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March 06, 2017 | Jim Killock

Why the IPO needs to change the criminal offence for online copyright infringement

The IPO says no change is needed to their proposed criminal offence for online copright infringement punishable by ten year sentences

The IPO has responded to your letters to the minister Jo Johnson MP about the new 10 year sentences for online copyright infringement.

In the bill, ten year sentences are available where online publication of a copyright work means that a “loss” has occurred (including not paying licence fees) or a “risk of loss” is created.

We do not think the IPO have adequately explained why they cannot or should not introduce a threshold for criminality.

The IPO says:

It is important to note that the criminal offences apply to making material available to others, not to those just downloading material to their computers. Anyone seeking to enforce their rights for the downloading of material would be unlikely to refer to this legislation.

Ten year sentences would only be applied in the most serious of criminal circumstances. It is highly unlikely that small, unintentional infringement would be caught by this offence. [our emphasis]

As we have said, publication without a licence is often an intentional act, where people either know or ought to know that they are infringing copyright.  The question is whether these usually minor offences are worthy of criminal sanctions?

Examples could include:

  • Using copyright pictures from other websites, such as images of politicians or famous buildings, on a personal blog or social media

  • Using images of musicians or actors found on news websites, for instance from award events, on a blog or social media

  • Sharing files (which includes uploading as well as downloading) via Bittorrent at small scale

In each case, a licence has not been paid, the user should understand they are infringing copyright, and they are causing further risks that other people might reuse or re-share the images or files.

In the case of file sharing, it is only ever detected when files are “uploaded” (and shared back to the copyright owner or their agent).

The acts appear to be criminal under the proposed offence. We understand that they are unlikely to be sentenced, or even prosecuted, but the question remains as to why these minor acts should be criminalised, rather than being subject to civil charges.

The risk of an increase of ‘trolling’ is considered to be low but the government will periodically review and respond to any concerns.

We may never hear about many threats sent privately. Gathering evidence of harm will be extremely difficult except in the most egregious examples of letters sent in their thousands.

The proposed offence creates new opportunities for trolls, while there is a simple way to remove this risk, which is to introduce thresholds. The statement says that:

It would not be practical for the government to set a specific level of loss or gain at which infringement becomes a criminal offence. This is because the circumstances of each infringement needs to be taken into account.

Our suggestions are not for "specific" levels of loss or gain, such as “acts causing under £200 of damages”.

Our proposal is to set a threshold of "commercial scale loss", and revising "risk of loss" to "serious risk of commercial scale loss". These are flexible rather than “specific”, so the government’s objection does not make sense to us.

If the losses are small, and the risks are minor, why should “circumstances” mean that an act should be criminal?

Our changes would give the public, lawyers and courts a clear indication that minor acts of file sharing or unlicensed online publication would be unlikely to meet the thresholds of "serious risk" or "commercial scale" losses.

This would protect people who received threatening letters - whether in bulk or privately, under the radar.

It is true that some minor acts of copyright infringement can be regarded as criminal today. The current offence criminalises “prejudicial effect”, which we agree is insufficiently narrow. The IPO argues that it has tried to narrow this by focusing on the intention of the infringer.

However, the proposed changes do not solve the original problem of criminalising ordinary internet users. Introducing the fuzzier “risk of loss” actually makes it more likely that grannies and teenagers will end up facing threats of criminal charges, perhaps agreeing to admit guilt, or simply paying up when faced with threats.

This change is small, and sensible, and we ask the government to look at this again. 

You can email the minister Jo Johnson MP to tell him to change it before it is too late..

 

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February 09, 2017 | Jim Killock

Ten years jail for file sharers—the governments’ gift to copyright trolls

Why does the government want to encourage legal threats to grannies and put file sharing teens in prison for a decade?

Gran being asked to cease and desist for copyright infringementTen years jail for filesharing: or in fact any minor copyright infringement where there is a “loss by not getting what one might get” or cause a “risk” of further infringement.

