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November 02, 2012 | Ruth Coustick-Deal

ORG is ready for legal action

Today ORG have launched a new campaign to fund a legal project which will allow us to create new case law and lead on bringing digital rights issues to the courts.

Today ORG have launched a new campaign to fund a legal project which will allow us to create new case law and lead on bringing digital rights issues to the courts.

We have seen huge changes in the digital rights agenda in the last few months. Matthew Woods and Azhar Ahmed were prosecuted and sentenced for free speech on social media. BPI are increasing the number of web blocking injunctions with insufficient transparency about what will be blocked and without processes in place to remove material that no longer needs to be blocked. The pornography company Goldeneye still wish to send alleged file-sharers copyright complaints on behalf of other companies with the intention of extracting payment without a court case, a case we are preparing to contest.  All of these are issues where ORG needs to be able to prepare legal briefs and intervene in the courts.

Some of the things our Legal Officer would enable us to do are:

  • Prepare friend of the court briefings to explain the civil liberties consequences of web blocking injuctions

  • Provide technical advice to the courts where proposals would be unworkable or have unforseen circumstances

  • Draft amendments to delete or replace misused powers, such as Section 127 A, which was used to prosecute Paul Chambers in the Twitter joke trial.

  • Challenge Government decisions in judicial reviews

  • This new capacity will enable us to build on the amicus curiae (friend of the court) briefing on the Digital Economy Act jucidical review where we explained the impact on privacy.

  • Expand our legal panel scheme where individuals can request pro-bono legal advice on digital rights issues

We are running our ORG Law Fund campaign across November to achieve two goals:

Goal 1: 150 new supporters

This will allow us to launch our legal project and hire a part-time Legal Officer to work in ORG’s office

Goal 2: 300 new supporters

We can hire a permanent full time Legal Officer

You can help ORG take a stand

There are lots of ways you can get involved and help. If you want more support in fundraising or have ideas do get in touch with me about them (

  • Tell your friends about ORG. We want to thank our paying supporters for all that they do, so we are offering a series of rewards for those of you who are helping to recruit your friends.
  • Make a video about why you support ORG. Across November we will be releasing a series of videos by ORG supports talking about their personal key concerns for digital rights. Watch this space!

Thank you very much for helping ORG take the next step as an organisation.

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November 01, 2012 | Peter Bradwell

Getting the facts straight in the parental controls debate

ORG has written to Claire Perry MP asking her to clarify a statistic about parents' use of internet controls, which she used in a Westminster Hall debate on Wednesday.

Yesterday there was a Westminster Hall debate about the responsibilities of Internet companies. You can read a transcript over at the Parliament website. Be warned - for anybody who cares about freedom of expression online, it doesn't make for particularly pleasant reading. It includes general calls for internet companies to take down offensive material, criticisms of YouTube for publishing the infamous video insulting Mohammed, and the now familiar calls for default-on network filters to protect children online.

It's useful to note that Westminster Hall debates aren't particularly formal interventions or statements of the Government's policy. They are secured by MPs who want to discuss something important to them, and can indicate MPs feelings and signal to the Government what Parliamenarians' priorities might be.  

But even though it's just a Westminster Hall debate, it seemed important to note that I spotted Claire Perry MP citing a statistic that I haven't seen before, and which got my spidey senses tingling. She suggests that the number of parents installing network filters at home has dropped ten percent over the past three years, standing now at 39%.

This seemed to contradict some of the statistics I've seen from recent research such as the EU Kids Online project. They found that "54% of parents say that they block or filter websites at home or and 46% track the websites visited by their children. These findings are far higher than in Europe generally, with the UK topping the country ranking for use of filters", that "The UK is near the top of ranking of countries in terms of parents actively mediating their children’s safety."

So this afternoon I've written to Claire Perry asking her about this statistic - where it's from and what it means. You can read the letter below. We'll let you know her reply as and when we receive one. 

