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October 03, 2014 | Elizabeth Knight

Join ORG to fight increasing surveillance and attacks on our human rights

This week, Theresa May announced that the government intends to revive its proposals to extend surveillance through a new Snoopers’ Charter. A new Communications Data Bill would extend data retention and access beyond the level that has already been found to breach fundamental rights.

David Cameron also announced that the government intends to scrap the Human Rights Act.

The details of the “British Bill of Rights” that would replace it are sketchy. But what is clear is that the government is determined to reduce the human rights protections available to ordinary people in order to avoid facing limitations on its own powers. It is precisely these limitations that allow us to defend ourselves against mass surveillance and hold our government to account.

ORG is already fighting mass surveillance and defending the right to privacy in the courts. It’s proving very successful: we have a high chance of forcing the government to admit that their surveillance powers are too broad and not sufficiently controlled.

We are challenging the government’s surveillance practices before the European Court of Human Rights (ECtHR) as one of the applicants in the ‘Privacy not Prism’ claim. We are questioning the legal framework under which the intelligence services receive and use data from the NSA's “PRISM” and “UPSTREAM” programmes. We are aguing that the current framework is inadequate to comply with the “in accordance with the law” requirement of Article 8 of the European Convention on Human Rights (ECHR). We are also challenging GCHQ’s “TEMPORA” programme, which involves the interception of data from transatlantic fibre-optic cables, under general and rolling RIPA warrants. We highlight that this interception is  indiscriminate and generic. We believe the RIPA provisions for external communications warrants breach the “in accordance with the law” and proportionality requirements of Article 8.

The ECtHR has recognised the importance of this case by giving it priority status. The case is currently adjourned pending judgment in the Investigatory Powers Tribunal (IPT) case brought by other human rights NGOs. We expect it to proceed in 2015 following the judgment in the IPT case. 

We are also involved in a legal challenge to the new Data Retention and Investigatory Powers Act 2014 (DRIPA). Tom Watson MP and David Davis MP have launched a judicial review of the lawfulness of DRIPA, asserting it is incompatible with Article 8 of the European Convention on Human Rights and Articles 7 and 8 of the EU Charter of Fundamental Rights. We are seeking to make a third party intervention in the case. We will make submissions on the relevance of the EU context, in particular the restrictions contained in the EU data protection framework on the retention of personal data. We will contend that DRIPA is overly broad of in light of the clear guidance given by the CJEU in the Digital Rights Ireland case.

The parties have agreed not to oppose our intervention and we are currently awaiting the decision of the court on our application for permission. Earlier this year ORG also mobilised 1,600 supporters to complain to their ISP about their data being retained, demonstrating that people care about this issue.

We will win on at least some of these legal battlegrounds. In doing so we will limit the government’s ability to extend surveillance still further. But the threat to our fundamental human rights is increasing and the fight against the extension of indiscriminate surveillance is intensifying. 

The only way we can stop these threats is by fighting back harder. This year, over 1,200 people have joined to help us fight DRIP, PRISM and other mass surveillance programmes. That has enabled us to take on the government in the courts. Now we need to take the fight to the election, where Theresa May and Cameron are already promising to advance the surveillance state. We can force the parties to justify their views; we can show them that the public care about this: but we can only do this with your help.

Join ORG today to support us in the fight.

 

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October 02, 2014 | Elizabeth Knight

Will we now see parliamentary footage used in parodies?

Following the coming in to force yesterday of the copyright exception for parody, ORG wonders whether the use of parliamentary broadcasts in parodies is now allowed.

Previously, broadcasters had been banned from using the footage for purposes other than reporting news. Thus satirical uses were contractually prevented.

With this question in mind we asked the Parliamentary Recording Unit (PRU) how it plans to deal with the new copyright exception for parody in relation to the potential reuse of parliamentary broadcasts.

The PRU responded that they don’t see a need to change the texts of the licences to use recordings Parliamentary proceedings because of the new the parody exception, but they said the licences will operate with regard to the new section of the Copyright, Designs and Patents Act 1988 relating to parodies.

The PRU also referenced the right of the Parliament to deal with any question of contempt should its proceedings be abused. They referred us to remarks made by the Minister for Universities and Science.

The new section 30A CDPA will deal with “caricature, parody or pastiche”. It will provide:

(1) Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.

(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.”

