Obama proposes indefinite detention for suspected terrorists?

It is sad to hear President Obama apparently suggesting the construction of some legal instrument to facilitate indefinite detention for crimes people might commit, having spent so many years denouncing the worst excesses of his predecessor's administration's abuse of civil liberties.



Minority Report is here?

BT and TalkTalk lose challenge to DEA

The High Court has effectively completely rejected BT and TalkTalk's challenge to the Digital Economy Act. Typically it's come through when I'm having a few days off and today fixing the garden wall (now done though it's probably just as well I don't make my living as a bricklayer) and I've only had the chance to scan the decision but surprisingly they've lost on the 5 key arguments they've presented to the court.

"5.The Claimants advance five grounds of challenge in respect of the contested provisions. They contend that:

i) The provisions constitute a technical regulation and/or a rule on services within the meaning of the Technical Standards Directive (Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ [1998] L No 204, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, OJ [1998] L No 217). The provisions, it is said, should have been notified to the EU Commission in draft, but were not. The provisions are accordingly unenforceable.
ii) They are incompatible with certain provisions of the Electronic Commerce Directive ("the E-Commerce Directive") (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ 2000 L No 178).
iii) They are incompatible with certain provisions of the Privacy and Electronic Communications Directive ("the PEC Directive") (Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, OJ [2002] L No 201).
iv) They are disproportionate in their impact on ISPs, consumers, business subscribers and public intermediaries. The requirement for the legislation to be proportionate in its impact on ISPs, businesses and consumers is said to be derived from a number of sources, including Articles 7, 8, 11 and 52 of the Charter of Fundamental Rights and/or general principles of EU law, pursuant to Article 6 TEU and the Human Rights Act 1998 and Articles 8 and/or 10 of the European Convention on Human Rights.
v) They infringe the Authorisation Directive (Directive 2002/20/EC of the European Parliament and of the Council on the authorisation of electronic communications networks and services OJ [2002] L No 108, as amended by European Parliament and EC Council Directive 2009/140, OJ [2009] L 337)."

From my brief scan they've lost i), ii) and v) on technicalities and iv) and v) through Mr Justice Baker's deference to parliament.  He rejects the notion that the DEA will lead to mass surveillance, for example:

"

1. In case C-236/08 Google France v Louis Vuitton Advocate General Maduro observed in his Opinion:

"142. To my mind, the aim of [the ECD] is to create a free and open public domain on the internet. It seeks to do so by limiting the liability of those which transmit or store information, under its Articles 12 to 14, to instances where they were aware of an illegality.

143. Key to that aim is Article 15 of [the EC], which prevents Member States from imposing on information society service providers an obligation to monitor the information carried or hosted or actively to verify its legality. I construe Article 15 of that directive not merely as imposing a negative obligation on Member States, but as the very expression of the principle that service providers which seek to benefit from a liability exemption should remain neutral as regards the information they carry or host."