It's an important issue, because too often we see evidence in this debate that doesn't necessarily stand up to scrutiny. For instance, the Safety Net campaign, which has led calls for default-on network filters, state that "1 in 3 10 year olds have seen pornography online (Psychologies Magazine 2010)". This is in the 'The Facts' section of their website. However, the figure comes from a chat that Psychologies magazine had with a group of 14-16 year olds in one school in London in 2010. 

It's important we're dealing with robust evidence, so we are all clear the nature of the problem we're looking at.  You can read our response to the Government's consultation on parental internet controls here.


Dear Mrs Perry, 

I hope this finds you well. I am writing with regard to the Westminster Hall debate you took part in yesterday. The debate focused on the responsibilities of internet companies. 
We note from the transcript of the debate that you said the following:
"As a result, the proportion of parents who say they have downloaded internet controls or filtering software in households with a child aged between five and 15—remember that 95% of children live in internet-enabled households—has fallen 10 percentage points over the past three years to 39%"
We are interested in the source for this statistic. Further, we would appreciate clarification on whether this statistic implies a reduction in the number of parents who downloaded filtering software or internet controls over the course of a year, or a fall in the percentage of all households that have filtering software or internet controls installed? In short, is that figure a drop in coverage, or in uptake? 
As a contribution to the debate, we note that the October 2012 publication from the EU Kids Online project, led by Professor Sonia Livingstone, found that: 
"54% of parents say that they block or filter websites at home or and 46% track the websites visited by their children. These findings are far higher than in Europe generally, with the UK topping the country ranking for use of filters."
The report draws on the project researchers' pan-European survey of 25,142 children aged 9-16. The researchers also found that: 
"The UK is near the top of ranking of countries in terms of parents actively mediating their children’s safety." (see page 70)
These findings appear to give a somewhat different picture to the one you presented in the debate yesterday. 
Whilst of course respecting your position, we disagree with you on the question of whether a 'default-on network filter' policy is the best way to help parents manage the risks their children face online. 
We wish to see this debate guided by robust evidence. This will ensure that we all understand the nature of the problem as clearly as possible, which will help us all draw more informed conclusions about the best response. 
We would therefore appreciate your help clarifying this.
Yours sincerely,
Peter Bradwell
Open Rights Group

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October 29, 2012 | Jim Killock

ORG says IP Committee has missed the point

Reacting to the All Parliamentary Intellectual Property Group's report, Jim Killock, Executive Director of the Open Rights Group said:

"We welcome the group's desire for evidence based policy but think this sits ill with its' call to move the Intellectual Property Office to the Department of Culture Media and Sport, which has had a dire record of inventing policy initiatives without a shred of evidence.

"Last year, we challenged in theDCMS to reveal evidence it had for various copyright enforcement initiatives it was promoting, and the department had to admit they had none.

"The IPO has done a great job of looking at copyright reform, which the report acknowledges as trying to achieve a 'balance' of competing interests. It would be wrong to move to representing only one part of this equation."

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October 12, 2012 | Peter Bradwell

DEAct: Concerns about copyright infringement evidence gathering

Consumer Focus have today written to the Motion Picture Association of America (MPAA) about the way the MPAA collect evidence of copyright infringement by individuals on P2P networks. The letter relates to a presentation the MPAA gave to Consumer Focus and security expert Dr Richard Clayton (also a member of Open Rights Group's advisory council), about the process they will be using for the US' 'six strike' copyright infringement process. In his analysis, Dr Clayton found a number of issues that could lead to errors in the gathering of evidence of infringement.

This is a really important intervention. As well as being used in the US for their 'six strike' regime, the MPAA intend to use this or a similar procedure for the Digital Economy Act process here. They'll be using this method to collect evidence of copyright infringement by people in the UK.

The reason it's really important to get the evidence gathering procedure right is two-fold. First, it's difficult to make sure the process identifies the right Internet connection, to ensure that letters are only sent to subscribers whose Internet connection was actually used to infringed copyright. As we know, an IP address does not identify a computer, or even the individual who has engaged in p2p filesharing, only the Internet connection.

