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April 16, 2012 | Jim Killock

ACTA Edinburgh: David Martin's views

Last Friday, David Martin MEP organised a seminar on ACTA in the EU Parliament's Edinburgh offices. He invited ORG to speak, alongside Susie Winter of the Alliance Against IP Theft Infringement, a chair from the EU Commission,  and about 20 people attended the meeting.

Martin is the rapporteur for the lead EU Parliamentary committee for ACTA, International Trade. His views matter a lot, which is why his decision to recommend a no vote is highly significant.

David Martin's starting point is strongly pro-IP. He accepts that the EU must make money through monetising “our brains” through IP, and that ACTA's aims are laudable.

Martin is a ‘multilateralist’; that is he believes that trade negotiations should involve every country with an interest. ACTA in contrast is a treaty written by a small number of mostly developed and pro-IP nations. He said that he feels that ACTA may push the BRIC (Brazil, India, China) countries into a corner, and organisations like WIPO and the WTO are better places for negotiating global IP standards.

He observed that ACTA conflates approaches to tangible and non-tangible goods, which is rather like confusing “apples and pears”.

He added that ACTA is being pushed by proponents as a serious means to reduce IP infringement, yet is also billed by them as having no legislative effect in the EU. Both cannot be true.

Furthermore, much of the change expected from ACTA seems to be about practice by customs and by ISPs, and Martin said that he felt that this did not need a treaty to achieve these results.

He recognised that Trade Mark violations for drugs could pull in legitimate trade into border disputes and cause problems for access to medicines; and also that deliberately similar trade marks are used between competing generic drugs purely to help correct usage. Simply put, a doctor or nurse needs to understand that the two drugs are the same, and similar names helps make sure of this.

Martin also said that he recognises the concerns around ISPs being pushed into a policing role.

Overall, he said that he felt that the overall effect of ACTA was on the “direction of travel” and in creating “mood music” rather than substance, although ACTA suffers also from a lack of detail which makes it hard to know the real consequences.

He said some of the decisions needed should be democratically debated, rather than decided by treaty, for instance around ISPs roles, which he felt might need to change.

Some of the rights holders at the meeting made the point that a defeat to ACTA would "embolden" the "anti-IP" lobby, especially after SOPA and PIPA. They claimed that a defeat for ACTA might endanger more reasonable proposals in the future.

Such a claim is audacious and extraordinary. For a lobby to substantially write a treaty; to misjudge the societal impacts and political consequences of the agenda that ACTA, SOPA / PIPA and the DEAct promote; and then to say the answer is to press on regardless is deeply irresponsible.

As your grandmother probably used to tell you: when in a hole, stop digging.

But the IP lobby’s keep digging approach shows how how fixed their views are, and how hard they will fight to cling to their strategy.

The final EU Parliamentary vote is likely to be very close, and take place in June or July. There are demonstrations planned across Europe on 9 June. Make sure your views are heard!

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April 10, 2012 | Richard King

How to set up a Local Group

I attended the local-groups session at ORGCon a few weekends ago. I made a few notes. Then I set up a local ORG group in Sheffield. We had our first meeting on Monday.

If I can do this in a week you can do it in your area too. If you’re into digital rights, and you want to meet up with others to discuss the pressing issues of the day, why not start your own branch of the Open Rights Group?

Here’s what we did:

  • Choose how to communicate. We took ORG’s advice and set up shop on meetup.com, which is a paid-for service but with the advantage of being an integrated solution, however there are many other tools you can use to organise yourselves. The trick is to pick one and stick with it.
  • Promote the group. We did this before deciding on topics or scheduling our first meeting so that people could express general interest without committing to anything. This encouraged participation. We started off with a post to the org-discuss mailing list and by spreading the word on Twitter, IndyMedia and Postcode Gazette.
  • Gather your group’s preferences. We asked everyone two questions when they signed up: when can you meet and what would you like to discuss?
  • Arrange a venue. We chose a dedicated community meeting-space rather than a pub, as this allows us access to wifi, a projector and a bit of quiet in which to hold our discussions. It’s also more inclusive of people who don’t drink alcohol. We won’t be forgetting the social side though – there’s a good pub close by and I’m sure the discussion will spill out into it afterwards!
  • Meet! Our first meeting will be an opportunity to meet each other, discuss what we consider to be on topic, share the issues we’re passionate about and sort out the arrangements for subsequent meetings.

