ICT & schools - we're getting it all wrong

The Next Gen. Skills campaign is kicking off today:

"One of the founding fathers of interactive entertainment and fiction Ian Livingstone OBE and Double Negative MD Alex Hope OBE will announce that some of the biggest names from the UK digital, creative and hi-tech industries have joined up with leading skills and educational bodies to back a new campaign aiming to improve the computer programming skills needed for the future growth of the UK’s economy.

Launching a day before the Chancellor’s Autumn statement, the Next Gen Skills campaign showcases:

• Announcement of major industry supporters
• Key policy objectives and industry demands
• How high-tech skills contribute to the growth agenda
• Reactions to the Government’s response to the Livingstone-Hope Review"

Three cheers for Alex Hope on the BBC this morning where he did a great job of explaining to the ever technophobic Today folk the importance of teaching kids about how computers work.  It is a truly appalling indicator of the state of our broadcast culture and education system that we are even having to ask the question.

I knew the ICT curriculum in schools was not even in terminal decline - that would have implied it once had a spark of life in it - but completely devoid of even the pedagogic DNA that might one day give it life, on talking to an ICT teacher a few years ago.  He explained to me with some enthusiasm one of the "exciting" activities, particularly for the boys, his class had been engaging in for that past few weeks. The activity?  Drawing up a balance sheet for a hypothetical car dealership using Microsoft Excel.

"Exciting?" I queried, a little less impressed than he had anticipated.

"Because Boys like cars, don't you see." he replied, baffled at my lack of outwardly visible joyful exhilaration (or was he just amazed at my remarkable self control?).

Kids learn more about computers from mucking about with Gamemaker or Scratch or the dreaded (by parents) MMORGs, or the plethora of wireless enabled gadgetry they own than they do in a school ICT class. IF the substantive chunk of the next generation, necessary to sustain a robust 21st century economy, are to learn to use computer and networking tools creatively and productively then it is vital that it be underpinned by a strong educational infrastructure.

It's an opportune time to remind people of the 20 recommendations of the Livingston Hope Review:

"Twenty recommendations across the talent pipeline

Schools

Recommendation 1. Bring computer science into the National Curriculum as an essential discipline.

Recommendation 2. Sign up the best teachers to teach computer science through Initial Teacher Training bursaries and ‘Golden Hellos’.

Recommendation 3. Use video games and visual effects at school to draw greater numbers of young people into STEM and computer science.

Recommendation 4. Set up a one-stop online repository and community site for teachers for video games and visual effects educational resources.

Recommendation 5. Include art and computer science in the English Baccalaureate.

Recommendation 6. Encourage art-tech crossover and work-based learning through school clubs.

Recommendation 7. Build a network of STEMNET and Teach First video games and visual effects Ambassadors.

Recommendation 8. Introduce a new National Video Games Development and Animation Schools Competition.

Recommendation 9. Design and implement a Next Generation of Video Games and Visual Effects Talent Careers Strategy.

Recommendation 10. Provide online careers-related resources for teachers, careers advisers and young people.

Universities, Colleges and Vocational education

Recommendation 11. Develop kitemarking schemes, building on Skillset accreditation, which allow the best specialist HE courses to differentiate themselves from less industry-relevant courses.

Recommendation 12. HEFCE should include industry-accredited specialist courses in their list of ‘Strategically Important and Vulnerable’ subjects that merit targeted funding. Industry commits to these courses through industrial scholarships and support for CPD for lecturers.

Recommendation 13. Raise awareness of the video games and visual effects industries in the eyes of STEM and arts graduates.

Recommendation 14. Give prospective university applicants access to meaningful information about employment prospects for different courses.

Recommendation 15. Develop a template for introducing workplace simulation into industry-accredited video games and visual effects courses, based on Abertay University’s Dare to be Digital competition.

Recommendation 16. Leading universities and FE colleges sponsor a high-tech creative industries University Technical College (UTC), with clear progression routes into HE.

Recommendation 17. Kitemark FE courses that offer students the best foundation in skills and knowledge to progress into Higher Education.

Training and continuous professional development

Recommendation 18. Skillset Creative Media Academies and e-skills UK’s National Skills Academy for IT to work with industry to develop specialist CPD training for video games and visual effects industries.

Recommendation 19. Support better research-oriented university-industry collaborations in video games and visual effects.

Recommendation 20. Continue to treat the 18 visual effects occupations on the Government’s shortages list as shortage occupations."

None of this is new - you'll see the same recommendations in multiple government reviews of maths, science and language education.  Some of it I don't agree with - the kite/quality mark stuff is energy sapping, distracting, superficial inspection based tick box nonsense.  But the baseline recommendation:

of putting smart dedicated teachers together with decent tools/facilities, a broad based relevant curriculum with sufficient professional freedom to experiment and kids with a natural curiosity about this stuff

would, if the political establishment had sufficient guts and long term vision to pursue it [sic], create magic.

ECJ rule out blanket filtering in Scarlet v SABAM

The European Court of Justice has published its decision in the case of Scarlet v SABAM, Case C‑70/10. This is the Belgian case where the entertainment industry and creative artists representative body SABAM had sued Scarlet, an ISP, in an effort to have the respondent compelled to install filters. The filters desired were pretty broad and crude, though, and the Court, predictably, ruled in favour of the ISP, on a narrow interpretation of the facts.

Expect a positive spin on the decision from both sides in spite of the apparently crystal clear outcome in favour of Scarlet.

The conclusion was:

"the Court (Third Chamber) hereby rules:

Directives:

–        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 (‘Directive on electronic commerce’);

–        2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society;

–        2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights ;

–        95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and

–        2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications),

read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering

–        all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

–        which applies indiscriminately to all its customers;

–        as a preventive measure;

–        exclusively at its expense; and

–        for an unlimited period,

which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual-property rights, with a view to blocking the transfer of files the sharing of which infringes copyright."

The bottom line is that the Court believed the ISP level filtering demanded by SABAM, a system to filter:

– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

– which applies indiscriminately to all its customers;

– as a preventive measure;

– exclusively at its expense; and

– for an unlimited period,

was over-reaching. That the decision was so short - a mere 55 paragraphs - and clear is an indication that it wasn't that difficult a challenge for the Court in relation to the specific facts of the case.

I can only agree with Jeremy Phillips, however, that the decision is quite narrowly focused and the race will now be on to see what kind of filtering will be considered acceptable. Newzbin 2 anyone?

The Court makes reference to the excessive surveillance features of the SABAM demanded filtering system and the disproportionate interference with

(a) the right of the ISP to engage in commercial enterprise and
(b) the fundamental rights of the individual

that such filtering would result in.