And we're talking about a lot of letters. It is anticipated that up to 2 million copyright infringement reports will be submitted annually by the MPAA and BPI under the Digital Economy Act 2010. Second, being on the receiving end of these letters has consequences. (This is a process set out in the Initial Obligations Code - you can read our response to the consultation on this here).

To challenge an accusation of infringement, subscribers will have to pay £20 to appeal. If a subscriber receives three letters, they will be added to a list of repeat infringers. Copyright owners can then request the details of those subscribers, at which point they could take them to court. And after 12 months, the Government can bring in further technical measures against subscribers who have received three letters or more – “technical measures” can include the slowing of an Internet connection, or possibly disconnection*. 

So getting the evidence gathering process right is important to make sure that subscribers are not wrongly sent letters, and then forced to pay £20 to prove their innocence.

Dr Clayton wrote an expert report, commissioned by Consumer Focus, to guide Ofcom in the implementation of the DEAct. That was published earlier in the summer, and is available from Consumer Focus' website

Open Rights Group were copied in to the letters sent today, so we're making them available. You can read the letter that Chief Executive of Consumer Focus Mike O'Connor CBE sent to the MPAA here, and the letter Dr Richard Clayton sent to Consumer Focus with his full analysis here.

In his new analysis of the MPAA process as it stands, Dr Clayton found some weaknesses and makes some recommendations for how to fix them. Here's a summary of some key concerns.

1. Transparency. In our response to Ofcom on their revised Initial Obligations Code, we were one of those calling for transparency of the evidence gathering process. We suggested to Ofcom that those accused of infringement 'receive all the necessary information about the means used to obtain evidence'. Dr Clayton emphasises this in his letter to Consumer Focus. He says 'It is essential that the designs of monitoring systems can be independently reviewed and that the public should have the opportunity to understand how they work and why they are capable of precisely identifying the IP address of an unauthorised uploader". 

2. Hygiene checks: Dr Clayton recommends that the MPAA conducts regular hygiene checks, to ensure that its monitoring system identifies not only IP addresses correctly, but also records the time of an alleged infringement correctly. This is important, because if the time of an alleged infringement is recorded incorrectly, an ISP may identify the wrong Internet subscriber. Dr Clayton explains “Of course I accept that the system design is intended to be foolproof, and that if my comments above about hygiene are taken on board then faulty components will be rapidly identified and fixed – nevertheless, it is in my view extremely unwise to assume that a system such as this will be operated without any errors ever occurring.”

3. A 'doctrine of perfection': Dr Clayton recommends an approach where the 'failure of an ISP to match an IP address to a subscriber account at the time of an alleged infringement should trigger an investigation into the cause of the error. There may be a systematic error, and in such a case all other IP addresses harvested in the same batch should be considered unreliable as a result.'

4. Automated identification: Dr Clayton highlights the issue of automated identification of content, which is not used by the MPAA, but is used by the BPI, which also attended the meeting. Dr Clayton explains that the BPI: "told us that for music it was common to use automated identification systems – doubtless based on the type of signal processing technology that is used in products such as those marketed by Audible Magic. Unfortunately, recent events have shown that fully automated systems can make patently incorrect decisions, and you might have read of the blocking of streamed video of the Mars lander, the Hugo awards and part of the Democratic National Convention. Therefore, I would be concerned to learn that automated systems were not supplemented by manual checks."

We wondered whether the MPAA had also shared their presentation and information with DCMS, the department responsible for the Digital Economy Act, and Ofcom, who are tasked with implementing it. We asked them both, and they told us they had not been given this presentation by the MPAA - although they have been copied in to these letters as well, so they now have the analysis from Dr Clayton. 


* See this blog by Francis Davey from November 2010 (yes, this has been going on that long) on what the technical measures may involve.

