December 21, 2012 | Peter Bradwell

More freedoms to use copyrighted works: it's not the end of the world

Yesterday the Government announced its plans to implement the recommendations of the Hargreaves Review - namely, how it will put in place various exceptions to copyright that permit more uses of copyrighted work. Here is the detail (pdf).

These were reforms recommended in the report by Professor Hargreaves in May 2011. (See our write up from the time in Comment is Free). After that, the Government announced its intention to implement his proposals and ran a three month consultation on the plans. You can read our response to the consultation here, and a full list of responses is available at the IPO website. 

Following these two consultations, the government have refined how the ideas will be put into practice. The result is a pretty reasonable set of proposals that will permit all sorts of uses of works that currently sit on the wrong side of the law.

There has been some of the usual alarmist bluster in response already - for example, ITN have suggested the proposals will 'irrevocably dismantle the UK’s intellectual property framework'. 

In reality, it will do no such thing. These are some pretty modest proposals in truth. Some of them will simply bring us line with what plenty of other countries already permit. Some simply help the law match public expectations and existing practices. The IPO seem to have done a good job of listening to some of the concerns about the scope of the exceptions and have narrowed some of them accordingly.

We think that the proposals will help encourage greater use of copyrighted work, encouraging people to be creative, and to engage with the cultural works around them. This won't, we don't think, come at the economic expense of the creators of the original work.

Here are some initial notes on some of the proposed exceptions. 

Private copying

Here are the proposals:

"People will be permitted to copy content they have bought onto any medium or device that they own, strictly for their own personal use (such as transferring their music collection from CD to iPod). This will not allow sharing copies with others but it will allow consumers to copy material to and from private online cloud storage."

'Value added' cloud services will still require licenses, and the copying can only be for private and personal use (meaning it doesn't allow sharing between friends or family, and there is a very cautious approach to access to copies that do not have TPM that needs more explanation.

People will be able to request copies that allow them to take advantage of the exception where TPM (Technical Prevention Measures) prevent them doing so. The Government says that they do not want "this provision to undermine the reasonable application of TPM by rights holders, particularly in new business models".

This leaves some services in a bit of a grey area. For example, when 'buying' a film or tv show over on Blinkbox (as I have done to watch 'Veep'), a a purchase actually means access to a stream. This is permanent access - one presumes so long as Blinkbox exists. If I have 'bought' the Veep series, could I write to the Secretary of State to ask for a copy for personal back up purposes? It could be that the exception leads to services such as Blinkbox modifying their terminology, from 'buy' to something like "long term rental" or something similar.

There will also be no 'iTax' - meaning there will be no levy involved that would see costs added to blank media or cloud services to offset any harms caused by private copying. The reason is that the narrowness of the provision means there will be minimal or no impact on the revenues of rights holders. 


We called in our responses to the consultations for a new exception to permit parody, and set up the site to support that. We are delighted to see the government's intention to "allow limited copying on a fair dealing basis for parody, caricature and pastiche.' They confirm that "existing protection for moral rights, including the right to object to derogatory treatment, will be maintained."

This will be a fair dealing exception. This basically means the legal test, as stated in the Government's response, is "whether a fair minded and honest person would have dealt with the copyright work in the manner in which the defendant did, for the relevant purpose". One aspect of this is the 'degree to which a use competes with exploitation of the copyright of the copyright work…If a use…acts as a substitute for it, and thus affects its value, then it is less likely to be fair".

One interesting side effect of this is that it should incentivise licensing. This is because the availability of a license to use the work will be a factor in whether use of the work without a license for parody is 'fair' under the fair dealing proposals. So this should not undermine existing licensing arrangements, for example. It makes it harder, though, to refuse to license because you simply don't like the intended use.

There are also proposals for lots of other exceptions too - for quotation to enable academic reports, tweets and blogs can reference copyright works (with acknowledgement); to enable non-commercial researchers to use computers to read and analyse data; and to facilitate wider educational use of copyright works (so that teachers, for example, can use material on white boards).

It's a detailed set of plans. I'd recommend taking some time out of your christmas holiday to read it in full.

The proposed reforms, implemented carefully, shouldn't result in a weakening of creators' positions or their levels of remuneration. But they will encourage more socially and economically useful activity. And the Government will review the effects of the plans after they have been implemented, taking into account developments such as the planned copyright licensing hub.

