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August 06, 2012 | Peter Bradwell

Consulympics: opportunities to have your say on tech policies

There are loads of opportunities to have your say on technology policies over the next few weeks.

You may have noticed that there is currently an international sporting event going on in London. You probably have noticed. Olympic fever has monopolised most people's attention, hearts and their minds. And of course the title of this blog post is a slightly clumsy and obvious attempt to make various technology policies seem like they are as viscerally entertaining as beach volleyball, artistic gymnastics or the heptathlon. Which they probably aren't. To most people anyway.

But there are lots of really important consultations going on at the moment which will go some way to determining all sorts of policies, from the way public bodies anonymise data, through the government's position on 'parental controls' and internet filtering, to new powers for surveillance. There are at least six consultations, to be precise. It would be a shame if they crept under the radar.

As always, your voice can make a real difference. If you feel like these will affect you, that you are particularly interested in the issue, or have useful evidence, we'd strongly urge you to submit something. 

Here is a general overview of the consultations, with some relevant reading and links to the relevant documents - we'll post more on each of these closer to their deadlines. Here's what's happening, in order of the deadline for submissions (nearest first). So if you're bored of the Olympics, need a break from all the sport, or were never interested in the first place - these should keep you busy. 

1. Consultation on a draft anonymisation code of practice

2. Communications Data Bill Joint Committee consultation

3. Parental Internet controls consultation

4. 'Midata' consultation

  • Deadline: September 10th
  • What is it? MIDATA is an initiative that 'seeks to give people access to their personal data in an electronic re-usable format' - in other words, an effort by government to get businesses releasing more data to consumers about their use of that service. "The consultation seeks views and opinions on a proposal to create an order making power, which if utilised, would compel suppliers of services and goods to provide to their customers, upon request, historic transaction and consumption data in an open standard machine readable format."
  • Additional note: "We are also running a series of Open Forums over the consultation period at the BIS building, 1 Victoria Street, SW1H 0ET. The dates are as follows: Thursday 9th August, 3-5pm; Thursday 16th August, 3.30-5.30pm; Thursday 23rd August, 3-5pm. Please for more information."
  • Useful reading:

5. Digital Economy Act Sharing of Costs Order consultation

  • Deadline: September 18th
  • What is it? Ofcom "are consulting on the implementation of an order to be made by the Secretary of State - The Online Infringement of Copyright (Initial Obligations) (Sharing of Costs) Order (the "Costs Order"). This Costs Order will require Ofcom to set fees payable by Copyright Owners to ISPs and to Ofcom if they intend to take advantage of a notification scheme in relation to online infringements of their copyright." Issues include £20 appeals fee. 
  • Useful reading:

6. European Commission 'net neutrality' consultation


Update, 22nd August 2012:

7. European Commission 'notice and takedown' consultation

  • Deadline: 5th September
  • What is it? Essentially trying to establish the issues with how processes for taking down material from the Internet should work. It's called 'A clean and open Internet: Public consultation on procedures for notifying and acting on illegal content hosted by online intermediaries', and the objectives to contribute to developing legal certainty, trust and therefore growth in (cross-border) online services, thus enhancing the functioning of the Digital Single Market; to contribute to combating illegality on the internet; and to ensure the transparency, effectiveness, proportionality and fundamental rights compliance of notice-and-action procedures.
  • Useful reading:


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August 01, 2012 | Peter Bradwell

Creators and mergers in the music business

There are some big changes afoot in the music industry at the moment. Universal Music Group are trying to buy the recorded music part of EMI for $1.9 billion (see this and this for some coverage).

Opinions have been varied and robust (see the American Assn. of Independent Music statement, for example). The UK Government yesterday expressed a sort-of opinion on the matter, with Secretary of State Jeremy Hunt saying: "As far as the specific deal is concerned, that is a matter for the competition authorities and is being looked at in Europe". Critics have said that it could concentrate power in the music industry, shrinking opportunities for access to the market. According to the Wall Street Journal, Martin Mills, chief executive of independent music group Beggars Group, said the deal 'would give Universal an unfair advantage in signing artists and gaining access to distribution, retail and media'. 

We've been monitoring this because we're interested in how the new landscape could or should affect musicians and their relationship with the big players in the business. Whatever the outcome of the attempt by Universal Music Group to buy EMI, it seems important that regulators consider the likely impacts on citizens not just in their role as consumers, but also as creators and performers both now and in the future. Digital technology brings opportunities to all of us to participate in culture and in markets. Allowing the incumbent businesses simply to divide up the market between them in a new way doesn't seem like a great stimulation to innovation.