For future meet-ups the plan is to take what’s worked well for the London group and mix that up with the GIST foundation‘s wealth of experience running myriad special-interest tech-groups in Sheffield.

Each meeting will have a specific topic. One of us will present a short introduction and the rest of the time will then be given over to discussion. We’ll also be mixing in some practical sessions and we’ll invite local experts to give talks whenever we can.

We’re getting some support from ORG too. They’ll be promoting our group to local sympathisers using their mailing lists and they may also be able to send us interesting speakers occasionally.

During each meeting we’ll aim to come up with a list of practical actions for people to take afterwards (if they want to) such as signing a petition, writing to their MP or attending a protest. We’ll be reporting back to the community after every session so that others can read about what we think and share their own views. When other groups get going nearby we’ll go to their meetings and invite them to ours.

If you’re one of the many ORG supporters who wishes they’d get out of London and do more in your area what better way to make this happen than to kick off a local group? It’s really easy and you could find there’s a community of like-minded activists right on your doorstep. So what are you waiting for?

Richard King has been an Open Rights Group evangelist, copy-writer, editor, newsblogger and wiki maintainer. He is running for Board Elections this year. This piece is from Richard's blog.

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April 03, 2012 | Jim Killock

Surveillance plans: key questions

ORG has been following the CCDP plans for two years, as they have crept up through policy papers, government statements and budget plans. Consistently, but ineffectively, the government has tried to deny that the plans are problematic.

However, we do believe the plans may be changing in significant ways. There is a probable shift to asking Internet service companies like Google for swift access, rather than collecting all of the data through ISPs.

Let’s examine some of the key questions. (See PI's blog and FAQ as well)

1 Lack of warrants for communications data

Communications data in the UK is produced through authorized requests by trained police officers. No judge, court or warrant is required. Traditionally, the claim has been that “communications data” is pretty trivial. But as more and more data amasses, it is actually very intrusive and highly revealing.

Don’t be fooled. The current system of simple police self-authorized requests is very poor, and new access to more data demands higher safeguards: that is, going through a court.

2 “We’re just maintaining capacity”

This is the extraordinary claim that the security services are making. That much more of our lives are online, that this information maps our whole histories and social lives, that this is different from a record of phone call we made seems to be evading the security services.

Requests for communications data now represents a very high level of surveillance, and as such should be governed by courts, not the police, and certainly should not be available through automated systems.

3 Will the government go to Facebook and Google directly, in “real time”?

Increasingly, it seems that the plans are changing, so that the government will go to the companies to get the data from them, maybe in “real time”. Thus, with even lower barriers, huge amounts of data could be given to police from extremely detailed social maps that we have voluntarily created.

In the USA, Google and Facebook are campaigning for much tighter controls than the judicial authorizations that are already required. Do their UK customers really deserve less protection?

4 What about encryption?

Nobody yet has suggested that the government breaks encryption to read the communications data they claim to want access to. Yet that is the logic of the path they are suggesting, especially as sites will be very keen to encrypt if the government is reading the traffic. Encryption is a vital tool for commerce and business

5 Will it work?

Nobody really seems to think it will work. The need to investigate real offences of course could be dealt with through the courts. But gathering masses of data, or making it extremely accessible, seems to introduce risks without real benefits.

6 What about trust? And the economy?

The priority of this government is economic growth. The Internet economy is actually growing. Yet it depends on trust. Declaring a surveillance culture to be integral to the Internet will keep people away from the Internet and undermine our trust. if the government seeks to break encryption, this will be even more dangerous, as banking and other information could be made vulnerable.

But even more than that, the £2bn price tag, which will almost certainly prove to be too little, is money that will not contribute to economic growth. Investing in mass surveillance tools will not deliver growth, and will not tackle crime.

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March 27, 2012 | Peter Bradwell

A blow for speculative invoicing?

Yesterday the ruling in the Golden Eye case was handed down. It's overall pretty useful news for those who've been concerned aboutthe practice of what's been called 'speculative invoicing.'

