Catt v ACPO & the Met

The Independent and Guardian reported yesterday that 88 year old John Catt, an anti-war campaigner with no criminal record, had won his appeal to have his details removed from the police database of suspected extremists. The 'National Extremism Database' was maintained by the National Public Order Intelligence Unit, originally under the supervision of the Association of Chief Police Officers (ACPO) and since June 2011 under the supervision of the Commissioner of Police of the Metropolis (the Met).

The full judgment by the Master of the Rolls, Lord Dyson, along with Lord Justices Moore-Bick and McCombe, is now availble at the British & Irish Legal Information Institute, BAILII, and makes interesting reading.

The good Lords quote repeatedly from the European Court of Human Rights decision, S & Marper v UK, where the Court held that the systematic blanket indefinite retention, by the police, of the DNA and fingerprints of people not charged with or convicted of a crime, was in breach of of Article 8 of the European Convention on Human Rights, relating to respect for privacy. They also rely on R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414 where an employee of an association campaigning against the arms trade was followed and photographed by police and "the element of surprise and the claimant's uncertainty about the purposes of the police in taking his photograph and the use to which it might be put meant that article 8 was engaged."

They essentially conclude that the treatment of Mr Catt is disproportionate and constitutes an unjustified interference with his article 8 right to respect for private and family life.

From my reading of it, which I hope has been more careful than the erroneous quote I attributed to the Court yesterday evening on Twitter (thanks, btw, to the several folks who alerted me to that), the key elements of the decision relating to Mr Catt are in paragraphs 23, 24 and 41 through to 46, the core of the judgment coming in paragraph 44 (I've emphasised this in bold print in para 44 below).

1. However, it was also recognised in S, that in cases which concern the collection and retention of personal information relating to private individuals the issue of legality turns to a large extent on the circumstances and manner in which that information is collected, processed, stored and ultimately destroyed. Questions of that kind are closely related to the broader issue of whether the interference with the right to respect for private life is necessary in a democratic society (see paragraph [99]). In S itself the court found it unnecessary to consider the question of legality having held that the retention of the information was disproportionate to the aim sought to be achieved and in those circumstances we turn to the question of proportionality.


2. [...] The overriding principle is the need to strike a fair balance between the personal interest of the claimant in maintaining respect for his private life and the pursuit of a legitimate aim in the interests of the public at large: see, for example, S, paragraph [118]. In order to justify the collection, processing and retention of personal information the state must be able to satisfy the court that each of those steps is governed by clear rules of law or policy which are both accessible and intelligible and do not give the authorities an excessively broad discretion over the manner of their implementation. In such cases it is therefore necessary for the court to pay careful attention to the nature of the information in question, the circumstances under which it can be obtained, the ways in which it can be processed and by whom, the period for which it can be retained (together with any arrangements for interim review) and the arrangements for its destruction.

[...]

1. Having seen copies of various reports in which Mr.Catt  is mentioned and the information provided in response to his subject access request, we are left with the clear impression that police  officers who attend protests organised by Smash EDO for the purpose of gathering intelligence record the names of any persons whom they can identify, regardless of the particular nature of their participation.
2. The Divisional Court held that the continued retention on the Database of information relating to Mr. Catt  was in accordance with the law and proportionate to the aim sought to be achieved. As to the latter, the court held that any interference with Mr. Catt 's rights was minimal [...] The court regarded as "wholly unworkable" the suggestion that the respondent should be required to trawl through reports in order to consider each person named in them in isolation with a view to weeding out information no longer of value.

[...]

1. Proportionality involves striking a fair balance between the rights of the individual and the interests of the wider community. In paragraph [83] of his judgment in Wood Dyson L.J. drew attention to the fact that in striking that balance the court must have regard to the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference.

[...]

1. We do not doubt the importance to modern policing of detailed intelligence gathering and we accept the need for caution before overriding the judgment of the police  themselves about what information is likely to assist them in their task. For present purposes that task is to obtain a better understanding of how Smash EDO is organised, to be in a position to forecast the place and nature of its next protest and to anticipate the number of people likely to attend and the tactics they are likely to adopt. It is not easy to understand how the information currently held on Mr. Catt  can provide any assistance in relation to any of those matters. Mr. Tudway states in general terms that it is valuable to have information about Mr. Catt 's attendance at protests because he associates with those who have a propensity to violence and crime, but he does not explain why that is so, given that Mr. Catt  has been attending similar protests for many years without its being suggested that he indulges in criminal activity or actively encourages those that do. The systematic collection, processing and retention on a searchable database of personal information, even of a relatively routine kind, involves a significant interference with the right to respect for private life. It can be justified by showing that it serves the public interest in a sufficiently important way, but in this case the respondent has not in our view shown that the value of the information is sufficient to justify its continued retention. It is striking that Mr. Tudway does not say that the information held on Mr. Catt  over many years has in fact been of any assistance to the  police  at all. The Divisional Court considered that it was not practically possible to weed out from time to time information held on particular individuals. There is, however, no evidence to support this conclusion and we are not satisfied that it is correct. It should not be overlooked that the burden of proving that the interference with Mr. Catt 's article 8 rights is justified rests on the respondent.


2. That leaves the question whether the interference with Mr. Catt 's rights is in accordance with the law. This is very much a live issue given the relatively vague nature of some aspects of the regime contained in the MoPI Code and Guidance [...] However, in the light of the conclusion to which we have come on the question of proportionality it is unnecessary for us to reach a final decision on the point.


3. For these reasons we have reached the conclusion that the interference with Mr. Catt 's right to respect for his private life has not been justified and that the appeal must therefore be allowed.

For those ill-inclined to read the full judgment in detail, note that the Mr Tudway referred to in para 44 is Detective Chief Superintendent Tudway, a serving officer with the Met and a previous incumbent of the post of National Co-ordinator for Domestic Extremism ("NCDE") - effectively the guy who was in charge of the National Public Order Intelligence Unit and, therefore, the 'National Extremism Database'.