2. In my judgment, there is nothing in this further material which would tend to suggest that "monitor" (or in French, "surveiller") has other than its ordinary and natural meaning, that is, to inspect or examine some phenomenon. In the context of information society services, that means inspecting or examining the information that is being, or has been, transmitted, with a view to checking whether the information may lawfully be transmitted, or whether the transmission complies or complied with some other norm regulating the nature of information that may be transmitted. A "general" obligation refers to a systematic arrangement whereby the putative "monitor" is inspecting or examining information randomly, or by reference to particular classes of information or subscribers, and is not focusing on a specific instance that has for apparently good reason been brought to its attention.
3. The DEA does not require ISPs to monitor information in the above sense. The DEA may impose general obligations on ISPs, but these obligations cannot accurately be called "monitoring". Nothing in the DEA requires ISPs to inspect or examine the information transmitted for any purpose, including the purpose mentioned earlier concerning the legality of the information transmitted. Copyright owners may well monitor information that is being transmitted, to check whether there is an apparent copyright infringement, but they are not ISPs and they are under no duty by virtue of the DEA to carry out any "monitoring".
4. For present purposes, the role of the ISP under the DEA is essentially passive. It receives reports from those who have, in the relevant sense, "monitored" information that has been transmitted. It is the copyright owners who must show (according to substantive criteria and standards of evidence to be set out in the Code) that the information transmitted infringed the owners' rights. The ISP has itself no general obligation to inspect or examine the information to see whether the transmission might infringe, or has infringed, the rights of any copyright owner. When the ISPISP sends a CIL to a copyright owner, it is not "monitoring" any information. It is simply reporting to the copyright owner that, according to information held by the ISP, a particular subscriber, identified through the IP address or addresses, has infringed the owner's rights on a number of occasions (to be specified in the code). The fact that the ISP may by that stage know what kind of information the relevant subscriber is prone to download in breach of the copyright owner's rights (it may, for example, be lawful pornography) does not, in my view, convert the ISP's activity into one of "monitoring" that information. The knowledge acquired is no more than a by-product of the different non-monitoring role that I have set out above.
5. Mr White relied strongly on the Opinion dated 22 February 2010 of the European Data Protection Supervisor ("EDPS") who, in describing "three strikes Internet disconnection policies" stated that they entailed "generalised monitoring of Internet users' activities" (see paragraphs 16, 17 and also 21 and 22). In my view, this Opinion adds nothing. It is clear from the context that the EDPS was describing "monitoring" by copyright holders of internet usage with a view to discovering copyright infringement. He was not stating that ISPs under such arrangements were "monitoring" the information transmitted through their services; he was not offering a legal interpretation of Article 15 of the ECD (which would in any event appear to be outside his remit); and he was not saying that anything done by ISPs under the arrangements in question would constitute "monitoring" under that Article.
6. Mr White also argued that the DEA imposed on ISPs "a general obligation to seek facts or circumstances indicating illegal activity", contrary to the second part of Article 15(1) ECD. However, it is the copyright owner who actively seeks such facts and circumstances and reports them to the ISP. The ISP itself has no such active role, either when it communicates a CIR to a subscriber or reports a CIL to a copyright owner: the CIR is already the work product of another person who has conducted an active investigation, and the CIL is simply a compilation of such reports in respect of a relevant subscriber. In the present context, the essential function of the ISP is not to investigate facts or circumstances, but to identify the wrongdoer. If a police officer observes a motor car passing through a red light, and asks an official at the vehicle licensing authority to disclose the name and address of the registered keeper (and presumed driver) of the car, that official, in responding, would not actively be "seeking facts or circumstances indicating illegal activity". She would be doing no more than identifying, in response to a specific request, the person who, according to the investigation already completed by the police officer, had infringed the traffic code...

1. In my view, the logical elegance of Mr Beal's submission faces serious practical difficulties. First, the central premise is that, through the Copyright Directive, the law of copyright has now been entirely or at least sufficiently harmonised so that within the EU the exclusion found in the Annex to the ECD in relation to copyright has simply vanished, no longer buttressed by an extant rationale. But all references to the Copyright Directive, including its very title, speak of harmonising "certain aspects" of copyright law, indicating that complete harmonisation lies somewhere in the future. Whether or not the degree of harmonisation achieved at any point is sufficient to undermine the rationale for exclusion in the current text of the ECD for copyright would, in my view, require a fine exercise of legislative judgment, and is not a matter appropriate for judicial adjudication. I was referred to no authority that harmonisation in this field is complete (and my own researches simply confirm that the view of learned commentators is that it remains partial), or that harmonisation had advanced to such an extent that the rationale for the relevant exclusion could no longer be supported.
2. Furthermore, it seems to me that Mr Beal's interpretation would create intolerable legal uncertainty in a system of law (namely EU law) where the principle of legal certainty has been accorded great weight. It must be remembered that the relevant exclusion remains in the legislative text of the ECD: the Community legislation did not remove that exclusion, either at the time that the Copyright Directive came into force (in May 2001), or at the time by which Member States had to implement the Copyright Directive (22 December 2001), or at any subsequent time. In my judgment, if the Community legislator had wished to abrogate the relevant exclusion, it would, in the interests of legal certainty, expressly have removed the exclusion by an appropriate amendment of the ECD, and would not have left the matter in the air, susceptible to competing and conflicting interpretation.
3. Finally, on Mr Beal's approach, the relevant exclusion would have had a relatively short shelf-life: after 17 January 2002 (the implementation date for the ECD) Member States could have retained provisions on copyright that otherwise fell within Article 3(1), relying on the relevant exclusion. However, by 22 December 2002 (that is, less than a year later) such provisions could no longer be invoked against ISPs established in other Member States unless, following Mr Beal's argument, the Copyright Directive expressly authorised them. Short shelf lives generally need prominent signposting. If such a result had been intended, an express provision in the Copyright Directive abolishing the relevant exclusion, with an appropriate explanatory recital, could have been expected, with the proverbial red hand pointing at it...

