eBook user's bill of rights

The Librarian in Black, Sarah Houghton-Jan, has written a bill of rights for ebook users.

The eBook User’s Bill of Rights

February 28, 2011 

The eBook User’s Bill of Rights is a statement of the basic freedoms that should be granted to all eBook users.

The eBook User’s Bill of Rights

Every eBook user should have the following rights:

• the right to use eBooks under guidelines that favor access over proprietary limitations
• the right to access eBooks on any technological platform, including the hardware and software the user chooses
• the right to annotate, quote passages, print, and share eBook content within the spirit of fair use and copyright
• the right of the first-sale doctrine extended to digital content, allowing the eBook owner the right to retain, archive, share, and re-sell purchased eBooks

I believe in the free market of information and ideas.

I believe that authors, writers, and publishers can flourish when their works are readily available on the widest range of media. I believe that authors, writers, and publishers can thrive when readers are given the maximum amount of freedom to access, annotate, and share with other readers, helping this content find new audiences and markets. I believe that eBook purchasers should enjoy the rights of the first-sale doctrine because eBooks are part of the greater cultural cornerstone of literacy, education, and information access.

Digital Rights Management (DRM), like a tariff, acts as a mechanism to inhibit this free exchange of ideas, literature, and information. Likewise, the current licensing arrangements mean that readers never possess ultimate control over their own personal reading material. These are not acceptable conditions for eBooks.

I am a reader. As a customer, I am entitled to be treated with respect and not as a potential criminal. As a consumer, I am entitled to make my own decisions about the eBooks that I buy or borrow.

I am concerned about the future of access to literature and information in eBooks.  I ask readers, authors, publishers, retailers, librarians, software developers, and device manufacturers to support these eBook users’ rights.

These rights are yours.  Now it is your turn to take a stand.  To help spread the word, copy this entire post, add your own comments, remix it, and distribute it to others.  Blog it, Tweet it (#ebookrights), Facebook it, email it, and post it on a telephone pole.

One comment - not a bad start but people are more than just customers or consumers. I'm not a consumer, I'm a free man!

Education not job training

I spent several hours yesterday driving between the locations of various meetings. Whilst in transit I listened to an interminable debate on the radio about the latest study reportedly criticising the education system or more specifically the vocational qualifications on offer to teens. Having not read the report at the centre of the hype I have no reason to assume it was anything other than a well balanced academic tome but the public debate was anything but.

The obsessive, narrow-minded focus of the media and political digerati on education as job training [.."not preparing them for work"... "...no good to employers"... "...employers want..."... "irrelevant to employers"..."...never used it in my job..."] caused the build up of a seething head of steam in me until eventually I found myself barking at the radio on the way home from Milton Keynes yesterday evening:

"Education is NOT about job training. It's about producing well-rounded, tolerant human beings with the capacity to think critically and act rationally and ethically in the increasingly complex socio-economic-technological soup of the environment in which we live; and with the will and lifestyle to leave the world a slightly better place than when they entered it! The acquisition of certain skills that may be useful in the workplace is ONE emergent property of such a system but NOT the most important."

These kinds of public debates also provide a never-missed opportunity for certain media personalities to polish and parade their mathematical and scientific ignorance as a proud badge of honour - another of my pet hates. I wonder how impressive or how long a game of one-up-man-ship would last if they were boasting about an inability to understand words or never having read a book?

Do I use vector calculus, engineering or advanced structural & fluid dynamics, physics, chemistry, solid state electronics, thermodynamics or land law in my day job? Actually I have had reason to use many of these in the past couple of years as an external examiner but by and large no. They're not required for the educational administration that takes up a, sadly, ever increasing proportion of my days.  Do the critical systematic analytical thinking skills people acquire through studying advanced mathematics come in useful not just in the workplace but in life in general? You betcha! Luckily in spite of the increasing encroachment of admin duties, as an academic, I still occasionally get to engage in a range of intellectual pursuits some of that earlier academic study directly laid the groundwork for. But whether it is a direct foundation or not to whatever modern life is currently throwing at us that earlier study is never wasted - it is an integral part of whoever has engaged in it.

Do the politicos and media commentators understand this?  Well if they do it is not evident in their dominant belief that the education sector is a one-dimensional sausage machine for churning out job fodder to facilitate "what employers want".

I've had the priviledge of working with the Open University for nearly 16 years and meeting some amazing people in that time. I would not insult a single one with assumption behind the empty political thinking on education that they are nothing more than trainee workers and/or consumers.

Side note to "employers", whoever they may be: if you want someone to learn use your machines, staff the phones or stack the shelves 8 hours a day, then a university is not the right place to help with that. I haven't got your machines so can't teach people to use them. If you want someone to work for you and be a more capable all rounder with the ability to contribute to your business in ways you haven't even thought of yet then an education rather than narrowly focussed job training is what you're looking for.

But, in the spirit of caveat emptor, bear in mind that given that branches of all sectors of the UK education system have been driven to the edge of insanity and beyond, Mark Twain's warning that you should never let your schooling interfere with your education has rarely been more important.

EU web blocking plans curtailed

The EU Commission's stupid plans to mandate EU-wide web blocking as a central element of the proposed directive on the sexual abuse and exploitation of children suffered a setback in the Libe committee (civil liberties committee of the Parliament) yesterday, thanks primarily to the efforts of a small number of digital rights groups, prominent amongst which was EDRI.  Joe McNamee of EDRI says:

"The Civil Liberties Committee of the Parliament this evening, in an “orientation vote” that will set up the negotiations with the Council adopted a text which:

• rejects mandatory EU-wide blocking
• removes all references to “self-regulation”
• removes all references to “non-legislative measures”

What we did not get is a specific obligation on Member States to require a prior judicial ruling before blocking sites nor a ban on countries that currently block. Both of these, in my view, were wholly impossible, but they are still a “stain” on this being a full success. But from absurdly unrealistic to some (intermediate!) success is quite a journey."

A five minute primer on why web blocking is a stupid, counter productive and dangerous approach to tackling child abuse is available on YouTube, Web blocking - How not to create policy. It's not even hard to see why blocking is dangerous and stupid in this context - it leaves the crime scenes online, the criminals at large and the abused kids in danger, whilst enabling the EC and member state governments to pretend that they are "doing something". Implementing a directive to enable authorities to hide their lack of action is just about the worst possible approach to the problem, especially when, in the impact statement for this directive, the EC claim it is needed because they can't trust member states to implement the Council of Europe Convention on the Protection of Children appropriately or sufficiently quickly. 

The mental gymnastics required to get from the point "we've got a vast child protection problem" to "let's do something and hide it" almost beggar belief.  I say "almost" because as March, Olsen and James pointed out with their garbage can decision making model nearly 40 years ago, this kind of thinking is pervasive.  The short version:

• lots of complex issues, problems and messes are mixed in a metaphorical organisational/political/societal garbage can; 
• the decision maker is presented with a complex problem; 
• they are also presented with a "solution" from another part of the garbage; 
• the two are now inherently and irreparably linked, regardless of whether they have any rational connection or, as in this intance, the solution makes the problem worse.  
• Then no amount of rational analysis can infuence the modern day, in-the-spotlight, political decision maker into accepting that the "solution" is the wrong one; 
• cue vast amount of resources getting poured into framing, shaping, selling, promoting, marketing, media management, justifying, attacking opponents, implementing and never regretting the irrational decision/policy.