It's impossible to over-emphasise the key section of paragraph 44:

"The systematic collection, processing and retention on a searchable database of personal information, even of a relatively routine kind, involves a significant interference with the right to respect for private life. It can be justified by showing that it serves the public interest in a sufficiently important way, but in this case the respondent has not in our view shown that the value of the information is sufficient to justify its continued retention. [...] The Divisional Court considered that it was not practically possible to weed out from time to time information held on particular individuals. There is, however, no evidence to support this conclusion and we are not satisfied that it is correct. It should not be overlooked that the burden of proving that the interference with Mr. Catt's article 8 rights is justified rests on the respondent.

Impossible to over-emphasise because this is where we are losing the privacy wars - to the public and private sector armies of determined, hardworking, occasionally efficient, often well-meaning, silo-mentality, target driven, sometimes sociopathic/psychotic and ambitious bureaucrats who are just doing their jobs in their routine systematic, purpose-fuzzy collection, processing and retention on searchable databases of personal information. Their default assumption is that such activity serves the public and/or their organisational/personal interest in a sufficiently important way.

Society's passive acceptance of the consequent emergent normalisation of organisational sociopathy constitutes a clear and present danger to the right to respect for private and family life. As Justice Brandeis put it much more eloquently in his dissent in the 1928 US Supreme Court wiretapping case, Olmstead v. United States:

"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."

And those persons of zeal lurk not just in government but also out there in the real world.

Government ministers "unhinged" on ECHR

In the wake of the Eastleigh by-election defeat the Tories "human rights are the root of all evil" brigade are on the march again. Home Secretary, Theresa May and Justice Secretary, Chris Grayling have been variously reported as threatening to withdraw from the European Convention on Human Rights and abolish the UK Human Rights Act.

With all the dangerous rhetoric blowing out of prominent rear ends on this subject which the usual mass media outfits are happy to promote, it's worth again returning to the actual statistics published by the European Court of Human Rights in particular, in the very accessible report, European Court of Human Rights Statistics on judgments by State: Statistics 1959 - 2010. It even has pictures:

Only 3% of the cases that the UK faces in the European Court of Human Rights (ECrtHR) ever get to a judgment. If you drill into the figures, between 1959 and 2010 the UK lost about 2% of the all cases brought against it to the ECrtHR. They had an even better record in 2011 and 2012 losing just 0.8% (8 out of 955) and 0.5% (10 out of 2082) of the cases brought respectively.

When politicians in significant positions of influence wield anti human rights rhetoric in the way that Ms May and Mr Grayling do, they are playing a dangerous game. Leading QC, Ben Emmerson, hits the nail on the head in his thoughts for the Independent today:

“The increasingly shrill rhetoric from Theresa May is beginning to sound decidedly unhinged. There is not the slightest prospect of the UK pulling out of the European Convention before the next election.”

“In Europe and the UN the UK is seen as having lost the plot. The UK’s international reputation as a leader on the rule of law and human rights is plummeting at an alarming rate and with it our ability to influence other states. I cannot recall a time since 2003 when the UK’s international reputation has fallen farther and faster”

...

Mr Emmerson urged the Prime Minister not to let UKIP and “little Englanders” dictate policy: “May and Grayling, and the people who are supporting them, are the barmy brigade of the Conservative Party. They are undermining the Foreign Secretary’s attempts to portray the UK as pursuing an ethical foreign policy and they are undermining the Prime Minister’s standing with the international community.”

Update: Lord Neuberger, President of the UK Supreme Court, reportedly agrees, though in a decidedly understated fashion. The learned judge is also less than enamoured with the government's secret courts and cutting of legal aid, in addition to being concerned about a possible subconcious bias contributing to the gender imbalance in the judiciary. The Guardian's editorial one day on is interpreting Lord Neuberberger's intervention on human rights as a shot across the bows of the little englander Tories branch of government.

Security Minister on CDB

My MP Nicola Blackwood has had a response from Home Office Security Minister, James Brokenshire, to her -

"letter of 7 February to the Home Secretary on behalf of your constituents who wrote to you to express concern about proposals for the collection and retention of communications data."

Ms Blackwood posted me a hard copy of Mr Brokenshire's letter, a scan of which I include below.

Excuse the formatting. We're locked into Microsoft imaging files with the scanners in the office and Blogger and Microsoft don't play nicely.

The letter is largely a repeat of the usual distorted, evidence-free, political justifications for the Communications Data Bill. Starting at paragraph 2 he re-iterates the "communications data is the context not the content of a communication". If he read Peter Sommer's written submission (starting at page 412) and followed his oral evidence to the Joint Select Committee on the Communications Data Bill he'd realise what a meaningless claim this is nowadays. If he has read and understood Prof Sommer's evidence then he is being deliberately misleading here. If he hasn't read and/or understood it then he is not doing his job.

Paragraphs 3 & 4 highlight the Data Retention Regulations, regulations arising from the Data Retention directive which the UK government actively pushed through the EU and which has been challenged on constitutional grounds in several EU jurisdictions.

Paragraph 5 is the standard claim that the police need comms data to catch terrorists. As I've said before, law enforcement need, through targeted data preservation regimes, to engage in technological surveillance of individuals about whom they have reasonable cause to harbor suspicion; said surveillance to be carried out, as the Intelligence & Security Committee said in their special report on the CDB, in carefully controlled circumstances and with appropriate authorisation. That is not the same as building an infrastructure of mass surveillance, in parallel with a continuing absence of the widespread human intelligence and institutional skill sets required to be able to understand or deal with the technology or the avalanche of data noise the CDB would generate. And subcontracting the technological operations to the private sector without a deep institutional criminal justice system understanding of the technology and the digital forensics is reckless and dangerous for society.

Paragraph 6 of Mr Brokenshires's letter says the Regulation of Investigatory Powers Act (RIPA) ensures comms data use by approved authorities is above board. I won't comment on this other than to say the proportionality of the RIPA powers has been repeatedly questioned, as indeed has the Interception Commissioner's oversight of the operation of RIPA.

