Mosley loses at ECHR

Max Mosley has lost his case at the European Court of Human Rights. The Court's press release on the judgment is here (links to downloadable pdf).  The judgement in full is also available but since the links are dynamic the simplest way to find it is to type "Mosley" into the Court's HUDOC search portal.
(Update: Scribd has a copy of the decision now)

It's an interesting decision ultimately concluding that Mr Mosley's request for a prior notification regime, whereby subjects of press stories would be informed in advance of publication, would have a disproportionate chilling effect on freedom of the press.  It's not entirely bad news for the applicant Mr Mosley, however, as the Court ruled that his case was admissible, disagreeing with the UK government's argument that it was ill founded. They also agreed with Mr Justice Eady's decision in the UK High Court that there was no public interest in the News of the World's publication, in print, of stories about Mr Mosley's sex life, in addition to audio and video recordings of his activities and that on the facts of the case there was a clear invasion of privacy under Article 8 of the European Convention on Human Rights.

Nevertheless the key question they had to decide was whether a pre publication notification regime would be required to facilitate the balance between privacy (Article 8 of the Convention) and free speech (Article 10). And the answer was no.

Sensibly they say (paragraph 114) that sex stories do not attract the same protection as "reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society" but that the Court must be careful about imposing restraints on speech (paragraph 116); particularly so about prior restraint (para 117).

At paragraph 119 - 121 they explain that the UK remedy of post publication damages can be reasonably expected to act as a check on press behaviour and that the ECHR precedent dictates that damages provide an adequate remedy; also that in making the decision they need to be particularly aware of the wider implications:

"While the specific facts of the applicant’s case provide a backdrop to the Court’s consideration of this question, the implications of any pre-notification requirement are necessarily far wider. However meritorious the applicant’s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism. The Court recalls that the introduction of restrictions on the latter type of journalism requires careful scrutiny."

There follows an interesting discussion on the "margin of appreciation" - the freedom of the State to implement it's obligations under article 8 in any ways it sees fit. The wide diversity of practice amongst member states in the balancing of article 8 privacy and article 10 speech requirements of the convention means there is no general consensus in this area and therefore no general obligation to mandate a prior notification regime.

"124.  Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression (see paragraphs 62-63 above). Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe (see paragraphs 56-59 above). The Court therefore concludes that the respondent State’s margin of appreciation in the present case is a wide one."

Crucially, I think, on the question of the clarity and effectiveness of a pre-notification regime, (paras 125 - 129) they suggest that it can probably be defined clearly because the concept of "private life" is well understood (even by journalists!) but 

• it would have a de facto chilling effect on freedom of the press and 
• even if such a scheme was in place the News of the World would still have published their stories about Mr Mosley because they had unjustifiably convinced themselves that there was a Nazi element to the affair
• the effectiveness of a pre-notifcation scheme would depend on associated sanctions for breaching it -  punitive measures would create "a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention."

They conclude:

"iii.  Conclusion

130. As noted above, the conduct of the newspaper in the applicant’s case is open to severe criticism. Aside from publication of the articles detailing the applicant’s sexual activities, the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Despite the applicant’s efforts in a number of jurisdictions, these images are still available on the Internet. The Court can see no possible additional contribution made by the audiovisual material (see paragraph 115 above), which appears to have been included in the News of the World

131.  The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (see paragraph 57 above). The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. In this regard the Court takes note of the recommendation of the Select Committee that the Editors’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception (see paragraph 53 above).

132.  However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 8 of the Convention."

It's a thoughtful, carefully constructed opinion and imho they came to the correct conclusions.  Although the decision is readable, for those less inclined to wade through the legalese the press release outlines all the key elements of the decision in slightly more accessible language. Recommended.

Digital privacy gordian knot

Living in the catchment area of a teaching hospital I get letters on a semi regular basis asking me or members of my family to participate in some medical research survey/trial. I always refuse on privacy grounds but occasionally send the form back asking them to take our details off their mailing lists (with little expectation that this will be done).  All modern technological, social, economic and organisational systems that process and store sensitive personal data are leaky, in many cases seriously so. HMRC 25 million debacle of 2007 and the Sony Playstation mess of recent weeks and others repeatedly remind us of this yet we see little progress on the privacy front.