If a fraction of the energy that went into trying to pass such a directive and collating lists of worst of the worst sites actually went into tracking these abhorent child abusers, taking their servers offline, rescuing the kids involved and successfully prosecuting the offenders, there might be some inroads made into tackling the problem. So viewed purely as a child protection measure alone, web blocking is fundamentally flawed, risky and irrational.

Not to mention the wider impact through mission creep of a future EU wide internet infrastructure constructed on the principles of censorship and privacy invasion (assuming political and commercial pressures lead towards deep packet inspection censorship schemes rather than just keyword and IP address filtering and re-routing).  For a clinical dissection of the proposal Joe McNamee's presentation to the EU parliament hearing last September is hard to beat.

Seeley Brown on new learners in the 21st century

KCTS 9 has a lovely short video (8 minutes) of John Seeley Brown talking about learners in the 21st century.  He speaks about passionate communities of practice - whether that is elite surfers (his neighbour is a 20 year old world class surfer) or computer gamers.  Once a kid becomes engaged with something, whatever the subject matter or skill, one of the key issues can be to find and join the community.  Then,

"...learning isn't something you do consciously, it's something you absorb... most serious learning often happens through as osmosis process... once I dwell on the set of experiences things are getting integrated into my head, not necessarily consciously because there's a tremendous amount of tacit knowledge that I'm being exposed to in these communities..."

 

Watch the full episode. See more Digital Media - New Learners Of The 21st Century.

Ofcom refuse to disclose BBC Freeview HD DRM submissions

Following my prompt last week Ofcom has now concluded its internal review of my freedom of information request relating to the BBC, ITV and Channel 4 stance on Freeview HD DRM. Graham Howell at Ofcom has written to outline the outcome of the review. The only extra information forthcoming at this stage is a redacted version of the ITV response to the consultation.  Mr Howell's response is copied below:

Graham Howell
Office of Communications

7 February 2011

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ITV plc response HD content management redacted final 081110.pdf.pdf
32K Download View as HTML

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Our reference 1-153521203

February 7th 2011

Mr Ray Corrigan
Via email: [FOI #45799 email]

Dear Mr. Corrigan,

Re: Freedom of Information request

Thank you for your request of 28 September 2010 for Ofcom to carry out an internal review of its decision regarding your original request for information in accordance to the Freedom of Information Act 2000 (the “FoIA”). We apologise for the delay in replying to you, which in a large part is because of an internal re-organisation we have just finished.

Request for Internal Review

In your original request, you asked for the following information:

(a) A full copy, including the redacted sections noted on page 1 and 7, of the 'BBC response to Ofcom consultation of 22 January 2010 http://stakeholders.ofcom.org.uk/binarie...
(b) A full copy, including the redacted sections noted on page 1 and 7, of the BBC response to Ofcom consultation of 22 January 2010
(c) A copy of the BBC submission to Ofcom of 8 December 2009 on this same matter
(d) Details supplied by C4, not part of its formal response to the consultation relating to specific content which, in its view, may be at risk in the future if content management is not introduced and also those titles which it believes are currently sensitive
(e) A full copy of the ITV communications with Ofcom relating to Content management of the HD Freeview platform. ITV’s submission is not obviously available on Ofcom’s webpage relating to the consultation....

In your request for an internal review (the “Requested Information”), you asked Ofcom to review its decision to withhold “key information relating to sections (a) and similarly in relation to sections (c) and (d) of my request”. Specifically:

(a) A full copy, including the redacted sections noted on page 1 and 7, of the 'BBC response to Ofcom consultation of 22 January 2010 http://stakeholders.ofcom.org.uk/binarie...

(c) Details supplied by Channel 4, not part of its formal response to the consultation http://stakeholders.ofcom.org.uk/binarie... relating to specific content which, in its view, may be at risk in the future if content management is not introduced and also those titles which it believes are currently sensitive.
Note specifically in relation to (c): I would request the withheld attachment to the email correspondence from Channel 4 to Ofcom.

(d) A full copy of ITV communications with Ofcom relating to Content management on the HD Freeview platform'.
Note specifically in relation to (d): I would request the withheld attachment to the email correspondence from ITV Plc to Ofcom.

Your email of 28 September 2010, questioned the application of s393(2) and s393(6)(a) of the Communications Act 2003 (‘CA03’) to justify the possible disclosure of the information you have requested.

Our response to your internal review request

We have made appropriate and proportionate internal enquiries in response to your request for a review, and considered your case carefully. Looking at each of your requests in turn:

1. Requested Information provided by the British Broadcasting Commission (BBC)

The information you requested is being withheld for the following reasons.

(i) Section 44 FOIA – Prohibition of disclosure

The Requested Information is being withheld under section 44 of FoIA. Under this section, the Requested Information is exempt from disclosure as it falls within the prohibition on disclosure in s.393(1) CA03, as it is information relating to a business which has been obtained by Ofcom in exercise of its powers under that Act. Section 44 is an absolute exemption under the FoIA and does not require a public interest test.

In summary, the Requested Information is information with respect to the BBC that was obtained in exercise of a power conferred by the Broadcasting Act 1996 (‘BA96’) and the CA03; namely, for Ofcom to consider content management issues on the HD Freeview platform as part of its regulatory functions in that area.

Section 393(1) CA03 provides that the Requested Information is not, so long as that business continues to be carried on, to be disclosed without the consent of the person for the time being carrying on that business. The BBC, a going concern, does not consent to the disclosure of the information.

We note that disclosing information in breach of section 393 (1) CA03 may constitute a criminal offence.

Section 393(2)

You raise the possible application of s393(2) CA03, which states that under section 393(2)(a), Ofcom may disclose information where this is for the purpose of carrying out one of its functions or, under section 393(2)(b), for the purpose of enabling that person to carry out their functions.

Sections 393(4) and (5) prescribe the statutory functions that are relevant to section 393(2) We have considered the functions provided for in the instruments set out under s393(4) CA03 and 393(5) CA03 .The FoIA is not prescribed amongst those enactments, nor to our knowledge do any of the orders made by the Secretary of State under section 393(4)(c) CA03 include a reference to the FoIA. As disclosure under FOIA is not a function for which Ofcom can disclose information for under that section, s393(2) CA03 is not relevant in this context.

In any event, and separate from FOI, Ofcom has made a decision as to what information to publish and what information to keep confidential when it published its statement in this area. Please refer to this statement.

S393(6)(a)

Section 393(6)(a) as provides states “nothing in this section limits the matters that may be published under section 15, 26 or 390 of the CA03;

Again, FoIA is not prescribed in s15, 26 or 390 of the CA03. Accordingly, we do not consider that s 393(6) of the Communications Act 2003 applies in this case.

Other reasons for withholding information may apply.

2. Requested Information provided by Channel Four (C4) – letter dated 28 April 2010

The Requested Information is being withheld for the following reasons.