Clause 27 of the Digital Economy Bill will mean that more or less any wrongful use where somebody hasn’t paid a licence fee (think of memes) is a crime. Causing “risk” to the copyright holder means almost by definition ordinary file sharing is a criminal rather than civil infringement.

Is the government really intending to threaten teenagers with prison?

Why has the Digital Economy Bill been left with such a stupid legal change? Both the government and the Intellectual Property Office said they just wanted to bring online infringement into line with “real world” fake DVD offences. They were worried about the difficulties with charging people who run websites that help people download copyright works.

However, that isn’t how they offence is drawn up: and the government has now been told in Parliament twice that they are both criminalising minor infringements and helping copyright trolls. Copryight trolls, we should remember, specialise in threats concerning file sharing of niche pornographic works in order to frighten and embarass people into payment, often incorrectly, and to our knowledge, have never taken anyone to court in the UK.

The answers have been startlingly bad. Kevin Brennan stated, for Labour:

The Open Rights Group has expressed concern about the Government’s insistence that there needs to be “reason to believe” that infringement will cause loss or “the risk of loss”. Its fear is that that phrase, “the risk of loss”, could capture quite a wide range of behaviour, perhaps beyond the scope of what the Government say they intend. In particular, its concern is the extent to which that phrase will capture file sharing.

Copyright trolls get their profits when a certain number of people are scared enough to respond to those notifications and pay up. Frequently these accusations are incorrect, misleading and sent to account holders who did not sanction any such further file sharing. However, as I understand it, sending that kind of speculative threat to consumers is, unfortunately, perfectly legal. Some are concerned that if the Bill retains the concept of risk of loss, it could aid the trolls by enabling them to argue with more credibility that account holders may face criminal charges and a 10-year prison sentence.

Matt Hancock gave a non-answer:

We recognise that the maximum sentence of 10 years, even if only for the most serious cases, must be carefully targeted. Consequently, clause 26 also makes changes to the existing offence of online copyright infringement to make it clearer when that offence is committed and who should be considered liable. The amendments speak to some of those points.

The concept of prejudicial effect in the existing legislation will be replaced with a requirement that the infringer intends to make a monetary gain for themselves or knows or has reason to believe their actions will expose the rights holder to a loss or risk of loss in money. I will come to the debate around definition of that in more detail.

The point of this clarification is to act as a safeguard to ensure that the increased maximum penalty is applied only to serious criminals who deserve it and will not apply to those who share material accidently or without knowledge of the consequences.

In the Lords, Labour suggested returning to the current definition of “prejudicial effect”: which (as Matt Hancock says) suffers the same problem of being very wide and catching people it should not.

The government have failed to give any serious answers. The Opposition, Labour and Liberal Democrat should be able to see that an egregious mistake is being made, and they have the ability to force a change.

The problem is really easily fixed. The government simply need to put in thresholds to ensure that only significant damage or serious risk is caused. We have an amendment prepared and published.

Why does the government want to help copyright trolls bully grannies and criminalise file sharers whose actions may be idiotic, but hardly criminal?

The government needs to fix this before it becomes law and abuse of copyright ensues.

 

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February 08, 2017 | Jim Killock

Just how much censorship will the DEBill lead to?

How could the power to block pornographic websites lead to massive censorship, when the BBFC thinks it wants want to censor “just” a few hundred sites.

Officials wrote to the New Statesman yesterday to complain about Myles Jackman’s characterisation of the Digital Economy Bill as leading to an attempt to classify everything on the Internet. (They perhaps hadn’t understood the satire.)

However, the fact of the matter is that the DE Bill gives the BBFC (the regulator, TBC) the power to block any pornographic website that doesn’t use age verification tools. It can even block websites that publish pornography that doesn’t fit their guidelines of taste and acceptability - which are significantly narrower than what is legal, and certainly narrower than what is viewed as acceptable by US websites.

A single video of “watersports” or whipping produces marks, for instance, would be enough for the BBFC to ban a website for every UK adult.