So this is not the end of the world for creative industries. In fact, it should be good news, reflecting public expectations and facilitating greater engagement with copyright works. These look, to us, like some pretty common sense reforms for the digital age.

The Government aims to introduce these "through the smallest possible number of Statutory Instruments" and hope to have them in place by October 2013.


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December 21, 2012 | Peter Bradwell

Court of Appeal allows Golden Eye appeal

This morning the Court of Appeal handed down their judgment in the appeal by the firm Golden Eye. The Court allowed the appeal. We have made a pdf of the judgment available, and an online copy is available at the Bailii website. 

Golden Eye were challenging the High Court's refusal to grant them a "Norwich Pharmacal Order" that would require Telefonica UK to hand over personal details relating to about 6,000 IP addresses.

Open Rights Group intervened in the case on behalf of the Internet users potentially affected by the Order. We were able to do so because of the extraordinary generosity of the supporters who donated to our appeal. 

Here is more information on the original hearing, from Consumer Focus (who intervened at that stage). And here is more background on Open Rights Group's intervention in the Golden Eye appeal.

We are of course disappointed with the decision, and we're sorry to those who donated and thus enabled us to make this intervention that we can't bring you better news. We are extremely grateful for your help.

We will be studying the judgment carefully and then we'll consider properly the implications before deciding how to proceed. 

We are concerned that such a decision effectively means that someone who themselves has no interest in a claim can acquire personal details to obtain large sums of money. In this case Golden Eye are not a firm of solicitors, and thus are not regulated in the same way solicitors are.

However, despite the judgment this was an extremely important intervention. We are pleased that we have made sure the issues raised by applications such as this were closely examined by the Court.

These requests potentially involve large amounts of personal information. Without our intervention, and the excellent work of Consumer Focus earlier in the case, the application would have been something of a formality.

The companies who hold the information, such as Telefonica UK in this case, usually do not contest these applications. That means it is left to us to defend the interests of their users in court. In future it will be much harder for people to run the sort of 'speculative invoicing' campaigns we have seen in the past. That's down to the interventions made in this case.

This is the first of what we hope will be a number of legal interventions, through which we hope to promote the rights of Internet users in the courts. That's why we're so delighted to have achieved our fundraising targets and can recruit a legal officer to manage our legal work.

A big thank you once again to all those who helped us intervene in the case with such generous donations. 

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December 20, 2012 | Peter Bradwell

Confusion over parental Internet controls

Will filters be default on, off or something else?

Five days ago, the Department for Education announced a very reasonable approach to child protection online. Their plan was to make sure parents are supported in making easier, more informed decisions about how to keep their children safe online.

This was based on a consultation that focused on evidence, engagement with stakeholders and soliciting to the views of parents and industry.

But today the Prime Minister is singing a different tune. His article in the Daily Mail today suggests he is taking a more restrictive line, and that he wants to see 'default on' filtering. This has created a lot of confusion, seemingly just to satisfy the Daily Mail's editorial whims. Are they really to be the drivers of Internet policy?

So, what is actually happening? Is this a 5 day policy about-turn?

The Prime Minister is to some extent just describing the approach already set out but in more aggressive terms. However, there are a couple of things to get concerned about:

1. The complexity of the system he seems to be advocating. The Prime Minister has laid out some quite detailed specifications defining how filtering tools should work - with some confusion about what will be on or off by default. 

2. Claire Perry MP has been appointed to lead the implementation of these policies. She has led the campaign for default-on filters. This suggests Government want to do more than help parents make choices about online safety, and want to start taking those decisions for them.

The issue here is whether the Government mandates a specific technology and specific options for consumers, especially where those are on by default.

The available evidence (for example, the EU Kids Online project), does not support moves to implement a default 'on' Internet filters, and suggests that technical measures such as filtering are not effective as a means to prevent children's exposure to risk online. Filters can also give parents a false sense of security and often, through error, overreach or abuse, lead to the blocking of legal and legitimate content.

There are plenty of filtering tools available. According to Ofcom, 46% of parents use them and only a small percentage of those that do not say this is down to lack of awareness or technical skills. The majority of people do not support default on filtering. (See our fact sheet on parental Internet controls.)  