1. I shall, therefore, proceed on the basis that the relevant data which would be processed by copyright owners would be personal data and that some of it would be special data.
2. However, the important issue on this ground of challenge is whether the relevant processing of personal data is permissible.
3. The Defendant and the Interested Parties rely on Article 8(2)(e) (which relates strictly to special categories of data): the processing is necessary for "the establishment, exercise or defence of legal claims". That would appear to be the precise purpose of the contested provisions of the DEA: the copyright owner will be able, through the procedures under the DEA, to establish not only that there has been an infringement of copyright but also who is responsible for the infringement.
4. Mr White argued that the provision applied only if the data controller was sure, at the beginning and throughout the relevant "processing", that at the end of the processing a legal claim would be brought. However, in my view, the copyright owner might not in a particular case decide to pursue legal proceedings, but that does mean that the action that he took under the DEA was not for the purpose of establishing or exercising such a claim. Mr White's interpretation would create intolerable legal uncertainty and something of a "Catch 22" situation. The data controller might not know at an early stage in processing the relevant data whether he intended at the end of the process to commence legal proceedings, and the processing could be rendered impermissible if in the event he did not commence such proceedings; and it might be only after the relevant data processing that he could sensibly decide whether it was appropriate to commence proceedings. The data controller might change his mind during the course of processing, and the legal position would be obscure.
5. Article 8(2)(e), as noted, does not in strict terms apply to processing under Article 7. However, it would be absurd if that particular basis did not apply generally, for it would otherwise mean that processing of data that fell short of special category data was permissible in more restricted circumstances than those applied to special category data. It seems to me that the only sensible interpretation is that the circumstances described in Article 8(2)(e) inevitably fall within Article 7(f) as "processing … necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are controlled" and necessarily observe the balance required by the proviso to that Article."

Whereas there may be an arguable case on the various technicalities I just don't buy the repeated deference to Parliament as a rational decision making body in the context of the DEA, given how the Act came to be rushed through on the nod without appropriate scrutiny before the general election:

"

1. In my judgment, there are good reasons in the present context for the Court to attach substantial weight to the balance struck by the primary decision maker, namely, Parliament. First, there is considerable support in the case law for the proposition that the Courts should afford particular deference to elected and accountable decision makers where the decision concerns subject matters that are regarded as within the particular province of the political branches. In Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; (2004) I AC 816 Lord Nicholls stated that the readiness of a court to depart from the views of the legislature depends upon the circumstances, "one of which is the subject matter of the legislation". The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene (see [70]). (See also Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 at [19], and Michalak v London Borough of Wandsworth [2002] EWCA Civ 27; [2003] I WLR 617, at [41]). In International Transport Roth Gmbh v SSHD [2002] EWCA Civ 158; [2003] QB 728 at [83] Laws LJ stated that

"greater deference will be due to the democratic powers where the subject matter in hand is peculiarly within their constitutional responsibility."

2. In this case Parliament has addressed a major problem of social and economic policy, where important and conflicting interests are in play. On the one hand, there is evidence to suggest that the media industry, broadly interpreted, is sustaining substantial economic damage as a result of unlawful activity on the internet; and there is concern that such damage may significantly affect creativity and productivity in an economic area of national importance where, at least historically, the UK has tended to enjoy some comparative advantage in international markets. On the other hand, the business models of ISPs are constructed on the basis that they are essentially conduits for the flow of information, and the efficiency, cost effectiveness and competitiveness of their operations depend on the minimum regulatory interference with that flow of traffic, and on the minimum responsibility and burden in respect of the actual content of the material passing through the conduit. Similarly, subscribers of the ISPs and users of the internet appreciate that the technology is the most prodigious tool for the transmission and interchange of information and other material ever designed, and, in general, they would oppose restrictions on their ability to enjoy untrammeled access to such information and material. Information is also a public good, and interference with access to, and publication of, information may adversely affect general welfare. How these competing and conflicting interests should be accommodated and balanced appears to me to be a classic legislative task, and the court should be cautious indeed before striking down as disproportionate the specific balance that Parliament has legislated.
3. Secondly, Parliament struck the challenged balance after a lengthy process of consultation with all interested parties, which took account of the representations made by those parties, and after a voluntary, non-legislative scheme was tried out. That process is likely to have provided the decision maker with an insight and capacity that the court is unlikely to enjoy."