(i) Section 44 – Prohibition of disclosure

The Requested Information is being withheld under section 44 of the FoIA. Channel Four, a going concern, does not consent to the disclosure of the information: consistent with the analysis above (see above, for the reasons set out there we do not consider that s 393(2), s393(6)(a) of the CA03 apply.)

Other reasons for withholding information may apply.

3. Requested Information provided by ITV – dated 1 April 2010 and 30 April 2010

Attached is ITV’s submission dated 1 April 2010, with redactions. The redactions relate to confidential discussions held by ITV with rightsholders. Additional further information provided by ITV relating also to their confidential discussions with rights holders is being withheld for the following reasons.

(i) Section 44 – Prohibition of disclosure

The Requested Information is being withheld under section 44 of the FoIA. ITV, a going concern, does not consent to the disclosure of the information: consistent with the analysis above (see above, for the reasons set out there we do not consider that s 393(2), s393(6)(a) of the CA03 apply.)

Other reasons for withholding information may apply.

Please ensure that when using the provided information in any way, you comply with all relevant legislation. For example, the information provided may be protected by copyright under the Copyright, Designs and Patents Act 1988 (as amended). If in doubt, please seek independent legal advice. For Ofcom’s policy on copyright and related issues, please refer to http://www.ofcom.org.uk/about/accoun/dis...

Yours sincerely

Graham Howell

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

If you have any queries or would like to discuss this informally then please contact Information Requests (email: [Ofcom request email]). Please remember to quote the reference number above in any future communications.

show quoted sections

Link to this

Prompting Ofcom re BBC HD DRM freedom of information request

I'm still waiting to hear from Ofcom on their internal review of my freedom of information request regarding DRM on HD Freeview signal.  On 29 October Mauzima Bhamji at Ofcom wrote to explain that they hoped to be able to provide a substantive response by 23 November. Nothing has been forthcoming so far, so I've just sent a prompt this morning.

To: Information Requests
Subject: Re: Internal Review - 1-158150870 - Content management on the HD Freeview platform

Dear Ms Bhamji,

Freedom of Information: Right to know request 1-155429914

I'm writing to check on the status of the Ofcom internal review of
my freedom of information request relating to content management on
the HD Freeview platform. Your note of 28 October 2010 suggested
you hoped to be in a position to respond on the issue by 23
November 2010.

I do understand that Ofcom staff are under considerable pressure at
the moment and don't wish to add unnecessarily to that but your
early attention to this overdue response would be appreciated.

Yours sincerely,

Ray Corrigan

Privacy International Euro privacy report 2010

Privacy International released their 2010 report on European Privacy and Human Rights last week, rather timely with the UK Supreme Court hearing the DNA retention case yesterday.


Data from Privacy International on Vimeo.

Key findings:

"Europe is the world's leader in privacy rights. But with leadership like this, we worry about the future. The Directive on Data Protection has been implemented across EU member states and beyond, but inconsistencies remain. Surveillance harmonisation that was once threatened is now in disarray. Yet there are so many loopholes and exemptions that it is increasingly challenging to get a full understanding of the privacy situations in European countries. The cloak of 'national security' enshrouds many practices, minimises authorisation safeguards and prevents oversight.The primary conclusion? The situation is mixed. And for a world leader, this is unconvincing and untenable.

Good

• European democracies are in generally good health, with the majority of countries having constitutional protections.
• Surveillance policies have faced obstacles across Europe, including political challenges, policy implementation problems, and resistane from regulators, civil society, the general public and industry.
• European regulators are getting more and more complaints, which we take as a sign of increased awareness of privacy issues and awareness of the regulators' duties.
• Notification requirements for those placed under secret surveillance. (Luxembourg, Switzerland, Czech Republic)

Heroic

• Greece: in 2007 there was a collective resignation from the regulator in protest to the government's insistence of repurposing the Olympics' surveillance system.
• Germany: groups mounted a campaign against communications data retention where 34,000 people filed a case at the Constitutional Court appealing against the law.
• Netherlands: policy on mandatory smart meters had to be withdrawn after opposition.
• UK: NGOs mounted policy campaigns against the surveillance policies of the previous government, resulting in policy repeal on issues ranging from ID cards and biometric passports, to DNA practices, and large databases.

Awkward

• Many of the ambitious surveillance proposals have failed in implementation.
• Deployment of biometric passports and data retention is fragmented.
• Cutbacks have affected regulators' abilities to do their jobs, e.g. Latvia, Romania
• Ministerial warrants still exist in too many countries, i.e. Ireland, Malta, UK
• Access to financial data is on the rise, e.g. Belgiu, Croatia, Czech Republic, France, Germany, Greece, Italy, Norway, Poland, Slovenia
• Failed oversight mechanisms, e.g. Sweden's commissioner over covert surveillance powers resigned in protest

Bad

• Inability to build safeguards into processes to gain access to information over new services, e.g. France, Germany, Switzerland seeking powers to conduct secret searches fo computers, Ireland's ambiguous powers for unwarrranted interception of VoIP; Italy building 'backdoors' into systems; Bulgaria's 'black boxes' at ISPs
• France: Attempt to ignore constitutional amendment proposals to include an explicit constitutional right to privacy.
• eHealth systems with security faults and/or centralised registries (France, Germany, Italy, Netherlands)
• Biometric registries and databases emerging and with more coming (Estonia, Italy, Lithuania, Netherlands,
• Few protections and safeguards for government access to data. (most countries)
• Illegal and warantless surveillance still occurs.
• Journalists and dissident groups are under surveillance. (Lithuania, FYRM, Poland, Romania, Slovakia, Turkey)

Ugly

• Direct access to information held by third parties without warrants or oversight, conducted by unaccountable bodies. (e.g. Bulgaria, Croatia, )
• Inability to audit and review the actions of security services. (e.g. Lithuania, Croatia, Estonia, Hungary, Sweden)
• Medical databases are emerging with centralised registries. (e.g. Croatia, Czech Republic, Denmark, Sweden, Norway, UK)."

The raw data underpinning the report will be made available imminently.

DNA retention before the UK Supreme Court

The UK Supreme Court is hearing the case of R (on the application of C) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent) on

Whether the continued retention of the DNA, fingerprints and a photograph of GC and of the DNA, fingerprints and information on the police national computer in respect of C, violates their rights under Article 8 of the European Convention on Human Rights.

It's significant because the European Court of Human Rights ruled in 2008, in the case of S. and Marper v UK, that the systematic blanket indefinite retention, by the police, of the DNA of people not charged or convicted of a crime, was in breach of of Article 8 of the European Convention on Human Rights relating to respect for privacy.

In the wake of the decision the New Labour UK government essentially decided to ignore the judgement, repeatedly procrastinating and supporting the continuence of the illegal practice of retention. The Association of Chief Police Officers, reportedly told chief constables to ignore the ruling.  The Labour government also made various attempts to spin stories to the effect that they were doing something to address the ruling whilst going to what some would consider extraordinary lengths to avoid doing so. Comedian Mark Thomas has been one of the few who has managed to arrange to have his DNA and fingerprints removed from police records, since the S. and Marper decision.