Paragraphs 7 and 8 say "its not fair" - the technology is moving fast, there's loads of useful data and police and intelligence services can't get at it. Well get this - you do not make their job easier by building an infrastructure of mass surveillance with compulsory back doors for government and run by the private sector which "may do so from abroad". Architected back doors intended for government access become nice big security holes for tech savvy attackers with nefarious intent. And swamping your technically challenged law enforcement services with mountains of data noise, necessitating the target based mass pursuit of false leads, will make their job harder not easier. Sure they need the tools to do high tech surveillance but they need the skills to do it too, in intelligent targeted ways and in accordance with properly constituted oversight and due legal process.  International telcos are not, no matter how much the government believe they can or want them to, I repeat not going to create magic digital surveillance machines which work perfectly and magically point out the bad guys every time; leaving law enforcement with the simple task of picking up the miscreants and sticking the handcuffs on.

This stuff is too important to be left to the Blair era 'fix it with a £billion magic computer/database' mentality (without ever specifying what the 'it' actually is).

Paragraph 9 trots out the old favorite "It is the first duty of Government to protect the public." That lazy sound bite is repeatedly rolled out to justify liberty bashing laws and government actions but is a paternalistic fiction. In the UK under the Magna Carta the first duty of government is, as I understand it though I'm not a constitutional lawyer, to protect the freedom of the English church.

"FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired...This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity."

In the US the first duty of government is to protect the US Constitution and the Bill of Rights. Both the UK and US governments have a duty to protect the public from arbitrary, unrestrained, government authority.

The final three paragraphs of Mr Brokeshire's letter refer briefly to the Report of the Joint Committee on the Draft Communications Data Bill and the Intelligence & Security Committee report on same. He makes no mention of the scathing criticisms of the committees but does state clearly that:

"The Home Office has considered the Joint Committee's recommendations carefully and accepts the substance of them all."

Strangely he doesn't make any mention of accepting the ISC's recommedations. What accepting the substance of all the recommendations actually means in practice we will have to wait and see but the CDB is currently being redrafted and

"the Home Office is engaging with interested parties on our revised proposals."

In a separate letter to the Open Rights Group following the publication of the Joint Committee report in December, Mr Brokenshire said:

"The Committees have highlighted the need for further consultation, particularly with communication service providers, but with others too and we will be taking this forward."

I may not have been paying enough attention due to the pressure of other things and the last milestone I noted on this was the official publication of the ISC report on the 5th February but has anyone any further information on who, aside from the CSPs, the "interested parties" and "others too" might be?

CDB and the need for better technology narratives

I've had a response from my MP, Nicola Blackwood, to my email of 11 January, drawing her attention to the report of the Joint Select Committee on the Draft Communications Data Bill. Basically she tows the party line, repeating the Home Office spin which she appears to find convincing. I have further responded to Ms Blackwood this morning.  

Academics and tech experts have to get better at explaining the realities of technology to policymakers. It is not just the politicians that are failing badly in this arena.

Even the Head of MI5 is on record as saying the snoopers' charter rests on "pretty heroic assumptions" yet the Home Office plows on with the same unchanging fictions because we can't get traction for a better, more accurate and nuanced narrative.Maybe we need a centre for the public understanding of and engagement with technology? Including a team of dedicated storytellers exclusively focused on educating policymakers and the public through better technology narratives.

A copy of the exchange with Ms Blackwood is below.

Dear Nicola,

No, I'm not reassured.

I understand you will be under pressure to take the party line on this but the narrative being spun by ministers and the Home Office does not stand up to any kind of evidence based scrutiny. There is a long technology loaded answer to your response and a shorter narrative version.  Let me try the latter since I realise your time is limited and the Home Office story has been well dissected via evidence to the Joint Committee.

Yes law enforcement and security services need to be able to move with the times and through targeted data preservation regimes - not a mass surveillance regime - engage in technological surveillance of individuals about whom they have reasonable cause to harbor suspicion. That is not the same as building an infrastructure of mass surveillance.

When the automobile came along the security services did not put a man in every car in case it might be used in committing a crime. They learned to drive. Law enforcement and security services need to hire more computer technology experts. You cannot cure a law enforcement and security services skills deficit by hoping mandated mass surveillance technology will somehow magically point out the bad guys. Real computers don't work the way they do in Hollywood films or TV crime dramas.

We already live in the most spied upon society in the history of the planet. The Home Office are complaining, like a petulant child, that it's not fair that they don't have access to the ocean of personal data flowing around the internet. So they stamp their feet and scream they want it and more. And they are going to get it not by hiring technology experts but by building (or forcing telcos to build) a magic machine that gives it to them. Sadly, when you strip away all the spin that is level of analysis you are dealing with here.

It will cost billions and not only will it not cure the crime fighting problem it will make the situation worse and create all kinds of other problems.

The 9/11 attackers were known to the FBI prior to the event. They were not picked up because the law enforcement authorities were so swamped with data about suspected bad guys that the 9/11 attackers didn't surface as a priority group. Crime and terrorism detection is a needle in a haystack problem. You don't find the needle by throwing more data hay on the stack. By making every internet using member of the population a suspect - by mandating total personal data retention - you make the security services' and law enforcement authorities' jobs more difficult not less so. The resultant industrial scale pursuit of false leads will be bad for everyone apart from the criminals cute enough to hide behind the relentless electronic data noise.

When people like Ross Anderson, Caspar Bowden, Peter Sommer,  Duncan Campbell - people with a deep understanding of computing and network technologies - are telling the government that the Communications Data Bill is a really bad idea, then they rather than ministers - not best known for their proficiency with technology - are the ones you should be listening to. Ross et al are emphatically not saying we should not use technology for crime detection and prevention, rather that we should use it and we should do so intelligently. If you have £billions to spend then spend it on building tech savvy law enforcement and security services not mandated dangerous mass surveillance infrastructure.