Parents should instead be supported, to help them make easier decisions about what is right for their families. We hoped that the Department's initial response on Friday showed the Government understood this.

The Department for Education arrived at a very reasonable and welcome position:

"...the offer to parents should be reformulated in a way that ensures that children can be given the levels of protection their parents think is appropriate for them, reduces the risk of uninterested parents avoiding online safety issues, and does not impose a solution on adult users or non-parents."

Today's announcement leaves everyone confused - parents, ISPs, the public and probably the Departments who thought they were in charge of policy making.

There are legal and practical reasons why government policy goes through public consultation, and why responses are outlined through official channels. If the government has something specific in mind, then then the place for an announcement is not a newspaper opinion piece. The 3,600 people who responded to the consultation, and received a response from the DfE with a clear reaction, haven't been told of any further shifts.

An article in the Daily Mail simply doesn't mean anything official. We're all left guessing what's going on.

We will be asking for clarification on what is actually happening as soon as possible.

Here is our fact sheet on online parental controls.
Here is our submission to the consultation on parental controls. 

Mobile filtering, and demonstrating the problem with default filters

A leader in the Sunday Times (note: subscription required) wondered aloud why the Government had shunned a 'neat' solution to online pornography. They argued that the evidence of risks associated with mobile use demonstrated the need for default filtering of the internet:

"A report from Professor Andy Phippen of Plymouth University, published last week, showed that 40% of children under 12 have seen pornographic images online. As an article in News Review today explains, this hugely colours their attitudes towards sex — and not in a good way. Many girls are being pressurised into underage sex by boys who have themselves been extensively exposed to gross sexual images."

First, there is no such statistic in the NSPCC report. The report found that for year 6 pupils there "is little evidence in our groups to suggest that these children were exposed to sexualised content, or asked to self generate." The report does cover some very important issues with the sharing of sexual material amongst young people, often related to self-generated images.

It's worth actually reading the report, which is preferable to just repeating something you were told about it.

Second, the article fails to note there is already default Internet blocking on mobile networks.

This is a mistake repeated by the Daily Mail. They say:

"concerns remain about how the Government plans to address children accessing porn via their own smartphones"

These articles help to demonstrate two things.

First, the limitations of default internet blocking. (On a related note, see our recent post on mobile networks' blocking of a church's website and our report, published in May this year jointly with LSE Media Policy Project, on how mobile internet filtering gets it wrong). 

Second, the campaign for 'default on' filtering is based more on assumptions than the evidence of the problem, the tools available and what they can do.

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December 19, 2012 | Ruth Coustick-Deal

ORG Law Fund reaches its goal!

Open Rights Group has raised enough new funds to allow us to recruit a part-time Legal Officer.

I am delighted to tell you that, thanks to your generosity we have now raised enough to be able to fund Open Rights Group’s first Legal Officer.

Thank you very much to all of you who supported our ORG Law Fund, by joining, sharing the campaign on Facebook or Twitter, passing  our videos round on YouTube, telling your friends about our work and signing them up. It is wonderful to see so much support and enthusiasm for ORG.

When we launched the campaign on 2 November 2012 we said that we wanted to reach 150 supporters, the minimum needed to have enough funds to pay for a part-time legal officer:  we now have enough to finance this position.

If you would still like to support our Law fund, please do. If we reach 300 new supporters  we will be able to fund the new position on a full time basis and give ORG an even greater capacity for legal work.  It’s a great time to join ORG as we look back on a year of successes  - defeating ACTA, stopping default censorship and preventing the draft Communications Data Bill becoming law. I encourage you to join and enable us to have more victories as we take on this new project in the coming year.

What will the new position do?

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

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

  • Provide technical advice to the courts where proposals would be unworkable or have unforeseen 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 juridical review where we explained the impact on privacy

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December 17, 2012 | Peter Bradwell

Another church blocked by mobile networks

...just in time for Christmas. In better news, the Government has decided against 'default on' internet blocking

About this time last year we wrote about a church that had been blocked by O2's mobile Internet filters. Following this, we set up, a site which allows people to report 'over-blocking' on their mobile networks.

With somewhat uncanny timing, this morning someone used to tell us about another church (St. Mark's in Southampton) that is blocked - this time on Vodafone. We have confirmed that it is also blocked by Orange. The site is blocked on O2's highest blocking setting, but not on their 'default safety' service.