So we've noted with interest the Featured Artists Coalition suggestion that artists involved should be given the chance to buy back their rights from record labels on fair terms. Those artists would then be free to re-enter the market in new ways and with business models far better adapted to the digital world. FAC say:

"This is an historic opportunity to create a more sustainable music industry – a future music industry more meaningfully described as a collection of individual artist businesses rather than specific sectors like records, publishing and live."

Here's their open letter to the Financial Times from 19th July in full:

"Sir, The views of Patrick Zelnik (“A Universal EMI merger could rescue the music business”, Comment, July 17) were as welcome as they were needed. His analysis was incisive, but his solution stopped one step short of perfect.

Divestments in the wake of mergers should first offer copyrights, at market rates, to the artists who created them. To sell them to other corporations, whether large or small, is just a perpetuation of an old business model, which has seen the recorded music business halve in value over 10 years. During that time, the technological revolution has displaced the old music business players. We do not need to repeat the mistakes of the past.

It would be good to have music business people rather than financiers owning and running music companies again. It would be even better to have artists owning their work and entering into partner relationships with service-providing major and independent record companies with all the finance and expertise an artist needs to develop their own business.

Top management at Universal has already concurred with this view. The concept of “turning the taps on” so that music catalogues are much more readily available to users, and copyright ownership is not an impediment to new services, would help build the artist-centric new music business that will benefit creators, investors and consumers.

Ed O’Brien, Radiohead
Nick Mason, Pink Floyd
Sandie Shaw

The Featured Artists’ Coalition"

It seems like this proposed acquisition gives regulators a unique opportunity to think in these terms - about the position of the creator in digital markets - as they consider ways to protect against over-concentration in music markets. ORG supports this suggestion from FAC, and urges regulators in the UK, Europe, and elsewhere, as a matter of principle to put artists and citizens at the centre of their response. 

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July 27, 2012 | Peter Bradwell

Calls for Ofcom to try again with the Digital Economy Act 'Code'

Yesterday was deadline day for Ofcom's consultation on the revised 'Initial Obligations Code' - the instrument that sets out how the Digital Economy Act will work in practice. This is the second iteration of the Code, following an initial consultation back in 2010.

We have put up our submission in our reports section. Thank you if you responded to our call earlier in the week to respond or to submit your story to us.

Since the previous consultation, Ofcom and DCMS have had two years to fix the problems. So it's frustrating that such important problems remain.

In our submission, we note in particular that Ofcom and the government have failed to address to issue of wifi providers, leaving providers of wifi access from cafes, hotels and bars through to libraries and universities with no clarity about their liability. Despite the increasing importance of a widely available 'infrastructure' of publicly available internet access, the Code does nothing to address the position of those providing that access.

We're not a lone voice. Consumer Focus call in their submission for the Secretary of State to withhold approval of the Code in its current form 'because it does not provide legal certainty on reasonable steps or for WiFi providers, business and public bodies which provide internet access to consumers'.

Mike O’Connor, Chief Executive of Consumer Focus said "Ofcom’s draft code does not provide clarity to WiFi providers, businesses or public bodies over who is responsible for copyright infringement carried out through a shared connection. We are concerned that libraries and universities could find themselves incurring significant costs which may result in them deciding to limit internet access. Hotels, pubs and cafes also face legal uncertainty. There is no evidence that significant levels of infringement occur on WiFi networks or the networks of libraries, which provide access to the web for those on low incomes and the 20 per cent of households without internet connection" and that they are "calling on Ofcom produce a revised Code which will respect legitimate consumer rights and help businesses and public bodies to continue to provide internet access to consumers".

Libraries, universities and other research institutions recently called for Ofcom to address the position of wifi providers, arguing that as it stands, the Digital Economy Act risks 'forcing public libraries, schools, colleges and universities to limit access to the internet.' 

We'll post more submissions to the Code as we see them.

We'll also be writing to the Minister Ed Vaizey echoing the calls for him to ensure a definitive solution to the remaining concerns with the Code, and asking him not to approve the Code in its current form.



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July 24, 2012 | Peter Bradwell

Tell Ofcom to fix the threat to wifi

Ofcom are running a consultation on a new version of the 'Initial Obligations Code'. That sounds as boring as it is important. It basically sets out how the Digital Economy Act will work in practice. 

ORG and many others have repeatedly told Ofcom and the Government that the Digital Economy Act could stifle Wifi provision and see individuals targeted unfairly. It is the Code which should sort that out. But the revised Code, two years in the making, has not addressed some of the key issues. 