One of the issues with improving these systems is that independent researchers with the capacity to help public and private sector organisations improve them rarely have direct access to the systems to the extent that sufficient robust empirical evidence can be generated and analysed with a view to expediting such improvements. Yet the granting of such researcher access fundamentally breaches the privacy of the individuals whose personal data is already compromised by virtue of the fact that it is held and processed on these leaky systems by these leaky organisations.

We already know a lot about improving these systems in ways that would respect privacy but don't implement these principles in practice.  So I'm pessimistic that even if we could cut the gordian knot of facilitating empirical research of real world systems without compromising the privacy of the data subjects on those systems it would necessarily help our progress towards a privacy enhanced future.  Privacy is complex and difficult especially faced with the forces undermining it:

• technology, 
• economics, 
• convenience and 
• bureaucracy.

The first law of technology is that if it can be done it will be done - basically fatal for personal privacy

Commercial sector (not just Facebook's and Tesco's) profits depend on undermining personal privacy

Our own addiction to convenience beats everything, including personal privacy

And the obsessive digital Taylorism of the public (and private) sector bureaucrat - the mindset that there is value only in that which can be measured and controlled - is also fatal for personal privacy.

Actually, faced with such forces the mythical, ethical, superhero researcher with the absolutely secure empirical research system, which enables said researcher to know everything about the commercial/public sector system under examination without knowing anything about the data subjects in that system, is something of a minor problem. Cheery thoughts for a Monday morning.

EU copyright term extension in sound recordings again

Prompted by Jim Killock of the Open Rights Group I wrote to my MEPs yesterday (all ten of them) on the matter of copyright term extension. I've had 3 responses so far.  First off the mark was Andrew S. Reed of UKIP writing on behalf of Nigel Farrage. They oppose the measure.

"Dear Ray Corrigan

Your letter, opposing the copyright-term-extension, is one of many such, sent to Mr Farage, including one from the European Bureau of Library-Information and -Documentation Associations (EBLIDA) objecting to the EU's proposed copyright-legislation, which includes the extension of the term of copyright to the disproportionate length of 95 years, because this will benefit, above all, large, corporate copyright-holders, will reduce the cultural value (to the public) of works-of-art and will not materially augment the return-on-their-work for artists.

EBLIDA' message furnishes further arguments against the proposal, pointing to a torrent of ill-effects.

Such effects are characteristic of EU-legislation, which is largely designed by big business (in this case, by four large media-companies) and produced, by the EU, primarily to increase its own power.  It does this in an entirely non-democratic process. That the EU's largely powerless, consultative assembly (the so-called "parliament") is elected - by 27 separate and mutually uncommunicative electorates - does not make it democratically elected, and the real powers of the EU (in the Commission, Council and Court) are not elected at all.

This is why the UKIP votes against every piece of EU-legislation - for all the effect that has, in an assembly dominated by EU-imperialists - and bitterly opposes Britain's continued entanglement in the EU-structure.

The assembly is much lobbied, by the relevant interests, during the prelude to its voting on any particular subject; but only a few, out of many thousands of EU-Commission proposals, have been substantially amended, in the past five years, and only two have been rejected.  Indeed, lobbyists (who profit from lobbying) collude with assembly-members (who profit from appearing to be doing something) in giving the impression that the assembly is a free agent, worth lobbying.  In fact the assembly is an appendage of the Commission and either does what it's told or is not allowed to do anything.

The chances of withstanding the current proposals on copyright are, therefore, slim.

The dangers of such a system, and the damage its legislation is doing, should be pretty obvious to most people, by now; and the only way to avoid them, is to repeal the European communities Act (ECA)

UKIP is the only party genuinely dedicated to achieving the repeal of the ECA, and I hope you will consider supporting us in our campaign to achieve it.

Please see below a more detailed objection, with which UKIP agrees, to the EU's proposals on copyright, from Mr William Heath of the "Open Rights Group".

