitor gets held in contempt for not changing their product enough so that it no longer infringes a patent which has been formally declared invalid. And they can get away with it because the invalidation of the patent can't be taken into consideration in court until the process within the Patent Office has been exhausted through all possible appeals.

It will be really interesting to read what the judge has had to say about the latest action when his ruling becomes available. At best it's possible the judge has decided that the latest version of Desire2Learn's software can't be shown to be infringing Blackboard's invalid patent, in which case Blackboard would have to start a new patent infringement suit from scratch to take it down. At worst it could just be a procedural delay. We'll just have to wait for the details.

Copyright term extension wrong

Leading European intellectual property experts have written to the Times expressing dismay at EU plans to extend the term of copyright in sound recordings. They also wrote to the President of the EU Commission in June very bluntly warning of the damage that such an extension could do.

Update: William Patry agrees with them.

Landmark ruling: Police breaking the law holding personal details for 100 years

An even more important case covered in the Times today is the landmark ruling by the Information Tribunal that police forces have been acting illegally in intending to retain personal details relating to minor crimes for 100 years. 100 years for goodness sake! The total surveillance mentality is getting a dangerous grip in state institutions that are supposed to protect fundamental freedoms. When it becomes the default administrative mindset of those institutions then we really need to be concerned.

I'm becoming increasingly convinced that all large complex organisations converge towards a kind of operational insanity where process and procedures take precedence over people and the role of the employees of the institution is to ensure the rules are followed irrespective of the scale of damage such processes might inflict. I should probably write a paper or a book on it but for now consider the Times story:

"Tens of thousands of criminal records could be deleted after a landmark ruling that police were breaking rules on the holding of personal details.

Police reacted with dismay to a judgment by the Information Tribunal, which could force them to review millions of records of minor crimes.

The ruling opens the way for all those who have been convicted of a minor offence when young, and who have since remained out of trouble, to apply for their record to be removed from the Police National Computer.

Police privately cautioned last night that there were potentially much wider implications. “A crime may look very trivial, but it might still be of significance to a person’s potential behaviour,” a police source said...

In a second blow to the storage of crime records, the Ethics Group, a government-appointed advisory body, gave warning that keeping DNA samples of people arrested but never charged or convicted is a potential breach of human rights laws.

Yesterday’s tribunal ruling ordered five police forces to delete the criminal records of five individuals from the national computer, which holds details of millions of people convicted, cautioned or reprimanded for a crime.

Under present police policy, an individual’s criminal record remains on the computer for 100 years."

The police had been appealing a ruling from the Information Commissioner that they were contravening data protection laws. That quote from the "police source" is another classic example of how the administrative mindset gets out of control - “A crime may look very trivial, but it might still be of significance to a person’s potential behaviour.” It's straight out of the we've got to clamp down on 5-year olds since 'it might still be of significance to their potential behaviour' mentality and completely barmy.

Good to see that there are still a few elements in the system standing up for robust liberal democratic values. Why should minor transgressions in life haunt people for life? After all George W. Bush was reportedly a drunk and a juvenile delinquent and grew up to be the US president, so they don't all blossom into hard nosed criminals... er... on second thoughts... Tony Blair had a lifelong pure-white-smile recorded background and he and Bush are responsible for the deaths of tens of thousands if not hundreds of thousands of people. In Italy the Berlusconi (and I guess he hasn't exactly got a clean record) government is currently taking the total surveillance mentality of Bush-Blairism to its chilling next level, institutionalising state based abuse of the Romany people through their efforts to fingerprint every member of that minority group and publicly denigrating them at every opportunity. Which leads to the kind of callous disregard for human life we see reported on the front page of today's Independent.

"It's another balmy weekend on the beach in Naples. By the rocks, a couple soak up the southern Italian sun. A few metres away, their feet poking from under beach towels that cover their faces and bodies, lie two drowned Roma children. The girls, Cristina, aged 16, and Violetta, 14, were buried last night...

It is an image that has crystallised the mounting disquiet in the country over the treatment of Roma, coming after camps have been burnt and the government has embarked on a bid to fingerprint every member of the minority. Two young Roma sisters had drowned at Torregaveta beach after taking a dip in treacherous waters. Their corpses were recovered from the sea – then left on the beach for hours while holidaymakers continued to sunbathe and picnic around them...