This practice sees copyright owners or representatives writing en masse to alleged infringers of copyrights (in this case Golden Eye were seeking around 9,000 of O2's customers' details), demanding large sums (typically over £500, and in this case £700) with threats of court action attached. The letters tend to overstate or misrepresent the case and hence pressure the consumer into settling. In reality cases are hardly ever brought to court. When they are brought in front of the courts ACS:Law and Golden Eye have sought to discontinue the cases, and thus avoid judicial scrutiny, if a default judgment cannot be obtained. 

If these sounds like a money making scheme first and a genuine attempt to protect creators rights second (or perhaps not even ranked), that's because they are. 

As we've written about before, the decision has ramifications for how the Digital Economy Act will function because it provides more details about how copyright owners can seek the details of alleged infringers and subsequently pursue them through the court. The ruling is so useful because it addresses some of the key issues with this practice, issues which open a means for undesirable practices mentioned above. Here are three of the big points from yesterday's ruling that should help address these problems. 

1. Fair letters to alleged infringers

The new ruling means that letters sent by copyright-owners or their representatives will have to properly safeguard the legitimate interests of consumers, in particular those who are innocent of wrong-doing. The Judge found that the draft letters Golden Eye proposed were 'objectionable in a number of respects' in a number of ways, including the claim that an application could be made to the ISP to disconnect the users' internet account (paragraphs 124-130).

The judge also agrees with Consumer Focus that the demand for £700 from alleged infringers is 'unsupportable'. 

This should significantly restrict the ability of such companies to send out intimidating ‘pay now – or else' letters in the future, such as those seen in the high profile case of ACS Law. In a separate hearing soon, the High Court will impose conditions on the wording of the letters.

2. Standards of evidence

One of the biggest concerns about the pursuit of alleged infringers is the proof required against them. IP addresses can be a fallible way of identifying a subscriber, because there can be errors not only in matching IP addresses to the user, but also because identifying a subscriber does not mean you have identified an infringer. The judge explicitly acknowledges this in paragraph 103, part vi) of his judgment:

Even if the monitoring software is functioning correctly and the ISP correctly identifies the subscriber to whom the IP address which has been detected was allocated at the relevant time, it does not necessarily follow that the subscriber was the person who was participating in the P2P filesharing which was detected. There are a number of alternative possibilities, including the following:

  • The IP address identifies a computer and someone else in the same household (whether a resident or visitor) was using the computer at the relevant time (which might be with or without the knowledge of the subscriber).
  • The IP address identifies a router and someone else in the same household (whether a resident or visitor) was using a computer communicating via the same router (which might be with or without the knowledge of the subscriber).
  • The IP address identifies a wireless router with an insecure (either open or weakly encrypted) connection and someone outside the household was accessing the internet via that router (in all probability, without the knowledge of the subscriber).
  • The IP address identifies a computer or router, the computer or a computer connected to the router has been infected by a trojan and someone outside the household was using the computer to access the internet (almost certainly, without the knowledge of the subscriber).
  • The IP address identifies a computer which is open to public use, for example in an internet café or library.

And the judge goes on to say that 'It is not possible to estimate an overall likely rate of erroneous identification. All that can be said with certainty is that there will be an unknown percentage of errors.'

So there is a need to build in an appreciation of such problems into the Norwich Pharmacal Order process and the Digital Economy Act. The fact that there will be an unknown percentage of errors in a given sample of IP address matching such this should have significant ramifications for the Digital Economy Act. For example, it should seriously undermine the idea that to challenge an allegation of infringement an internet subscriber should have to pay £20 to appeal.

Yesterday's judgment highlights the need for Ofcom to check that allegations of copyright infringement under the DEA by copyright owners (in the for of “copyright infringement reports”) is supported by reasonable and robust evidence that there may have been copyright infringement on that connection. Ofcom need to set a strong standard of evidence in the forthcoming Initial Obligations Code, and make provisions on the means of obtaining evidence. 

This is required by the Digital Economy Act and when the DEBill went through parliament the House of Lords fought hard to get these safeguards in reference to the large number of people coming forward saying they were wrongly accused by ACS:Law.

