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November 05, 2015 | Pam Cowburn

First take on the Investigatory Powers Bill

The long-awaited Investigatory Powers Bill has been published at last. The draft Bill is almost 300 pages long so it is going to take us a while to go through the detail but here is our first take on what it contains.

Legitimising bulk interception and previously unknown access to UK communications data

The draft bill spells out the powers that the security services have to collect content and data in bulk. Although this had been done for years, no one really understood the extent of GCHQ’s capabilities until the Snowden leaks. The government acknowledged today that secret agencies have been going even further, accessing data in bulk from UK internet providers not just from international cables. The bill effectively endorses these previously secret – and at face value disproportionate – mass surveillance powers. This is in addition to powers to obtain bulk datasets, such as phone books, driving licenses, travel or banking records.

Retaining even more data

One of the most controversial parts of this new Bill is that ISPs will be forced to keep much more detailed data about our internet activities, such as websites we visits or apps we use in our phone. To access this data, the police would need to get a court order – this seems to be a concession to the European Court of Justice ruling last April that said there must be safeguards for accessing retained data. In July, the High Court said that parts of the Data Retention and Investigatory Powers Bill were unlawful for the same reason.

We will be asking why the UK police feel they need these powers. In his inquiry into surveillance, the Independent Reviewer of Terrorism Legislation, David Anderson QC said:

“I am not aware of other European or Commonwealth countries in which service providers are compelled to retain their customers’ web logs for inspection by law enforcement. I was told by law enforcement both in Canada and in the US that there would be constitutional difficulties in such a proposal."

Who signs off warrants?

The new Bill proposes a new system of “double-lock” where some warrants will be signed both by the Secretary of State or an authorised person, and additionally by a special judge. At face value this might seem an improvement on the current situation where judges do not have a role, but there are concerns that in practice this may simply amount to a rubber-stamp. Judges would have a very narrow role, only being allowed to check that there are grounds for the minister’s decision and that procedures have been followed, but not to challenge the substance of the decision. Fully independent judicial authorisation would be a better guarantee of due process. Disappointingly, the draft new bill still allows police, councils and other agencies to obtain communications data without the need to involve a judge.

Has encryption been banned?

We don’t think there was ever going to be a serious attempt to ban encryption. The Bill ask for powers to compel communications providers to assist with demands for interception. How companies do this will presumably be at their discretion. In some cases this might involve compromising their software to make the encryption less effective. This is something that we are sure companies will be looking into.

New hacking powers

The bill clarifies the powers of security agencies to break into our laptops and mobile phones, including worrying new powers for non targeted mass hacking. The bill also forces internet companies to help in hacking their customers.

What are the positives?

We asked for a transparent law and on first reading it does seem to be very clear about the powers being given to the State. Transparency over these activities is very welcome, as it enables debate and challenges to specifics, including in the courts. There also seems to be improvements to redress, including the right to appeal rulings by the Investigatory Powers Tribunal, which is something ORG has campaigned for. The new Investigatory Powers Commissioner may also bring improvements to democratic oversight.

What happens next?

This is a massive bill and it’s going to take us some time to scrutinise it in detail. Our initial view is that the draft bill appears to be a missed opportunity to rein in the surveillance state. It mainly seems to legalise current practices and add a veneer of human rights compliance without fundamentally changing what the police and secret agencies already do.

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November 04, 2015 | Ed Johnson-Williams

Investigatory Powers Bill published and now the fight is on

The Government’s just published the draft Investigatory Powers Bill. It will decide the surveillance powers that the police and intelligence have for years to come.

Open Rights Group has been calling for a new surveillance law for years. Today, we’ve got a draft of one. Now the fight’s on to make sure the final Bill genuinely protects our rights to privacy and freedom of speech.

There’s a huge campaign ahead of us now. Can you join ORG today to help us campaign for the dangerous parts of this Bill to be taken out?