Ofcom and the Government have refused to create an exception for wifi providers. As a result, we think the Code leaves businesses and public bodies that provide wifi facing allegations of copyright infringement and the costs of dealing with the powers of the Act. Libraries, other educational bodies and hospitality businesses have said they may restrict or withdraw wifi provision if this does not change. 

This is our chance to say why this is a bad idea. 

There are two things you can do. 

  1. Please consider responding to the consultation yourself, especially if you are a wifi provider or regularly use wifi in public and are worried about how this will affect you. You have until this Thursday (26th July). You can respond to the consultation using the form on Ofcom's website. Or there are more details on how to respond at the bottom of this email. 
  2. Tell us if you are a wifi provider, and think you might receive allegations of copyright infringement as a result. You can use our form to let us know, and we'll pass this on to Ofcom as part of our submission.    

What is happening?

Ofcom have published their revised 'Initial Obligations Code'. This sets out who is subject to the provisions of the Digital Economy Act, and who is not. It says, for example, whether those that provide access to wifi in public places, like cafes, will have to deal with allegations of copyright infringement.

Wifi providers still don't know whether they will be held liable for the behaviour of those using their wifi. The revised Code does not address their situation directly, leaving them unclear as to whether they will be considered 'subscribers' (and therefore subject to allegations of copyright infringement) or not. The only way they can avoid this is by negotiating with their ISPs, convincing them they are wifi providers. It is complicated and time-consuming, and it is not even certain that this will see them avoid the powers of the Act.

This is despite repeated warnings from libraries, campaigners and MPs about the precarious position wifi providers are being placed in. If you run a business that provides open Wifi or access to customers - for example, a cafe, bar, or hotel - then this Code affects you. Wifi is an increasingly important part of the UK's internet infrastructure. The Government should not be putting that at risk so cheaply. 

We think Ofcom should create a carve out for public bodies and businesses that provide Wifi to their customers, to ensure that WiFi provision is still as widely available as possible.

Ofcom's site has the new Code and consultation document. Saskia Walzel from Consumer Focus has written more about the detail of the proposals for ORGZine

What can I do?

Two things. First, if you are a wifi provider, or regularly use the Wifi available in the places mentioned above, and feel the Code does not do enough to protect wifi provision, then please let Ofcom know.  This is a real opportunity to tell the Government that the Digital Economy Act still poses a serious risk to the provision of Wifi in the UK. If you think you will be affected, respond to the consultation. The deadline is 26th July. Ofcom have given you a few ways to respond. Here's what they say:

  1. "Online: The quickest and simplest way is to complete our online consultation response form. This is ideal for people who have specific brief points to make and/or do not need to attach large documents to their response.
  2. By email: For larger consultation responses - particularly those with supporting charts, tables or other data - please email attaching your response in Microsoft Word format, together with a consultation coversheet.
  3. By post: Alternatively, you can write to Ofcom. Please address your response to Justin Le Patourel, Head of Online Copyright, Floor 2, Internet Policy Team, Ofcom, Riverside House, 2A Southwark Bridge Road, London SE1 9HA. Please enclose a consultation coversheet with your response."

Second, we'd like to use your stories to help us explain to Ofcom the issues with the Code. There's two things we'd like to know:

  1. Tell us if you provide wifi to the public, and are worried that you might incorrect receive allegations of copyright infringement. Give us details if possible about the kind of wifi you provide. 
  2. 2. People will be given 20 days to appeal allegations of infringement. If you think this will not be long enough, let us know and tell us why. 

You can use our form to tell us. Please submit your story before the end of this Wednesday (25th July). 

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July 18, 2012 | Jim Killock

Snooper's Charter: a Bill without a proposal

Yesterday’s hearings on the proposed Communications Data Bill provided for some hilarity, as Professor Glees laid into the “civil liberties lobby” and made quite outrageous claims for the need for increased surveillance to reduce criminality.

He made a very weak case. Which seems comforting: but Professor Glees is not the government, nor Charles Farr.

The signs are that the Home Office is gearing up to bolster their arguments, starting with calls to gather evidence for the “business case” for new data gathering, mentioned by the police in their evidence session.

While constructing the business case after you propose legislation ought to worry the committee, for us, the lack of detail surrounding the proposals is highly worrying. Julian Huppert today said that he was declined access to draft orders, which would contain more information. Big Brother Watch were declined information about the costs and analysis breakdowns, which we have also requested.

How is committee meant to scrutinize a proposal that has not been properly published?

The committee’s debate has been encouraging. We have managed to advance the idea of notification of people after they have been investigated; the need for independent supervision has also been properly discussed. Most commentators have assumed that the scheme will aim at creating data mining capabilities.