So the response says that licences to use parliamentary footage will be subject to the parody exception, as we would expect, because no contractual override of the exception is allowed. Given that parody works through a copyright exception, technically it will be completely outside any existing or future licence. But we think that it would be better for Parliament to make this clear.

The use for parody of general parliamentary proceedings raises similar questions. The Open Parliament Licence - used for much of the non-audiovisual material made available by Parliament - currently stops anyone from present(ing) the information in a way that discredits the reputation or standing of either House of Parliament or their members or their officials. 

PRU’s reference to the remarks of the Minister for Universities and Science (to the Tenth Delegated Legislation Committee on 9 July 2014) appears to relate to the following exchanges:

Mr Frank Doran (Aberdeen North) (Lab):  I confess, I had not seen this particular provision before coming to this room today. Is the Minister aware that the contract that the House authorities have with the various broadcasting organisations for broadcasting the proceedings of the House bar any use apart from news programmes and specific reporting on the Parliament channel that [Column number: 6] we are all familiar with? I think that that provision in the contract was made for very good reasons, because we are the perfect target for pastiche. Has the Minister taken that into account in his consideration of how the measure will impact, and does he think he will be popular with his colleagues if he has? 

Mr Willetts:  Perhaps I can touch on that in a moment. We have special arrangements in the House, but of course, they cut both ways: on the one hand, we have special arrangements to protect parliamentary proceedings from parody; on the other hand, there are special arrangements to protect our ability to quote within the House of Commons. We can freely quote without having to secure agreement from the people who originally made the remarks or created the works that we are quoting from. In some ways, we are trying to extend to other institutions across the UK the rights that we have given ourselves in this House. 

[Column number: 16]

Mr Willetts:  On parody, I confirm what I said in answer to an earlier intervention: special parliamentary arrangements protect us from parody—thank heavens. There are restrictions on using parliamentary procedures in a parody. These are deep waters and I shall not stray further into them, but those arrangements exist. 

It is quite disappointing that MPs have to reassure themselves that they will be above the law they are about to pass. But we are not so sure Mr Willetts is right.

The “special arrangements” discussed could refer to the Parliamentary Recording Unit’s licence agreements. But it seems the terms of these will not apply to parodyists owing to the parody exception.

The PRU’s response also refers to the possibility of being in ‘contempt’ of Parliament if its proceedings are abused. It is not completely clear to us what this means in the context of parody. 

According to parliament.uk, contempt “refers to disobedience to, or defiance of, an order of the House, or some other insult to the House or its dignity or a breach of parliamentary privilege. It can relate to any attempt to interfere with proceedings or to obstruct or threaten Members in the performance of their parliamentary duties. In the House of Commons contempts are referred to the Committee on Standards and Privileges but any decision must be agreed by the House…” 

We cannot find an explanation in the debate of the relevance of parliamentary contempt. We would like a clearer explanation of the circumstances (if any) in which it would be used against parodyists.

In short, having read the response of the Parliamentary Recording Unit, it remains unclear to us whether parliamentary footage may now be used in parodies.

In any case, changes to the law will have a limited impact if Parliament continues imposing technological restrictions that stop anyone from recording their taxpayer-funded broadcasts and archived footage.

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September 30, 2014 | Jim Killock

Theresa May's call for new Snooper's Charter can launch a national debate

The Conservatives have made a clear offer to the public: they are saying that they will, if elected, revive plans for the Snooper’s Charter. Massive data gathering and analysis of your online habits would become available to the police and a range of public bodies. Powers that are currently being challenged in the courts, but are in practice available to GCHQ under programmes like TEMPORA, would become an everyday policing tool.

Theresa May said:

… because the way in which we communicate is increasingly online, our ability to obtain the data we need is declining rapidly and dangerously. Over a six-month period, the National Crime Agency estimates that it had to drop at least twenty cases as a result of missing communications data. Thirteen of these were threat-to-life cases, in which a child was judged to be at risk of imminent harm. In a three-month period, the Metropolitan Police had to drop twelve cases because communications data was not available. These cases included sexual offences and potential threat-to-life scenarios relating to a suicide threat and a kidnap.