The Bill is huge and we’re going to spend the next couple of days going through it to work out exactly what’s in there and what’s not, what’s problematic, and what should stay.

So far we know that he Bill requires Internet Service Providers like Virgin, Sky and BT to store details of every website visited by their customers for 12 months so the police can access that information about us. It also authorises GCHQ’s bulk collection of Internet data by systematically tapping the cables transporting Internet traffic in and out of the UK.

We’ve been talking to the media today and over the last couple of weeks but there’s a lot more to do in the coming months.

First, we want to give politicians, the media, our members, and the public a considered analysis of how the Bill would affect the Internet, the economy, our legal system, and our rights to privacy and freedom of speech.

Then we’ll give evidence to the joint committee of Parliament who will scrutinise the Bill to push for their recommendations to include the changes we want. We’ll also support our local groups who want to lobby their Member of Parliament as the Bill reaches the Commons.

Can you join ORG today to stand up for privacy in the digital age?

We want surveillance to be targeted to those who are reasonably suspected of crimes. It’s a difficult debate and there are plenty of powerful voices on the other side to us. Join us today and add your voice to the debate.

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October 29, 2015 | Ruth Coustick-Deal

Bring on the fight for free expression

Yesterday the Prime Minister said that whilst "sputtering over his cornflakes" he decided to legislate to implement filters for adult content.

A chance at last for a full debate about free expression in this country? Bring it on!

This follows the European Parliament vote on net-neutrality regulations, which will ban the current voluntary agreement that the Government pressured Internet Service Providers into accepting, where they provide filters for the Internet and encourage customers to use them. Some of these filters are now switched on by default.

We’ve said it before, and we will keep saying it: filters are flawed. They block lots of "good" websites and let through many "bad" ones (and anyway, who gets to decide the difference?) They apply equally to your seven-year old and your 17 year-old despite their different needs. They affect many more people than just children, and most housholds switch them off, as they just get in the way.

However, we welcome Cameron's call for legislation so that we can challenge this idea in a proper, public debate.

Here’s just one story of how filters fail:

Rebecca and Craig Struthers run an award-winning craft watchmaking-business called Struthers London. Unknown to them, their site was being blocked by BT and Virgin. It wasn't until Rebecca was contacted by a customer on Twitter that she found out.

When Rebecca contacted Virgin, their customer-services operative refused to believe that there wasn't any porn or violent content on her site. She was told to "tell her customers to turn off the filters", even though they can't reach her site so couldn't read that message!

Rebecca said to us, "customers... will assume there is something wrong with our website, not the filters – they are more likely to trust BT or Virgin than a small business like ours."

We’ve been campaigning against online censorship for the past decade; challenging filtering since it was first introduced for mobiles, and we have heard hundreds of stories just like Rebecca and Craig's. That’s why we built Blocked - a tool that lets anyone check whether any site has been blocked - and created a satirical film about filters called the Department of Dirty.

The Blocked tool is free, but we need your support to keep the project going, and to challenge this legislation effectively. Can you help fight censorship by donating to our work today?

To fight censorship we have:

  • Forced the Government to accept over-blocking is a problem.

  • Encouraged several ISPs to present customers with a real choice about filters instead of as a demand.

  • Shown Parliament and the public the negative effects of filtering.

  • Helped lots of people get their sites unblocked.

There’s more work we can do though! With your support we can:

  • Challenge everything dreadful about this new law.

  • Force the Government to do something about the over-blocking problem.

  • Get ISPs to explain the downsides of filters to customers, not just their advantages, so they can make an informed choice.

  • Improve the Blocked tool to expose more censored sites.

  • Give people like Rebecca and Craig better tools to get problems fixed.

  • Encourage ISPs to install better processes for identifying and unblocking sites.

  • Campaign to stop filters being imposed on everyone by default.

If you want to help us do this and more, please donate today.