They also refer approvingly to the earlier ECJ Promusicae case which emphasised  the need to respect intellectual property rights but not at the expense of more fundamental freedoms such as privacy and free expression. The key elements are:

"39      Preventive monitoring of this kind would thus require active observation of all electronic communications conducted on the network of the ISP concerned and, consequently, would encompass all information to be transmitted and all customers using that network.

40      In the light of the foregoing, it must be held that the injunction imposed on the ISP concerned requiring it to install the contested filtering system would oblige it to actively monitor all the data relating to each of its customers in order to prevent any future infringement of intellectual-property rights. It follows that that injunction would require the ISP to carry out general monitoring, something which is prohibited by Article 15(1) of Directive 2000/31...

43      The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.

44      As paragraphs 62 to 68 of the judgment in Case C‑275/06 Promusicae [2008] ECR I‑271 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights...

47      In the present case, the injunction requiring the installation of the contested filtering system involves monitoring all the electronic communications made through the network of the ISP concerned in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also future works that have not yet been created at the time when the system is introduced.

48      Accordingly, such an injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

50      Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

51      It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.

52      Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

53      Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

54      In the light of the foregoing, the answer to the questions submitted is that Directives 2000/31, 2001/29, 2004/48, 95/46 and 2002/58, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an ISP which requires it to install the contested filtering system."

So in summary the SABAM required filtering system is crude and damaging because it doesn't respect the right to privacy, freedom of expression or the freedom to conduct a business. The case is a nice illustration of why Cory Doctorow argues that there is no longer such a thing as copyright policy but doesn't really get us a whole lot closer to a ceasefire in the copyright wars.

Update: ECJ press release on the decision is also available. What's interesting about the press release is that it states the decision of the Court in stronger terms than I suspect the Court intended:

"EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files
Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information"

A reading of the press release alone may have led some members of the press to interpret the decision as meaning that filtering on copyright protection grounds is universally prohibited. What the Court actually said was that the specific kind of filtering demanded by SABAM would breach a plethora of directives on ecommerce, copyright & related rights, data protection and intellectual property enforcement.

Update 2: SABAM are disappointed.
Glyn Moody wonders if it is a turning point in EU law.

Minister: UK music industry a huge success

Largely unremarked in the mainstream press the Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport, Ed Vaizey, (and other MPs) had some very upbeat things to say about the UK music industry in the House of Commons yesterday. His contribution to the discussion begins at 1.49pm.

"I congratulate my hon. Friend the Member for Selby and Ainsty (Nigel Adams) on securing this important debate. The fact that so many hon. Members have attended, intervened and made speeches shows that there is large-scale recognition throughout the House of the success of the music industry, and support for it...

We talked about the huge success of the British music industry—and it is a staggering success, with almost £4 billion of sales. Britain is the only country apart from the United States and Sweden that is a net exporter of music..

We have a thriving and vibrant music scene...we have a vibrant music ecology in this country..."

Sadly he also engaged in loose platitudes about "intellectual property theft", the alleged dazzling brilliance of the digital economy act and the Newzbin blocking activities and vague references to the Hargreaves report.

It does beg the question though that if the UK music industry is doing so spectacularly well, why so much energy continues to be expended on the expansion of copyright?  It would also be interesting from an economic perspective to see the underlying evidence for the suggestion that it is currently a nearly £4 billion industry and what specifically that £4 billion entails.

BBC legal advice on HD DRM

The BBC has now responded to my internal review request in relation to disclosing their legal advice on competition issues associated with HD DRM.  The review is very thoughtful and the analysis of the issues clear and enlightening. In summary the response suggests that:

(a) the BBC had no formal structured legal advice on the competition issues relating to introducing DRM on the HD Freeview platform;

(b) the legal advice that was sought was ad hoc and given in email communications on a range of issues over a number of weeks;

(c) the BBC should disclose the draft document (“Draft Submission”) they prepared on some of the competition and copyright legal issues which was intended for submission to Ofcom (but in the end not actually submitted);

(d) the BBC are going to review the relevant document before releasing a redacted copy by the 25th of November (next Friday).

Copy of the review below.

"Reference: 
  IR 
2011027 

Date: 

   17 
November 
2011 


Original Request and the BBC’s Decision 
By a request made on 6 June 2011, the requestor sought copies of all BBC
communications with Ofcom relating to the Ofcom consultation “Content
Management on the HD Freeview Platform”.  A number of documents were
then disclosed by the BBC under cover of a letter from Steve Gutteridge (BBC
Distribution) dated 8 July 2011.

The requestor then raised a series of questions relating to the disclosed
material.  Relevant to this internal review, the requestor asked if the BBC had
sought and/or received “professional legal advice on the competition issues
relating to:

(i)
Mandatory DRM removing the ability of consumers to purchase
receivers without DRM and the BBC leveraging its position as
holder of the multiplex licence to mandate DRM thereby affecting
competition at the level of the manufacturers;

(ii)
Rights holders’ possible collective efforts to pressurise public
service broadcasters into mandating HD DRM?”

In its response dated 25 August 2011, Rachel Ward (Information and
Compliance) confirmed that the BBC “did seek legal advice on our approach
to HD content management”.

Perhaps not surprisingly, the requestor then, on 25 August 2011, requested
disclosure of that legal advice and also copies of BBC documents and/or
briefings summarising that advice.  On 23 September 2011, Mr Gutteridge
wrote to Mr Corrigan informing him that the BBC was withholding this
information on the basis that it was subject to legal professional privilege.  It is
this final decision that I am now asked to review.

Issues Under Review 

Although the requestor has asked that the review focus on the foundation of
one argument relied on by Mr Gutteridge (that legal professional privilege is
perhaps at its strongest where it relates to a public body or quasi-public body),

---

I do not consider it to be my role to scrutinise specific pieces of reasoning
which led to the decision to withhold information.  My role is to look at the
issue afresh and to decide whether an exemption applies in respect of the
information that is sought.  I therefore summarise the issue that I am to
address simply in the following terms:

Whether the Section 42 (1) exemption (legal privilege exemption) requires
that the information be withheld.

Consideration 
In undertaking this review, I have considered the provisions of the Act and the
guidance issued by the Information Commissioner’s Office and the Ministry of
Justice on the exemption relating to legal professional privilege.  I have also
consulted individuals within the BBC, both in its Legal Division and in BBC
Distribution, who were responsible for advising the BBC on the content
management proposals relating to HD on the DTT platform and for
corresponding with OFCOM on this issue.

I have gathered together a very considerable body of information relating to
the BBC’s proposal for content management on the DTT platform.  In many
instances, one or more internal lawyers were party to internal communications
which fed into the BBC ‘s response to Ofcom’s consultation on HD Content
Management.  However, having spent a very considerable amount of time
gathering this information and reviewing it, it is clear that only occasional input
was sought or offered by lawyers on competition law issues.  It is important to
note, also, that there was no set piece formal legal advice that was provided
and, further, that the legal issues addressed in this advice do not closely
mirror the two issues highlighted by the requestor.