There is ample evidence to demonstrate that Parliament did not take account of the representations of key stakeholders in the DEA and the notion that the "decision maker" had an "insight" and capacity "that the court is unlikely to enjoy" would give me serious concerns about the capacity of the UK High Court to tackle the cases before it if this were true. There was no mention of the ECJ AG's decision last week on the SABAM v Scarlet case which, once the ECJ makes its decision will likely lend weight to BT and TalkTalk's cause (though as I warned at the time the UK situation is different).  There was also a reference to the ECJ Promusicae case from a few years back to justify the DEA's compliance with the Privacy and Electronic Communications Directive ("the PEC Directive") (Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, OJ [2002] L No 201). Yet the Promusicae judges clearly stated that copyright does not trump fundamental rights like privacy.

As I said - this was a quick scan so I may have misinterpreted one or two points but the surprise was that the decision completely rejected the ISP's position on all counts.  It remains to be seen what BT and TalkTalk's next move will be but it looks to me as though they have still got plenty to work with. The courts' deference to Parliament, though, a Parliament that does not get technology, could continue to be a major stumbling block.

Update: I should have said that there is one small crumb of comfort in the decision for digital rights activists in that Mr Justice Baker did conclude (at paragraph 157) that IP addresses are personal data and by implication attract the associated legal protections. (The justification for this conclusion is given in paras 152 - 156).
(I've tidied up some of the formatting issues with the quotes from the decision above too, at para 129).

Briefing on open Internet for DEAPPG

Skype's briefing for the Digital Economy All Parliamentary Group on preserving the open and neutral character of the internet is available at Sribd.

Abstract
Imagine not being able to use a microwave – just because your electricity supplier does notallow microwaves (they compete with another part of their business, apparently). Imagine having to pay extra for water when the water supplier detects that it is used to make coffee.Imagine not being able to do a video call with your newborn grandson in Australia or Canada– just because your Internet provider does not allow the use of Voice over IP (they compete with another part of their business, apparently). Ridiculous? Not really. Restrictions to whatUK Internet users can or cannot do with their broadband connections are commonplace today.The implementation into UK law of the revised EU rules on telecommunications will soon start, and includes new provisions on the question, designed to protect ‘net neutrality and netfreedoms’ according to the European Commission. How will or should the UK implementthose rules? The UK Minister of Communications Ed Vaizey MP’s call for self-regulatory guidelines to protect the open Internet, including a non-discrimination principle, seems a good way forward. But such guidelines need to be implemented, meaningfully and properly,without delay, and supervised by the regulator and Government in the knowledge that should abuse persist, the full extent of regulatory powers will be deployed in order to genuinely protect the open nature of the Internet.

Well said.  I hope the DEAPPG are reading and inwardly digesting in full. Highly recommended.

European Court of Justice AG: web blocking infringes fundamental rights

In a potentially far reaching decision the Advocate General of the European Court of Justice, Cruz Villalón, has concluded that

a measure ordering an internet service provider to install a system for filtering and blocking electronic communications in order to protect intellectual property rights in principle infringes fundamental rights

Unfortunately the AG's decision in full is only available in French so far but ECJ PRESS RELEASE No 37/11 provides a succinct summary:

According to Advocate General Cruz Villalón, a measure ordering an internet service provider to install a system for filtering and blocking electronic communications in order to protect intellectual property rights in principle infringes fundamental rights

In order to be permissible, such a measure must comply with the conditions laid down in the Charter of Fundamental Rights to govern restrictions on the exercise of rights. It must therefore be adopted, inter alia, on a legal basis that meets the requirements concerning ‘the quality of the law’ at issue

Belgian courts may, under national legislation, issue an order for any infringement of an intellectual property right to be brought to an end. In particular, the legislation provides that, where a third party uses the services of an intermediary to perpetrate an infringement of that type, the courts are authorised to issue such an order against that intermediary.