The questions over capability, data mining and the consequences of collection are harder to articulate. We reminded the Committee about China hacking Google via police back doors; and Vodaphone Greece being hacked via law enforcement back doors by an unknown government.

Data, once created, poses a risk. It is interesting to criminal gangs and foreign governments, as well as law enforcement. Law enforcement is not entitled to put the whole population at risk because of its own needs, especially when these can be met in other ways.

Hopefully the risks will be discussed in more detail in the technical sessions, now planned for 4 September.

However, all of us worried by this Bill do need to know more about what this supposed reduction of data really is about. Is it law enforcement having investigatory problems, and lacking expertis in finding the relevant data? Is it that some companies have good data minimization policies? We need to know, in order to help the Committee understand the real options available.


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July 13, 2012 | Peter Bradwell

Lords Committee knocks Digital Economy Act Costs Order

Digital Economy Act time. Remember that?! We spent yesterday morning at Ofcom, who kindly offered us and a couple of other organisations the chance to ask questions about their revised Initial Obligations Code. It was a useful exercise. It's clear that they have done plenty of work on the code since the previous draft in 2010. It seems to us like there's plenty still to look at - for example there's still plenty of uncertainty around the liabilities to be faced by WiFi providers, in our opinion. They're running a consultation which closes on 26th July. We'll write up and publish our response soon, and we will also be asking you to respond, especially if you are a wifi provider such as a cafe, hotel or library and are concerned about how the Code may affect you.

Shortly after yesterday's meeting, the Secondary Legislation Scrutiny Committee published its report on the Draft Online Infringement (Initial Obligations) (Sharing Of Costs) Order 2012. They conclude that "The House may wish to press the Minister in debate for greater reassurance about whether this scheme will function effectively; and we draw the Order to the attention of the House on the grounds that it may imperfectly achieve its policy objective."

They criticise the £20 appeals fee, the confusion around the position of wifi providers such as libraries, and the laying of the order whilst a consultation was ongoing. The Committee ends by questioning whether the objective of reducing copyright infringement by 75% is achievable.

(The Committee scrutinises secondary legislation and makes recommendations to the House on its findings. The Sharing of Costs Order 2012  requires 'Ofcom to set fees payable by Copyright Owners to ISPs and to Ofcom if they intend to take advantage of a notification scheme in relation to online infringements of their copyright.')

If you are following the Digital Economy Act, it really is worth reading the full report. Some of the more choice comments:

  • "We…note that DCMS offer no robust definition of what they interpret as "vexatious" or "frivolous" appeals" 
  • "we note that paragraph 10.4 of the EM says first that under the Initial Obligations Code libraries offering public access networks will not be considered to be ISPs but in the following sentence the EM says that they can claim that they are ISPs. We find this confusing; and we remain unclear whether or not such institutions will be charged the £20 appeal fee." (The EM referred to is the Explanatory Memorandum.) 
  • "DCMS should have given the House a much clearer explanation of how this Order fits into the wider policy context."
  • "We were also concerned about the unusual situation where DCMS have laid before Parliament an Order that is the subject of an ongoing consultation. DCMS assured us that the consultation relates only to the implementation of the Order and not to the instrument itself. However, if DCMS is not yet clear about how the scheme will be implemented, it raises questions about how can they set the level of an appeal fee that satisfies the terms of the Treasury Rules for full cost recovery"
  • "the Committee does not have sufficient information to judge whether £20 is the appropriate amount given that significant parts of the structure of the scheme and the appeal mechanism are still undecided."
  • "This Order makes a division of costs based on a large number of currently unknown factors, and those who are required to operate it have made it clear that their cooperation is entirely dependent on financial considerations. This raises questions about whether DCMS's policy objective of reducing online infringement of copyright by 75% is achievable."

Now, this may all sound extremely niche and complicated. And it kind of is. But its also really important. The IOC and the Costs Order are supposed to clarify key substantive issues in the Digital Economy Act. It is telling that 2 years after it passed, some of these are still a cause for concern - including, as the Committee points out, why a £20 appeals fee was decided to be most effective and reasonable option. There are some lessons here - if you rush an Act, based on an inadequate analysis of objectives and how to achieve them, without sufficient scrutiny, then you'll probably have to spend quite a lot of time afterwards trying to clear up the mess.

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July 12, 2012 | Jim Killock

Opposing mass data surveillance

Yesterday, I attended the Joint Committee hearings examining the Communications Data Bill – aka the Snooper’s Charter – on behalf of the Open Rights Group. I joined Dr Gus Hosein of Privacy International, Nick Pickles of Big Brother Watch, and David Davis MP on the panel.