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October 11, 2012 | Jim Killock

Party conferences and the Comms Data Bill

ORG ran two sessions this year, with Big Brother Watch, at the Lib Dem and Labour conferences. We also leafletted all three Conferences, with help from ORG and No2ID volunteers in Brighton, Manchester and Birmingham - a big thank you to everyone who helped!

At Labour's conference on 1 October, we were joined by Stella Creasy MP, Katy Clarke MP and Mike Harris, head of advocacy at Index on Censorship. Stella Creasy outlined her questions, which included:

  • Will it work (is it technically feasible)?
  • How much will it cost?
  • What are the alternatives?

Her concerns were essentially pragmatic. This is understandable, but ignores the fundamental right to the protection of privacy, which is alarming. 

I assume that Stella Creasy and the Labour Party are uncertain or unconvinced by these arguments, but for ORG supporters, I suspect many would like to know that a future Labour government would not simply roll over for the Home Office as seemed to be the case under the last Labour administration.

The usefulness of data comes in part from its intrusiveness. So the collection and access to communications information is balanced against the fundamental right to privacy.  As a start, many politicians accept that the police should have access to communications traffic data. Of course, sometimes law enforcement have had access to this data, as with phone bills.

However, at other times, as with library reading records, or who we send mail to, then the UK government has quite rightly decided that it has no such right to this kind of traffic data at all.

The correct balance is in general that data should be available to law enforcement only if it exists anyway, and then only when they have reasonable suspicion, and also when it is not linked to the content of communications. It must not cause people to limit their access to information or speech. This way, access to data is about investigation, rather than mass surveillance or control, and can be justifiable. 

This approach has been severely upset by data retention laws, which require traffic data to be kept beyond their usefulness for business. Data retention has given politicians the impression that police should have a right to a record of our communications online. This makes the intellectual case for new collection powers, where that data is hard to access otherwise, seem reasonable.

However, there is pushback. Data retention has been challenged in a number of states. The latest challenge to be mounted is in Slovakia. An EU challenge is also due.

The Conservative and Lib Dem conference sessions on the CDB started much more from the point of view of these fundamental issues. All speakers acknowledged the need for lawful access, and were concerned to examine what kinds of gaps in access to data might exist, and how that might be reasonably dealt with.

For instance, companies in other countries do need to have arrangements that allow UK police to request data. These might be through agreeing to co-operate where the justification and request matches their domestic and UK law, or by international legal co-operation.

The good news is that political support outside of the Home Office seems to be pretty thin. Labour are equivocal, sensing public opposition. The Lib Dems know the Bill is bad news, and their position has hardened as the Joint Committee has looked at the CDB; Nick Clegg said he would take Julian Huppert’s advice on the issue. Many Conservatives are very skeptical, both on cost and privacy grounds.

That doesn’t mean the Bill is bound to be defeated. There are three major concerns. Firstly, the degree of wriggle room that the Joint Committee give the government. Secondly, the need that the coalition will have not to humiliate the Home Secretary Theresa May, who pushed this policy for the Home Office. Thirdly, related to this, the temptation to ‘open up RIPA’, and gamble that keeping the Bill alive could lead to a more fundamental reform including the lack of independent supervision of user data that is accessed by law enforcement today.

In general, many MPs are prone to seeing the CDB as a “technical issue” rather than a civil liberties battle. They are somewhat disconnected from the public on the topic, and need to hear more from their constituents. (This will help harden political opposition in Parliament, so please do it!)

While the Parliamentary situation is complicated, compromise and face-saving measures are temptations that must be avoided. ORG and other campaigners are clear about what we want. The Bill is a disaster, and it needs to be scrapped.

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October 09, 2012 | Peter Bradwell

Don't make me laugh

Yesterday Matthew Woods was given 12 weeks in a youth offenders institution for posting jokes about the missing 5 year old girl April Jones (see Padraig Reidy's write up of this yesterday on the Index on Censorship blog). Today Azhar Ahmed was given a community order for posting some very stupid and offensive comments about soliders. 