If Ofcom do not make such provisions in the Initial Obligations Code there is a risk that a high number of entirely innocent subscribers will be placed on the “copyright infringement list” (after three notifications), which means they would be subject to technical measures once the 'technical stage' of the DEA commences.

Who defends the publics' interests?

These cases happen, of course, without the consumers whose details are being sought being present. And often, certainly in this case, the ISP (Telefonica, trading as O2 in the UK) did not challenge the request beyond ensuring they were remunerated for the administrative costs. In this case, the court asked Consumer Focus to act on behalf of the consumers who would be affected by the release of the data - which saw the request examined and led to the detail of the examination. They've done a fantastic job and deserve much credit.

But there's one final point to mention.  We can't expect Consumer Focus to do this each time a case comes before the court simply because ISPs don't want to spend time and money ensuring their customers' details aren't handed out too freely. ISPs hold vast amounts of personal data about their customers and and when ISPs receive these kind of Norwich Pharamcal applications in future, we should expect that they:

  • Check that the application is supported by evidence and that the evidence justifies the order sought.
  • Verify that the applicant is able to comply with the terms of the order (for example, to keep the personal data confidential etc)
  • If the information sought goes beyond name and address of the subscriber, check that the provision of further personal data is justified by the evidence and for the purpose of the order (for example, if the personal data is sought to take legal action for alleged copyright infringement, other personal data such as the credit card details, would not be justified).).

 

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March 24, 2012 | Peter Bradwell

On the day ORGCon video!

If you're looking for videos from today's incredible ORGCon extravaganza...go over to visionOn ORGCon tv video page!

 

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March 23, 2012 | Jim Killock

Board nominations

I have received the following valid nominations, to elect three Board members for a term of three years:

  1. Wayne Myers
  2. Seb Schmoller
  3. Ryan Jendoubi
  4. Richard King
  5. Owen Blacker
  6. Milena Popova
  7. John Elliott
  8. Gervase Markham
  9. Dave Levy

We are now fixing the election timetable. Thanks to everyone for putting their names forward.

For more information on the election, please see these pages. There will be a short hustings at 4.30pm at ORGCon.

Update: Wayne Myers has withdrawn from the election, for the commendable reason that he believes there is a very strong field of candidates

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March 22, 2012 | Peter Bradwell

How will the government promote rights online?

Julian Huppert MP has asked the government a couple of very interesting questions about what they are doing to support or promote freedom of expression and other fundamental rights in the UK. The questions were asked of the FCO and the Department for Culture, Media and Sport. They were both given some pretty clear responsibilities towards rights online by the Cyber Security Strategy published last year (see page 40).

DCMS are given responsibility of:

"Helping to shape the development of cyberspace:

- Promoting an open and interoperable cyberspace
- Promoting the fundamental freedoms and rights that we enjoy"

And the FCO:

"Protecting our way of life

- Ensuring our security without compromising our values"

The strategy also sets out a number of more detailed actions, also on page 40.

We've heard some very welcome commitments before from the Foreign Office about freedom of expression and privacy online, most notably at the London Conference on Cyberspace and in the Foreign Secretary's reply to ORG and other freedom of expression advocates following the conference. We've heard less from DCMS on how they will consider these issues and build in a respect for rights online in their own policy, and that of other departments. Given they are responsible for developing many Internet focused policies, that will include powers to regulate information online, it is important to know whether and how these issues are being considered. 

In both cases the Ministers reply that they have been engaged in the issue in some sense, although it is fair to say the answers from the FCO are slightly more detailed. All eyes are on the Communications Green Paper, that we are assuming will actually be published at some stage. It looks like it will be useful to assess the proposals in the Green Paper against papers such as the Council of Europe's "Internet Governance 2012-2015 Council of Europe Strategy" that the Minister Ed Vaizey refers to in his reply. 

The questions and answers:

Question 1, to the FCO

Dr Huppert: To ask the Secretary of State for Foreign and Commonwealth Affairs

(1) what steps he has taken to use multilateral and bilateral channels to discuss how to apply the framework of international human rights law in cyberspace and new challenges in guaranteeing such rights;

(2) what steps he has taken to fulfil the Government's undertaking to promote fundamental freedoms and rights in cyberspace.