Regards,

Ray

________________________________________
From: BLACKWOOD, Nicola

Dear Mr Corrigan,
Thank you for contacting me regarding communications data, and I do apologise for the delay in my response. I know you have previously shared with me the response you gave to the Joint Committee consultation on this issue, and I am grateful to you for taking the time to contact me further.
As someone who regards themselves as a libertarian, I do appreciate your concerns on this issue. Having said that, there has been some confusion about the actual extent of the Government’s proposals in this Bill. Clearly no one wants a ‘Big Brother’-style attempt to open up the content of private individuals’ communications. Instead, any changes should be aimed at protecting the current, long-standing ability of police and security services to gather crucial information about communications between suspects across the multiple new forms of online and telecoms media, while striking the delicate balance between privacy and security.
Ministers tell me that legislative change in this area is necessary to maintain national security and protect the public in the face of changing technological circumstances, whilst continuing to protect and uphold civil liberties. In short, security services must be able to move with the times to maintain their ability to gather vital intelligence, without which public freedoms are at risk.
The communications data at issue includes, for example,  the identity of participants in a communication and when it took place, not the content of their conversation. This data can already be collected from phone records, and has been a crucial element of many police investigations by linking suspects, disproving alibis and so on.
Of course, access to data of this kind is an important tool for law enforcement, especially when dealing with organised crime gangs, paedophile rings and terrorist groups, and it has played a role in every major counter-terrorism operation by the security services and in 95 per cent of all serious organised crime investigations.
With communications technology rapidly changing, I understand that criminal and terrorist activity is increasingly moving away from landline and mobile telephone communications to the internet, including voice over internet services, like Skype, and instant messaging services. Ministers estimate that security services are now only able to access some 75% of the total communications data generated in this country, compared with 90% in 2006.
In matters of intelligence, where information is so precious, I think the Home Office is right to highlight the problem of diminished access, and I think we need to be debating all reasonable steps to ensure that the people who are employed to protect the British public are properly equipped to do so.
There is further information about the proposed use of communications data available on the Home Office website at http://www.homeoffice.gov.uk/counter-terrorism/communications-data/.
Given the pace of technological change, our future capability is uncertain. Ministers tell me that this is why, in the Government’s Strategic Defence and Security Review, published in October 2010 and available online at http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en/documents/digitalasset/dg_191634.pdf, a commitment was made to ‘introduce a programme to preserve the ability of the security, intelligence and law enforcement agencies to obtain data and to intercept communications within the appropriate legal framework’. It was also made clear that in seeking to ensure our law enforcement agencies continue to retain capabilities to protect us from harm, civil liberties would be respected and protected.
I understand that the Government therefore proposes to require internet companies to collect and store certain additional information, such as whom an individual has contacted and when, which they may not collect at present. As I have outlined, this information would show the context, but not the content, of communications, which would extend the arrangements which currently apply to telephone conversations to online communications.
Under the proposals, the data collected would be available only to designated senior officers, on a case-by-case basis, authorised under the Regulation of Investigatory Powers Act, and the process will be overseen by the Interception of Communications Commissioner. It would be available only if it is necessary and proportionate to a criminal investigation.
I hope you may be reassured that, unlike under the previous Government’s proposals, there would be no government database and the data recorded would be strictly limited and regulated and will be destroyed after a year. The police and security services would not be able to intercept the content of calls and emails, except as they already do, when it is necessary as part of an investigation relating to serious crime or national security and only when they had obtained a warrant signed by a Secretary of State.
I have written to the Home Secretary to pass on constituents’ concerns on this issue following the publication of the report of the Joint Committee on the Draft Communications Data Bill, and I shall of course be pleased to pass on any substantive response I receive in due course.
Thank you once again for contacting me and for your patience in awaiting this response, and I hope this is helpful.
Kind regards,
Nicola

-----Original Message-----

Dear Ms Blackwood,
I hope you’ve had a good Christmas and New Year holiday.
You will be aware the Joint Committee on the Communications Data Bill (or Snoopers’ Charter) published its report last month. Copy available at
http://www.parliament.uk/business/committees/committees-a-z/joint-select/draft-communications-bill/news/full-publication-of-report/
The Joint Committee say the draft Bill pays “insufficient attention to the duty to respect the right to privacy, and goes much further than it need or should.” They are also extremely critical of the Home Office, highlighting their lack of consultation and labelling their figures “fanciful and misleading.” Additionally they find the Home Office estimate of £1.8 billion in relation to the implementation of the Bill likely to be exceeded  “by a considerable margin.”
It seems very clear therefore that the Communications Data Bill should be dropped. The report would in its entirety suggest the need for a fundamental, full and public review of digital surveillance. Nevertheless in the first instance I would just request that you encourage the Home Office to drop the Communications Data Bill.
Thank you,
Ray Corrigan

Open University turn to Blackboard Collaborate

After a long and complex tendering process, in line with the EU guidelines on public procurement, The Open University has chosen Blackboard Collaborate as its new synchronous online learning platform.

The OU has been using Elluminate since 2008.  Blackboard bought out Eluminate and its main competitor Wimba in 2010. Collaborate appears to be a combination of the slightly less cluttered interface of Wimba and the greater functionality of Eluminate.

The plan is for a phased implementation/transition to Blackboard Collaborate with our use of Eluminate finishing in the summer of 2014. Collaborate, from the demos I've seen, seems relatively straightforward to use and resources developed for use on Eluminate are reported to be seamlessly interoperable with the new platform.

Associate lecturers and students won't be expected to switch platforms midstream.  The idea is that Blackboard Collaborate will be introduced between the end of one presentation of a course/module and the begining of the next.

The significant operational change from my perspective is not the specific tools which are, in effect, quite similar but that the hosting will be done externally by Blackboard, on servers within the EU, rather than internally by the OU on servers in the UK.

Blackboard are a US multinational but with the hosting firmly within EU borders the data will be subject to the more stringent EU privacy protections. It does mean, however, that the ongoing EU-US free trade agreement negotiations take on a sharper meaning for the Open University than they historically might have done, given the long time efforts of the US to dilute the EU's privacy regime.

"Next generation of surveillance..."