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October 16, 2015 | Pam Cowburn

Why ORG is offering to help protect MPs’ communications

Open Rights Group has written to all UK MPs to offer training to help them keep their communications private. We did this in response to this week’s ruling by the Investigatory Powers Tribunal (IPT) that the Wilson Doctrine does not protect MPs’ communications from surveillance by the intelligence agencies. We believe those communications should be protected.

The Wilson Doctrine is named after former Prime Minister Harold Wilson who in 1966, following a spate of scandals involving the alleged telephone-bugging of MPs, told the House of Commons that MPs’ phones would not be tapped. In 2002, Tony Blair said that the policy also applied to the “use of electronic surveillance by any of the three security and intelligence agencies”. In the aftermath of the Snowden revelations, Parliamentarians have asked repeatedly for the Government to clarify whether the Wilson Doctrine still applies. In addition, Caroline Lucas MP and Baroness Jones of Moulsecoomb asked the IPT whether the Wilson Doctrine prohibited the interception of their communications – including their confidential correspondence with constituents.

Yesterday’s Judgment settled the matter: MPs communications enjoy no special protection, despite the Wilson Doctrine, and their interception is governed by the Regulation of Investigatory Powers Act 2000 (RIPA). At the IPT, GCHQ argued the Wilson doctrine does not have force in law and cannot impose legal restraints on the agencies. The IPT agreed. We don’t know how long GCHQ have held this view and whether successive Prime Ministers were aware of their position.

The ruling has raised the question of whether parliamentarians' communications deserve greater protection than the rest of us. ORG believes that everyone has the right to communicate privately unless they are suspected of wrongdoing. However, some communications need more protection because the consequences of a breach of privacy would be severe, both for the individuals involved, and for society as a whole.

Our democratically-elected MPs should not be spied on by the security services unless there is a serious threat to national security. Protecting MPs' communications also protects constituents and whistleblowers who need to contact them in confidence. However, if systematic surveillance is in place, it is difficult to maintain confidentiality.

Other professions that need additional protections include lawyers and journalists. Both UK law and the European Court of Human Rights recognise that it is a fundamental human right for lawyers to communicate confidentially with their clients. This is seen as essential to ensure that people have the right to a fair trial. Earlier this year, another IPT ruling showed that policies on how the security services handle privileged communications between lawyers and their clients had breached human rights law.

The Press Gazette launched the Save our Sources campaign to prevent surveillance law being used to access journalists’ communications after it was revealed that the Met police used RIPA to access the phone records of Sun journalist Tom Newton-Dunn. Under the Police and Criminal Evidence Act 1984 (PACE), the police are required to get permission from a judge if they want to access a journalist’s records to identify a source. The fact that the police can still use RIPA instead of PACE to override this safeguard and the difficulty in defining exactly who is a journalist make this difficult to enforce.

The right to privacy should not be limited to certain professions but the fact that our surveillance law has failed to protect these groups shows just how broken the system is. Next year, MPs will vote on a new surveillance law, the Investigatory Powers Bill, which is due to be published in draft form in the next few weeks. This may attempt to offer additional legal protection to lawyers, journalists and parliamentarians. The question is whether these provisions would be realistic given what we know about the capabilities of GCHQ. If data is being collected and analysed in bulk, how can GCHQ and the police guarantee that they have excluded these groups? GCHQ themselves argued before the IPT that excluding politicians from mass surveillance isn’t feasible. If we want to protect privileged communications, we need to protect everyone's communications from indiscriminate surveillance.

Human rights judgments at the CJEU have made it clear that surveillance measures have to be targeted to a specific, necessary purpose in order to be proportionate: collection of data cannot be indiscriminate. Their judgments require robust, independent authorisation to access collected data, and for stored data to remain within the control of EU law. Without this, UK surveillance is open to abuse and could chill political activity and free speech.

MPs will discuss the implications of the IPT ruling for the Wilson Doctrine in an emergency debate on Monday 19 October. We hope that when the draft Investigatory Powers Bill is published they will do the right thing and fight for surveillance legislation that protects everyone’s right to privacy. In the meantime, we are ready to help them protect their communications so that they can communicate with us, their constituents, securely.