Mr Jeremy Browne: The UK Government are committed to promoting fundamental freedoms and rights in cyberspace and believe that the existing framework of international human rights law is, in principle, as applicable online as it is offline. We are committed to furthering this debate internationally through multilateral and bilateral discussions, as well as through wider multi-stakeholder engagement.

The UK Government have actively participated in a wide range of international events to discuss human rights in cyberspace. This has included the attendance by the Minister for Culture, Communications and Creative Industries, my hon. Friend the Member for Wantage (Mr Vaizey), at the Council of Europe/Austrian internet freedom conference in October 2011. The Secretary of State for Foreign and Commonwealth Affairs, the right hon. Member for Richmond (Yorks) (Mr Hague), initiated an interactive panel discussion on freedom of expression on the internet during the London Conference on Cyberspace in November 2011. The UK attended the Dutch Ministerial Conference on internet freedoms in December 2011 and also participated in the Swedish-inspired panel discussion on freedom of expression in the margins of the Human Rights Council in March 2012.

The UK has joined a coalition of like-minded states who will work together to promote and protect online freedoms. We welcomed the adoption of the Organisation for Economic Co-operation and Development (OECD) recommendation on internet policy-making principles in December 2011 and are actively supporting the Council of Europe, as part of our chairmanship, in their efforts to advance the protection and respect for human rights on the internet.

We also encourage states that restrict freedoms online to uphold their international human rights commitments. We lobby governments for change on the ground, including by raising individual cases and publicly supporting those who seek to exercise their rights. 

 

Question 2, to DCMS:

Dr Huppert: To ask the Secretary of State for Culture, Olympics, Media and Sport what assessment he has made of the potential effect of proposals in the forthcoming Communications Green Paper on fundamental freedoms and rights as outlined in Objective 3 of the UK Cyber Security Strategy.

Mr Vaizey: The forthcoming Green Paper will reflect the work already underway to deliver against the cyber security strategy, published last November. The Government are a strong supporter of freedom of expression on the internet and will continue to encourage States that restrict access to online media to uphold their international human rights commitments. In October last year, I attended the Council of Europe/Austrian conference in Vienna, in my capacity as Minister for Culture, Communications and Creative industries. This was to help facilitate endorsement of the “Internet Governance 2012-2015 Council of Europe Strategy” in early 2012, which identifies priorities for 2012-2015 to advance the protection and respect for human rights, the rule of law, and democracy on the Internet.

 

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March 21, 2012 | Krean Naicker

Home Office replies to ORG about Richard O'Dwyer extradition


Following the decision in Richard O'Dwyer's court case, we wrote to the Home secretary regarding his possible extradition, expressing concern about the exertion of jurisdiction by the US. We have now received a reply from the Home Office.

In our letter we expressed our concerns about websites and their operators being subject to US law because they merely used a .com, .net or .org domain.

The US Government claims that they can assert jurisdiction since these domains are managed by American companies, such as Verisign.

The response was from Damian Green, the Minister of State for Immigration and, according to the letter, the Minister responsible for extradition (even though it is the Home Secretary who makes the big decision on whether extradition should go ahead). He states that the US is entitled to seek Mr O'Dwyer's extradition since the UK courts have held that the US does have jurisdiction. It is disappointing that the Minister has opted to describe to us the processes involved regarding requests for extradition, instead of addressing our very specific concerns of the wider implications of this decision. Our letter and the subsequent response can be found below.

It's not easy to understand exactly why the US are asserting jurisdiction in this case. It's easier to look at this from the other end. Why are the UK Government allowing a man that ran a website in Sheffield, the legality of which has not been established here, to be taken by US authorities for trial in the USA, where he faces graver punishments?

The answer is not only important for Richard O'Dwyer and his family, but for anybody running a website here who wants to understand which nations law enforcement authorities they are subject to. We had hoped the Government would at least be clear why they are allowing this to happen, and would do everybody the service of an explanation. Instead, the reply amounts to: 'this is acceptable because the court said it is acceptable.' Which sounds more like the Government enjoyed a rubber stamping exercise, rather than an examination of the issues.

Legal expert Graham Smith has written an excellent Q&A about copyright and extradition, ahead of his talk at ORGCon on these issues next Saturday. There are still a few tickets left.

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