TarenSK on why Aaron Swartz died

Taren Stinebrickner-Kauffman - Why Aaron Died:

"I believe that Aaron’s death was not caused by depression.

I believe Aaron’s death was caused by exhaustion, by fear, and by uncertainty. I believe that Aaron’s death was caused by a persecution and a prosecution that had already wound on for 2 years (what happened to our right to a speedy trial?) and had already drained all of his financial resources. I believe that Aaron’s death was caused by a criminal justice system that prioritizes power over mercy, vengeance over justice; a system that punishes innocent people for trying to prove their innocence instead of accepting plea deals that mark them as criminals in perpetuity; a system where incentives and power structures align for prosecutors to destroy the life of an innovator like Aaron in the pursuit of their own ambitions."

Medical privacy a losing/lost battle?

I learned indirectly early last week that over 2500 GP practices have outsourced the management of their websites to the self styled "number one website provider for GP surgeries in the UK", My Surgery Website. The surgeries use the website for e.g. the administration of repeat prescriptions, so it would be useful to know the who, what, where, why, when and how of data flows, processing, storage, protection and control.

From the 'About Us' section of the website:

"The 'My Surgery Website' product was developed in 2006 to offer professional, sensibly valued websites with pertinent content to primary care providers in the UK. We have worked on many large-scale NHS IT projects over the last fifteen years and have the experience in the health sector that is necessary to appreciate fully the needs of Primary Care professionals.

Now the largest supplier of websites and intranets to the Primary Care market, My Surgery Website has developed into the most successful provider for GP online services in the UK. Our systems deliver the very latest information and interactive services to more than ten million NHS patients, so you know that we have the expertise and the commitment to help you.

My Surgery Website has become part of First Practice Management (FPM) which is a member of the SRCL Group of Companies. FPM is the UK’s premier information and support resource for GP practice managers. Visit the website www.firstpracticemanagement.co.uk for further information."

The privacy link is at the bottom of the page and leads to (I've highlighted some key elements in green font for readers susceptible to the soporific effects of legalese):

"

1. Website Availability

We cannot guarantee uninterrupted access to this website, or the sites to which it links. We accept no responsibility for any damages arising from the loss of use of this information.

2. Data Collection

We collect information from users who communicate with us via the website, aggregate information on which pages users access or visit, and information volunteered by the viewer (such as survey information).

3. Cookies

You can be assured that My Surgery Website does not use cookies to track your activity online.
3.1 My Surgery Website Limited does not set first party cookies on this website containing any personal data unless specifically instructed to do so by the user. For example, if a user requests to be remembered on a form then a cookie is set to retain the form data for next time.
3.2 The Web Site uses third-party Cookies to collect anonymous traffic data about your use of this website. This information is stored by Google and subject to their privacy policy, which can be viewed here: http://www.google.com/privacy.html. Google Analytics collects information such as pages you visit on this site, the browser and operating system you use and time spent viewing pages. The purpose of this information is to help us improve the site for future visitors.These cookies are not used to track you or your activity but if you do not wish these cookies to be stored on your computer, disable cookies in your browser settings.
3.3 You may delete Cookies at any time. See the help in your internet browser to find out how to delete your cookies.

Cookies Used

The following cookies are set by Google Analytics:
__utma Cookie
A persistent cookie - remains on a computer, unless it expires or the cookie cache is cleared. It tracks visitors. Metrics associated with the Google __utma cookie include: first visit (unique visit), last visit (returning visit).
__utmb Cookie & __utmc Cookies
These cookies work in tandem to calculate visit length. Google __utmb cookie demarks the exact arrival time, then Google __utmc registers the precise exit time of the user.
Because __utmb counts entrance visits, it is a session cookie, and expires at the end of the session, e.g. when the user leaves the page. A timestamp of 30 minutes must pass before Google cookie __utmc expires. Given__utmc cannot tell if a browser or website session ends. Therefore, if no new page view is recorded in 30 minutes the cookie is expired. This is a standard 'grace period' in web analytics. Ominture and WebTrends among many others follow the same procedure.
__utmz Cookie
Cookie __utmz monitors the HTTP Referrer and notes where a visitor arrived from, with the referrer siloed into type (Search engine (organic or cpc), direct, social and unaccounted). From the HTTP Referrer the __utmz Cookie also registers, what keyword generated the visit plus geolocation data. This cookie lasts six months.
__utmv Cookie
Google __utmv Cookie lasts "forever". It is a persistant cookie. It is used for segmentation, data experimentation and the __utmv works hand in hand with the __utmz cookie to improve cookie targeting capabilities.
The following cookies are set by My Surgery Website:
cookieAccepted
Cookie lasts "forever". Indicates that user has acknolwledged the 'cookie information' banner and so prevent the banner being shown again.
apps
Cookie lasts until the next time the creating form is opened. It is created when user ticks the box to request that form data is retained for next time in the appointments or appointments cancellation forms. Prevents user having to type in all their details again.
dList1,dList2,repeatPrescriptions,repeatPrescriptions2
Cookies last until the next time the no-registration verion of the prescriptions form is used. Cookies are created at request of user to retain form data for next time. Prevents user having to type in all their details again.
userPoll
Cookie lasts 30 days. Records that user poll has been answered so that the poll is not displayed again.
other cookies
Other cookies are used when editing or when logged on to the staff section to enable the editor to function correctly and to assist with retaining state.

4. Data Storage

This Surgery Website uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the website services.

5. Changes to this Policy

My Surgery Website Limited reserves the right to change this Privacy Policy"

First Practice Management's (FPM)  privacy policy is here.  FPM is a division of SRCL Ltd. SRCL's privacy policy is here. Selected highlights from FPM's:

"We will only use the information that we collect about you / your practice / organisation lawfully and in accordance with the Data Protection Act...

By using this website you agree that we may store and access cookies on your device.
This website uses the following cookies:
Google Analytics - Collects information about how visitors use our site. We use the information to compile reports and to help us improve the site. The cookies collect information in an anonymous form, including the number of visitors to the site, where visitors have come to the site from and the pages they visited. Further information can be found in Google Analytics Privacy Policy...