The session was cut short, so we will be going back next week, to share a panel with Liberty and Justice, who will be outlining the civil liberties and human rights case against the Bill.

On Wednesday, Charles Farr of the Office of Security and Counter Terrorism at the Home Office attended with two supporting officials to outline the government’s case. I listened to their case, which was very surprising. As Peter Bradwell at ORG observed, it was if they were discussing a different bill.

Farr claimed that “black boxes” were a small part of the plans. Black boxes would target a small number of sites where co-operation could not be obtained. Mostly the Home Office aimed to co-operate with private companies, including companies overseas.

Those companies – like Google and Facebook – seem to be in the dark, although Farr and Theresa May say they have been briefed.

The problem we have here is that the Home Office has not published a proposal, nor presented evidence of it. Instead, they have published the legislative language surrounding the proposal. The Committee and groups like PI, BBW and ORG are having to reverse engineer what the proposals really are from the words of Charles Farr and the Bill itself.

Normally, a defined proposal would allow us to assess the real technological and civil rights risks. A public consultation would allow us to present counter-evidence and engage in a debate. Though these processes are flawed, we would at least have a firm idea of what we are dealing with.

Similarly, the Joint Committee are teasing out potential issues working back from the face of the Bill. To our mind, any range of possible plans could be enabled by this legislation. The previous Intercept Modernisation Plan could easily be enabled through the powers in the draft legislation.

We need to know why and how has consultation been avoided. We need to see the actual plans, costs, justifications, beyond the Impact Assessment. The Home Office needs to publish plans on which they can fully consult.

Nevertheless, the Committee seems to be doing a good job in very difficult circumstances. They are certainly teasing out many of the potential issues, and current problems with RIPA’s lack of oversight. Gus Hosein yesterday made a compelling case for abandoning “collection” duties, which are absent in all other democratic countries. David Davis demolished the idea that judicial oversight was cumbersome and unnecessary. ORG outlined the proliferation of data which the police are benefiting from: hardly a ‘reduction’ of capability.

ORG, PI and BBW pointed to real evidence in other countries showing reductions in use of retained data, and increases in detection rates. In the Czech Republic, Luridicum Remidium report that detection (in 2010) went up from 37.55% to 38.54% despite a tenfold drop in requests for information. In Germany, the Federal Crime Agency reported that under data retention, a smaller proportion of crimes were resolved.

One question was asked that does seem, on one level, difficult. How do you make sure you have the information on the one or two very serious cases where it is difficult to obtain the data otherwise? David Davis pointed out that having the data doesn’t mean it is used. Often, more data just means more haystacks obscuring the same needle.

Equally, we cannot use “we must have the data just in case” as a starting point. If we did, why not bug every park, every car and every pub? Or demand logs of library borrowings?

The starting point with communications data is that it has been already created for private business purposse, so access is reasonable. Collection duties imposed on ISPs would move us away from that position into increasingly dangerous territory.

One thing that has been very clear to us over the last weeks is that we need a clear movement, gathering public opinion against this Bill. Many MPs do not believe the public is concerned, and others do not think that MPs can be moved away from support once terrorism is mentioned.

That’s what we need to work on. Other organizations will of course play their part, like 38 Degrees, No2ID and Liberty, but ORG can be pivotal in organizing and networking the opposition to this proposal. Can you help?

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July 04, 2012 | Jim Killock

ACTA: you won!

Today, the European Parliament resoundingly voted against ACTA!

The vote was 478 against, 39 in favour, with 165 abstentions.

This victory was thanks to your continued pressure which helped ensure that at every step of the way Europe’s representatives voted to reject the provisions within ACTA. We know that MEPs have been inundated with emails and calls from people who, just like you, have fought tirelessly in the defence of democratic freedoms.

Your persistence has paid off: MEPs have listened and stood up for democracy – some of them doing so quite literally in a moment of post-vote triumph, holding placards reading ‘Hello Democracy, Goodbye ACTA.’

Unwilling to let ACTA die, Commissioner Karel de Gucht announced that, regardless of the Parliament's rejection, the European Commission would wait for the ECJ's decision on the treaty's compatibility with fundamental rights and freedoms, before considering what to do next. This attempt to delay this issue further and pull the wool over our eyes will fail so long as the Open Rights Group and activists like you remain vigilant.

With more threats on the horizon like the “Snooper's Charter” now is the time to help ORG continue to defend democracy and digital rights by joining today!

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