The coalition goverment came in on the promise of directly quashing many of the liberty bashing laws and behaviours of their immediate predecessors but as Terri Dowty, amongst others, has recently pointed out, action in relation to those promises has been slow in manifesting itself.  The Metropolitan Police's likely defeat on the issue before the UK Supreme Court and the government's response to that will be another indicator of whether or not they have the strength to follow through on promises easily made whilst in opposition.

I'd recommend also Eoin O'Dell's commentary on the same.

EU web blocking - politicians have to be seen to be doing something

I hadn't seen this before - a video critique of the EC stance on web blocking to protect children - but it's very good.

Social tension: A Nu Labour legacy?

The Independent has a leader today about how Islamophobia has become socially acceptable in the UK triggered by Baroness Warsi's speech to that effect last night.  Around about this time last year I pondered the mainstream media's perpetuation of the myth that 'Islamist' meant 'terrorist'.

Tony Blair has finally suggested to the Iraq war Chilcot inquiry that he "deeply and profoundly" regrets the deaths arising out of that conflict. No one but Mr Blair knows whether those regrets are sincere. Sincere or not they will be little comfort to the families of the more than 100 people killed by suicide bombers in Iraq just this week . However, it seems that the lasting legacy of Nu Labour, even above and beyond the economic upheaval caused by the meltdown of the out of control finance sector, is the fear, tension, mistrust, outright hatred and racism born out of the former prime minister's ill conceived military adventures. 

That we can't doubt that those feelings have a serious impact on the lives of ordinary people was brought home to me again yesterday morning. I was in a well known retail outlet which shall remain nameless and had been helped very professionally and efficiently by a member of staff, before going to another part of the store.  A few minutes later on my way out of the shop I noticed the lady I had dealt with looking rather shell-shocked. I offered a light hearted "Cheer up, it can't be that bad!" on my way past.

She was a little startled but recovered to smile but then dazedly tell me that actually she was feeling a bit upset because she had just opened a letter from the company's human resources (don't you just hate that phrase) department accusing her of being an illegal worker.  She then told me that she grew up in India but is a UK citizen, is married to a UK citizen and has worked at the store for several years; but that some of her co-workers didn't think she should be working there because of her accent which, they suggested, meant she couldn't speak english properly.  Her english was excellent. My accent is not exactly local either but I haven't, yet, being accused of being an illegal worker, though I have, in the past, been accused of being a terrorist (the Irish accent was the conclusive proof my accuser needed).  This UK citizen even went on to defend her colleagues, saying they were perfectly entitled to hold those views. She's right that in a free country people are entitled to their unpalatable racist beliefs. They are not entitled to make bogus, unsubtantiated allegations purely because they don't like the colour of someone's skin or the cadence of their accent. And she is entitled to some protection from such behaviour from an employer rather than a repetition of such allegations with a demand that she provide evidence to refute them. 

I'm no believer in golden ages of the past when everything was rosy and the UK has by and large been very good to me. The vast majority of the people here, of all creeds, colours and nationalities, are honest, decent folks anyone should be proud and content to be connected with. But the kind of casual 'you're Irish, you must be a terrorist', 'you're a miner you must be a trotskyite', 'you're black you must be a criminal' discriminatory attitudes, that to a greater or lessor degree pervade all societies, seem to have gained a new order of magnitude in relation to the mistrust and hatred directed against people who are (or might be) Muslim.  Such tensions mitigate against repairing what current Prime Minister David Cameron describes as our fractured society.  Given the economic cuts being implemented by Mr Cameron's government are likely to lead to further social tensions we would all do well to examine our own personal prejudices in that regard (but I have to admit that the incident in the retail store yesterday pretty much reinforced my long held antipathy towards human resources departments everywhere!).

Lectures don't work

Donald Clark gave a terrific lecture at the ALT conference last September about the failings of the lecture as a teaching technique and thanks to the wonders of YouTube we can watch it again (one of the points he makes is that it is a criminal offence against pedagogy for lectures not to be recorded).

MP to write to Health Minister re NHS Choices privacy issues

Following an exchange of emails with my MP, Nicola Blackwood, just before Christmas about NHS Internet Privacy EDM 1077, she has kindly agreed to write to the Minister for Health about the issue.

Dear Mr Corrigan,

Thank you for your response and I apologise that I was not able to respond before the holidays.

I appreciate the importance of this issue and will write to the Health Minister to ensure he is aware of the points you have raised, and will forward any substantive response I receive.

Thank you for taking the time to write to me with your concerns.

Kind regards,
Nicola


Nicola Blackwood MP

Abuse, free speech and the media: observations from history

Who said:

"In the conduct of my newspaper, I carefully excluded all libelling and personal abuse, which is of late years become so disgraceful to our country. Whenever I was solicited to insert anything of that kind, and the writers pleaded, as they generally did, the liberty of the press, and that a newspaper was like a stagecoach, in which any one who would pay had a right to a place, my answer was, that I would print the piece separately if desired, and the author might have as many copies as he pleased to distribute himself, but that I would not take upon me to spread his detraction; and that, having contracted with my subscribers to furnish them with what might be either useful or entertaining, I could not fill their papers with private altercation, in which they had no concern, without doing them manifest injustice. Now, many of our printers make no scruple of gratifying the malice of individuals by false accusations of the fairest characters among ourselves, augmenting animosity even to the producing of duels; and are, moreover, so indiscreet as to print scurrilous reflections on the government of neighboring states, and even on the conduct of our best national allies, which may be attended with the most pernicious consequences. These things I mention as a caution to young printers, and that they may be encouraged not to pollute their presses and disgrace their profession by such infamous practices, but refuse steadily, as they may see by my example that such a course of conduct will not, on the whole, be injurious to their interests."

I'm tempted to comment on how modern media conglomorates, public and private, fail so miserably to match his ideals but from Benjamin Franklin's perspective, for it was he who penned those lines, that would make me as abusive and unsavory as those I had the cheek to criticise. Franklin's view, as a young man, of the politics of the 1700s is also worth pondering:

"Observations on my reading history, in Library, May 19th, 1731.
"That the great affairs of the world, the wars, revolutions, etc., are carried on and affected by parties.
"That the view of these parties is their present general interest, or what they take to be such.
"That the different views of these different parties occasion all confusion.
"That while a party is carrying on a general design, each man has his particular private interest in view.
"That as soon as a party has gain'd its general point, each member becomes intent upon his particular interest; which, thwarting others, breaks that party into divisions, and occasions more confusion.
"That few in public affairs act from a meer view of the good of their country, whatever they may pretend; and, tho' their actings bring real good to their country, yet men primarily considered that their own and their country's interest was united, and did not act from a principle of benevolence.
"That fewer still, in public affairs, act with a view to the good of mankind."

Plus ça change, plus c'est la même chose.

Metafilter

Matt Haughey gave a terrific talk about Metafilter at the GEL Conference last year.



Matt Haughey (Metafilter founder) at Gel 2010 from Gel Conference on Vimeo.

The web is about the people not the technology.