The question is, how many sites does the regulator want to block, and how many can it block?

Parliament has been told that the regulator wants to block just a few, major websites, maybe 50 or 100, as an “incentive” to implement age checks. However, that’s not what Clause 23 says. The “Age-verification regulator’s power to direct internet service providers to block access to material” just says that any site that fits the criteria can be blocked by an administrative request.

What could possibly go wrong?

Imagine, not implausibly, that some time after the Act is in operation, one of the MPs who pushed for this power goes and sees how it is working. This MP tries a few searches, and finds to their surprise that it is still possible to find websites that are neither asking for age checks nor blocked.

While the first page or two of results under the new policy would find major porn sites that are checking, or else are blocked, the results on page three and four would lead to sites that have the same kinds of material available to anyone.

In short, what happens when MPs realise this policy is nearly useless?

They will, of course, ask for more to be done. You could write the Daily Mail headlines months in advance: BBFC lets kids watch porn.

MPs will ask why the BBFC isn’t blocking more websites. The answer will come back that it would be possible, with more funding, to classify and block more sites, with the powers the BBFC has been given already. While individual review of millions of sites would be very expensive, maybe it is worth paying for the first five or ten thousand sites to be checked. (And if that doesn’t work, why not use machines to produce the lists?)

And then, it is just a matter of putting more cash the way of the BBFC and they can block more and more sites, to “make the Internet safe”. 

That’s the point we are making. The power in the Digital Economy Bill given to the BBFC will create a mechanism to block literally millions of websites; the only real restraint is the amount of cash that MPs are willing to pour into the organisation.

What could possibly go wrong?

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February 07, 2017 | Slavka Bielikova

Government says privacy safeguards are not “necessary” in Digital Economy Bill

The Government still doesn’t consider privacy safeguards necessary in the Digital Economy Bill and they see court orders for website blocking as excessively burdensome.

BBFC 18 logoThe House of Lords debated age verification for online pornography last week as the Committee stage of the Digital Economy Bill went ahead.

Peers tabled a considerable number of amendments to improve the flawed Part 3 of the Bill, which covers online pornography. In their recent report, the Committee on the Constitution said that they are worried about whether a proper parliamentary scrutiny can be delivered considering the lack of details written on the face of the Bill. Shortly after the start of the debate it became obvious that their concerns were justified.

Lords debated various aspects of age verification at length, however issues of appeal processes for website blocking by Internet service providers and privacy safeguards for data collected for the age-verification purposes will have to be resolved at a later stage.

In our view, if the Government is not prepared to make changes to the Bill to safeguard privacy, the opposition parties should be ready to force the issue to a vote.

Appeals process for ISP blocking

Labour and Lib Dem Lords jointly introduced an amendment that would implement a court order process into the blocking of websites by Internet service providers. The proposal got a lot of traction during the debate. Several Peers disagreed with the use of court orders, arguing about the costs and the undue burden that it would place on the system.

The court order process is currently implemented for the blocking of websites that provide access to content that infringes copyright. However, the Government is not keen on using it for age verification. Lord Ashton, the Government Minister for Culture, Media and Sport, noted that even the copyright court order process “is not without issues”. He also stressed that the power to instruct ISPs to block websites carrying adult content would be used “sparingly”. The Government is trying to encourage compliance by the industry and therefore they find it more appropriate that ISP blocking is carried out by direction from the regulator.

The Bill doesn’t express any of these policy nuances mentioned by the Government. According to Clause 23 on ISP blocks, age-verification regulator can give a notice to ISPs to block non-complying websites. There is no threshold set out in the clause that would suggest this power will be used sparingly. Without such threshold, the age-verification regulator has an unlimited power to give out notices and is merely trusted by the Government not to use the full potential of the power.

The Government failed to address the remaining lack of legal structure that would secure transparency for website blocking by ISPs. Court orders would provide independent oversight for this policy. Neither the method of oversight, nor enforcement of blocking have been specified on the face of the Bill.