The solution to this crisis of national security was the Communications Data Bill. But two years ago, it was torpedoed by the Liberal Democrats. I’m told that the Lib Dems now tell the newspapers that “they might have to give ground on surveillance powers in a future coalition agreement”. But they also say that they have “no intention of allowing changes before the general election”. This is outrageously irresponsible, because innocent people are in danger right now. If we do not act, we risk sleepwalking into a society in which crime can no longer be investigated and terrorists can plot their murderous schemes undisrupted. We have to give the police and the security services the powers they need to keep us safe. And that is what the next Conservative government will do.

To anyone paying attention to the post-Snowden debate, this is a remarkable suggestion. Rather than promising greater oversight, democratic control, or judicial supervision, in order to justify maintenance of already-existing population-wide data trawls, the response of the Conservative Party appears to be to roll out the same powers to an ever-wider group of people and purposes. They justify this, they say, as a power against terror plots: but that argument has been busted long ago. Not only are these technologies remarkably lacking in results, according to the NSA’s own evidence, but they are already available today to terrorism investigators.

While these surveillance capabilities exist, it is less clear if they are legal and justifiable. We need to be able to trust that capabilities are limited to what is necessary to protect us. This makes any programme for mass data gathering highly dubious, as everyone is treated as a suspect on the off chance. Capabilities that are targeted at suspects are much easier to justify, understand and trust.

Sweeping up data for mass analytics and population profiling is being legally challenge by a number of campaigning groups that care about privacy. We are challenging the legal framework, alongside English Pen, Big Brother Watch and Constanze Kurz. Privacy International are challenging attempts to undermine encryption standards. Liberty are challenging as they believe they have been placed under surveillance; MPs Tom Watson and David Davis are challenging the legal basis of UK data retention, with ORG intervening in support. Caroline Lucas and Jenny Jones are challenging the fact that MPs data is not protected and confidential, and the Bureau of Investigative Journalism is making the same argument about journalists seeking to protect their sources. There are other legal challenges too.

Before they start passing new laws that further violate our right to privacy, we would expect any sensible government to wait for the outcomes of these challenges to see whether our current laws already exceed human rights laws. However, as we found in the DRIP (data retention) debate, the government is not really interested in that. As the Conservatives are now saying, they in any case believe that human rights challenges are getting in the way of doing what they want.

When they make the case for repealing the Human Rights Act and limiting our commitments to Winston Churchill’s European Court of Human Rights, at ORG we remember that it is these commitments that are providing the only defence against mass surveillance, whether transparent, such as #DRIP, or secret, such as TEMPORA. The trivial, often non-examples trotted out to justify reneging on human rights look very much like a fig leaf for the removal of serious protections getting in the way of Home Office programmes ranging from DNA databases, through identity databases, to mass surveillance.

Still, no matter how extreme Theresa May’s views are, she has at least been honest enough to tell the public that a Conservative majority government will head further down the track of building the UK surveillance state. Will the Labour Party and Liberal Democrats do the same? Will the Lib Dems truly “concede” changes to surveillance laws after the election? Just as importantly, will principled Conservative MPs attempt to distance themselves from May’s speech? 

Both the Lib Dems and Labour have called for a debate: Theresa May and David Cameron have launched it, as part of their election programme. How will politicians of all parties respond? We've always said that the public need to be have their say in whether their rights to privacy and free speech are infringed in the name of mass surveillance. We will do everything we can to make sure that we get the opportunity to do this at the next year's general election.

 

 

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September 25, 2014 | David Allen Green

When can a High Court grant an injunction to trade mark holders against ISPs to block access to “infringing” websites?

Today the High Court begins hearing an important case about injunctions and the internet.

The question before the Court is whether the owner of a trade mark can obtain an injunction - not against an alleged counterfeiter, or even against the owners and operators of the websites on which counterfeiters sell their items.  The Court is instead being asked to grant an injunction against the internet service providers (ISPs), so that websites alleged to be infringing the trade marks are blocked to ISP subscribers. 

What makes this a novelty is that such injunctions seem not to have been granted before.  Whilst there is a specific statutory provision for copyright holders to obtain injunctions against third party ISPs, there is no similar provision to protect trade marks - or any other intellectual property rights (IPRs).

So, can the High Court grant such injunctions?  And, if so, what protections will there be to prevent misuse of this novel jurisdiction.

The claimants in this case are Cartier and two related companies.  They say the High Court does have this jurisdiction, under either the Senior Courts Act or the EC's Enforcement Directive (or both).  The defendants in the case - BSkyB and the other main ISPs - deny that there is any such jurisdiction.  The case starts today before Mr Justice Arnold, the experienced Chancery judge who has already decided a number of cases involving the enforcement of IPRs on the internet.