Action on Rights for Children need your support

A hugely important organisation, Action on Rights for Children (ARCH), that has done tremendous, though often unsung work, in the area of childrens' rights over the past ten years, is in danger of closing.  I'm sure Terri Dowty won't mind if I post her appeal for help in full here:

"It’s possible that you don’t know much about ARCH. We work on children’s civil rights, in particular the effects of new technologies on their privacy, freedom, consent and data protection rights. Some of it doesn’t attract attention because it’s quite complex, and in any case a lot goes on below the radar. We try to stop things happening, preferably before they even start. If we can’t manage that, we do our best to mitigate the effects. As you read on you’ll recognise some of our issues - though you may not have realised that ARCH was behind them. It is really important work and ARCH is the only organisation doing it, but we need your help to carry on. Otherwise we won’t last beyond this spring.

10 years ago, a rather irritable civil servant at the DfES described ARCH to a Newsnight researcher as ‘a bunch of ranting housewives’. At the time, our new organisation was already starting to annoy the government with awkward questions about their ‘Connexions’ reward card – a system that quietly created consumer profiles of teenagers to sell to companies. ARCH (in reality a network of lawyers, social workers, health professionals, academics and families) certainly outlived the Connexions card, and it has gone on to do a great deal more since.

Last year’s coalition agreement brought serious action on some of our hard-fought campaigns: the end of Contactpoint; the promise that schools will no longer be able to take children’s fingerprints without consent, and that new legislation will ensure that children’s DNA will only be kept on the national database in exceptional circumstances. During the last few years we’ve also brought the whole array of children’s databases and profiling tools to public attention; worked to secure confidentiality for young people using sexual health services; made sure that the new Academies will be bound by the Human Rights, Equalities and Freedom of Information Acts; brought an end to the misuse of children’s data by the Youth Justice Board and the UK Border Agency, and raised questions on everything from truancy sweeps to child-location devices. It’s a track record to be proud of, and we have worked our socks off to achieve it.

It’s pretty ironic, then, that just as the coalition agreement was being published, ARCH was involved in a last-ditch attempt to stave off complete closure. We’ve come near to it before, but this time the shoestring that we run on finally snapped. Fortunately the Joseph Rowntree Reform Trust came to our rescue with a bail-out package that will see us through until April this year, but one thing is absolutely clear: if we are to continue fighting for children’s civil rights, we have got to build a sustainable support base for ARCH.

We are just coming up to ARCH’s 10^th anniversary and in ten years, ARCH has become an effective organisation with experience and expertise in protecting children’s civil rights. We badly need your help if we are to continue to build on our success.

There is so much more to do. We have got to rein in the use of CCTV in schools, and keep a check on the development of RFID chips and GPS tracking. We need to find out what is happening to data from the Preventing Violent Extremism ‘Channel’ programme, and how children come to be labelled as potential terrorists. We must ensure that young people and their parents caught up in the youth justice system actually understand what’s going on – and have secured partnership with McCormack's Law, a leading criminal law firm, in order to do so. We need to work with the Information Commissioner to stop schools ignoring Freedom of Information requests. We want to investigate how local authorities store and share children’s data, and challenge the unlawful way in which ‘consent’ may be obtained. We need to get some regulation of the storage of babies’ blood samples. And then there are all the other issues that will undoubtedly crop up as we go along.

There are several ways of making donations to ARCH. To make a one-off donation, simply click the Paypal button on the front page. Alternatively, go to our ‘Join Us’ page for our bank details. Better still, come and join us by arranging a monthly subscription via Paypal or online banking, or by completing a Standing Order mandate and sending it to your bank. We ask that you commit to a regular monthly sum of £2, £5 or £10 depending on what you feel able to afford. Alternatively, you can make a single, annual payment of £20.

In return for your subscription, you will receive a regular quarterly update on ARCH’s work and access to the subscribers’ area of the website. We are establishing online discussion forums and will add other features as we develop our new site. You will also have the satisfaction of knowing that you are guaranteeing ARCH’s future.

Please do pass this letter on to your friends, colleagues and to anyone whom you think might help. If you would like to know more about ARCH, simply email us at: info@archrights.org.ukThis e-mail address is being protected from spambots. You need JavaScript enabled to view it

Best wishes

Terri Dowty

Director

Some of the most significant damage done during the 13 year Nu Labour obsession with database cures for everything was in the area of childrens' rights and ARCH was one of the few civil society groups actively campaigning against their worst excesses.  The UK genuinely cannot afford to lose them at a time when the coalition government have been showing dangerous signs, despite pre-election promises to the contrary, of adopting the previous government's mindset on basic liberties.

Profit and the public interest

"There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back." Robert Heinlein, 1939.

NHS Internet Privacy

I wrote to my MP, Nicola Blackwood, several weeks ago asking her to sign the early day motion on NHS internet privacy first signed by Tom Watson MP:

That this House notes with serious concern that the pages of the NHS Choices website allows third-party advertising and tracking companies, including Google and Facebook, to track people's internet browsing habits; believes that it is inappropriate for advertising and social networking companies to observe what an individual is viewing on a Government website that deals with sensitive medical information; further notes that the sharing of personal data of its users with companies outside the European Economic Area and with for-profit advertising companies may render the NHS in breach of its data protection obligations to the Information Commissioner's Office; and calls on the Department of Health to review its policy to ensure the privacy of all users of its websites is protected.

I've had the following reply from her this afternoon.

Dear Mr Corrigan,

Thank you for contacting me about the issue of data protection on the NHS Choices website and I apologise for the delay in my reply.

I can understand your concerns, but it is worth noting that the use of Facebook functionality on NHS Choices was initiated under the previous administration.

The issue of Facebook capturing data is not restricted to just NHS Choices. Data transfer happens across the whole range of sites and applications on the internet, and is a result of how users’ internet browsers are set up and how people log out and close down sites.

The Government informs me that NHS Choices has strict privacy policies which are in line with the Data Protection Act. As well, Facebook capturing data from sites like NHS Choices is a result of Facebook’s own system. When users sign up to Facebook they agree Facebook can gather information on their web use from their computer. NHS Choices privacy policy, which is on the homepage of the site, makes this clear.

The Government has asked the NHS Choices service to increase the prominence of information informing users of the potential for information about their activity being captured by services like Facebook, including what actions they can take to restrict this.

I hope you find this information helpful and thank you again for taking the time to contact me.

Kind regards,
Nicola

Nicola Blackwood MP

So the party line seems to be:

• It is not this government's fault it's the previous lot
• People leak personal data all over the internet
• NHS Choices has a privacy policy, that the government believes is in line with the Data Protection Act; 
• Facebook is a personal data harvester
• The government will ask NHS Choices to warn people they leak personal data on the Net

I tried to be polite in responding.

Dear Ms Blackwood,

Thanks for your response.

Yes it was the previous government that this started under.

Yes people leak an inordinate amount of personal data on the internet.

Yes Facebook harvest personal data.

The NHS Choices privacy policy may or may not be in compliance with the Data Protection Act but that is largely immaterial if the operation of the site breaches the Act.

NHS Choices warning people they leak personal data on the internet is not going to solve the fundamental problem.