Using O2's very handy 'URL checker', we have established that they classify the site as 'alcohol'. It is likely that this is the category that has led to its blocking on other networks, but this is not confirmed.

*Update:  Vodafone have confirmed to us that the site has been manually reviewed and the classification of 'alcohol' has been corrected - the site should be unbloked within the next 2 days*

It is likely that the reason for this categorisation is the use of the word 'wine' on the church's website. The church is part of the 'New Wine Network of Churches'. Their website explains that this means they "have the aim of ‘Equipping Churches to see Jesus’ Kingdom Grow'". Their use of the word 'wine' is not related to selling or the use of alcohol.

It's yet another example of how internet filters make simple and costly mistakes which often result in 'over-blocking.' Our report from May this year collected more examples of this. Since then we have seen political parties, technology news websites, and more recently a number of maternity health sites all blocked by mobile networks. It can be tricky and slow to get sites removed from block lists (although mobile networks say this is improving). 

Because of the sheer number of websites there are, most categorisation by filtering services is likely done by an algorithm.

A human could probably spot the difference between a site advocating the force feeding of your kids too much booze, for example, and a church's efforts to express their religious mission. Machines find that more difficult, it seems.

There are broader questions about who makes judgements about what types of sites should be blocked, and what is appropriate for children of different ages. All of which adds up to a need to ensure parents are supported and are able to make decisions for themselves, rather than having decisions made for them. 

...Some good news from the Government on internet blocking - and a thank you

So, now for some better news on this issue; the Department for Education seem to agree with us. On Friday they published their response to the consultation on parental controls online. We had been concerned that they would move towards mandating 'default on' ISP level filtering.

But their response says that default filters and pre-filled forms encouraging filtering will not be pursued. Instead, parents will be asked to install filters and be given help to choose age appropriate settings. The Department are taking the following approach:

…the offer to parents should be reformulated in a way that ensures that children can be given the levels of protection their parents think is appropriate for them, reduces the risk of uninterested parents avoiding online safety issues, and does not impose a solution on adult users or non-parents.

The Government accepted default network filters are problematic for four reasons:

To date, the Government’s approach has been based on expert advice that default filtering can create a false sense of security since:

  • It does not filter all potentially harmful content: given the vast amount of material on the internet, it would not be possible to identify all the possible content to be filtered, and very large numbers of websites are created each day.
  • There is also a risk from “over-blocking” – preventing access to websites which provide helpful information on sexual health or sexual identity, issues which young people may want information on but find difficult to talk to their parents about.
  • It does not deal with harms such as bullying, personal abuse, grooming or sexual exploitation which arise from the behaviour of other internet users.
  • It does not encourage parents to engage with the issues and learn about keeping their children safe online. There is a risk that parents might rely on default filtering to protect their children from all potential online harms and not think about how their children might want to use the internet, the kind of content that is appropriate for each child according to their own circumstances, and the risks and harms their children might face.

ORG have been calling for the government to avoid mandating default on ISP filters for some time (you can read our response to the consultation, and our report on mobile Internet censorship, published jointly with LSE Media Policy Project). We think that they would disrupt harmless websites and likely fail parents and their children.

This is also a win for all the ORG supporters who sent in responses to the consultation. They had a significant effect on the outcome, demonstrating that the public and many parents believe that they should have the opportunity to decide for themselves what works for their family. It's clear from the Department's analysis of responses to the consultation that they received a large number . 

As ever, you deserve a big thank you for taking the time to engage in the consultation. It made a difference.

Last week we sent a fact sheet to MPs, highlighting the best available evidence on online parental controls. This is available to read in the 'Our work' section. 


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December 12, 2012 | Ruth Coustick-Deal

Come along to our MP Lobby Day

On Monday December 17 Open Rights Group will be at Parliament letting MPs know that the Comms Data Bill must go back to the drawing board and calling for a review of digital surveillance.

The Joint Committee’s report on the Comms Data Bill was clear and crushing. They didn’t hold back on criticism of the Home Office, saying that draft bill pays "insufficient attention to the duty to respect the right to privacy, and goes further than it need or should ", describing Home Office evidence as “fanciful and misleading” and regarding the cost estimates as absurd.