Yours sincerely,

Andrew S. Reed

(Office of Nigel Farage, Strasbourg, www.ukip.org )"

Next was Peter Skinner of Labour, who doesn't really state what his position is but he appears to support it and says that the Parliament supports the proposal and there's nothing that can be done about it.

"Dear Mr Corrigan,

Thank you for your email concerning copyright term extension. The position of the European Parliament on the Commission's proposal to amend Directive 2006/116/EC was adopted on 23 April 2009 in a vote of the full plenary of the Parliament. Full information on the legislative process and texts adopted is available at:
http://www.europarl.europa.eu/oeil/file.jsp?id=5667672

The Parliament supported the proposal, with certain amendments including a thorough review clause, with 387 votes in favour and only 152 against. This first reading position was confirmed by the Legal Affairs Committee of the newly elected Parliament in September 2009. It is not possible for the Parliament to recall the dossier, as was sought by Mr Engström, because the Parliament's first reading was re-confirmed by the new Parliament in September 2009. The legislative process was therefore concluded in the Parliament at first reading and it is now for the Council of Ministers to adopt a position on this proposal.

With best wishes,

Peter Skinner"

Then came Richard Ashworth of the Conservatives who support the proposal and produced what I presume is the standard Consrvative party response.

"Dear Mr Corrigan,

Thank you for your email in which you raise concerns with regard to the proposed Copyright Extension Directive.

I, together with my fellow Conservative MEP's, have actively followed and been involved in the debate on copyright duration, believing this is actually issue one of the major parameters for establishing the amount of protection accorded authors and other owners of copyright and I very much understand the elements you put forward. However, issues surrounding copyright extension are controversial and the level of copyright, and copyright term, are matters that have been of importance to policymakers over the last decade and together with colleagues, we support extending the copyright period.

Copyright is extremely important because it is the way artists are rewarded; businesses make their money and invest in the future. But, duration of copyright is also the principal dividing line between the property rights of these owners and the public domain - that is, the domain of unprotected works which are available to the public for unrestricted, uncompensated use. Hence, we need a copyright framework that is both flexible and accessible and the Commission proposal meets many of these requirements. In the digital age, music is readily available online and copyright provisions need to take account of market changes. Extending the term of copyright to 95 years is essential if we expect performers and the music industry to carry on investing, innovating and creating and it is only right that they are given greater protection for their investments.

In economic terms, the copyright extension would also be beneficial. We believe that the available evidence suggests an extension of the copyright term is likely to benefit consumers rather than harm them and that overall social welfare is also likely to be increase.  Longer terms  will help to encourage digitisation  of much more of existing back catalogues of music , ensuring  a cultural legacy for  thousands of recordings which would otherwise be lost as physical copies are lost or left tucked away never to be heard again.   Further, based on a review of the academic literature and the available empirical evidence on record company investment behaviour (which suggests new music is, in fact, financed out of current earnings) there are strong grounds to believe that a retrospective increase in the copyright term will enhance these benefits.

In a Price Waterhouse Report, it was shown that an extension could boost the lagging music industry by £3.3 Billion over the next 50 years. The extension would also address the distortion of competition between the United States and the EU. At a time when creative industries based on intellectual property are generating an increasing percentage of GDP in the EU, the current disparity between the term of protection in the EU and the US clearly puts British record companies and performers at a competitive disadvantage. The extension to 95 years would therefore help the competitiveness of British music industry in the global marketplace.

Furthermore, a significant gap between the length of term of protection in the EU and the US facilitates piracy, particularly in the online environment where technology enables recordings in Europe to be transmitted over the Internet to countries where recordings are still in copyright. 

The extension would also improve the social situation of performers, who have been disadvantaged by the existing 50-year term which often does not cover their lifetime. While Composers have benefited from a term of copyright that extended to the composer's life and 70 years beyond, performers have been disadvantaged but this new proposal brings parity to those involved in the music industry. 

The UK has a very strong music industry and safeguards must be put in place if we are to maintain our position in today's marketplace. The copyright extension is a first step in this direction and should be supported.

Yours sincerely,

Richard Ashworth MEP"

I've responded to all three thanking them for their prompt attention (and support in the case of UKIP) but in slightly more detail to Mr Ashworth given his claims about empirical evidence supporting the need for term extension:

"Dear Mr Ashworth,

Thank you for your prompt though disappointing reply. As an academic who has studied the technology and intellectual property story for some time I can confirm that copyright is important and that issues surrounding copyright extension are controversial.