The Société belge des auteurs compositeurs et éditeurs (Sabam) applied for interim relief against Scarlet Extended SA, an internet service provider (ISP). Sabam sought first of all a declaration that the copyright in musical works contained in its repertoire had been infringed because of the unauthorised sharing, through the use of Scarlet’s services, of music files – in particular, by means of peer-to-peer software. Sabam also sought an order requiring Scarlet to bring such infringements to an end, on pain of a penalty payment, by blocking or making impossible the sending or the receiving by its customers in any way of files containing a musical work, using peer-to-peer software, without the permission of the copyright holders.

By judgment of 26 November 2004, such copyright infringements were found to have taken place. After a report had been obtained from a technical expert, Scarlet was ordered, by another judgment, delivered on 29 June 2007, to bring those copyright infringements to an end by making it impossible for its customers to send or to receive in any way, by means of peer-to-peer software in particular, files containing a musical work in Sabam’s repertoire, and to do so within a period of six months1, on pain of a penalty payment of €2 500 per day should Scarlet fail to comply with the judgment.

Scarlet has appealed against that judgment to the Cour d’appel de Bruxelles (Court of Appeal, Brussels), which must decide whether to uphold the measure adopted against Scarlet. In that context, the Court of Appeal, Brussels, is seeking a ruling from the Court of Justice on whether European Union law and, in particular, the fundamental rights guaranteed by the Charter of Fundamental Rights, permit a national court to order an internet service provider to install a system for filtering and blocking electronic communications.

In today’s Opinion, the Advocate General notes that the system to be installed must, first, filter all data communications passing via Scarlet’s network, in order to detect data which involve a copyright infringement. As a result of such filtering, the system must, secondly, block communications which actually involve copyright infringement, either at the point at which they are requested or at the point at which they are sent.

Advocate General Cruz Villalón considers that the court order thus constitutes a general obligation which, it is intended, will be extended in the longer term on a permanent basis to all internet service providers. In particular, the Advocate General points out that the court order would have a lasting effect for an unspecified number of legal or natural persons irrespective of whether they have a contractual relationship with Scarlet and regardless of their State of residence. The system must be capable of blocking any file sent by an internet user who is one of Scarlet’s customers to another internet user – who may or may not be one of Scarlet’s customers and who may or may not live in Belgium – where that file is thought to infringe a copyright managed, collected or protected by Sabam. It must also be capable of blocking receipt by an internet user who is one of Scarlet’s customers of any file infringing copyright which has been sent by any other internet user. Moreover, the court order would apply in abstracto and as a preventive measure, which means that a finding would not first have been made that there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.

The Advocate General also states that the court order at issue is a new obligation. It would impose on Scarlet an obligation with regard to the result to be achieved, in respect of the protection of copyrights defended by Sabam through the filtering and blocking system, with a penalty payment for failure to comply. Also, it would make Sabam responsible for the cost of installing the filtering and blocking system. Thus, through that system, the legal and economic responsibility for combating illegal downloading of pirated works from the internet would largely be delegated to the internet service providers.

In view of those characteristics, Advocate General Cruz Villalón considers that

The Advocate General points out, however, that the Charter of Fundamental Rights accepts that the exercise of the rights and freedoms which it guarantees may be restricted, on condition, inter alia, that any such restriction is ‘in accordance with the law’. Applying the case-law developed in this field by the European Court of Human Rights, the Advocate General considers that the legal basis for any restriction on the exercise of the rights and freedoms guaranteed by the Charter of Fundamental Rights must meet requirements concerning ‘the quality of the law’ at issue. Thus, in his view, a restriction on the rights and freedoms of internet users such as that at issue would be permissible only if it were adopted on a national legal basis which was accessible, clear and predictable.