My assessment, therefore, is that legal advice was sought and given in email
communications on an ad hoc basis over a number of weeks on a range of
issues (“the Advice”), only some of which touch on (but do not mirror) the
issues highlighted by the requestor.  In addition to the Advice, a document
was prepared for possible submission to Ofcom outlining some of the
competition and copyright law issues that had been identified. It appears from
my enquiries that this separate legal document (“the Draft Submission”) was
not in the event submitted to Ofcom.

The requestor is seeking the BBC’s internal legal advice and also
documents/briefings which summarise that advice.  I consider that the Advice
corresponds with the first category of documents and that the Draft
Submission corresponds with the second category.

Notwithstanding the requestor’s observation that not all advice given by
lawyers is privileged legal advice (based on the House of Lords decision in
the Three Rivers Litigation), the wording of the request makes it clear in my
view that peripheral advice relating to business issues that may have been
provided by lawyers is not is what is being sought.  The requestor in terms
seeks “professional legal advice” on “competition issues relating to two

---

specific issues”.  Any presentational and/or commercial advice given by a
lawyer would fall outside the scope of the request.  I am satisfied, therefore,
that the Advice held by the BBC is subject to legal professional privilege.

Section 42 (1) is for qualified exemption and it is therefore necessary to
consider the public interest test.  In this case, apart from furthering the general
public interest in disclosure of information relating to public authorities, it also
possible that the public interest is served by the public understanding the
tenor of legal advice that was received may further the BBC’s accountability in
respect of the its actions.  However, in the absence of a formal, structured
piece of advice on the competition law issues highlighted by the requestor, the
disclosure of the Advice would in fact shed little light. I consider that the public
interest in disclosure is clearly outweighed in respect of the Advice by the
public interest in legal privilege being maintained (recognised by the
Information Tribunal in Bellamy v Information Commissioner as being a strong
public interest).  I see no factor in other words which displaces the public
interest in an organisation being able in confidence to seek and be given
candid legal advice on complex legal issues.

However, slightly different considerations apply to the Draft Submission
because, although this can be seen as addressing some of the same issues
as the Advice, it was prepared with a view to being provided to Ofcom as
representing the BBC’s considered position on the legal issues it addressed. It
was therefore prepared with a view to any legal privilege attaching to it being
waived.  This document can be regarded in my view as a BBC document
and/or briefing which to a degree summarises the legal advice that was
received (albeit, understandably, it does not address the full process by when
the BBC came to form its legal position).  Whilst legal professional privilege
does still apply to this document, it is of a lower order than attaches to the
Advice in respect of which, as I have explained, it is vital that organisations
can seek, receive and consider legal advice candidly and in confidence.  

I also believe that there is some public interest in disclosing the Draft
Submission.  This is because it may aid public understanding of the legal
basis of the BBC’s submission to Ofcom on HD Content Management
because the Draft Submission provides legal analysis of some of the issues
raised by the BBC in its submission.  The disclosure of this document does
not risk in my view revealing the train of thought of the legal advice that was
sought and received and, therefore, does not undermine the confidentiality of
that important and sensitive process.  

Decision 

I endorse the BBC’s application of the Section 42(1) (legal professional
privilege) exemption so as to withhold the legal professional advice sought
and provided to the BBC on the two issues that the requestor has highlighted.

However, I have concluded that the same does not apply to the final version
of the Draft Submission document that was prepared with a view to it being
provided to Ofcom.  Whilst earlier drafts of that document should not be

---

disclosed because they may reveal the train of the legal advice that was
sought and given, the final draft can be seen as setting out the BBC’s settled
position for external submission.  My conclusion, therefore, is that the final
draft of the Draft Submission only can be disclosed, redacted to remove any
personal or commercially sensitive data in accordance with the Freedom of
Information Act and redacted so as to remove information that is not relevant
to the request. "

More Panasonic DMR EX75 DVD tinkering

My Panasonic DMR EX75 DVD recorder with the dodgy DVD drive was back on the blink this week. It started refusing to pick up the Freeview signal again.  It's been a year since I replaced the capacitor that's prone to overheating on these machines and, sure enough, on lifting the lid and inspecting the over-stressed replacement capactor, that's the problem again.

You need to remember if you're going to tackle this problem that when you take the metal cover off there is still some dismantling to do. This is the picture under the metal cover:

At this point you need to unplug the connector strips from both sides of the green PCB and remove the screws from the corners of that PCB and carefully unplug it.  There's a smaller green pcb towwards the front of the machine above the one you're removing and you'll need to loosen the two retaining screws on this as well before lifting out the bigger board.  You can then get at the dodgy capacitor.

Clip the old capacitor legs off as high as you can in order to leave plenty of purchase to crimp your new capacitor legs on.  This makes the subsequent soldering much easier.  If you cut the legs too close to the surface of the board soldering is extremely fiddly and it's very difficult to get a clean connection.

Now carefully replace the pcb.  I wasn't careful enough and snapped the newly replaced capacitor off the bottom board.  Back to square one.  Pcb off, re-solder the capacitor and carefully replace the pcb. Plug the connector strips back in.  Put the metal cover back on and you're done!

Except that in my case I wasn't.

On connecting the machine back to the TV and switching on, the DVD drawer comes out, the display starts flashing and eventually tells me I've got a U61 error.

This is the same DVD drive that the machine's DRM is preventing me from using. After a lot of communications with them last year, Panasonic eventually agreed to replace the faulty DVD drive free of charge via J.F. Associates.  Shortly thereafter the stressed capacitor failed and I replaced it.  At this point the Pansonic's DRM decided it didn't approve of my DVDs and wouldn't play any of them!

Ok I haven't been able to use the DVD drive anyway so I'll live with the U61 DVD drive error.  No can do says the machine.  Because as long as there is a U61 error it is going to keep whirring and flashing, sticking the DVD drawer in and out, switching the stations on the TV, sticking messages on the TV screen and generally making it impossible to watch the TV or use the hard drive on the Panasonic. Honestly it's like a scene out of a Morecombe and Wise sketch.

It's resort to the manual and online forums time.  On consulting the troubleshooting section in the manual it tells me this is not a fault (the forums beg to differ) and that I should just let the machine go through the motions of resetting itself; and then turn it on when it powers down.  I let the machine whirr and flash and guess what - the manual is wrong and the forums are right.  The problem persists and no amount of automated resetting is getting rid of the fault.

I tried a variety of fixes none of which worked.  Then I decided to try unplugging the connector strips connecting the DVD drive to the circuit board and connecting the machine to mains electricity with the DVD drive disconnected. The theory was that whatever software loop was causing the automatic reset to fail might be bypassed if I disconnected the drive, thus enabling a fix. There are four of these connectors:

It's probably best isolate them with insulating tape to avoid shorting, before replacing the machine cover and plugging into the mains. I gave it about 15 to 20 minutes to reset (I hoped though not with a great deal of optimism) before disconnecting it from the mains again. 