The Berlusconi government has launched a high-profile campaign against the community, spearheaded by the programme announced by the Interior Minister, Roberto Marroni, to fingerprint the entire Roma population. The move has been condemned inside Italy and beyond as a return to the racial registers introduced by the Fascist regime in the 1930s. The fingerprinting of Roma in Naples began on 19 June."

Rugby club liable for on assault on the pitch

The Times is reporting this morning that a the Court of Appeal has ruled that a rugby club can be held vicariously liable for an assault perpetrated by one of its players on the pitch.

"Gravil v Carroll and Another

Before Sir Anthony Clarke Master of the Rolls, Lady Justice Smith and Lord Justice Richards

Judgment June 18, 2008

A rugby club was vicariously liable for an assault by one of its semi-professional players on a member of the opposing team during a match...

Redruth RFC provided rugby for the local community; it made no profit and it provided its players with a contract of employment to avoid losing them. It was only about ten years ago that such clubs began to employ their players. No question of vicarious liability on the part of such clubs could have arisen until then.

The critical factor was the fact that the first defendant was employed by the club. The question for the court was whether the club was vicariously liable to the claimant for the consequences of the first defendant's tort, in punching him in the face and causing him injury.

An employer was vicariously liable for the torts of his employees committed in the course of their employment. Where the wrongful conduct could fairly and properly be regarded as done while acting in the ordinary course of the employee’s employment it would ordinarily be fair and just to hold the employer liable...

The first defendant was acting in the course of his employment when he punched the claimant."

NLC report critical of Toyota

A recent National Labour Committee (NLC) report is highly critical of conditions in a Toyota Prius factory in Japan.

Toyota has rejected the criticisms.

Copyright waste

Michael Geist has been pointing out that Canada's proposed new copyright law Bill C-61, could also have undesirable environmental costs.

"The notion of "green copyright" sounds odd, yet the policy choices found in Bill C-61, Industry Minister Jim Prentice's controversial copyright bill, disappointingly run directly counter to the current emphasis on the environment...

Despite attempts to reduce e-waste, Bill C-61 establishes new barriers to the reuse of electronics. If enacted into law, it would prohibit the unlocking of cellphones, forcing many consumers to junk their phones when they switch carriers (there are an estimated 500 million unused cellphones in the United States alone).

Similarly, the U.S. version of Bill C-61 has resulted in lawsuits over the legality of companies that offer to recycle printer ink cartridges. In one lawsuit, Lexmark sued a company that offered recycled cartridge and though it ultimately lost the case, the lawsuit created a strong chill for companies set to enter that marketplace.

Bill C-61 also creates new barriers in the race toward network-based computing, which forms part of the ICT industry's response to the fact that it accounts for more carbon emissions than the airline industry...

The bill prohibits companies from taking advantage of cloud computing to offer network-based video recording services (as are offered by some U.S. based providers). It also stops consumers from shifting their music, videos, and other content to network-based computers, limiting these new rights to devices physically owned by the consumer. In fact, the bill even blocks consumers from using network-based computer backup since multiple copies of purchased songs or videos is forbidden."

It's good to see someone of Prof Geist's standing noting this, as it has been largely invisible from the debates on the knowledge society. Digital devices use vast quantities of energy. They also have short lives and generate vast quantities of toxic waste. In spite of the long standing myth that digital content is perfect and "free" it has never been so. The environmental cost of intellectual property policy stretches beyond James Boyle's second enclosure of the commons (of the mind) and has a substantial and increasing impact on our physical environment.

Thanks to Michael Geist himself for the pointer to his article.

Toddler + Prince song + YouTube = Copyright suit

Speaking of re-mix culture, try this from SiliconValley:

" For Pennsylvania mom Stephanie Lenz, a closely watched copyright showdown in San Jose federal court is a simple matter of standing up to powerful music moguls and petulant pop stars.

"I figure I have nothing to lose," Lenz said Friday in a telephone interview with the Mercury News. "The music companies are just going to keep doing this to people. I think it's my responsibility to stand up to them and say, 'That's enough.' "

Lenz, whose case reached a critical stage Friday, finds herself at the heart of an epic copyright fight over Universal Music's attempt to force her to take down a YouTube video of her toddler learning to walk with the Prince song "Let's Go Crazy" blaring in the background."