According to the Advocate General, it cannot be held that the obligation on internet service providers to install the filtering and blocking system at issue, entirely at their own expense, was laid down expressly, and in clear, precise and predictable terms, in the Belgian statutory provision at issue. In fact, the obligation imposed on internet service providers is both special and ‘new’ (unexpected, even). In addition, the Advocate General states that neither the filtering system, which is intended to be applied on a systematic, universal, permanent and perpetual basis, nor the blocking mechanism, which can be activated without any provision being made for the persons affected to challenge it or object to it, are coupled with adequate safeguards.

Consequently, the Advocate General proposes that the Court of Justice should declare that EU law precludes a national court from making an order, on the basis of the Belgian statutory provision, requiring an internet service provider to install, in respect of all its customers, in abstracto and as a preventive measure, entirely at the expense of the internet service provider and for an unlimited period, a system for filtering all electronic communications passing via its services (in particular, those involving the use of peer-to-peer software) in order to identify on its network the sharing of electronic files containing a musical, cinematographic or audio-visual work in respect of which a third party claims rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at the point at which they are sent.

The decision is arguably good news for those in the UK such as the Open Rights Group opposed to the unpalatable web blocking provisions of the Digital Economy Act. There are however a couple of caveats to bear in mind.  Firstly the AG's decision is not binding on the Court though they often follow the lead provided in such a decision. Secondly the primary focus of the AG's concern appears to be the specifics of the Belgian internet filtering statute and its implementation in the case of Scarlet Extended v SABAM.

The AG seems to be saying that the Belgian statute and its implementation are in breach of the Fundamental Charter of Rights but that member states are entitled to restrict such rights as long as they do so 'in accordance with the law'.  The bottom line appears to be that the Belgian implementation is so clumsy and far reaching - the ISP bears all the costs, the blocking/filtering is for an unlimited period, it may be expanded indiscriminately to require all ISPs to filter all communications data and the law is basically unclear and unpredictable - that it does not stand up to scrutiny.

On the costs front at least the UK decision is different in that it has been determined that copyright holders should bear 75% of the cost of tackling infringement through the DEA.  It remains to be seen whether the detailed DEA regulations to be worked out by Ofcom and the Secretary of State will make the law any more clear and predictable than the Belgian context; or even sufficiently clear and predictable to enable the UK government to justify the opt out from the Fundamental Charter of Rights that such a statute entails.

As to the case at hand, SABAM will be disappointed but expect moves in Belgium to tighten up the wording of the statute rather than to overturn it. Scarlet Extended (which I believe is owned by Tiscali) will presumably be pleased with the AG's perspective.

I await the official English translation of the decision with interest.

Court rejects Google book settlement

I've just got round to reading US Circuit Court Judge Denny Chin's decision rejecting the Google Book Settlement. Three days late to the party now and millions of words of commentaries are already gathering dust on the subject. If you're looking for a good place to get a real understanding of the ruling, though, look no further than James Grimmelmann, one of the foremost analysts of the saga from the beginning. And as James says:

The legal analysis supporting this conclusion takes perhaps five pages out of forty-eight. The rest of the opinion is … well, it’s complicated."

But fwiw here's my tuppence worth.  The judge is clear in his opening:

"The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not.

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action... to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted
works without permission, while releasing claims well beyond those presented in the case."

Yet in the legal analysis that follows he primarily relies on the breach of the scope of relief under Rule 23 of the US Federal Rules of Civil Procedure, governing class action lawsuits, to reject the settlement. Essentially Google and the Authors Guild are using the cover of a class action lawsuit to cut a broad business deal that will ignore/downgrade the interests of significant classes of rightsholders not party to the agreement, provide the Authors Guild with privileged access to and guaranteed revenues from an online books monopoly and give Google protection from legal action for future behaviour. The deal goes way beyond the scope of the original copyright infringement lawsuit brought by the Authors Guild against Google.

"3. Scope of Relief Under Rule 23
The ASA can be divided into two distinct parts. The
first is a settlement of past conduct and would release Google
from liability for past copyright infringement. The second would
transfer to Google certain rights in exchange for future and
ongoing arrangements, including the sharing of future proceeds,
and it would release Google (and others) from liability for
certain future acts. (See, e.g., ASA §§ 10.1(f), 10.1(g),
10.2(a)).8 I conclude that this second part of the ASA
contemplates an arrangement that exceeds what the Court may
permit under Rule 23."