The final stage was to plug the four DVD drive connector strips back into the green pcb, put the lid back on and try connecting it up to the TV and mains again.  This time it worked. The Panasonic can pick up the Freeview signal and record to and playback from the hard drive again.

Now dare I believe that, as a side effect of this tinkering, some sense might have been knocked into the machine's DRM, to the extent it might play my DVDs again? I know if I try it the system will have a heart attack and just give up but I can't help myself.

Open the DVD drawer.

Put in a DVD (Red fwiw).


Close the DVD drawer.

Hold my breath.

Whatdaya know...

It plays!

Why didn't I think of doing a disconnect reset this time last year! [Probably because at that point in the saga I had given up (unfairly as it turned out) on Panasonic ever helping and bought a cheap DVD player to play my discs.]

In any case the DMR EX75 is back in operation until the next time... I'm hoping at the very least that it survives the stress of the holiday season.

Note: pictures, as before, are from the AVForums thread that pointed me at the suspect capacitor this time last year.

The anti-social nature of social networks

Whilst working on other things I came across two excellent essays on social networking today, one from maciej on Pinboard and the other from Charlie Stross. The former articulately describes the highly anti-social nature of the architecture of social network services. The latter critically assesses a social network analytics firm.

There are echoes of Alessandro Acquisti's SCL 6th Annual Policy Forum keynote address in both. Acquisti is interested in the behavioural economics of privacy.

Maintaining privacy in a social networking context involves engaging in the complex calculus of balancing an immediate cost (eg deciding not to participate) against a future benefit (preservation of privacy) and we're not particularly good, as social creatures, of tipping the balance in favour of the long term benefit.  Hence the traditional Schmidt/Zukerberg 'solutions' to privacy -

[let the market decide]/[no one's forcing you to participate]/[transparency]/[user control] = privacy expedited

don't work.  Counterintuitively, the experiments that Acquisiti has done demonstrate that the user, who believes that they have more control over their personal data, trusts the entity offering that superficial control and ironically discloses more personal data. Whereas natural suspicion of economic agents (companies) not offering that apparent control leads to more limited disclosure.

One of the many other problems with mass personal data pollution is that the negative events/perceptions show a greater longevity than the positive.  Or as Acquisti says, when it comes to privacy, "the bad is not only stronger than the good it is also discounted differently."

If there is a record on a social network or elsewhere in the personal data morass on the internet of someone getting a major award, engaging in a heroic act or just doing something which shows them to be a decent human being, the social kudos associated with that postive event has a limited life.  If it was 5 years ago, for example, we ask what has he done in the meantime?  But a negative event is much longer lasting - a bad deed five years ago will still be held against you.  That's human nature.  The net takes away the ability to forget and the human pscyche makes it difficult to forgive, particularly in an era of a 24 hour news cycle with a voracious appetite for bad news.

(Just an aside, it's been impossible in the spotlight of that news cycle, for any kind of rational public debate to emerge on the border control story in the past few days because of the competition in shrill tough talking hysteria; and the opportunity to explain the power of intelligence led surveillance compared to irrational and unworkable blanket/mass surveillance is lost in the fear of potential media accusations of being soft on immigration/terrorism/crime/[pick your favorite bogeythreat])

So,

1. the architecture of social networks, 
2. our lack of capacity to weigh up or fully grasp the myriad of complex down stream uses of our personal data (we just cannot predict as consumers/citizens how our data will be used), 
3. our psychological tendency towards immediate gratification bias (give up data now, hang the consequences later), 
4. the rapid devaluing of past good deeds compared to the long-lasting impact of the bad 
5. and the power of technology to mine "anonymous" data and link it to individuals (eg through improving face recognition technologies) 
6. before we even think about the relative economic/information power relationship disparity

mean that the proposed solutions of

• transparency - telling the user this is your data and this is how we use it
• and superficial user control of data (here are some privacy setting buttons)

are not an adequate response to the complex problem of ensuring respect for private and family life in an information age.

Hargreaves’ exceptions: format-shifting, parody, research and archiving Prt II

Returning to the the Pictfor/Consumer Focus Hargreaves panel event, at the House of Commons on Tuesday evening this week, the fourth speaker on the night was James Sedry of Greenpeace, who admitted he had very little knowledge of intellectual property law and wasn't even aware of the Hargreaves review until recently but came to tell the story of how Greenpeace ran into problems in the past few months with IP.  Parody is critical for campaigning.  He didn't know there was a problem with it until Greenpeace produced a parody of a Volkswagen 60 second TV ad - the most shared ad online ever he said - of the little boy in a Darth Vadar costume trying to make things move with the force of his mind.  Greenpeace produced a parody of the ad criticising Volkswagen's opposition to controls on carbon dioxide emissions:



The parody went viral.  Four days into the release it had 2 million views and been shared 200k times on Facebook.  Then it was removed by YouTube following a complaint from George Lucas.  Greenpeace were shocked - they'd put a lot of money into it.  But they do have well paid lawyers who took it up with Google on fair use grounds and the ad was re-instated on YouTube.  That put the ball back in George Lucas' court - he can now take the matter up directly with Greenpeace if he wishes.  After two months Greenpeace has not yet heard from his lawyers.

The video was offline for two weeks during a key part of the Greenpeace campaign and Mr Sedry reckons it damaged the campaign. He is concerned that smaller grassroots organisations will not take the risk of running this kind of parody.

There was a slightly bizarre set of exchanges then when the chairman, Mr Dowd MP, put Mr Sedry - a copyright novice - on the spot by asking him how he would shape copyright parody exceptions. The Greenpeace man talked about maybe allowing non commerical parody and the whole thing got side tracked, until a member of the House of Lords (who was also a lawyer) in attendance intervened to give Mr Sedry a break, since he'd admitted he was not a copyright expert, and essentially said there would be no justification for banning commercial parodies; that we need a parody exception in the UK and unless there was a question of passing off and trademark infringement in the commercial context, where more than adequate remedies were available to commercial rivals, then there was no justification for slicing parody exceptions into an irrational commercial v non-comercial dichotomy.

There was a lively subsequent discussion during which the most significant contributions came from a Google representative, Professor Fiona MacMillan of the University of London, Barbara Stratton of the Libraries and Archives Copyright Alliance, a representative from Intellect and Saskia Walzel of Consumer Focus.