Nobody sensible wants to give comfort or support to counterfeiters. But it is not difficult to see the problems which such injunctions may cause to other people using the internet.  For example, a whole website could be blocked just because of the activities of a few sellers. Or a rights holder may threaten to apply for an injunction on the pretext of an alleged infringement when all that is happening is unwelcome consumer criticism or parody.  There is also a matter of principle: such injunctions should never be a first resort of a lazy rights holder but the limited last resort of a rights holder who has genuinely tried other available means.  And then there is the simple issue of effectiveness: injunctions should not be granted in vain and, as the websites will still exist, the orders of the Court can be still be circumvented. 

Mr Justice Arnold has kindly given permission for the Open Rights Group (ORG) to make written submissions on whether the Court has the jurisdiction to grant such injunctions and, if so, how the legitimate rights of third parties should be protected.  The submissions - written by myself, with the assistance of ORG legal director Elizabeth Knight and barrister Greg Callus - contend that should the High Court hold that it can grant the requested injunctions then it should only do so when the injunctions would be effective and proportionate, and the Court should ensure always that the legitimate rights of third parties are protected. ORG has submitted that the appropriate test to be adopted by the Court should be:

This Court should not grant an injunction against ISPs in respect of alleged infringements of trade marks or any other intellectual property right unless:

  1. the Court is satisfied that the order is proportionate, and not only proportionate as between the parties but also in respect of third parties;
  2. the Court is satisfied that the order is effective (and dissuasive, to the extent that has a different meaning); and
  3. the Court is satisfied that the order contains safeguards against abuse.

ORG has also made submissions as to what should be the relevant considerations for each limb of this test. 

In respect of proportionality, the ORG has submitted that in granting any proposed order the Court should have regard to the following:  the duration of the order and that it will not endure longer than necessary; the scope of the order and that it does not cover more websites than necessary; the relevant third parties (other than the alleged counterfeiters) and how the proposed order will affect them; whether the rights holder undertakes to compensate any third party whose lawful activities are interfered with by the order; any defences that may be available to the alleged counterfeiters; and whether the proposed order creates any barriers to any legitimate activity (including trade).

In respect of effectiveness (and dissuasion), ORG has submitted that in granting any proposed order the Court should have regard to the following: whether the remedy would be completely or only partially effective; the current states of the relevant technology and of the technological knowledge of internet users, and any evidence that the order can be circumvented; and whether any dissuasive effect is balanced against the inconveniences caused to third parties engaged in lawful activity.

And, finally, in respect of safeguards against abuse, ORG has submitted that in granting any proposed order the Court should have regard to all the following: whether the rights holder has made any real attempt (and not just perfunctory attempt) to seek a more direct remedy against the alleged infringers and the hosts of the website and that the application before it is a genuine last resort; whether the alleged infringers are engaged in commercial or non-commercial activity, and here the Court should have special regard to forms of non-commercial speech such as parody and criticism;  whether the rights holder will continue to make efforts to identify and enforce its rights directly against the domain holder and alleged counterfeiter; whether the terms of the order mean that the ISP will ensure that anyone going to the landing page(s) (including the domain holder) will have sufficient information on that page to apply to vary or discharge the order (and ideally a copy of the order); whether the terms of the order mean that the ISP will ensure that the proposed replacement landing site will serve no commercial purpose for the rights holder (and whether there will be a safeguard against the site being used by the rights holder for advertisements or redirections to commercial sites); and whether the correspondence or other conduct of the rights holder shows that the jurisdiction of the Court may be being abused.  

 As this is a test case, the written judgment will be influential.  Whilst ORG (and indeed the ISPs) are neutral in respect of the underlying alleged infringements of the trade marks in this case, it is crucial that the coercive force of a Court injunction is not granted lightly, especially where the legitimate rights of third parties will be affected.  It is hoped that, should the Court hold that it has the jurisdiction to grant the injunctions, it sets out a test to be followed which ensures that in future similar injunctions are only granted when it can be shown that the injunctions are proportionate, effective, and have safeguards for the legitimate rights of other users of the internet.

David Allen Green is a lawyer at Preiskel & Co LLP and a journalist. He is acting for ORG pro bono in this submission. 