On orphan works, he considers their protection a matter for Congress and regarding the scope of the agreement in polite legal language he might be interpreted as suggesting the parties are extracting the proverbial Michael.

"a. A Matter for Congress
First, the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court...

The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties...

b. The Scope of the Pleadings
Second, the ASA would release claims well beyond those contemplated by the pleadings...

Google did not scan the books to make them available for purchase, and, indeed, Google would have no colorable defense to a claim of infringement based on the unauthorized copying and
selling or other exploitation of entire copyrighted books.Yet, the ASA would grant Google the right to sell full access to copyrighted works that it otherwise would have no right to
exploit. The ASA would grant Google control over the digital commercialization of millions of books, including orphan books and other unclaimed works. And it would do so even though
Google engaged in wholesale, blatant copying, without first obtaining copyright permissions. While its competitors went through the "painstaking" and "costly" process of obtaining permissions before scanning copyrighted books, "Google by comparison took a shortcut by copying anything and everything regardless of copyright status." (Hr'g Tr. 43 (Thomas Rubin,
counsel for Microsoft))...

I conclude that the released conduct would not arise out of the "identical factual predicate" as the conduct that is the subject of the settled claims."

He also gives no credence to the argument that the agreement is not substantially different to other broad based class action agreements.

"While it is true that in virtually every class action many class members are never heard from, the difference is that in other class actions class members are merely releasing "claims" for damages for purported past aggrievements. In contrast, here class members would be giving up certain property rights in their creative works, and they would be deemed -- by their silence -- to have granted to Google a license to future use of their copyrighted works."

Google is not getting blanket immunity from future copyright infringement by virtue of an agreement with the Authors Guild.

The copyright analysis is, as Grimmelmann says and interesting mix of statutory and policy arguments but ultimately the judge concludes there is no decision for him to make on copyright.

"In any event, I need not decide the precise question of whether the ASA would in fact violate
§ 201(e);"

But:

"the notion that a court-approved settlement agreement can release the copyright interests of individual rights owners who have not voluntarily consented to transfer is a troubling one."

On antitrust concerns again the judge is clear that the settlement would give Google a "de facto monopoly" over orphan works, "arguably... control over the search market" and "the ability to deny competitors the ability to search orphan books" but doesn't proceed to any hard legal conclusions on this.

On privacy he says:

"The privacy concerns are real. Yet, I do not believe that they are a basis in themselves to reject the proposed settlement."

So privacy matters but not enough to single handedly bring down the settlement.  You get the impression that the judge felt the need to mentioned privacy because CDT and EPIC objected to the settlement on privacy grounds but that he doesn't have a lot to say on the subject.  In some ways it might have been better left out of the judgement than marginalised to this extent. He reckons Google could build in additional privacy protections but gives absolutely no indication of what these or what their governing principles might be.

On foreign authors' rights, he concludes:

"I need not decide whether the ASA would violate international law."

The judge's overall conclusion (p45-46) encourages Google and the Authors Guild to get together and renegotiate an opt-in version of the settlement which he seems to believe would address many of his own and objectors' concerns.

"In the end, I conclude that the ASA is not fair, adequate, and reasonable. As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted from an "opt-out" settlement to an "opt-in" settlement. I
urge the parties to consider revising the ASA accordingly.

The motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement."

Given the capacity of smart lawyers to turn nominal opt-in provisions into de facto opt--out reality, I would be sceptical about such a re-settlement dealing substantively with the representation, copyright, anti-trust, privacy or international law issues, regardless of how cleverly crafted it might be to meet Judge Chin's technical Rule 23 class action requirements.  As to what happens next a revised settlement seems most likely.  James Grimmelmann predicts:

"

• Google is allowed to continue scanning and searching in exchange for cash payments on the order of (but perhaps not exactly) the $60 in the present settlement, and it’s required to provide an opt-out. Very few people have argued that this form of settlement would be beyond the court’s power. The precise explanation of how this would be distinguishable from the present settlement, although quite feasible, will require some nuance and subtlety.
• The Display Uses — Consumer Purchase, Institutional Subscription, etc. — are either gone entirely ore are offered on an opt-in basis. The difference between these two possibilities is not large, since, in effect, Google already offers an opt-in through the Partner Program.
• The libraries receiving digital copies are released from liability but are even more tightly restricted in the uses they can make than under the present settlement.
• The fates of other facets of the settlement such as the Research Corpus, will be hammered out in the negotiations.