The site is built and operated in such a way as to facilitate the routine harvesting by third parties of the personal details of people seeking advice from a government website, often about intimate medical matters.

The social media, third party tracking features were no doubt innocently included originally to drive traffic to the site.  They are just not appropriate in the case of this kind of site. The government or the NHS should not being routinely sharing people's specific desire for information about particular medical matters with third parties, without consent.

I have little doubt that personal data pollution is going to be the environmental disaster of the information age but the sooner we start to tackle it the better chance we have of getting it under control.  In the case of NHS Choices the question of whether the site should be fixed to limit data sharing is not even a hard one.  That the government should prevaricate in this way when you ask for advice on how to respond on this matter leaves me seriously concerned that when it comes to dealing with the serious problems in this area, they will be found sadly wanting.

I understand, as a new MP, you have a lot of things to get to grips with and apparently obscure technical policy won't necessarily be top of your list of priorities; but I hope you're managing to settle into your new role now and beginning to get things under control in a way which will enable you to take an active interest in such matters as the parliament progresses.

Kind regards,

Ray

Temple Grandin and visual thinking: the world needs all kinds of minds

The OU is currently doing a research/scholarship internal audit to get a picture of the University's measurable outputs, leading me to ponder Martin Weller's and Jim Groom's notion of the perpetuation of the zombie scholar.

"Scholars engage in a number of different activities, which operate within specific cultures. These cultures are defined in part by technology and reward and recognition frameworks. In this paper we look at the functions of the scholar, particularly focusing on research. The uptake of new technologies in research and associated practices can be seen as a barometer for innovation within higher education.
We argue that the context within which academics operate is akin to the spread of the zombie virus, with new entrants rendered zombies by the constraints of the environment. We suggest one possible antidote to this zombification of higher education is the use of new technologies and particularly the cultural norms they embody."

Modern scholars have to churn out conventional papers through conventional peer reviewed journals and tick the appropriate boxes on conventional metrics to have a legitimate career.  The sheer enormity of the grunt work involved in doing this leaves no room for innovating, exploring new technologies, thinking.  Standardisation and zombification, accepting absorption into the academic Borg is the rational means of survival.

If the university sector is bad in this respect (though Martin and Jim propose a partial solution through the - surprise, surprise - engagement with new technologies) then schools appear to be worse, with their league tables and targets and box ticking and fear of not fulfilling all their administrative duties to keep their political masters and the inspectors on side.  This kind of zombiefication is not limited to the education system - see Martin's recent pop at the media for example or Dan Gillmor's excellent new book on the same - but it's the education system I want to stick with here and in particular Temple Grandin's recent TED talk The World Needs All Kinds of Minds.


Grandin does a lot of travelling and meets a lot of bright geeky/nerdy kids that teachers - often dedicated professionals - have no idea what to do with.  She's passionate about changing the world through enabling people to realise their potential, regardless of the different learning and thinking modes that might be most natural to them.  She herself was not interested in 'learning' until an enthusiastic, unconventional science teacher, previously a NASA scientist, got her engaged in science through tapping into her innate visual thinking talents.

Grandin herself is autistic which partly manifests itself in an exceptional ability to think in pictures and patterns.  What's interesting in the educational technology context is that she repeatedly uses the Google images analogy to describe how her brain works but also that she naturally uses web tools like YouTube as part of her work.  She talks about the autistic/geeky/nerdy mind tending to be fixated on certain things.  With kids that can be lego, cars, insects, computers, the weather or a host of other things.  That fixation, she argues, is the handle that schools can use to engage those kids - use it as a basis to teach maths or science or a whole range of other things.  The important thing is to light the spark of learning and in one sense it doesn't matter what you teach them.  It has to be said that it is not just autistic kids that this applies to.  There has been political hand wringing about the lack of interest teenage boys or [insert your own favorite demographic group here]  have had in learning/schooling for as long as I can remember.

Yet the entire system is designed for standardisation and churning out the perfect job trained zombies. It's a great system for bureaucrats to work in but not for kids with different kinds of learning styles, thinkings skills or interests.  Grandin is passionate about the need to work with and nurture different kinds of minds - silicon valley is chock full of autistic talent for example - if we are to tackle the serious challenges facing the world today; whether that's climate change, global warming or the energy crisis for example.  If Einstein, Mozart, Turin, Da Vinci or Gutenberg had been around today they would likely have been diagnosed as autistic.

When Grandin was at school she had a mental block against algebra - the autistic mind fixates on certain things and blocks others and she just couldn't do it.  As a result she was banned from taking geometry and trigonometry.  Think about that - an exceptional visual and pattern thinker banned from practicing those natural skills on subject matter at which they would have enabled her to excel.  How many kids are locked away from activities which could create that learning spark due to deliberate bureaucracy, baffled overworked teachers who don't know what to do with certain children, the national curriculum, the lack of time and space to do anything that doesn't contribute to pursuing targets - systemic, introspective, bureaucratic, neglect?

Depressing really but as Samuel Langhorne Clemens, aka Mark Twain, once said, you should never let your schooling interfere with your education. I wonder if there is anything in Martin's and Jim's partial cure through technology that could work in the school context? I suspect so though have my doubts that the UK schooling systems as currently constituted could facilitate it.  Grandin's right that if we want to change the world for the better and address the really big issues like the energy crisis then we need to be lighting the spark in the varied minds of coming generations. As she once wrote:

"If by some magic autism had been eradicated from the face of the earth then men would still be socialising in front of a wood fire at the entrance to a cave"

On a final note it was interesting to hear her talk about her passion for server farms because they 'contain knowledge, they contain libraries'.  Another advocate for open access.

SCRIPTed including review of Marsden's Net Neutrality book

The latest issue of the excellent SCRIPTed journal of law, technology and society is now available, including my review of Chris Marsden's book, Net Neutrality: Towards a co-regulatory solution.(copy below). I particularly recomend the refereed articles Human Genetic Manipulation and the Right to Identity: The Contradictions of Human Rights Law in Regulating the Human Genome by Norberto Nuno Gomes de Andrade, pp.429-452; Human Gene Patents and Genetic Testing in Europe: A Reappraisal by Naomi Hawkins, pp.453-473 and El derecho de desistimiento en el ámbito de la contratación electrónica realizada en España (The right of withdrawal in the field of Spanish electronic procurement) by  David López Jiménez, Fernando Barrio, pp.497-514.

Review of Net Neutrality: towards a co-regulatory solution.

Net neutrality, explains Christopher T. Marsden on the second page of this book,

is about the rules of the road for Internet users, and about the relationship between the owners of those roads and the users. Government is asked to make a decision as to which users have priority and whether road charging should be introduced, ostensibly to build wider and faster roads in future.

On 20 October 1999, the IDT Corporation, then a big a New Jersey based Internet service provider, blocked all email from the UK because some of its customers had received a large number of offensive unsolicited emails.  These appeared to come from a UK address, but the spammer had actually exploited a security hole in a UK university system, making it appear as if the bulk emails were originating there.  Just before Christmas 2004, Verizon reportedly[1] blacklisted and blocked email coming from IP addresses allocated to a collection of UK and European ISPs. IDT did not, allegedly, contact the University (of Leeds) before the action was taken.  The blocking continued for several weeks. The response – to cut off a whole country - was a bit drastic, even if the emails had come from the UK. Given congestion on the network, traffic management is standard practice for ISPs everywhere, though there is a dearth of independent empirical research as to the extent, the precise pattern or the nature of such activity. We simply have no idea whether countrywide lockdowns or similar widespread filtering are commonplace or rare.