Users contacting this website and/or it's owners do so at their own discretion and provide any such personal details requested at their own risk... Your details are not passed on to any third parties...

Resources & Further Information

• Data Protection Act 1998
• Privacy and Electronic Communications Regulations 2003
• Privacy and Electronic Communications Regulations 2003 - The Guide (Easier to understand)
• Twitter Privacy Policy
• Facebook Privacy Policy
• Google Privacy Policy
• Linkedin Privacy Policy
• Campaign Monitor Privacy Policy

If you have any questions about our Privacy Policy or the way we collect, store or use any data we collect about you/your practice/organisation, please email us at mail@firstpracticemanagement.co.uk."

Likewise for SRCL's:

"We take our commitment to your privacy seriously and treat any information you supply to us with care...

BY USING OUR SERVICES, YOU GIVE US YOUR EXPRESS CONSENT TO PROCESS YOUR PERSONAL DATA AS DESCRIBED HEREAFTER
Examples of the data we may collect and analyse include the Internet protocol (IP) address used to connect your computer to the Internet, connection information such as browser type and version, the full Uniform Resource Locators (URL), your clickstream to, through and from our website (including date and time), cookie number and pages you viewed. In using our website  you accept that your personal data may be used for such purposes.
We will not sell, distribute or disclose information about you or your personal usage of our website without your consent or unless required or permitted to do so by law...

We may monitor customer traffic patterns, website usage and related information in order to optimise your use of the website and we may give aggregated statistics to a reputable third party, but these statistics will include no information personally identifying you...

Sharing Data
We comply with, and are registered under, the Data Protection laws in the United Kingdom. We take all reasonable care to prevent any unauthorized access to and use of your personal data. In case any fraudulent activity is detected on the website, or, without limitation, in connection with the breach of intellectual property rights through the use of the website, we may release personal information in order to comply with any applicable law or regulation, or assert our rights as well as those of our business partners.
We will not provide your details to any third party without your consent, except where we are required to do so by law...

Your Consent
By submitting your information you consent to the use of that information as set out in this Policy. If we change our Privacy Policy we will post the changes on this page, and may place notices on other pages of the website, so that you may be aware of the information we collect and how we use it at all times.  Continued use of the service will signify that you agree to any such changes...

Governing Law & Jurisdiction
Any matter arising from or in connection with these Conditions of Use shall be governed by and construed in accordance with English law and the English courts shall have jurisdiction to resolve any disputes between us."

I don't propose to dissect these privacy policies in detail. This group of companies at least appear to have put some thought into the issue of privacy and there is no evidence to suggest that these policies are anything but well intentioned. But I would like to highlight one of the selected highlights above from the My Surgery Website policy i.e.

This Surgery Website uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the website services.

So in relation to my original question we don't actually know the who, what, where, why, when and how of data flows, processing, storage, protection and control. Services and data relating "to more than ten million NHS patients" is in the hands of unspecified third party economic actors, unless I've misunderstood something here?

Just as highlighted in the excellent EU study, Fighting cyber crime and protecting privacy in the cloud, the issue here is the loss of control over personal data released into the Cloud. The risk arises from the management of the data. When treasure troves of personal data become the object of negotiation between self interested commercial and/or political actors, the privacy of individuals not party to the negotiations will be compromised.  All modern technological, social, economic and organisational systems that process and store sensitive personal data are leaky, in many cases seriously so.

So, if I can make some minor edits/adaptions to the executive summary of the EU study and apply it to this context it might say:

Patients’ rights are subsumed into a complex mesh of contracts among private
entities. Therefore, from a legal perspective, the challenge of jurisdiction is central.
The legal determination of both the responsibilities and legal liabilities of data
controllers and processors and the rights of the individual as ‘data subject’ are
paramount.

Lack of legal certainty surrounding the legal frameworks of cloud-based health service commerce, as well as inadequate tools to safeguard privacy and data protection, increase the potential for mismanagement, misuses and abuses by economic and political actors and agencies. European citizens’ data are not sufficiently protected in this regard.  In this case, the question of the legal framework of data transfers/processing to third countries is critical.
These elements have been neglected in UK and EU policies and strategies, despite their very strong implications for UK/EU data sovereignty and the protection of citizens’ rights.

In fairness, SRCL make an effort at the end of their privacy policy to say UK law applies and UK courts have jurisdiction over disputes but they are unlikely to be able to pursue or have such a declaration enforced in all such eventualities.

We also learned last week that the Health Secretary has swallowed hook, line, sinker and mindset of the Blairite 'go forth and multiply thy giant database cures for all ills' black holes for privacy and resources, in the push for an "Everyone counts", no opt-out, 'biggest data grab in history', central health database.

This could almost considered to be funny if it wasn't so reckless, given the grief the coalition parties dished out to the previous Nu Labour government about their disastrous National Programme for IT in the NHS; and how they came to power with promising promises about dismantling the previous gang's database state.

As Ross Anderson, professor of security engineering at Cambridge University, said last week, ‘Under these proposals, medical confidentiality is, in effect, dead and there is currently nobody standing in the way.’

Commerce, politics, security services, public service bureaucrats of multiple ilks, are all more or less alligned - through ignorance, well meaning or malign intent, or mere sociopathic/psychopathic ambition - on pulling down the historic sociological architecture of personal privacy. When we combine these forces with the pathological calculus that is -

Privacy vs Convenience/attraction/gratification/access/community/conformity/convenience?

whereby so many individuals give up so much personal data for so little so often, is the medical privacy battle already just one lost vital organ in the decomposition of the value that once was personal privacy?

Big Pharma & Western Governments Block African Imports of Generic AIDS Drugs

Amy Goodman's short interview last week with Dylan Mohan Gray, director of Fire in the Blood and Peter Mugyenyi who was arrested in Uganda for attempting to import affordable generic AIDS drugs is gripping viewing.



They explain that the cost of the generic pharmaceuticals is less than $1 per patient per day. By contrast the cost of the big pharmaceutical companies' branded, patented, triple cocktail AIDS treatments amount to $15,000 per patient per year.