The EFF is backing Ms Lenz in the hope of getting the first formal declaration from a court to the effect that this kind of mashup is well within the bounds of fair use and protected by the first amendment to the US constitution. Have a look at the video for yourself on YouTube - frankly it is pretty difficult to make out who the artist was or what song they were singing. Any rational actor viewing this on the net would be idiotic to follow it up by tracking down the family and sending them a cease and desist letter. But the industrial scale of the music industry's 'takedown anything remotely suspicious' operation doesn't allow for rational pre-threat assessment. So lots of innocents get caught in the Net and unnecessary litigation results. Presumably there are executives in Universal who are wishing this lawsuit would just quietly go away.

Update: See thoughtful comment from Alfred Yen at Madison.net

Update 2: More interesting commentary from Sherwin Siy at Public Knowledge. Universal are claiming in their defence that fair use is infringing use. Siy says:

"It sounds paradoxical, but that’s the argument made by Universal in its defense of an overzealous DMCA takedown notice sent to Stephanie Lenz. That notice was sent to Lenz after she posted a YouTube video of her then-13 month-old son dancing in her kitchen to the barely-intelligible strains of Prince. Give me a minute to walk through the background of what caused Universal to make this twisted argument.Lenz, represented by EFF, has sued Universal for violating 17 USC 512(f), which penalizes abuses of the DMCA’s notice-and-takedown procedures...

Thus, if Lenz wasn’t infringing copyright, and Universal knew that and sent the notice anyway, it’s liable.

And it’s hard to see how Lenz’s use isn’t fair. It’s a non-commercial, 29-second work having no effect on the market for Prince’s work. A first glance should tell anyone with some copyright experience that this is fair use; a first glance should tell anyone at all that this isn’t worth sending a takedown notice.

But Universal is trying several arguments to get out of the penalty. For one thing, it claims that the misrepresentation wasn’t “knowing.” For another, it says that it wasn’t a misrepresentation to say that a fair use was infringing. For that to be true, a fair use must be an infringing use.

This is, to say the least, weird."

Quote of the day

"There was never a good war or a bad peace" Benjamin Franklin (in a letter to Josiah Quincy in 1783)

And just to show that the re-mix culture was a staple of the founding fathers, in one of his many letters to Atticus, Cicero, more than 1800 years previously, said "I cease not to advocate peace; even though unjust it is better than the most just war." (Episolae ad Atticum, bk. VII, epistle 14 for the Roman scholars amongst you);

And Samuel Butler had written (Butler's Remains, 1759) "It had been said that an unjust peace is to be preferred before a just war."

UK IPO cautious about EU proposal to extend copyright term

On Friday last the UK Intellectual Property Office issued a preliminary response to EU proposals to extend the term of copyright in sound recordings to 95 years. The tone of the response is predictably cautious given that the Gowers review of intellectual property law in 2006 came out firmly against such an extension.

"UK-IPO response to the European Commission's proposal to extend the term of copyright protection

The UK-IPO today responded to the European Commission's proposal to extend the term of copyright protection for sound recordings from 50 to 95 years.

Additional measures in the Directive include a proposal that record producers set aside 20% of all revenues for a fund for session artists. A 'use it or lose' it clause should enable performers to regain the rights in recordings over 50 years old which are no longer available commercially. There is also a proposal to align the term of protection for the music and lyrics which together make a musical composition.

Minister of Intellectual Property Baroness Delyth Morgan said,

"Because copyright represents a monopoly we need to be very clear that the circumstances justify an extension. We will therefore need to consider these proposals carefully to understand how they would work and what the benefits are likely to be. I would like to hear what the public thinks about this and would urge all those who have an interest in these proposals to make sure their voice is heard and to contact the UK-IPO by the end of August."

The Gowers Review of Intellectual Property, an independent government commissioned review, recommended against an extension of copyright term. Evidence suggested that extending the term of protection would negatively impact on consumers and industry.

Editor's notes

* Andrew Gowers undertook a review of Intellectual Property in 2005 and reported his findings to the Government in December 2006. He identified a number of areas where improvements could be made. The Government committed to taking the recommendations forward. The full review can be viewed at The HM Treasury website. http://www.hm-treasury.gov.uk./media/6/E/pbr06_gowers_report_755.pdf

* As part of the Gowers Review a report was commissioned from the Centre for Intellectual Property and Information Law to examine the economic evidence for extending the term of protection for sound recordings. The full review can be viewed at http://www.hm-treasury.gov.uk/media/B/4/gowers_cipilreport.pdf

* If you have any comments on the proposal you are invited to send them to Barbara Squires at: Termextension@ipo.gov.uk by the end of August."