I mention the IDT story in particular because it was in 1999 that Chris Marsden began his residential fellowship at Harvard Kennedy School, where the seed that was to grow into his excellent book, ‘Net Neutrality: towards a co-regulatory solution’, was planted.  It was the beginning of 10 years of globe trotting research and engagement with a who’s who of the smartest minds in the business: legal and technical scholars, practitioners and cross disciplinary polymaths who helped to shape the author’s ideas on this complex but hugely important subject.

The first and most important thing to say about this book is that it should be compulsory reading for policymakers everywhere. It manages to serve the dual purpose of being a primer on the subject for the general reader while also being an essential handbook for the specialist and the policymaker.  Dr Marsden gets to the heart of the key issues of net neutrality:

• Network economics
• Vertical integration and oligopolistic market evolution and concentration
• Traffic management and quality of service
• Civil rights – speech and privacy
• Conflicting needs of the large spectrum of Net users
• Regulators’ limitations
• Intermediary liability
• Commercial and political forces driving the internet towards a future of control
• European law
• The absence of individual Net user influence on policymakers
• Co regulatory policy proposals

And indeed many more.  It is probably the single most comprehensive analysis of net neutrality you will find between the covers of a single volume.

If I had one generic criticism of the book it is that the author does not provide enough detail in relation to the engineering and technology of networks.  I think there is real value in regulators and policymakers understanding the difference between circuit and packet switching, for example, and this could avoid a lot of confusion. But I would say that, because I am an engineer.  In conversation with the author, he pointed out to me that the literature on technology and engineering in this area is already rich, which is true, but it is unlikely to be perused by many non technical policymakers.  That is, however, a minor criticism.  Dr Marsden had no choice but to leave out vast swathes of material that he would no doubt have liked to have included – that is the nature of a monograph.

Tom Standage, digital editor at The Economist magazine, recently criticised the concept of net neutrality as being ‘silly’[2] and too vague – if you get three geeks in a room you will get four different definitions of the concept (which is probably true!) – and that thing that gets invoked by anyone complaining about something they dislike about the Internet. Geeks and consumer advocates have been arguing that the law should guarantee net neutrality, thereby disabling network operators’ power to engage in discriminatory practices. Mr Standage is concerned that attempts to write net neutrality into law on both sides of the Atlantic will just end up making matters worse.  The Internet is not neutral now, and there are lots of things that we do not want to be neutral. For example, it is desirable that spam is blocked, or gamers might want superfast low latency broadband services that they would be prepared to pay extra for.  The danger of saying that things must stay as they are is that you fossilise the Internet in its current state. A simplistic net neutrality law might just do that, making illegal a lot of useful things that are presently being done. So the best legislation in relation to net neutrality is none.

I share the concerns of the author about the complexity and the dangers of getting it wrong. On the other hand, the vagueness and complexity of the concept and its multiple advocates is not necessarily a bad thing.  Just as James Boyle has invoked the environment and environmentalism in his call to protect the public domain, perhaps net neutrality can serve a similar function in relation to the open Internet.  After all, ‘environment’ is quite a vague term with many meanings, but it is also an articulation of a shared interest that brings that interest into being.[3] The hunter and the animal rights activist may dislike each other intensely, but they have a shared interest in protecting the ecology and habitat of the animals they are interested in.

In any case, you will not find any over-simplified, table-thumping advocacy in Chris Marsden’s book - of either the ‘cure it with net neutrality’ or ‘cure it with market forces’ variety.  This is despite the fact that the introductory chapter begins with a quote from Barack Obama that concludes: “We can’t have a situation in which the corporate duopoly dictates the future of the Internet and that’s why I’m supporting what is called net neutrality.”  Dr Marsden, on the contrary, provides a comprehensive and pragmatic analysis of the state of net neutrality and its regulation and expects both free market fundamentalists and net neutrality purists to disagree with his suggested co-regulatory way forward. 

You get an idea of the scope of the book through the Introduction, which provides a whistle-stop tour of: net neutrality, network economics, European digital television regulation, interoperability, Microsoft litigation, Napster, Skype, mergers and acquisitions, EU telecoms liberalisation (and the variability in the effectiveness of national regulatory authorities in ensuring local loop competition), GERT (Group of European Regulators in Telecoms),[4] the 2001-2002 unravelling of the universal service commitment in the US, Machiavellian incumbent power games, the need to recognise broadband infrastructure as public works, the ruthless competition and government direction in Korea, the end to end principle, transparency failures, absence of empirical research, quality of service guarantees, 3G in Japan, traffic management, deep packet inspection, and the inevitability of discrimination where architecture permits it. 

All that and more – including a passionate assertion (with which I wholeheartedly agree[5]) that the creation, operation and monitoring of open Internet policy is too important to be left to the experts, since it is about fundamental human rights and consumer welfare, necessitating a balanced approach to net neutrality – in an introduction, before he even outlines the structure of the book, leaves you in little doubt that although it is written in an accessible style, this is a tome that will require the full concentration of the reader.  It is clear that net neutrality resides firmly in the realm of what Russel L Ackoff would have described as a ‘mess’, a collection of complex problems interacting with other complex problems and therefore part of a set of interrelated problems, or a system of problems.[6]

It is important to point out that Dr Marsden distinguishes two separate non- discrimination commitments in net neutrality, something which itself would likely illicit gnashing of purists’ teeth.  What he calls ‘net neutrality lite’ and something that ultimately forms a central plank of his co-regulatory way forward, relates to ensuring that ISPs are not allowed to engage in opaque and discriminatory traffic management to the detriment of Internet users of any class.  ‘Positive net neutrality’ on the other hand is about ensuring a balance whereby investment in future broadband infrastructure is not discouraged. Network owners would be allowed to offer access to better services – the fast lane – for higher prices, as long as those services are offered on fair, reasonable and non-discriminatory (FRAND) terms to everyone. FRAND theoretically checks the inclination of service providers, content owners and vertically integrated behemoths of both to engage in exclusive deals, disadvantaging ordinary Internet users and commercial entities not party to those deals. It is an explicit recognition of the notion that genuine competition cannot exist in an unequal world.  Much of the first three chapters of the book are given over to exploring these issues in depth. 

The first three chapters and the regulatory soup of European law in Chapter 5 may well prove to be the most challenging for the general reader.  My advice would be to stick with it, however, without worrying too much about following all the twists and turns of detailed economic and legal analysis.  Persistence will pay off.  If a general reader was to come away from the book with a simple realisation that much of what passes for public debate on net neutrality is what Dr Marsden describes as a “dialogue of the deaf” – net neutrality absolutists versus net neutrality refuseniks – then the reading time invested will have been worthwhile.  Traffic management on congested networks is a fact of life and to suggest otherwise, as net neutrality purists do, is to invite easy criticism.  Yet the promise of better quality of service ‘next year’, by those claiming that competition will cure network service problems, predates by about a decade the awakening of the public consciousness to the wiles of the Internet. Said promise is thus wearing a bit thin, and until we break the Gordian knot on large scale investment - from the public and private sectors – in universal super fast broadband infrastructure, congestion problems are going to be increasingly present.