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October 06, 2015 | Javier Ruiz

Why the CJEU ruling on #SafeHarbor is a landmark victory for privacy rights

The Court of Justice of the EU has ruled that Safe Harbor, the major legal instrument for the transfer of personal data to the US, is invalid due to the lack of protections against mass surveillance by the US government.

CC BY-SA 2.0 openDemocracy

What is Safe Harbor?

European data protection law states that companies can only transfer EU citizens’ data to countries that provide an adequate level of protection for this data. The US does not meet its threshold for protection so in 2000 the European Safe Harbor agreement was created to allow the transfer of data between the US and Europe. Companies were allowed to self-certify that they were carrying out the necessary steps.

Why was the case brought against Facebook?

In 2013, Austrian law student, Max Schrems brought a case against Facebook in Ireland, where the company has its European headquarters. He argued that revelations by NSA whistleblower, Edward Snowden, showed that the NSA were accessing data held by companies like Facebook. As US law did not offer enough protection against this surveillance, his privacy was being violated.

The Irish Data Protection Commissioner rejected Schrems’ case because the Safe Harbor agreement governed the transfer of data. The case was then referred to the Court of Justice of the European Union (CJEU).

What did the CJEU find?

The court did not look at the merits of the Safe Harbor agreement, but observed that it only applies to American companies who use it to receive data; US public authorities are not subject to it. The Court found that “national security, public interest and law enforcement requirements of the United States prevail over the safe Harbor scheme”. This means that Safe Harbor by itself cannot guarantee that privacy rights are respected because other laws take precedence.

The Court also found that some of these US laws are too broad and not compatible with our fundamental rights: “legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life”.

The judgment echoed the Data Retention Directive judgment from April 2014, with a ‘double lock’ that retention can only take place when it is limited to what is necessary to achieve a specific objective, and accompanied by independent authorisation of access. This goes further than the UK’s recent judgment on data retention, which focused solely on access controls.

The above together with the fact that EU citizens have no legal remedies under those US laws drove the court to declare Safe Harbor invalid. The ruling will force the USA and the EU to look at the protection of privacy for EU citizens when their data is stored in the USA. It places our fundamental rights above trade considerations. This is important when thinking about future trade treaties, which are often controversial because of their potential impact on concerns such as privacy and free expression.

The ruling places greater obligations on data protection authorities - such as the UK’s Information Commissioner - as it says that they must ensure that fundamental rights are respected in data transfer arrangements to the US by private companies. It also limits the ability of the Commission to claim everything is OK and persuade European regulators to look away.

Current CJEU rulings are therefore developing a standard for retained data which requires targeted, proportionate retention, coupled with independent access. This challenges current practice not just with communications data retention, but also the sharing of Passenger Name Records (PNR data). It also has implications for proposed extension of data retention that we might see in the draft Investigatory Powers Bill due to be published this autumn.

What does this mean for privacy rights?

Max Schrems said:

“I very much welcome the judgement of the Court, which will hopefully be a milestone when it comes to online privacy. This judgement draws a clear line. It clarifies that mass surveillance violates our fundamental rights. Reasonable legal redress must be possible.

“The decision also highlights that governments and businesses cannot simply ignore our fundamental right to privacy, but must abide by the law and enforce it.

“This decision is a major blow for US global surveillance that heavily relies on private partners. The judgement makes it clear that US businesses cannot simply aid US espionage efforts in violation of European fundamental rights.

“At the same time this case law will be a milestone for constitutional challenges against similar surveillance conducted by EU member states.”

What happens now?

This is very big news. Safe Harbor is used by most large Internet companies we use every day, but also some other 4,000 less known companies. Safe Harbor is dead and the legal changes take effect immediately, but the practical effects may take some time to reach ordinary citizens.