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September 23, 2014 | Jim Killock

Help us start campaigning in Scotland

The referendum result, after one of the most exciting and inspiring political debates the UK has seen, was for Scotland to stay within the UK. ORG did not take a position on the referendum, but we feel confident that the people of Scotland have shown that they can lead a democratic renewal: something we need to be a part of.

Major questions remain. What new powers will be devolved? How will our rights be embedded into the work of the Parliament? How will Scotland respond to the collective experience of engaging in a debate about the future of the nation?

We want to place citizens’ digital rights at the heart of Scotland’s politics. Prior to the referendum, there were debates that needed a voice like ours, to explain how privacy and free speech matter. Issues like Entitlement Cards, data sharing and powers for website blocking and libel prosecutions. These questions haven’t gone away, and more powers will mean greater responsibility to get the answers right.

We now have a chance, as the result of a profound change in the levels of civic engagement in Scotland, reflected in the referendum turnout, to make ORG a leading voice to promote digital rights in Scotland.

And we are most of the way there. This summer, we started a campaign to get at least 90 new members in Scotland so we could hire a part time organiser. We have 60 new members so far.

Just 30 more will mean we can hire someone to start campaigning on these issues. If you live in Scotland, please join to help us start campaigning in Scotland. If you are an existing member, you can help by upgrading your membership.

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September 16, 2014 | Javier Ruiz

ORG rejects calls for 10 year prison sentences for online copyright breaches

Open Rights Group has responded to a consultation into changes to the law that could lead to people found guilty of online copyright infringement facing up to ten years in prison.

Photo: AlexanderY CC-BY-SA–2.0 via Wikimedia Commons

 

The consultation, carried out on behalf of the IPO by Inngot is based around the following question:

“Today, there is a significant difference between the penalties for offline and online copyright infringement. If convicted, criminals can serve up to ten years for the first — but only a maximum of two years for the second. Do you think the law should be changed?”

In our response, we have outlined why we believe that it is is misleading to suggest that online and physical copyright infringement are comparable offences and should therefore carry the same penalties. It is relatively easy to distribute large numbers of digital copies of a work online, while doing the same in the physical world would involve infrastructure clearly beyond the reach of ordinary citizens. We believe that there is a risk that members of the public could be unwittingly in criminal online infringement – even if they are not making any money.

Changing the law could even lead to harsher sentencing for online infringement than for offline infringement. The difficulty in making evidence based assessments of the actual values involved in online infringement tends to generate estimates of very high economic harms, easily in the millions. This could make non commercial online infringers end up with much higher sentences than hardened criminals dealing with physical goods.

ORG also believes the consultation is flawed because it doesn't seek the opinions of ordinary internet users but assumes that respondents, “generate income” from the copyright of their works. We do not believe this policy should be considered but if it is, we will mobilise our supporters and the rest of civil society to oppose it.

You can read our full response here.



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September 04, 2014 | Javier Ruiz

Culture Secretary threatens search engines with anti-piracy legislation

UK Culture Secretary Sajid Javid has made some worrying declarations, threatening search engines with legislation unless they stop "sending people to illegal sites".

CC-BY 2.0 Foreign and Commonwealth Office

In his speech to the AGM of the British Phonographic Industry (BPI) Javid skimmed over existing government policies, from tax reliefs to £246 million in music education hubs that will give children the chance to learn to play an instrument. This industrial activism is aligned with CBI proposals to strengthen the creative industries. But he chose instead to make copyright enforcement the focus of his speech.

Javid tackled the topic with an almost endearing simplicity: “copyright infringement is theft, pure and simple”. Such one-liners may please this audience, but make poor policy foundations, particularly in areas as fuzzy as copyright infringement. For example, until the law changes this autumn copying your own CDs to your own iPod is theft, according to Javid. In another example of how convoluted copyright conflicts can get, it has taken five years for the Court of Justice of the EU to eventually rule that browsing websites is actually legal and the on-screen copies are not infringing. So much for pure and simple.

Does the music industry really need protecting in 2014?

Javid commiserated with the BPI: “the 21st century has not always been kind to you”. It is undeniable that the UK music industry is undergoing a seismic transformation, like many other industrial sectors and aspects of our lives. BPI members’ incomes have decreased by almost 40% in the past 10 years , but the trend appears to be stabilising and last year saw an increase. This is thanks to digital services, which now account for some 50% of their revenues.