Western governments' backing for the big pharmaceutical companies' operational response, to their fiduciary duty to maximise return to shareholders, makes the difference between $350 and $15,000. This is a matter of life and death that the market and the patent system not only do not and will not fix, but directly exacerbate.

Ms Goodman and her interviewees also tell the story of Zacike Achmat, a South African activist who founded the Treatment Action Campaign to support people living with HIV and AIDS. Achmat grew up in a family where if one child could not have chocolate, then none of them were allowed it. He decided to apply this principle to his own health situation by refusing to take the AIDS treatment he, as a white South African, could afford, until everyone with the illness was provided with access to the drugs. He reportedly became seriously ill before being convinced to re-commence his treatment in 2003 and continues to campaign today.

Corruption, proportionality and the prosecution of Aaron Swartz

Orin Kerr's observations on the proportionality of the prosecution of Aaron Swartz are worth reading. His summary:

"On the first question, I think that some kind of criminal punishment was appropriate in this case. Swartz had announced his commitment to violating the law as a moral imperative in order to effectively nullify existing federal laws on access to information. When someone engages in civil disobedience and intentionally violates a criminal law to achieve such an anti-democratic policy goal through unlawful means — and when there are indications in both words and deeds that he will continue to do so — it is proper for the criminal law to impose a punishment under the law that the individual intentionally violated. (Indeed, usually that is the point of civil disobedience: The entire point is to be punished to draw attention to the law that is deemed unjust.)  As that appears to be the case here, I think some punishment was appropriate.

On the second question, I think the proper level of punishment in this case would be based primarily on the principle of what lawyers call “special deterrence.” In plain English, here’s the key question: What punishment was the minimum necessary to deter Swartz from continuing to try to use unlawful means to achieve his reform goals? I don’t think I know the answer to that question, but that’s the question I would answer to determine the proper level of punishment. The prosecution’s plea offer of 6 months in jail and a felony conviction may have been much more than was needed to persuade Swartz not to engage in unlawful and anti-demoratic means to pursue his policy goals in the future. If so, then I think it was too severe. But it depends on how much punishment was necessary to deter Swartz from using unlawful means to pursue his policy goals. In my view, that’s the question that we need to answer in order to say what punishment was appropriate in Swartz’s case.

On the third question, the issue of who was to blame if the prosecution was too severe, I think it’s important to realize that what happened in the Swartz case happens it lots and lots of federal criminal cases. Yes, the prosecutors tried to force a plea deal by scaring the defendant with arguments that he would be locked away for a long time if he was convicted at trial. Yes, the prosecutors filed a superseding indictment designed to scare Swartz evem more in to pleading guilty (it actually had no effect on the likely sentence, but it’s a powerful scare tactic). Yes, the prosecutors insisted on jail time and a felony conviction as part of a plea. But it is not particularly surprising for federal prosecutors to use those tactics. What’s unusual about the Swartz case is that it involved a highly charismatic defendant with very powerful friends in a position to object to these common practices. That’s not to excuse what happened, but rather to direct the energy that is angry about what happened. If you want to end these tactics, don’t just complain about the Swartz case. Don’t just complain when the defendant happens to be a brilliant guy who went to Stanford and hangs out with Larry Lessig. Instead, complain that this is business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone else much caring.

On the fourth issue, yes, the Swartz case does point to a serious problem with the Computer Fraud and Abuse Act. But that problem is not the definition of “unauthorized access,” as some people seem to believe. (That definition is a problem, but with the Nosal case from the Ninth Circuit and likely Supreme Court review in the next year or so, I think the Courts are likely to take care of it.) Rather, the problem raised by the Swartz case is one I’ve been fighting for years: Felony liability under the statute is triggered much too easily. The law needs to draw a distinction between low-level crimes and more serious crimes, and current law does so poorly. I would recommend two changes. First, the felony enhancements for 1030(a)(2) are much too broad. I would significantly narrow them. Second, I would repeal 1030(a)(4), which is redundant as it only a combination of 1030(a)(2) and the wire fraud statute, 18 U.S.C. 1343. It therefore only leads to extra and redundant charges to confuse juries, and is better off repealed."

 Seb Schmoller's essay even more so.

"As we think about what happened to Aaron, we need to recognize that it was not just prosecutorial overreach that killed him. That’s too easy, because that implies it’s one bad apple. We know that’s not true. What killed him was corruption. Corruption isn’t just people profiting from betraying the public interest. It’s also people being punished for upholding the public interest. In our institutions of power, when you do the right thing and challenge abusive power, you end up destroying a job prospect, an economic opportunity, a political or social connection, or an opportunity for media. Or if you are truly dangerous and brilliantly subversive, as Aaron was, you are bankrupted and destroyed. There’s a reason whistleblowers get fired. There’s a reason Bradley Manning is in jail. There’s a reason the only CIA official who has gone to jail for torture is the person – John Kiriako - who told the world it was going on. There’s a reason those who destroyed the financial system “dine at the White House”, as Lawrence Lessig put it. There’s a reason former Senator Russ Feingold is a college professor whereas former Senator Chris Dodd is now a multi-millionaire. There’s a reason DOJ officials do not go after bankers who illegally foreclose, and then get jobs as partners in white collar criminal defense. There’s a reason no one has been held accountable for decisions leading to the financial crisis, or the war in Iraq. This reason is the modern ethic in American society that defines success as climbing up the ladder, consequences be damned. Corrupt self-interest, when it goes systemwide, demands that it protect rentiers from people like Aaron, that it intimidate, co-opt, humiliate, fire, destroy, and/or bankrupt those who stand for justice.

More prosaically, the person who warned about the downside in a meeting gets cut out of the loop, or the former politician who tries to reform an industry sector finds his or her job opportunities sparse and unappealing next to his soon to be millionaire go along get along colleagues. I’ve seen this happen to high level former officials who have done good, and among students who challenge power as their colleagues go to become junior analysts on Wall Street. And now we’ve seen these same forces kill our friend."