EU companies and subsidiaries large or small that currently rely on Safe Harbor will be urgently looking for alternative arrangements that allow them to continue transferring data to the US. Options include asking for informed consent, but it will be awkward to ask customers to volunteer to be spied upon by the US government. Smaller changes to the privacy policies of Facebook or Twitter have led to major outcries, although admittedly not to a huge loss of business.

Companies could try to use contracts or other corporate instruments. But these could take time and turn out to be problematic in the medium term because any such arrangements might suffer from the same limitations vis-a-vis US national security that led to the demise of Safe Harbor.

We do not expect any companies sending data to the US to stop doing this overnight, or at any rate on their own initiative, but they could be open to challenge. Customers may soon be asking them what exactly they are doing to comply with the ruling.

Data protection authorities might need to examine individual arrangements, and may well rule that they are as invalid as Safe Harbor. However, any increased protection will rely on EU member states’ data protection oversight arrangement. The UK Government needs to ensure that the Information Commissioner’s Office is sufficiently resourced and capable of protecting our privacy rights.

Everyone will also be waiting for other legal changes to come from elsewhere. The EU machine is in the final stages of a major rewrite of data protection legislation, and the European Commission was already negotiating a new agreement with the US to replace Safe Harbor.

The EU could promote its own cloud and Internet services industry to encourage companies to keep data to stay within Europe’s jurisdiction.  This is not a long term solution, but it would provide an incentive for the US to act and help create an international framework that truly guarantees our privacy irrespectively of where our data is located. The CJEU has observed that there are a fundamental lack of protections for EU citizens’ data in the US - so ultimately the US needs to change its laws.

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September 25, 2015 | Pam Cowburn

ORG launches Corporate Supporter Scheme

It has been ten years since 1,000 digital activists donated £5 a month to create Open Rights Group. As we approach our 10th anniversary, we now have over 3,000 paying members. Then, as now, ORG’s mission was to support the rights of individuals. Our core belief is that people have the right to control their technology, and we oppose the use of technology to control people.

Many organisations, and the people who work for them, also recognise the benefits of fair laws, transparency and an open and free Internet which benefit them, as well as citizens. A number of businesses have supported us for many years - for example, Bytemark provide our web servers and Andrews & Arnold are instrumental in the running of our Blocked project. Now, ORG has launched our Corporate Supporter Scheme to invite more organisations that believe in digital rights to support our work. We’re delighted to announce that the first businesses to become official ORG Corporate Supporters are Andrews & ArnoldGrit Digital and Valcato Hosting. We hope that many more organisations will join them.

There are many examples of shared areas of concern for individuals and businesses. One of these has been recent media speculation about Government plans for accessing encrypted communications. With issues such as this, the tech sector benefits from ORG calling for the right to encrypt our communications and online transactions. Equally, our campaigns can benefit from their support – not just financially – but by adding their voice to the debate. Getting the business perspective on Government policies and and technical developments will also help us to have more informed policy positions. After all, it is often businesses that have to implement Government policies and they are very aware of their flaws.

Human rights are at the heart of everything we do, so we will only invite companies and organisations that support our aims and values to become Corporate Supporters, and we won't, at any point, start promoting their products.

We'd like to thank our Corporate Supporters for helping to make ORG's work even more effective. If you run or work for a business that supports digital rights, you can find out more about our Corporate Supporter scheme here, or by emailing me for more information: 

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August 21, 2015 | Javier Ruiz

Police body worn cameras raise security and privacy concerns

Concerns have been raised over the handling of footage from police body worn cameras.

Body worn camera CC-BY-SA 2.0 West Midlands Police

Sky has reported that UK police are using body worn cameras from the company, which automatically uploads the footage online. This company is a subsidiary of TASER, makers of the well known electric shock devices. Their piece says that questions have been raised about the safety and security of the footage, with shadow Labour minister for policing, Jack Dromey, asking for reassurances from the Home Secretary.