Woods' jokes were sick. Ahmed's comments were offensive. But are they really things that should be landing a person in jail?

It's sometimes said that the Internet is an unregulated wild west where anything goes. It's hard to maintain that position now. People are going to jail for telling bad jokes on the Internet. That tends to not happen to people telling bad jokes in the pub. Or on television. And I'm not saying that people in the pub or on television should be going to jail.

Section 127 (1) of the Communications Act 2003 is aimed at 'public communications networks'. And the aim it has taken is at a very broadly drawn target. What's is as alarming is that the two cases above are just the latest examples of posts on social media resulting in prosecution. The most famous was perhaps the case of Paul Chambers and the 'Twitter Joke' trial.

The consequences go further than potentially undermining the careers of famous comedians who trade on offensiveness. It reduces the available ground for the free expression of opinion and perspective for everyone.

In an environment where the law tries to rigorously enforce what some people think is offensive, the ultimate consequence is that it is harder for everyone to challenge ideas or beliefs they don't like. It is worth remembering that being offended is not a reaction that is exclusive to people you agree with. Being grossly offensive is not difficult. I'd be amazed if people supporting the prosecution of Woods or Ahmed had not managed it at some stage.

This is different from saying Woods or Ahmed were not offensive.  Of course it was. They were awful, awful things to say. They shouldn't have said them.

The CPS is currently looking again at the section 127, running a series of roundtables and then, possibly, a public consultation. We'll be producing some recommedations on how to create a better and more liberal environment for freedom of expression. Funnily enough, the CPS' roundtables started this week, so they have some very fresh examples to consider. In the meantime, it's worth reading Professor Lilian Edwards' write-up of what she thinks the issue is

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October 03, 2012 | Jim Killock

Digital Economy Act: Costs Order debate pulled

Open Rights Group has just learnt that the debate in the Lords scheduled for Monday, in the Moses Room, to discuss the DEA Costs Order has been pulled. 

We do not know the reasons why, but there are some very serious concerns with the order. The order had previously been withdrawn due to drafting errors

Firstly, Ofcom ran a consultation at the same time as DCMS laid the Order before Parliament. This seems pretty odd.

Secondly, the £20 charge placed on Appeals is a clear attempt to deter people from complaining. Most worrying of all the stated aim of introducing an appeals fee was to reduce the cost of the appeals system to copyright owners by reduce overall numbers of subscriber appeals. The month given to file appeals is also very tight, given that people will wish to get legal advice.

Thirdly, the costs imposed on ISPs have very bizarre implications. Ofcom and ISPs will incur millions in set-up cost, which they can’t claim back from the members of the BPI and MPAA, who lobbied for the DEA. According to the draft cost order’s impact assessment Ofcom’s set-up costs are a cool £6.8 million, and ISPs will incur some £7.6 million, of which ISPs are suppose to recover 75 percent from copyright owners.

Some costs may be excluded, say BT and others. They believe that Ofcom has underestimated their cost, that the draft cost order does not actually allow cost recovery from copyright owners and/or that ISPs wont recover even 75 percent of their cost if volumes of notifications are “low”. It’s all pretty bizarre, but as the Secondary Legislation Scrutiny Committee has pointed out, there is no commitment from BPI or MPAA members to use the three strikes scheme, or pay for the set-up cost.

Fourthly, there are concerned that the draft costs order encourages copyright owners to send millions of letters accusing subscribers of copyright infringement (there is talk of 2 million copyright infringement reports per year), without much impact. The magic 75% reduction in copyright infringement after the first notification has not materialized in France or New Zealand, where three strikes is now operational.

Never mind, but without the DEA the UK has actually achieved a bigger increase in legal digital music sales than France, where the taxpayer pays about €12 million to send just over 1 million email notifications.