The Google rep suggested to Martin Brennan, "If you knew what you were asking people to do was illegal and you'd talked to lawyers you would not have got any investment." He went on to say that a Martin Brennan or Greenpeace would not find themselves on the wrong side of the law if they were based in New York, implying the US copyright regime was preferable to that of the UK. Big claim that... cough... DMCA... cough.  Martin Brennan responded by saying the VCR was illegal when it was launched but he wasn't necessarily concerned about designers having to push boundaries - he was concerned they find themselves outside irrational boundaries that they never would have expected to breach or simply did not know existed.  He also mentioned being aggravated by the BBC who point blank refused to mention the JB7 in a series of programmes that was heavily praising (rip, mix and burn) Apple iPods.

The Intellect rep asked Martin Kretschmer why couldn't format shifting be permitted universally.  Professor Kretschmer reasonably pointed out that the analysis of harm was a complex business and we need a carefully constructed IP landscape to encourage creators to create, investors to invest and consumers to buy. Unfortunately we seriously lack the empirical evidence base to provide a sound analysis of harm to inform policy.  Though Prof K. has made a significant contribution to that with his report for the IPO this week.

Saskia Walzel of Consumer Focus then raised the issue of economic harm in relation to the JB7.  In the case of the JB7 and the Greenpeace parody ad there was no economic harm.  The JB7 was enabling people to enjoy music they had already bought. Where is the economic harm. Additionally where is the economic harm to rightsholders from achiving? Why should the BFI be exposed to the kinds of risks black letter copyright law lays down when all they are trying to do is preserve and protect our cultural heritage.

Barbara Stratton of the the Libraries and Archives Copyright Alliance made the point that libraries and archives were essential for creativity. Dark archives are of no use if no one can access them. She passionately believes we need to change the law or we will get to a point where even the limited exceptions of the 1988 Copyright Designs and Patents Act will only apply to the analogue world and our digital heritage will be locked away behind the paywalls of aggressive content monopolies.

Professor MacMillan then very eloquently - and I'm really sorry I didn't write her words down at the time because I'm pretty sure I'd be repeating them relentlessly - pointed out the key public interest function of intellectual property law and how we seem prone to forget or ignore it.

Depressingly Jim Dowd MP declared, just before he had to disappear for a vote in the House, that if the government don't get round to implementing Hargreaves in the next couple of years it will not get done in this parliament, if ever.  In addition to the damage it would do the economy, that would be an insult to the work of the many people who fed into the review and to the memory of my friend, Mark Rogers, who considered it sufficiently important, in the final months of his life when he knew he was terminally ill, to devote time to producing evidence for the review (not to mention other earlier work he fed into it).

Martin Kretschmer neatly concluded proceedings by explaining that Hargreaves wants us to be careful not to over regulate but to understand that copyright policy - the subject of the evenings discussions - should focus on where it can make a difference to the creators, the investors (or as Mark Rogers would gently remind us that economists call them, the economic agents) and the consumers.

Well done to Consumer Focus & pictfor for setting up the evening and keeping the Hargreaves reforms in the spotlight and thanks for inviting me along.

Hargreaves’ exceptions: format-shifting, parody, research and archiving

At the invitation of Consumer Focus I attended the Pictfor/Consumer Focus Hargreaves’ exceptions: format-shifting, parody, research and archiving panel event, in Committee Room 20 at the House of Commons on Tuesday evening this week. My first ever visit to the innards of Westminster.

The event was chaired by Labour MP, Jim Dowd.

The first speaker on the night was Martin Brennan of JB7  and Advertising Standards Authority spat fame. He opened by explaining that in the midst of his nightmare dispute with the ASA, over allegedly inciting copyright infringement, he felt like the Michael Douglas character in one of his favorite films, Falling Down, when he turns to the cop at the end and says "I'm the bad guy? How did that happen?"

The Brennan JB7 is basically a big iPod which you can use to copy and play all your music without the aid/intervention of a computer. He put 6 years of work and 3 re-mortgages into developing the machine, went from £0 to £7 Milllion (30,000 units) in sales.

The ASA decided, in response to a single anonymous complaint, after 10 million adverts, that Martin Brennan should include a prominent warning on all his ads declaring that copying CDs is not allowed under UK law. Yet the Apple iPods in use in the UK have millions of copied CDs and songs unlawfully copied from the internet and "rip, mix and burn" Apple have no obligation to include such a warning in their ads. As Mr Brennan said:

"I'm not a pirate."

"My customers are not pirates"

The JB7 is simply a "better way to enjoy music you've already paid for."

He rounded off with some general comments about the Hargreaves review recommendations.  Mr Brennan considers himself to be a designer.  He was thrilled to get his first patent at the age of 21 and reckons it was a great one which involved a genuine inventive step.  Since then as an employee in various contexts he's been forced to put his name to junk patents by employers.  The patent system is clogged full of such patents unworthy of protection and as an inventor he believes one of the ways of tackling the issue is, as Hargreaves suggests, increase patent fees. On copyright he thinks the term of copyright is ridiculously out of control and he would have no objection to anyone freely taking and making use of software he wrote 20 years ago. He positively supports Hargreaves notion of a digital copyright exchange.

Finally he said he was forced to include the copyright warnings in his adverts and he believes they have damaged his sales. He is similarly quoted in the Hargreaves review (chapter 5):

“My company is possibly one of the best examples of the sort of SME that can help lead this countryout of the recession – 10,000% growth in 30 months during the recession – but out of date legislationand red tape may sabotage my growth. It is no exaggeration to say that this matter has caused me more sleepless nights and wasted days than any other in my company’s history... Aside from legal headaches I face the cost of reassuring customers that record companies will not sue them. It’s daft because US companies Apple and Microsoft have been selling format shifting products in the UK for a decade."

Milliions routinely disregard, knowingly or unknowingly, the letter of UK copyright law but he's forced to warn people about it even though the government has accepted there should be a format shifting exception.

Next up was Professor Martin Kretschmer, of Bournemouth University's Centre for Intellectual Property Policy and Management. He has produced a very impressive and incredibily rare beast in intellectual property policy circles, an empirical report on the legal basis, rationale and economic effects of copyright levies, (in connection with his ESRC Fellowship at the UK Intellectual Property Office). The report was formally launched the following day at the Work Foundation.

He talked about there being significant copyright infringement through the use of mobile devices. He looked at a range of countries approaches and considered what the UK might do. Article 5 of the 2001 information society directive lists 20 possible exceptions and limitations to the scope of copyright. The UK has, thus far, chosen not to use all of them. (Though Hargreaves has recommended that we do). And since 2001 levies on electronic devices have tripled - €500 million per annum is collected in levies in the EU for private copying.

Of the 20 exceptions 3 require compensation - private copying, reprography and reproduction of broadcasts by social institutions. The Hargreaves review (chapter 5) recommends a limited private copying exception without compensation, partly on the basis of earlier versions of Prof Kretschmer's work in this area and the empirical evidence he provided to the review.