The criticism has focused on's use of third party cloud computing, Amazon Web Services. This has led to concerns about the location of the footage, and the possibility that employees of the companies involved could be accessing confidential information.

Looking at their stated security practices, seem to have taken some reasonable basic precautions, such as encrypting the footage during transmission and in storage. Encryption is particularly important in cloud computing, and not just due to concerns about access. The same mechanisms that provide resilience against data loss — e.g. multiple copies combined with the development of more persistent data storage technologies — make it very hard to ensure that data is ever fully deleted.

Destroying the keys to scrambled data would be easier than trying to securely wipe sections of multiple disks scattered around a global network of data centres.

In this context control over the encryption becomes critical, and this system may not be secure enough.’s approach to protecting the footage makes access very difficult for third parties, including Amazon (unless they also store the encryption keys in their systems). But is less clear whether employees of themselves can decode the encrypted footage. Strong end-to-end encryption where only police and their auditors can access the materials should be required.

In addition to these technical issues, there are other questions for Open Rights Group first learnt about their role in May 2015, and immediately contacted the company asking for information about their legal compliance with data protection. We received a reply from TASER stating that this it was a matter for the police forces involved:

"As you may expect, TASER International Inc as a company and also its international subsidiaries are well aware of the complex and variety of the issues surrounding data safety, data management, data transport and data protection laws.

Due to the fact that TASER does not write these laws, we comply with the highest world class standards of data safety. With regard to data protection, our customers are writing the specs. All we do, is providing software as a service. In other words, Taser works very closely with its customers to comply with local legal requirements and laws.

This being our very clear position, only our customers can answer your question."

We pressed the issue — without further reply — asking specifically about their compliance with legal requirements for the transfer of personal information to an organisation based outside the EU. This normally requires that the organisation hosting the data can assure that the information will remain protected to a similar level as if it had never left the EU. We received a response from TASER International in the Netherlands, but is based in the US and it is unclear who exactly has received the data. Legal assurances can be achieved through contract clauses, or in the case of US companies, via the “safe harbor” scheme arranged by the US Dept. of Commerce. It appears that may be using Amazon’s EU cloud servers, but in itself this is not enough to provide assurances.

The police statements asking for assurances about the destruction of the data from the pilot — quoted in the article — are quite worrying, as they imply that the police may not have a legally binding agreement for how the data is handled. We expect the Information Commissioner will be looking into this.

The use of CCTV is regulated under the Protection of Freedoms Act 2012. The Surveillance Camera Code of Practice pursuant to the Protection of Freedoms Act 2012 provides operational guidance to public authorities, but is thin on body worn cameras.

The Information Commissioner has also published guidance on CCTV, with a specific section on body worn cameras. This tells police that the footage should be stored “in a way that remains under your sole control”, which may not be the case with TASER.

The use of police body worn cameras is a thorny issue. It could have some positive effects from a civil liberties perspective. Continual recording would mean that all of a police officer’s daily activities would be recorded and they would be fully accountable for their actions. But it would also mean that many members of the public, who are not involved in crimes, would be captured on film and this would be an unnecessary intrusion on their privacy.

If cameras are under the control of the officer, selective recording could lead to accusations that video footage is misleading, has been taken out of context, or deliberately manipulated to secure a conviction.

But constant recording could have perverse effects and remove the ability for police officers to use their discretion. If they were wearing cameras, they might feel obliged to pursue minor infractions, which they might deal with differently otherwise.

A particularly problematic aspect is wearing cameras at demonstrations. This may deter heavy handed dispersal tactics by the police – or provide evidence of them if they occur. But cameras would also give the police a visual record of everyone who attended a particular demonstration. How might that footage be used afterwards? Could facial recognition software be used to identify people to keep a note for future demonstrations or investigations?

Given the appetite for footage of real criminals being arrested, there are also risks of videos being leaked, hacked or shared inappropriately and this would be a severe breach of privacy.

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August 05, 2015 | Jim Killock and Maxine Chng

Should file sharers face ten years in gaol?