Copyright is important for artists but if the Commission’s proposal was really aimed at performers, it would link the term to the performer’s life (or a close proxy) and it would not grant the extended term to the producers of sound recordings. It would give it to the performers themselves.

You say a review of academic literature supports music copyright term extension. I'd appreciate it if you provide me with specific references to said literature supporting term extension.

I'm not sure if you're familiar with discounted cash flow calculations, where you work out the present value of future cash flows (in a kind of a reverse compound interest calculation). Frankly a basic discounted cash flow model calculation demonstrates that a copyright term of 95 years provides very little extra economic incentive today (compared to a term of 50 years) to invest in copyrighted works. Nevertheless I would still appreciate the opportunity to examine the academic literature you believe states otherwise, so I would still appreciate those citations.

You also say that "empirical evidence on record company investment behaviour (which suggests new music is, in fact, financed out of current earnings) there are strong grounds to believe that a retrospective increase in the copyright term will enhance these benefits."  Again I'd really appreciate a reference to this evidence. Part of the problem with intellectual property policymaking has been the absence of empirical evidence informing the process.

You cite the unpublished Price Waterhouse Coopers report produced for the British Phonographic Industry (music industry trade association) in 2006 to suggest that "an extension could boost the lagging music industry by £3.3 Billion over the next 50 years". The methodology of that study has been found to be wanting in several respects. Just one example is that it suggested a range of potential losses that varied by a factor of 20 and it is risky to rely on such figures for policy making. You also suggest extension of copyright term will benefit consumers.

In addition to a paper I produced with Mark Rogers of Oxford University in 2005** indicating that consumer and social welfare is not served by copyright term extension, an eminent collection of my academic colleagues around some of Europe’s most prestigious educational institutions have concluded in an open letter to the Commission,*

"It strains credulity to claim that a term extension will provide

large benefits to the record industry, as the Commission does, while having

no impact on consumers. The record industry holds the data that would

enable an independent empirical study to settle this issue."

I look forward to hearing from you regarding the citations to academic literature and empirical evidence supporting copyright term extension in sound recordings.

Thanks for your time.

Yours sincerely,

Ray Corrigan,

Senior Lecturer in Maths, Computing and Technology, Open University; Mailing address: Open University in the South, Foxcombe Hall, Boars Hill, Oxford, OX1 5HR, UK; Tel +44 (01865) 327000; blog http://b2fxxx.blogspot.com/

* The Proposed Directive for a Copyright Term Extension – A backward-looking package

Centre for Intellectual Property Policy & Management (CIPPM, Bournemouth University), the Centre for Intellectual Property & Information Law (CIPIL, Cambridge University), the Institute for Information Law (IViR, University of Amsterdam), and the Max Planck Institute for Intellectual Property, Competition and Tax Law (Munich published).

http://www.cippm.org.uk/downloads/Term%20Statement%2027_10_08.pdf

**Corrigan, R. & Rogers, M. (2005) The Economics of Copyright World Economics Journal

Volume 6, Number 3, 2005, pages 153 – 174

http://www.world-economics-journal.com/Contents/ArticleOverview.aspx?ID=219"

I had a fourth response as I was typing this blog post, from Daniel Hannan, another Conservative:

"Dear Mr Corrigan,

Thank you for your e-mail.

You may not be aware that European constituencies were reorganised following the 1999 European elections, and MEPs were elected under a proportional representation system. Having opposed the proportional system, the four Conservative MEPs in the South East region have divided the area into four sub-constituencies, to guarantee a more direct representation for the people of the South East region.

James Elles MEP is the Conservative representative for your part of Oxfordshire.  I have, therefore, forwarded your correspondence to him for his information.

Yours sincerely,
Daniel Hannan"

I've thanked him for his response and mentioned James Elles will have heard from me directly. 

It's interesting that the Conservative Party in the EU Parliament is supporting term extension when there is a fair chance that the Prime Minister may well oppose it.

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.