"5.30 The Review favours a limited private copying exception which corresponds to what consumers are already doing. As rights holders are well aware of consumers’ behaviour in this respect, our view is that the benefit of being able to do this is already factored into the price that rights holders are charging. A limited private copying exception which corresponds to the expectations of buyers and sellers of copyright content, and is therefore already priced into the purchase, will by definition not entail a loss for right holders.

5.31 The Government should introduce an exception to allow individuals to make copies for their own and immediate family’s use on different media. Rights holders will be free to pursue whatever compensation the market will provide by taking account of consumers’ freedom to act in this way and by setting prices accordingly."

Prof Kretschmer explained that the EU "fair compensation" provisions of the 2001 directive were interpreted by the European Court of Justice in the 2010 Padawan case as meaning the compensation must be the same everywhere and calculated on the basis of harm.  As the court stated,

"“fair compensation must necessarily be calculated on the basis of the criterion of the harm caused to authors of protected works by the introduction of the private copying exception”

This is different to a concept developed by the highest German federal court in 1964 of "equitable remuneration".  At the time it was decided that anyone who wanted to buy a tape recorder had to provide their personal details.  This was challenged in the courts and the federal court eventually held it to be an unconstitutional invasion of privacy.  Instead they came up with the concept of a statutory licence - equitable remuneration or levies on tape machines and associated ancilliaries to compensate copyright holders.

Professor Kretschmer concluded that we should be highly critical of the EU's fuzzy concept of fair compensation based on harm.  He does believe that ill defined concept, however, gives the UK scope to produce a narrowly conceived private copying exception for consumers - eg to effectively enable copying of CD collections onto Brennan JB7 players.  He reckons 96% or more of music on the average iPod is copied, most is not listened to; and a sufficiently clear, narrowly focussed private copying exception would do nothing to approve mass unlawful copying of songs from the internet, whilst enabling people to lawfully format shift legitimately purchased music. Such format shifting causes no harm to rightsholders  - and as Martin Brennan argued it may even enhance the value of music CDs thereby improving sales - so there would be no requirement for compensatory levies.

Third on the roster for the evening was Richard Brousson, legal counsel at the British Film Institute (BFI). He spoke passionately about the difficulties the BFI faces because the existing archiving exception in the Copyright, Designs and Patents Act excludes film. The BFI is tasked, amongst other things, with preserving and restoring the most significant film collection in the world for today and future generations - a hugely important part of the UK's cultural heritage. He also gave an insight into the difficulties researchers face in accessing our cultural heritage because film is excluded from the existing non-commercial research exception.

The BFI is a registered charity partly funded by government and in recent times has additionally taken on  most of the functions of the British Film Council which was abolished in the coalition government's bonfire of the quangos. You can get chapter and verse on their aims and objectives in the BFI royal charter. They are involved in the preservation of over 275,000 films and 210,000 TV programmes and the exceptions in the 1988 act don't cover the copying of moving images which instantly gives the BFI a problem. Mr Broussan also mentioned that a significant proportion of the films involved were orphan works.

He argued that copyright law is overdue reform if we want to avoid the systematic, legally approved destruction of our cultural heritage. The exceptions in the 1988 act and even specifically the section 29 "research and private study" exception does not apply to moving images. The law is significantly impeding the ability of researchers to access, understand and build on our cultural heritage.  One of the ways the BFI has been dealing with this is through their Screen Online partnership with educational institutions like Cambridge, Derby and Newcastle universities - a terminal based physical walled garden which they also hope to roll out to other universities in the none too distant future.

The complex rights issues do mean they, like the Open University, have to employ a dedicated and expert group of rights and contracts officers and they regularly run into problems with the usual Hollywood crew refusing rights for educational use or archiving, for example.  So the entrenched position of the large rightholders and the perilous state of copyright law and the risks it exposes the BFI to, if for example they attempt to preserve or transfer a copy of an old film in a physically deteriorating medium into a new format, mean it is extremely difficult for them to fulfil their royal charter objectives.

The fourth speaker was James Sedley of Greenpeace.  I'll report on his contribution and some of the subsequent Q&A in a later post.

Independent review of the UK's extradition arrangements published

The Independent review of the United Kingdom's extradition arrangements has just been published by the Home Office. It looks like bad news for Gary McKinnon who is facing extradition to the US and is potentially embarrassing for the coalition government which commissioned the review at least partly because of the McKinnon case. Deputy Prime Minister Nick Clegg in particular, prior to the last election, was a vocal supporter of McKinnon and stern critic of what he called the "lopsided" extradition agreement with the US.

Specifically on the imbalance in extradition provisions between the UK and US, however, the report concludes:

"The United States/United Kingdom Treaty

1.20 We have concluded that the United States/United Kingdom Treaty does not operate in
an unbalanced manner. The United States and the United Kingdom have similar but
different legal systems. In the United States the Fourth Amendment to the
Constitution ensures that arrest may only lawfully take place if the probable cause test
is satisfied: in the United Kingdom the test is reasonable suspicion. In each case it is
necessary to demonstrate to a judge an objective basis for the arrest.

1.21 In our opinion, there is no significant difference between the probable cause test and
the reasonable suspicion test.

1.22 In the case of extradition requests submitted by the United States to the United
Kingdom, the information within the request will satisfy both the probable cause and
the reasonable suspicion tests.

1.23 In the case of extradition requests submitted by the United Kingdom to the United
States the request will contain information to satisfy the probable cause test.

1.24 There is no practical difference between the information submitted to and from the
United States. "

EPDS, net neutrality, privacy & UK Commission on Bill of Rights

Following the EDPS's opinion on net neutrality, traffic management and the protection of privacy and personal data, I've sent the Commission on a Bill of Rights an addendum to my original response to their discussion paper, Do we need a UK Bill of Rights. A copy follows.

As an addition to my response of Friday, August 26, 2011, and in particular the use and activities of the private/corporate sector in circumventing or ignoring human rights obligations and the potential for constitutional net neutrality principles to counteract such behaviours, could I draw your attention to the Opinion of the European Data Protection Supervisor, Peter Hustinx, on net neutrality, traffic management and the protection of privacy and personal data.

http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2011/11-10-07_Net_neutrality_EN.pdf

In my original response I suggested:

"I would suggest bringing the private sector into the remit of the bill of rights in relation to:

    Right to respect for private and family life, home and correspondence (Article 8);
    Freedom of thought, conscience and religion (Article 9);
    Freedom of expression (Article 10);
    Freedom of peaceful assembly and association (Article 11);
    Right to an effective remedy (Article 13);
    Prohibition of discrimination (Article 14).

On articles 9, 10 and 11 it may be possible to address these alternatively through technological architecture obligations and principles of net neutrality.  I recognise that the consideration, drafting and implementation of such provisions are likely to be complex but however it is done the private sector cannot be provided with a free pass to ignore fundamental rights."