New proposals to make online copyright infringement a criminal offence risks punishing users who share links and files online more harshly than ordinary, physical theft.

The IPO has recently started consultation on proposals to increase the maximum prison sentence for criminal online copyright infringement to 10 years, aiming to match sanctions for online copyright infringement with physical copyright infringement. The rationale behind this is that similar offences should attract similar penalties, regardless of the platform used in committing the crime.

Although ORG agrees with IPO's rationale that the online environment should not confer less protection, IPO's proposals are problematic. The existing offence is outlined in section 107 of the Copyright Designs and Patents Act. It can be brought against both criminals who deliberately infringe copyright by operating filesharing services and also against people who share links and files without the intention or knowledge that it would actually prejudice the copyright owner.

The IPO is suggesting that people can be sentenced for up to ten years for online copyright infringement that “affects prejudicially” a copyright holder. While this may sometimes be appropriate, the underlying offence is very broad, and requires no intent on the part of the offender. There is no separation in the offence between different kinds of infringement, which opens the possibility of non-literal copying, such as excessive quotation or incidental use, being the subject of these offences. 

We are particularly worried that this could lead to heavy handed punishments for individuals who are sharing files, who may have no intent to harm or cause damage. While such people should be seen as committing a civil offence, they should face more appropriate punishments. By means of comparison, ten years gaol is longer than the maximum penalty of seven years for physical theft, which requires actual intent.

Commercial infringements “In the course of a business” can be much more reasonably targeted by harsher sentences, but here too there are risks as there is no easy way to distinguish between a legitimate business making mistakes and one seeking to abuse the copyright of others for profit.

In all cases, there is scope for exaggeration and misconception of the scale of damage being created. Online infringement is hard to estimate and damages are often assumed to be much higher than in cases of physical infringement. It is therefore much easier for an individual to appear to be “affecting prejudicially” the business interests of another, and find themselves accused of committing a criminal offence with a very long possible gaol sentence. This is inappropriate.

Anne Muir's case from 2011 illustrates exactly the dangers of parity as proposed by IPO. She admitted to distributing copyrighted music files worth up to £54,000 using a filesharing application. Lawyers claimed that she uploaded files to build her self-esteem. She did not financially gain: while she certainly sounds misguided it seems unlikely that she should be regarded as a hardened criminal.

There are already criminal sentencing options that are tough enough to deal with organised online copyright infringers. The Federation Against Copyright Theft has on previous occasions carried out private prosecutions under the Criminal Justice Act 1987's common law conspiracy to defraud. This offence fetches a maximum sentence of 10 years – the same as physical copyright infringement. It is also not difficult to obtain conviction for conspiracy to defraud under Fraud Act 2006. All that must be proved is false representation, a failure to disclose information or abuse of position. Intention to defraud is not at all required.

For example, in 2012, Anton Vickerman was sentenced to 4 years imprisonment for allegedly causing losses of up to £198 million. He had been operating an illegal streaming website called "SurfTheChannel". Compare this with the defendant in R v Hatton (2008), who was sentenced to 18 months imprisonment for pirating 20,000 DVDs.

People committing crimes should be punished, and copyright should be supported by enforcement. However, copyright should be subject to the same kinds of standards as other crimes. As this offence stands, it is much stricter and harsher than other kinds of crimes, and therefore risks bringing copyright into disrepute should individuals be prosecuted and threatened with long gaol sentences for non-commercial misdemeanours. We are therefore asking for the sentence to be left as it stands.

The offence itself, to infringe "otherwise than in course of a business to such an extent as to affect prejudically the owner of the copyright" needs to be removed or modified to exclude non-commercial infringers, or introduce notions of intent to harm alongside qualifications to measure the kind of harm being targeted. Once this is done, longer setences targeted at commercial infringers may be justified.

The IPO's consultation closes on 17 August 2015, 11.45pm. You can respond by using our online form


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