However, despite this rather damning picture, the Home Office might ignore the Joint Committee, and their months of work and pages of evidence to  simply push on with their plans for a snooping state. Only last week the Home Secretary argued that there “can be no delay” because otherwise “people will die”(!)  We won’t sit by and let the CDB be pushed through despite the Committee’s Conclusions.

We need to let MPs know that what we need now is a fundamental review of surveillance laws in the digital age. It is absolutely clear that the Home Office cannot be trusted with this task as they have shown no concern for questions of civil liberties.

Please tell your MP that the CDB must go back to the drawing board:

Join us at Parliament

Monday 17 December


Meeting at the Jubilee Café

We will be in the Jubilee café near Westminster Hall all day, available with advice on speaking to your MP, negotiating the corridors of Parliament and with briefings on the CDB and party-specific perspectives on hand. We will also be able to send briefing information in advance and put you in touch with other local activists attending on the same day.

If you’re not sure what to say, don’t worry. We will we be happy to give advice and ideas on what to say when we meet you,  but the real key is to let MPs know that the swathe of public of opinion is against the Bill. A meeting with your MP does not have to be an eloquent speech, just let them know how you feel.

You can book an appointment for Monday to meet your MP via our MP meet up tool. If you are unable to visit London you can also use the form and letter to book an appointment with your MP at their constituency office on a time and date that suits you. If you prefer you can also get in touch with your MP via the switchboard: 020 7219 3000

If you are willing to attend and have severe difficulty getting transport we are willing to pay rail fares for some on a first come, first served basis.

Also we hope that those of you visiting London will join our Christmas party/ London supporter meet-up afterwards. Please come along and join us for a drink.

If you can't come on Monday, but would like to help our campaign against the Communications Data Bill, please consider joining today.

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December 12, 2012 | Peter Bradwell

How the Home Office let their Minister down

A week ago the Home Secretary said that anybody opposed to the draft Communications Data Bill was 'putting politics before lives'. Yesterday the Joint Committee on the draft Communications Data Bill, which was set up to scrutinise the proposals, published its damning report that concluded the draft Bill pays "insufficient attention to the duty to respect the right to privacy, and goes further than it need or should."

The report delivers a pretty withering verdict on the Home Office team responsible for the draft Bill. It calls their evidence 'fanciful and misleading', for example. It's clear that in the way the policy was developed and explained, the Home Office have badly let down the politicians, from the Home Secretary to the Deputy Prime Minister.

It has pushed the former to defend, in good faith but questionable language, what the Committee concluded are ill considered and unsupported proposals. And it has created an unnecessary fissure in the Coalition. All this because of the insular, overambitious and secretive process the Home Office insisted on running.

Below is a non-exhaustive set of examples of the Committee's findings that demonstrate three key Home Office failings: a failure to consult; a failure to properly define the problem; and a failure to adequately explain and support their proposals with good evidence. It is a pretty damning catalogue of issues.

This is why we now need a fundamental review of surveillance law. The Home Office's Snoopers' Charter is a fudge of a solution to the problems of law enforcement in the digital age. They've aptly demonstrated that they should not be entrusted with the review. 

1. The costs and benefits estimates were not robust:

On the supposed financial benefits:

"267. It may be that, for some purposes, it is useful to be able to ascribe a monetary value to a life saved. We fail to understand what relevance this can have in the impact assessment for a draft Bill. The figures are used to attempt to show that the taxpayer, by spending £1.8 billion over ten years, will recoup perhaps three times that amount, when this is not the case. To suggest that these estimates can be used to calculate a net benefit from enactment of the draft Bill at between £3.2 and £4.4 billion is simply fanciful and misleading.

268. The use of figures in this way points to a further absurdity. We are asked to believe that access to a further 10% of communications data over and above the 75% already available would save perhaps a further 150 lives a year. Logically, it should follow that the communications data currently available is saving around 1,000 lives a year, but the Home Secretary told us that the figure was “1,000 to 2,000 lives being saved” over the 10 year period. None of our witnesses could provide specific evidence of significant numbers of lives saved to date.