I understand and respect Orin Kerr's perspective but I don't agree that Aaron Swartz's efforts to undermine or nullify a federal law can necessarily be characterized as "an anti-democratic policy goal", particularly given the money driven systemic corruption of US politics so passionately articulated by Seb Schmoller.

I do think Prof Kerr is right in his assessment that there is a higher probability that the US Supreme Court will do a better job than Congress of reigning in the abuse of the US Computer Fraud & Abuse Act to prosecute less serious computer related activity which can currently be categorized as crimes. Unfortunately neither Congress nor the Supreme Court have a particularly good understanding of computer technology, so I'd be pessimistic about the chances of either of these venerable forums properly dealing with the overly broad provisions of the Act.

There was one final point I wanted to note in relation to Prof Kerr's careful and thoughtful analysis. He says at one stage:

"I don’t think it would have been right to just let Swartz go ahead with his plan to intentionally violate the law, releasing millions of articles onto file-sharing networks, without the law responding at least in some way. The great tradition of civil disobedience is to intentionally violate the law and proudly bear the consequences in order to change public opinion and eventually change the law, not to violate the law in secret and try to render the law you oppose unenforceable  while avoiding punishment."

I'm no political scientist or philosopher but that seems a very narrow characterization of civil disobedience, even of the variety that involves breaking the law (and I don't recommend the latter). Yes attempting to draw attention to the unjust nature of some laws by breaking them is one tactic of civil disobedience but it's not the only or even the most effective one. One of the other key tactics I believe Thoreau discussed in his essay, On the Duty of Civil Disobedience (original title: Resistance to Civil Government), was to encourage society to behave in ways that made the unjust law or unethical behaviour of government unenforceable.

"If a thousand men were not to pay their tax-bills this year, that would not be a violent and bloody measure, as it would be to pay them, and enable the State to commit violence and shed innocent blood. This is, in fact, the definition of a peaceable revolution, if any such is possible."

He was suggesting people undermine a bad law by ignoring, circumventing or breaking it, encouraging others to do likewise and demonstrating to the public and the government that it is a bad law. Aaron Swartz's close friend Larry Lessig's four forces - law, architecture/environment, social norms and market forces - along with context all have a part to play in whether a law gets enforced.

Not getting caught and jailed or punished in any other way is an important part of such action. The Underground Railroad and the Boston Tea Party are prominent examples in US history that one of Prof Kerr's blog respondents draws attention to. Not only is it an important tactic, Thoreau says we have a moral imperative to engage in such non compliance and there is no inherent assumption that that need require partial martyrdom through deliberately orchestrating personal jail time.

Ghandi's Salt March was another prominent example. Thousand of Indians were brutally beaten and jailed by the British as a result of these protests. The non cooperation of thousands more and worldwide publicity and condemnation of British behavior failed to get the British to change the law but did make them realize their control of India was dependent on the cooperation of the indigenous population.

Whatever the rights and wrongs of the Aaron Swartz case, his death is a personal tragedy for his family, friends and the society that will never again derive the benefits of the passionate commitment of this brilliant young man to social justice.

Update: James Boyle's thoughtful and compelling critique of Orin Kerr's assessment is essential reading.

"I think that much of the rest of Orin’s argument is — very uncharacteristically — rather one-sided.  I think that in his descriptions of the facts,  the issues surrounding prosecutorial discretion, and even sometimes of the law he tends to stress evidence against Aaron and to minimize or ignore facts that might put him in a more favorable light.  Finally, I think Orin’s account lacks sympathy.  What I mean by sympathy is something very particular — something that the humanist discipline of the law neglects at its peril. One kind of sympathy is bad — and that is the kind Orin is writing against. We shouldn’t base prosecutorial decisions on the fact that Aaron knew smart and famous people who can wax eloquent about his virtues, or on the fact that he looked like this. That’s the bad kind of sympathy, and Orin rightly warns us against it.  But prosecution is a human act, a humanist art.  Most of the prosecutors I know are humbled by the awesome responsibility of wielding the power of the state.  They are aware that they wield it for people and against people, with all their complexities, their weaknesses, but also their strengths, their nobility, the things they do for good, their connections to others.  They have discretion and they want to wield that discretion with sympathy and judgment — for both victims and alleged perpetrators.  And they want to learn from their mistakes — and there will be mistakes.
I think, in the laudable attempt to avoid the bad kind of sympathy, Orin sometimes loses the good kind.  There is not much, almost nothing in fact, in Orin’s lengthy posts about the good things Aaron did. "

As usual with James, he throws a light on something that had been troubling me about an argument but I hadn't been able to quite work out yet. He highlights particularly poignantly what he considers the lack of sympathy, the one-sided characterization of Aaron Swartz's motives and the radical special deterrence theory of punishment put forward by Prof Kerr. On the latter point he says:

"He argues that Aaron’s announced ideals would lead him to violate the law again and that therefore the prosecutor would be right to ask for a sentence sufficient to stop that hypothetical continued criminal conduct.

Now maybe this is right.  But I think it is a lot more revolutionary than Orin gives it credit for and a lot more contentious than his post suggests.  I return to the Martin Luther King or Rosa Parks examples.  (Or if you prefer, the anti-abortion activist who trespasses on Planned Parenthood in order to spray paint his slogan.)  Legislatures had enacted segregation laws.  If Dr. King trespasses and violates state rules mandating segregation, and announces that he considers these laws wrong and that he will encourage others to do the same in the future, do we really believe that the prosecutor should ramp up the penalty until it would amount to special deterrence?  What would that take?  Death?  Life imprisonment?  Is that then “not disproportionate”?  I would have thought that one of the reasons we treat the protester who acts out of conviction (even conviction we disagree with) more leniently, is that we recognize that this is not mere profit seeking, not mere personal interest, and that in the past, such protesters have eventually changed our minds about the rightness of the actions the law prohibits.  There are limits to leniency, surely.  But there seem few limits on Orin’s special deterrence.  Again, I think his post is more conclusory than is warranted, and again those conclusions run against Aaron."