According to the international music body IFPI we are seeing “an industry of growing digital revenues and multiple income streams internationally”. Not exactly a picture of doom. And while monies may have been going down, the amount of music being created nowadays is astonishing. A ten minute tour of websites such as The Hype Machine will fry the brain of any baby boomer with a fully paid mortgage.

What about the music based on remixes and mash ups of existing songs? The creative citizens who make these tracks are not included in considerations that exclusively focus on the established recording industry. And within industry it is far from clear that the interests of all artists and creators are automatically aligned with those of the companies represented at the BPI.

Incidentally, Javid’s team apparently gave him the wrong figures. According to the best estimates, the UK music industry is worth £3.5 billion. It is the UK film industry that is worth £4.5 billion.

The rest of his speech provided a round up of current enforcement policy with an added new threat of legislation on search engines.

Creative Content UK: alienating consumers

The new industry-led successor to the Digital Economy Act, Creative Content UK, was presented as an enforcement regime that “protects the rights of copyright holders and punishes criminals, but doesn’t hamper creativity, stifle innovation or block new, legitimate ways of enjoying music”. The CCUK system - formerly known as VCAP - will involve both an education campaign on the value of copyright and sending letters to alleged infringers. There are no plans to disconnect or throttle the internet of subscribers who receive several letters.

This new programme is less worrying than the original DEA, and a clear vindication for ORG’s campaigning on this issue. But we remain concerned about this - mainly adversarial - approach to dealing with consumers. OFCOM research shows that people sharing content online are also contributing significantly to industry spend, “as their high infringing is coupled with high levels of consumption and spend”. There must be a better way to encourage more legal consumption than alienating some of your best customers.

From the available evidence it appears unlikely that Creative Content UK will have any major impact on file-sharing. We can expect calls to introduce more draconian measures. But instead we should be looking at the root causes of the phenomenon and its real impact on revenues.

City of London Police Intellectual Property Crime Unit (PIPCU): BYO cops

The minister praised the activities of PIPCU. These include maintaining a copyright Infringing Websites List (IWL) with input from industry. This is a secret list, and FOI requests for the release of the IWL have been rejected . We believe that secret lists have no place in copyright enforcement. As we saw above, one person’s infringement may be another’s innovation, and there should be an opportunity for site owners and users to discuss each case.

PIPCU takes pride on its innovative ways of disrupting the activities of allegedly infringing sites. But to us, and many others elsewhere, these appear to involve extra-judicial punishments. In some cases the organisations hosting the DNS records are being asked to point these to a website with an ominous warning and the logos of PIPCU and several rights holder groups. In one case PIPCU forced domains to be transferred, but an arbitration tribunal reversed the decision due to the lack of a court order. More recently, PIPCU has started sending “notices of criminality” warning internet companies to sever relationships with allegedly infringing websites “to avoid any future accusations of knowingly facilitating the movement of criminal funds”. It is extremely worrying that a British police force thinks they can bypass the courts to deliver summary justice.

There are also concerns about the independence of the unit. The unit’s current funding mostly comes from the Intellectual Property Office, but industry is expected to fund its continuity. PIPCU already has a BPI employee in secondment.

The City of London Police has similar arrangements in most other economic crime units. For example, its Insurance Fraud Enforcement Department is funded by the Association of British Insurers , although they claim to operate with independence. The Dedicated Cheque and Plastic Crime Unit (DCPCU) is fully funded by the banking industry and supported by bank staff. The Overseas Anti-corruption Unit is wholly funded by DfID.

All these agreements raise questions about potential conflicts of interest, which might be managed with proper governance arrangements. But PIPCU is unique in dealing with an area where there is no social consensus; where different industry sectors are pitted against each other, and the everyday behaviour of millions of citizens is potentially criminalised. This is a situation that requires a nuanced approach to balance the interests and concerns of all parties. At present it appears that PIPCU is acting as a semi-privatised police force for one specific interest group: rightsholders.

Threats of legislation on search engines

The final salvo was dedicated to search engines. Javid informed us that he has written - together with Vince Cable - to Google, Microsoft and Yahoo asking them to stop “sending people to illegal sites”, threatening a legislative approach if he doesn’t see “real progress”.