269. The figure for estimated benefits is even less reliable than that for costs, and the estimated net benefit figure is fanciful and misleading. It ought not to be used to influence Parliament in deciding on the relative advantages and disadvantages of this legislation. Whatever the benefits of the Bill, they are unlikely to be financial." (page 71)

On costs:

"257. …in his subsequent evidence Charles Farr told us that, on the basis of the regular discussions the Home Office had with the UK CSPs on their costs in implementing the RIPA arrangements, “we know in quite a high level of detail what those costs comprise [and] we have already formed the basis of our calculations about the costs that the CSPs may incur in future. We have added in considerable optimism bias on top of that. I would not want you to conclude that we have plucked these figures out of thin air. They are based on existing costs which we have already established with the providers. It is still our view ... that these figures accurately represent the likely cost going out to 2020.” The business case was being “refreshed”, but he did not anticipate that it would come up with a figure higher than £1.8 billion.

258. Mr Farr repeated that this figure “builds in quite a lot of optimism bias”. For Microsoft, Mr Collins had told us: “... the costs will increase. Even if we gave you a figure now, I would be willing to bet money that in 10 years’ time that cost will have multiplied grotesquely.” The figure he was referring to was the cost to CSPs. We think he would be betting on a certainty. Future developments are entirely unpredictable. It is impossible to foresee what new communications providers or forms of communication may emerge, perhaps from overseas, that will suddenly become a significant player and incur recoverable costs. We expect the overall cost to the taxpayer over the next decade to exceed £1.8 billion by a considerable margin." (pages. 68 and 69)

"262. We are concerned that the Home Office’s cost estimates are not robust. They were prepared without consultation with the telecommunications industry on which they largely depend, and they project forward 10 years to a time where the communications landscape may be very different. Given successive governments’ poor records of bringing IT projects in on budget, and the general lack of detail about how the powers under the Bill will be used, there is a reasonable fear that this legislation will cost considerably more than the current estimates." (p. 70)


2. They did not define the problem properly:

"36. We are of the strong view that the 25% data gap is an unhelpful and potentially misleading figure. There has not been a 25% degradation in the overall quantity of communications data available; in fact quite the opposite." (p 16).

"40. It was not long into our inquiry that we began to question the utility of the 25% figure and we asked the Home Office to identify what specific data types are currently missing. After some months the Government agreed to tell us on a confidential basis that there were three main data types that they hoped the legislation would be used to make available. At that point they argued that these data types could not be publicly identified without risking exposing loop holes to criminals. This need for secrecy was one of the drivers for the very broad drafting of clause 1." (p. 18)

"288. The Home Office has argued that there is a case for keeping clause 1 wide because there may be other data types that emerge from time to time which will be important to law enforcement but will not be routinely retained by CSPs for business purposes. We do not accept that this is a good reason to grant the Secretary of State such wide powers now. We do not think that Parliament should grant powers that are required only on the precautionary principle. There should be a current and pressing need for them." (p 75)

3. They did not adequately consult with the Information Commissioner:

"206. We found it hard to understand how additional duties could be imposed on the Information Commissioner without first consulting him, asking him what duties he thought sensible and feasible, whether he would be able to comply with them, and what additional resources he might need to do so. We put this to Home Office officials on 24 October, and Charles Farr replied:

“The Information Commissioner had seen the draft clauses of the Bill which affected him in advance. He had a meeting with the Minister; he had three hours with Richard going through the detail of the legislation."

207. As in the case of the consultation with the CSPs, which we discussed in the preceding chapter, this evidence appeared to contradict what the Information Commissioner had told us. Subsequently however the Home Office agreed that the reference to a “meeting” with the Minister was an error; this was in fact a phone call following the publication of the draft Bill. As to the draft clauses affecting him, the Information Commissioner has told us in a letter of 6 November that he asked on 23 May to see them in advance of a meeting on 31 May; his request was refused, and it was only at that meeting that he was given a copy of those clauses. He was sent a copy of the draft Bill the day before it was published." (p. 55)

"What is clear to us is that the Government has chosen to include in a draft Bill which had a very long gestation a clause imposing on the Information Commissioner additional duties, and that prior to the publication of the Bill there was no consultation with him about those duties, about the information he would need to carry them out, about whether it would in fact be possible for him to undertake those duties, about whether he would need further powers, and about what extra resources he might need. If they hoped that, by inserting this clause in this way, they would be providing an additional safeguard which might allay concerns about the draft Bill, we can only say that they were mistaken." (p. 55 / 56)