My read is that the parties are not enthusiastic about litigation. This has been a long road, they are tired, and the publishing world has moved very quickly from underneath the settlement. They will be happy to have a settlement that lets everyone claim a kind of minor victory, and to be done with the ordeal."

Union opposes controls on school fingerprinting

The Association of School and College Leaders (ASCL) is reportedly opposing the controls on school fingerprinting proposed in the UK coalition government's Protection of Freedoms Bill.

I always understood the reason that unions existed was to protect the rights of individuals. That ASCL should give what they perceive to be their own members' managerial convenience priority over the civil rights of kids should make them thoroughly ashamed of themselves.  Oh dear - now head teachers are going to have to fill in a few forms before they abuse children's fundamental right to privacy - how terrible.

Although headteachers and governors at schools deploying these systems may be typically 'happy that this does not contravene the Data Protection Act', a number of leading barristers have stated that the use of such systems in schools may be illegal on several grounds. As far back as 2006 Stephen Groesz, a partner at Bindmans in London, was advising:

"Absent a specific power allowing schools to fingerprint, I'd say they have no power to do it. The notion you can do it because it's a neat way of keeping track of books doesn't cut it as a justification."

The recent decisions in the European Court of Human rights in cases like S. and Marper v UK (2008 - retention of dna and fingerprints) and Gillan and Quinton v UK (2010 - s44 police stop and search) mean schools have to be increasingly careful about the use of such systems anyway. Not that most schools would know that.

Again the question of whether kids should be fingerprinted to get access to books and school meals is not even a hard one! They completely decimate Kim Cameron's first four laws of identity.

1. User control and consent - many schools don't ask for consent, child or parental, and don't provide simple opt out options

2. Minimum disclosure for constrained use - the information collected, children's unique biometrics, is disproportionate for the stated use

3. Justifiable parties - the information is in control of or at least accessible by parties who have absolutely no right to it

4. Directed identity - a unique, irrevocable, omnidirectional identifier is being used when a simple unidirectional identifier (eg lunch ticket or library card) would more than adequately do the job.

It's irrelevant how much schools have invested in such systems or how convenient school administrators find them, or that the Information Commissioner's Office soft peddled their advice on the matter (in 2008) in relation to the Data Protection Act.  They should all be scrapped and if the need for schools to wade through a few more forms before they use these systems causes them to be scrapped then that's a good outcome from my perspective.

In addition just because school fingerprint vendors have conned them into parting with ridiculous sums of money (in school budget terms) to install these systems, with promises that they are not really storing fingerprints and they can't be recreated, there is no doubt it is possible to recreate the image of a fingerprint from data stored on such systems. Ross, A et al 'From Template to Image: Reconstructing Fingerprints from Minutiae Points' IEEE Transactions on Pattern Analysis and Machine Intelligence, Vol. 29, No. 4, April 2007 is just one example of how university researchers have reverse engineered these systems. The warning caveat emptor applies emphatically to digital technology systems that buyers don't understand especially when it comes to undermining the civil liberties of our younger generation.

Update: The Home Office moved the Protection of Freedoms Bill page since this post was done. So I've just updated the broken link above.

Indifference to phone hacking and the surveillance society

The Guardian and the Independent have been doing their best to get people stirred up but public indifference to the News of the World phone tapping scandal is a stark indicator of the degree to which we have become complicit in facilitating the evolution of a surveillance society. The post-war illegal wiretapping of a phone conversation between a UK barrister Patrick Marrinan and his client, a known and self confessed criminal, Billy Hill, by contrast drew widespread condemnation when it became public knowledge in 1957.

Ironically, Hill had suffered no criminal justice consequences as a result of the revelations from the phone tapping but Marrinan got disbarred, as it reportedly emerged that he had "obstructed justice in a trial of two of Hill’s gangland associates."

It seems that Huxley and Orwell may not just be the bookends of our future but the boundaries.

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

---

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

---

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.