But it is unclear what exactly this means. Sajid said he supported Mike Weatherley MP, Cameron’s IP czar, who has published a discussion paper with several proposals for how search engines should handle unlawful content. These include demoting websites by using reports and the PIPCU blacklist; removing websites subjected to court orders that demand blocking by ISPs; reducing advertising income to infringing sites, and the use of industry trust marks to promote legitimate content. Weatherley also supported exploring Google’s proposals for technical measures to promote legitimate content, such as the use of “rich snippets”.

We hope to hear soon what concrete proposals are on the table, but we can already find some problems with this approach. Ultimately, the government are considering the legal regulation of one industry to protect the interests of another. If the government thinks this is the right approach, they should be transparent about it. It is not simply a matter of neutrally enforcing the law.

An added complication is that technology companies have many lines of activity. Some search engines are actively involved in media distribution. Legislating to force search engines to remove links to some media sources could have unpredictable consequences. In the US, Google search results for music and video titles present prominent links to its own Play services - for watching content. Apple delivers digital media via their iTunes platform, and might benefit from the removal of any website links.

This kind of close collaboration between government and industry groups happens in other areas - for example in the nuclear and pharmaceutical industries - but there is a certain coyness about it. Here instead we have Javid publicly joking about how being able to get free tickets to concerts makes him popular with his own children. Clearly it would take a lot more than free concert tickets to influence UK government policy – and we are sure these were promptly registered as gifts and hospitality. But it shows how acceptable it is to be seen championing the music industry instead of the public interest.

More generally we believe that regulation of copyright enforcement should consider all stakeholders involved, not just industry, and including consumers and amateur creators. You may believe that the role of government is to take an active role in protecting national industries, or simply act as a hands off regulator. But in any case it is unacceptable not to consider the interests of large sectors of the affected population. Sadly, this seems to be the case here, as government threatens to legislate without any early consultations.

This process also goes against the “multi-stakeholder approach” to Internet regulation of which the UK is a leading promoter, including this week at the Internet Governance Forum in Istanbul.

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September 04, 2014 | Pam Cowburn

Tom Newton Dunn is one in half a million

It was revealed this week that the Met police used a RIPA request to access the telephone records of The Sun's Political Editor, Tom Newton Dunn.

The request was made to identify police whistleblowers who contacted Newton Dunn over the Plebgate scandal. According to the Guardian, Newton Dunn had made a statement to police at the time but refused to reveal his sources. Journalistic privilege, protected by the Police and Criminal Evidence Act, was circumvented by the use of RIPA, which meant that authorisation to access his records came from the police not a warrant. Newton Dunn was not even aware that his records had been accessed until the Met published their report into the Plebgate affair on Monday. 

The case should hopefully end any discussion about whether or not metadata reveals anything personal about us. In this case, Newton Dunn's incoming and outcoming calls and information about when and where they were received, were accessed in order to identify a whistleblower. 

Rightly, there has been media outrage at what is seen as a blatant attack on journalists' right to protect their sources. The General Secretary of the NUJ, Michelle Stanistreet, said: "If whistleblowers believe that material they pass to journalists can be accessed in this way – without even the journalists and newspaper knowing about it - they will understandably think twice about making that call." The lawyer and journalist David Allen Green has warned that the revelations mean, "no political or crime journalist in the UK should use their mobiles or many internet-based apps for contacts with their sources". 

Newton Dunn's case is just one of many - last year there were over half a million RIPA requests.  These have mostly been made by police forces but also by a large number of other public authorities, including Royal Mail, the Department of Work and Pensions and local authorities. How many of these requests were used to tackle serious crime? How many, like the Newton Dunn request, were an abuse of power? Would as many requests be made if judicial authorisation (which ORG is calling for) were required?

When the government rushed through the Data Retention and Investigatory Powers Act (DRIP) this summer, it said that it would reduce the number of public authorities that could request communications data. However, it also increased RIPA's reach by extending the definition of “telecommunications service” to include webmail services. So the next time the police issue a RIPA request for a journalist's records, they might be able to get data about emails sent through services such as Gmail or Yahoo.

In these troubled times, the government’s insistence that it needs our communications data to fight terrorism resonates with many. When DRIP was announced, Newton Dunn himself wrote in The Sun, that the new powers would allow "enshackled MI5 and cops to probe the internet for terror plots' giving them, 'crucial access to plotters' mobile phone records". But this latest abuse of RIPA shows how blanket data retention can threaten the very civil liberties and freedom that the government aims to protect.

  

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