4. Failure to consult with CSPs:

"53. What is absolutely clear to us is that the regular meetings with EE and the other major CSPs would have been an unrivalled opportunity for the Home Office to discuss with them the evolving policy and content of the Bill, and to seek their input on the many matters where their technical and general expertise could have made a valuable contribution; and that this opportunity was not taken. The draft Bill is the poorer for it." (p. 22)

"49. ...On behalf of Facebook, Simon Milner said categorically: “We had no dialogue with the Home Office before the Bill was published...we were never asked [for input] and we never provided it.” Similarly, Colin Crowell for Twitter: “We had one conversation with the Home Office about two and a half weeks ago.51 So we, too, were contacted after the Bill had been published and had one phone conversation with them about it.” (p. 20 / 21)

"51. In the case of the overseas providers, Mr Farr told us that he had read their evidence “with a lot of interest”; what he told us was almost the opposite of what they said." (p. 21)

"55. Mr Farr told us: “Parliament and others had a right to see the legislation before we discussed it in detail with overseas providers.” We do not accept this. Parliament has a right to see, on its introduction, a Bill which seeks to implement as fully and clearly as possible the Government’s policy, however controversial that policy may be. If the policy depends to a large extent on whether it can be implemented by a few major international corporations, not to consult them in the formulation of the detailed policy seems unwise. We note that the Intelligence and Security Committee has come to a similar conclusion." (p. 22)

"57. The evidence we received shows that United Kingdom CSPs were not given any details about the possible content of notices before the draft Bill was published, overseas CSPs were not consulted about the draft Bill at all, nor was there any further public consultation."  (p. 22)

"58. Before re-drafted legislation is introduced there should be a new round of consultation with technical experts, industry, law enforcement bodies, public authorities and civil liberties groups. This consultation should be on the basis of the narrower, more clearly defined set of proposals on definitions, narrower clause 1 powers and stronger safeguards which are recommended in this report. The United Kingdom and overseas CSPs should be given a clear understanding of the exact nature of the gap which the draft Bill aims to address so that those companies can be clear about why the legislation is necessary." (p. 22)

5. The lack of a public consultation:

"56. The Home Office should not have assumed that a consultation paper published in April 2009 could justify publication of draft legislation three years later without further consultation with the public and with those most closely affected by its proposals." (p. 22)

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December 11, 2012 | Peter Bradwell

Joint Committee slams Home Office's Snoopers' Charter

They came, they scrutinised, they dismissed.

At 00:01 last night, almost exactly 14 days before Christmas, the Joint Committee on the draft Communications Data Bill delivered an early present. 

The MPs and Lords that had been tasked with scrutinising the Snoopers' Charter delivered a withering assessment in their final report.

The report concludes it pays "insufficient attention to the duty to respect the right to privacy, and goes further than it need or should."

They slammed the Home Office for 'fanciful and misleading' evidence, and for failing to consult on their plans. They said the costs of the draft Bill would exceed the predicted £1.8bn by a 'considerable margin'.

As a result of their insular and secretive policy process, the plans would create 'sweeping' powers that are far too broad.

The Committee also notes that the Government need to rethink how it defines the data involved in digital surveillance, creating a new hierarchy based on levels of intrusiveness.

It adds up to a damning indictment of the proposals and how they were put together. The cross-party Committee examined this draft Bill in extreme detail and with great care over the past 6 months. And they have found the Bill did not bear such scrutiny.

Two things should happen now. We think it's time to drop these dangerous plans and for the government to go back to the drawing board. Second, we need a fundamental, public review of digital surveillance. That's the only way we'll arrive at reasonable, proportionate proposals.

Given what the Committee have said about the Home Office's failures so far, and also given that such a review would involve broader question of justice and civil liberties, this review should not be run by the Home Office.

The findings of the Joint Committee echo the arguments put forward by Open Rights Group and its supporters over the past six months. A big thank you if you responded to the Committee's call for evidence - the report notes that these submissions reflect 'the anxiety felt by large sections of the public about intrusion by the authorities into their private lives.' 

You can read the full Joint Committee report here.

A shorter ORG briefing is available in the 'Our Work' section. More analysis of the Committee's final report will be posted through the day. 

You can read ORG's written submission to the Joint Committee in the 'Our Work' section.

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