Mr Hustnix analysis provides an insight into how such net neutrality provisions could also provide support for the protections of Article 8. He concludes:

"85. ISPs' increasing reliance on monitoring and inspection techniques impinges upon
the neutrality of the Internet and the confidentiality of communications. This raises
serious issues relating to the protection of users’ privacy and personal data.

86. While the Commission’s Communication on the open internet and net neutrality in
Europe briefly touches on these issues, the EDPS feels that more should be done
in order to come to a satisfactory policy on the way forward...

89. ...additional legislative measures may be necessary. In
such a case, the Commission should put forward policy measures aiming at
strengthening the legal framework and ensuring legal certainty. New measures
should clarify the practical consequences of the net neutrality principle, as this has
already been done in some Member States, and ensure that users can exercise a real
choice, notably by forcing ISPs to offer non-monitored connections."

Whilst he refers in his conclusion to legislative rather than constitutional measures, he makes the point in the body of the report that article 8 privacy principles are sacrosanct and technology neutral; and government, corporate or incidental/inbuilt technological feature bypassing of those principles is unacceptable.

Just a reminder that the Commission's discussion paper is the first step in their programme of public consultation. You can respond via email or to their address. The deadline for responses is 11 November 2011.

TSA gone wild

Nice graphic from Jason Powers on airport security.


Via: forkparty.

Update: Edited links for accurate attribution.

Airport digital strip search machines: to see or not to see...

To see or not to see, that is the question

In the political arena – and airport security examined in the OU/BBC’s Bang Goes the Theory(26/9/’11) is a good example – the desire to reduce risk at almost any cost is notable. Authorities on both sides of the Atlantic regularly advocate the need, in the context of the ‘war on terror’, to introduce measures like airport scanners, sometimes described as digital strip search machines, in order to be seen to be improving public safety.  Often, the more expensive and hi-tech and visible the approach is seen to be the better.

We are asked to give up a little bit of privacy to improve overall security. People with nothing to hide, we are told, have nothing to fear.[1] The systems proposed will help catch the baddies and protect the goodies. I will touch on the validity of these claims a little later but for the moment I have a question. Is it true that people always want the level of risk they are facing in life to be reduced? 

Evolution has effectively turned every single one of us into our own personal risk managers. We make decisions every day that involve taking risks. Some people eat, drink and smoke too much and do not take enough exercise, in spite of the health hazards associated with such a lifestyle. They may not always be consciously aware of it but they are balancing their interpretation of the long-term risks of damage to health against the short-term rewards of enjoying their food, drink and smoking.

Many actively seek out the thrill of risky pursuits or professions like mountain climbing or racing car driving. The motto of the SAS is “who dares wins”. Just helping the kids to safely cross a busy road to get to the local park involves the balancing of risks and rewards. So perhaps a more legitimate pursuit for those professionally involved in risk management at airports would be the balancing of risks against benefits rather than the reduction of risks? We need to weigh the costs against the benefits when making decisions about airport security.

Unfortunately this can be a complicated business.  We need to consider security trade offs - the facts, effectiveness, economics, societal values, technology, health, safety, political, legal and ethical issues.

Fortunately, security expert, Bruce Schneier [2] has developed a user friendly check list that virtually anyone can use to do a pretty decent evaluation of security measures deployed in all kinds of contexts, including airports.  Schneier suggests we ask a series of relatively straightforward questions.

1. What problem are you trying to solve?
2. What is your solution?
3. How well does your solution address the problem?
4. What other problems does your solution create
5. How much does it cost?
6. Is it worth it?

Let’s try to apply Schneier’s questions to airport scanners.

1. What problem are you trying to solve?

We hope to prevent attackers with malign intent getting onto airliners with dangerous weapons and the adverse consequences arising from such circumstances.

2. What is your solution?

Full body scanners (digital strip search machines).  In the Bang programme presenter, Liz Bonnin, extolled the virtues of a millimetre wave scanner but it is important to note that there are generally two generic types of scanners deployed in airports (and other contexts) – (a) millimetre wave scanners and (b) X-ray backscattermachines. The latter seems to be the most commonly used in the US. 

3. How well does your solution solve your problem?

Well here is where things get interesting.  If you have a compliant attacker, like a Bang presenter, who tries to smuggle through a potential weapon which the scanner can detect – like Liz’s ceramic knife, secured under her bra strap – then if the security personnel are paying attention they will spot the knife. And indeed the expert, Paul Mason from Redline Aviation Security, did detect the knife on the scanner image.  Queue imaginary impressed music - dah dah – and Liz’s “awesome… excellent stuff” reaction. She had got her ceramic knife through the metal detector without being spotted after all. But would she have been as impressed if the knife had been detected through a pat down search?

The key problem though is not that Liz’s knife could have been spotted through a simpler, cheaper route, although these physical searches create their own difficult issues.[3] The key problem is that a number of researchers have shown that the machines are ineffective at detecting explosives and other weapons. In 2010 the US Government Accountability Office, the independent agency which investigates how the federal government spends tax revenues, concluded [4] that airport scanners might not have found the explosives used by notorious underwear bomber, Umar Farouk Abdulmutallab.

Security expert, Werner Gruber, gave a stark demonstration on German television in early 2010 that the scanners were ineffective. He used bomb making components concealed on his person and undetected by the scanner to start an intense fire in a controlled experiment outside the studio immediately after he was scanned.[5] On the plus side, the machine did detect his mobile phone, penknife and microphone.

Also in Germany the millimetre wave type machines in trials at Hamburg airport last year were shown to have problems with creases in clothes.

So there are significant questions about the effectiveness of these machines.[6]

4. What other problems does your solution create?

There are significant security, ethical, operational, legal and health and safety problems with the routine deployment of these machines in airports (and other contexts like train stations).

The security problems are not obvious until someone points them out.  More and more complicated and intrusive airport security causes long queues – lots of people gathered together in a small space. The result is that an attacker armed with a bomb doesn’t have to make it onto a plane.  He can harm a large number of people without ever having to go through security. And contrary to the suggestion in Bang there is no evidence that strip search machines make the process of getting through airport security quicker. Bruce Schneier calls it “security theatre” when you create the impression of improved security without actually improving security. The misplaced belief or confidence that the machine will catch the bad guys can undermine our security as we pay less attention to other indicators of nefarious intent.

I occasionally wonder what Winston Churchill would have made of these types of technological “solutions”.

“We will fight them on the beaches, we will fight them with no dignity…”. What kind of values is a society displaying when routine (even if only of the virtual variety) strip searching is considered acceptable?  Note I’m not passing judgment here just asking the question if respect for personal privacy is a value that is important any more.