Chapters 4, 5 and (to some degree) 6 tackle the primary concerns of digital rights activists relating to freedom of speech, personal privacy, creativity (e.g. remixing) and innovation. These in turn are intimately entangled in questions about intermediary liability and notice and takedown regimes, with particular concerns about architectural and legal control eroding the current legitimate ability of ISPs to avoid responsibility for user-generated content or traffic on their networks.  When the ability to discriminate, control, block and invade privacy (through DPI or disclosing personal details to content owners on request) is built into the network, then all those facilities will be activated, regardless of any formal rules or procedures in place to prevent such discrimination or the undermining of personal freedoms.  If the power to lay down the rules for such activities is to be devolved to senior government ministers and national regulatory authorities (NRAs) such as Ofcom, as it is, for example, in the UK Digital Economy Act 2010, it is important that they understand the complexity of the measurement of actual ISP operations and net user harm.  The temptation, therefore, would be for an independent auditor (the NRA?) to choose metrics which are easy to measure rather than those that provide truly informative indicators of sector practice. Dr Marsden pulls no punches in relation to the variable performance and failings of NRAs in this regard, despite his inclination to settle on a co-regulatory approach, the option which he begins to outline in chapter 6.

Chapter 7 deals with the unique issues of the mobile Internet, and Chapter 8 concludes with what the author admits is an imperfect, best effort compromise, based on his net neutrality lite idea that ISPs should not be allowed to engage in opaque and discriminatory traffic management, to the detriment of Internet users. Net neutrality lite would be policed by some combination of agreed industry codes and NRA monitoring and enforcement. He sums up:

Co-regulation is a prevalent but awkward compromise between state and private regulation, with constitutionally uncertain protection for end-users and a worryingly large latitude for private censorship, which has been increasing throughout the last decade…Any solution needs to be holistic, considering ISPs’ roles in the round, including their legal liabilities for content filtering…This is a policy area with no right answers that offer perfect solutions…I am happier limiting my solution to emphasize the complexity of the problem than trying to claim a one-size-fits-all solution.  Net neutrality is an issue with potentially profound consequences, and cannot be entirely left to market actors, however neutral or benign their motives.

Internet services now form an integral part of the way that many people access education, employment, government and commercial services and a world of entertainment, in addition to a personal printing press, and electronic tools facilitating creativity and communications that most of us would not have dreamed of 25 years ago. 

Cyber law and technology geeks understand that the Internet grew almost by accident, due to the fortunate coming together of a number of related things:

1.      general purpose computers - which can be programmed to do anything and are not controlled (post sale) by the vendor/manufacturer;

2.      the open network - which was open to everyone, and not just trusted sources like the existing conventional media giants; and

3.      telecoms liberalisation - a regulatory regime which meant that it could grow on the back of the telephone network, and before governments or telcos really noticed. 

All of this - the general purpose computers, the open network and the lack of control - led to an explosion of commercial, social and cultural creativity.  Enterprises like Amazon, the World Wide Web itself, Wikipedia, Google, Facebook etc. grew.  And because of the absence of concentrated control of the platforms or network none of the instigators of these entities had to ask anyone for permission. No permission was required.

Now, however, governments and commerce (including network operators) are very much aware of power of the Net and energetically attempting to assert control over it.  These combined forces are leading to a closing down of the Net and an evolution towards a future of fragmentation (walled gardens and national firewalls) and control.  That in turn kills the facility for innovation and creativity and leads to a creeping erosion of personal liberty.

So when Chris Marsden writes about a co-regulatory solution to net neutrality, he is not just dealing with some obscure, abstract technical concept, of interest only to technical specialists and policy wonks.  In ‘Net Neutrality: towards a co-regulatory solution’ he makes a hugely important contribution (though he himself admits it is an “awkward compromise”) to improving the regulation of the default electronic constitutional architecture which will shape the future of our information society. The author is also to be commended for negotiating with Bloomsbury to make the work available under the Creative Commons Attribution Non-Commercial Licence.

Ray Corrigan,

Senior Lecturer in Technology, Open University.[7]

DOI: 10.2966/scrip.070310.578

 © Ray Corrigan 2010. This work is licensed under a Creative Commons Licence. Please click on the link to read the terms and conditions.

---

[1] J Gartner, “Verizon's E-Mail Embargo Enrages”, 1 October 2005, available at http://www.wired.com/techbiz/media/news/2005/01/66226.

[2] BBC Radio 4, ‘Click On’, Monday 18 October 2010.

[3] J Boyle, “The Second Enclosure Movement and the Construction of the Public Domain” (2003) 66:33 Law and Contemporary Problems, 33 -74.

[4] Note that between the editing and publication of the book the Group of European Regulators in Telecoms (GERT) was renamed the Body of European Regulators for Electronic Communications (BEREC).

[5] R Corrigan, Digital Decision Making: Back to the Future (London: Springer-Verlag, 2007), at chapters 9 and 10.

[6] RL Ackoff, Redesigning the Future: Systems Approach to Societal Problems (New York: John Wiley & Sons Inc, 1974).

[7] Full disclosure: I was an external examiner on Dr Marsden’s PhD awarded by Essex University for his work on this book.

Police threaten 12 year old over Facebook group

I hadn't seen this story until this morning, about a police officer questioning a 12 year old in a reportedly intimidating manner at school. What prompted Thames Valley Police to summon the lad, Nicky Wishart, from lessons and question him in front of his head of year without the knowledge of his parents?  Apparently he and his friends have been raising money cleaning cars etc. in an attempt to keep his local youth club open.  As part of this effort he set up a Facebook group calling for picket of David Cameron's constituency office to draw attention to the closure, (apparently due to happen early next year because of budget cuts).  Reportedly 130 people joined the facebook group.

Whichever senior police officer ordered/approved this action should be ashamed of themselves. Regardless of how sensitive (and many schools/community liaison officers are excellent at their job) or alledgedly intimidating the officer questioning young master Wishart was, being pulled out of lessons to be questioned by the police is likely to be a scary experience for any ordinary 12 year old. Have we really got to the position where "school boy" + "protest" = "terror alert"?  If so the surveillance state apparatus constructed by Nu Labour is more out of control than David Cameron feared when promising, prior to and immediately after being elected and as a central plank of the coalition agreement, that they would dismantle its worst excesses.  Mr Cameron, a 12 year old boy, in your own constituency, who would like you to know his youth club is being shut down, has been warned off by the police.  I suspect and hope you have the decency to do something about it.

Whatever we might think about the Net speech v establishment nature of the ongoing Wikileaks story, we have pretty serious problems in our own back yard on this front when 12 year olds become suspected terrorists through trying to keep community services going.

Update: Check out this more detailed analysis at lateforlawschool.