Yet again, the DEA is running into trouble (the first draft cost order was pulled by the Joint Committee on Statutory Instruments for defective drafting). The scheme Ofcom proposes is unworkable, expensive and apart from threatening open WiFi, and basic principles of justice, it’s not really clear what it would achieve. There are better ways to enforce copyright, educate users and encourage private investment in advertising and developing legal online content services.

And just in case anyone hadn’t noticed, the likely 2 million-plus letters will go out around 2014, the lead up to an election. Do politicians really want that kind of advert for their ability to run the country, given by definition most letters will go to people who have done nothing wrong?

The DEA is a mess left over from the fag end of an exhausted Parliament. More than two years after the DEBill was rushed through Parliament by Lord Mandelson the Government should have a serious rethink.

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September 24, 2012 | Jim Killock

CleanIT: bad policy making

Thanks to an EDRi leak, European proposals for widespread action against “terrorism” were revealed last week, with press coverage in the Telegraph and elsewhere.

The project – Clean IT – moved swiftly to deny that they had been a closed project, which is partly true. They also tried to reduce the significance of the document they had produced, saying it was “for discussion” (even though page one of the leaked document suggests the contents are ‘detailed recommendations’).

The plans include measures for upload filtering, corporate censorship, plus procedures for flagging dubious content.

The first of these – “upload filtering” – has significant commercial backing, according to EDRi, but would pose a huge privacy problem. Effectively, all content by all users would have to be machine-read as it was submitted to a service like Google Docs, in case it contained “terrorist” material.

The other discussions, focusing on terms and conditions, try to pass responsibility for free speech to companies, rather than courts. Civil society groups have been saying very strongly that this kind of approach is dangerous. Companies are cautious and of course want to avoid being held liable and responsible for their users' content. So using T&Cs is likely to lead to overly sensitive reactions about what content to take action against. Asking companies to use T&Cs is lazy – it allows government to see policies put in place without legislation or safeguards.

It is also something that civil society has been stressing should be avoided in submissions to the European Commission's consultation on 'notice and action' - a process this is seemingly not connected to. 

In the UK, some similar ideas are being considered under the Home Office’s Prevent Counter Terrorism strategy. This strategy has mooted the idea of blocking of “terrorist” websites on the government estate, and “encouraging” private ISPs to voluntarily block the same list.

However, what links these proposals is the absence of an understanding and definition of the problem - for example, clear evidence that terrorism really can be tackled effectively in these ways. The assumption appears to have been made in both cases that terrorist material is easy to define, is in some way “circulating” and is “recruiting” people to extreme and pro-violence views, and then helping shift these people into actively violent networks. 

Surely it is important to know whether recruitment is between people, in specific kinds of real life locations, targeting individuals with particular vulnerabilities or experiences; or whether it is in fact being conducted via certain websites?

This kind of absence of evidence and adoption of wide assumptions is all too prevalent in Internet policy. In the case of supposed terrorist content, it is particularly problematic as the understandable desire to do something about terrorism can swiftly become a reason to support any measure, no matter how unproven.

Quite a few other Internet policies fall into this category of laws, including the now-dying Hadopi, the troubled Digital Economy Act, and the Australian attempts to create a national adult content firewall. Others, like Data Retention, are under legal challenge. Yet others, like the Claire Perry and Daily Mail-inspired adult content filters proposed for the UK, look like angering the public and potentially harming their supposed objectives.

There is hope. EDRi have embarrassed the CleanIT group, and the EU for funding them. Moving straight to solutions without clearly establishing the problem to address; duplicating work the Commission is already doing, for example on notice and action; and failing to take into account due process and the legal obligations created by human rights law: the Clean IT project is seemingly wasting taxpayers’ money with incompetent and dangerous proposals for the private policing of online content.

This is another signal that politicians and policy makers need to gain some scepticism and rigour when thinking about Internet policy, instead of dealing with it on the basis of rhetoric and first guesses about public harms.

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