The operational issues are legion.  In Bang it was suggested that displays are remote from the scanners, viewed by same sex operators who only see the image and never the individual scanned.  Whereas that is the case in some airports the set up is not universal.  How do we know, by the way, that the scanned image is only being transmitted to the remote operator (if that be the case) at the airport? In truth we do not.  The Bang crew suggested full body images are never recorded. Actually many, if not all, of these systems have recording capability [7] and lots of images have been leaked onto the Internet.[8]

There are numerous stories [9] about young women and ethnic minorities being disproportionately selected for scanning and other passengers being pressurized or maltreated by security staff and/or police when deciding to opt out of being scanned.

The other operational issue that was mentioned in the program was the question of how revealing the images produced by the machines were. Liz said the “technology is based on contours – your underwear is so close to your body that it kinda helps conceal the more detailed bits of your anatomy”; or as one of her co-presenters, Dallas Campbell put it “Your bits and bobs, your bits and bobs.” With reference to the images displayed during the course of the program that was arguably the case.  What wasn’t said, however, was that the machines can be fine tuned, increasing the intensity of the beam, to leave little to the imagination.  Tuning is in the hands of the airport authorities and ultimately the operators.

The legal issues with these strip search machines are complicated. It is possible that their use is in breach of Article 8 the European Convention on Human Rights [10] which guarantees a right to privacy. [11] Their operation, in the case of children, is likely to breach UK and other jurisdictions’ child protection legislation regarding the making of indecent images of children.[12] There are also data protection and data retention questions.

Then there are the health questions.  It is probable, as stated in the Bang program, that the health risks are small with the millimetre wave machines that Liz Bonnin reviewed. The chances are you’ll be exposed to more radiation during an average flight that anything fired at you in a millimetre wave machine but the scanners have not been independently tested to rigorous academic standards. So there is no independent verification of how they work or what the specific exposure levels might be.

The X-ray backscatter machines are a different story, however. In April 2010 Professor John Sedat and a number of his highly respected academic colleagues at the University of California - biochemistry & biophysics, cancer, X-ray and imaging experts and members of the US National Academy of Sciences – wrote [13] to Dr John P. Holdren, President Obama’s chief science adviser, [14] explaining their “concerns about the potential serious health risks of the recently adopted whole body back scatter X-ray airport security scanners”. They point out that though the machines nominally use low energy beams the dose is concentrated into the skin and immediately adjacent tissue. Since this is such a small fraction of body weight, “the real dose to the skin is now high”.  They also point out that the use of these machines with specific categories of individuals raises particular concerns. These include over 65s, females with a predisposition to develop breast cancer, pregnant women, HIV or cancer patients and children. They worry about operators increasing the intensity of the beam if images are not clear enough for them and conclude:

“There is good reason to believe these scanners will increase the risk of cancer to children and other vulnerable populations.  We are unanimous in believing that the potential health consequences need to be rigorously studied.”

So in answer to our fourth question – what other problems does your solution create – it seems there are significant ethical, operational, legal and health issues to be considered.

5. How much does your solution cost?

I understand airport scanning machines cost between £60k and £200k. In addition there are the ethical, security, operational, legal and safety costs mentioned above.

6. Is it worth it?

Frankly no.

To sum up – they are very expensive, they don’t work very well,[15] can compromise security and they create lots of other problems. There is no need to peer through the clothes of people traversing through airports.  If there are tens of millions of pounds available to install these machines it would be better spent on intelligence gathering and pursuing rigorous investigations

So why are so many of these expensive scanners being deployed in airports and other places?[16] Essentially it is because no politician or public official, in the aftermath of the next major incident or attack, wants to be the one held up to ridicule and abuse for not putting enough prior resources into security.[17] They must be seen to be “doing something” after every attack and they must be able to claim “no one could have foreseen” or “we did as much as humanly possible”.  And when it comes to airport security it seems there are no limits to the resources (and stupidity) [18] that gets poured into it.

---

[1] See Nothing to Hide: The False Tradeoff between Privacy and Security by Daniel J. Solove. Yale University Press, 2011, New Haven & London

[2] See for example Beyond Fear: thinking about security in an uncertain world by Bruce Schneier Copernicus Books, 2003.  New York

[3] So-called “enhanced” pat down searches introduced in the US have led to all kinds of problems. See for example Rape Survivor Devastated by TSA Enhanced Pat Down at http://pncminnesota.wordpress.com/2010/11/08/rape-survivor-devasted-by-tsa-enhanced-pat-down/ and TSA pat-down leaves traveler covered in urine http://www.msnbc.msn.com/id/40291856/ns/travel-news/t/tsa-pat-down-leaves-traveler-covered-urine/

[4] GAO Statement for the Record To the Committee on Homeland Security, House of Representatives Homeland Security: Better Use of Terrorist Watchlist Information and Improvements in Deployment of Passenger Screening Checkpoint Technologies Could Further Strengthen Security (January, 2010) http://www.gao.gov/products/GAO-10-401T

[5] Video with some English subtitles available on YouTube at http://youtu.be/idICUSiGcqo

[6] http://www.springerlink.com/content/g6620thk08679160

[7] The Electronic Privacy Information Center, EPIC, a civil rights group in the US obtained evidence through freedom of information requests in 2010 that the body scanners being used at federal courts house, for example, can store and record images. http://epic.org/privacy/airtravel/backscatter/ EPIC are pursuing a federal legal case to have airport scanners banned on constitutional grounds, so far without success.

[8] http://gizmodo.com/5690749/these-are-the-first-100-leaked-body-scans

[9] Bruce Schneier has a selection of links to some of these on his blog at http://www.schneier.com/blog/archives/2010/11/tsa_backscatter.html

[10] http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf

[11] And on the other the side of the pond the 4^th amendment to the constitution that guarantees protection from unreasonable search and seizure

[12] http://www.guardian.co.uk/politics/2010/jan/04/new-scanners-child-porn-laws

[13] http://www.scribd.com/doc/35498347/UCSF-letter-to-Holdren-concerning-health-risks-of-full-body-scanner-TSA-screenings-4-6-2010

[14] Assistant to the President for Science and Technology, Director of the White House Office of Science and Technology Policy, and Co-Chair of the President's Council of Advisors on Science and Technology (PCAST)

[15] See also Leon Kaufman and Joseph W. Carlson (2010) "An evaluation of airport x-ray backscatter units based on image characteristics" Journal of Transporation Security, Volume 4, Number 1, 73-94.  http://www.springerlink.com/content/g6620thk08679160

[16] EG the Z back scanner van http://en.wikipedia.org/wiki/Backscatter_X-ray

[17] Schneier calls this CYA security and I respectively refer the reader to his essay on the same at http://www.schneier.com/blog/archives/2007/02/cya_security_1.html

[18] [sic] ban on liquids etc. Choose your favourite dopey airport security measure.

Update: edited to cure broken links.