For now, the general public can find solace in knowing that the Government is aware that blocking all of social media sites is a ridiculous plan. Lord Ashton said that the Government “don’t want to get to the situation where we close down the whole of Twitter, which would make us one of two countries in the world to have done that”.

Privacy protections and anonymity

Labour Peers - Baroness Jones and Lord Stevenson and Lord Paddick (Lib Dem) introduced an amendment that would ensure that age-verification systems have high privacy and data protection safeguards.

The amendment goes beyond basic compliance with data protection regulations. It would deliver anonymity for age-verification system users and make it impossible to identify users throughout different websites. This approach could encourage people’s trust in age-verification systems and will reassure people to safely access legal material. By securing anonymity, people’s right to freedom of expression would be less adversely impacted. Not all the problems go away: people may still not trust the tools, but fears can at least be reduced, and the worst calamities of data leaks may be avoided.

People subjected to age verification should be able to choose which age-verification system they prefer and trust. It is necessary that the Bill sets up provisions for “user choice” to assure a functioning market. Without this, a single age-verification provider could conquer the market offering a low-cost solution with inadequate privacy protections.

The amendment received wider support from the Lords.

Despite the wide-ranging support from Lib Dem, Labour and cross-bench Lords, the Government found this amendment “unnecessary”. Lord Ashton referred to the guidance published by the age-verification regulator that will outline types of arrangement that will be treated as compliant with the age-verification regulator’s requirements. Since the arrangements for data retention and protection will be made in the guidance, the Government asked Lord Paddick to withdraw the amendment.

Guidance to be published by the age-verification regulator drew fire in the Delegated Powers and Regulatory Reform Committee’s Report published in December 2016. In their criticism, the Committee made it clear that they find it unsatisfactory that none of the age-verification regulator’s guidelines have been published or approved by Parliament. Lord Ashton did not tackle these concerns during the Committee sitting.

The issue of privacy safeguards is very likely to come up again at the Report stage. Lord Paddick was not convinced by the Government’s answer and promised to bring this issue up at the next stage. The Government also promised to respond to the Delegated Powers and Regulatory Reform Committee’s Report before the next stage of the Bill’s passage.

Given the wide support in the Lords to put privacy safeguards on the face of the Bill, Labour and Lib Dem Lords have an opportunity to change the Government’s stance. Together they can press the Government to address privacy concerns.

The Government was unprepared to discuss crucial parts of the Part 3. Age verification for online pornography is proving to be more complex and demanding than the Government anticipated and they lack an adequate strategy. The Report stage of the Bill (22 February) could offer some answers to the questions raised during the last week’s Committee sittings, but Labour and Lib Dems need to be prepared to push for votes on crucial amendments to get the Government to address privacy and free expression concerns.

 

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January 20, 2017 | Javier Ruiz

Lords Committee slams data sharing powers in Digital Economy Bill

The Delegated Powers and Regulatory Reform Committee of the House of Lords has made some very critical recommendations about the data sharing proposals in the Digital Economy Bill.

report coverIn a report published today the Committee asks for the “almost untrammeled” powers given to Ministers in the Bill to be severely curtailed, and for all Codes of Practice associated with these data sharing powers to be laid before Parliament in draft for full approval before coming into force.

The Committee “consider it inappropriate” for Ministers to have the powers to define lists of specified persons and non-specific purposes related to public service provision, fraud or debt. Instead, they argue that those given the powers to share data and the purposes for which it is used should be on the face of the Bill, with Ministers only able to make very limited additions based on a clear necessity.

We can see that the Government will resist such a move, as that level of flexibility appears central to their approach to data sharing. If they plan to ignore these recommendations, the Cabinet Office will need to include much stronger safeguards on the face of the Bill about the criteria and processes for inclusion in the data gateways.

The report also raises concerns with the onward disclosure of shared data, which is subject to very broad exemptions for the purposes of crime, anti-social behaviour or legal proceedings.

The Committee starkly sets out that the data shared under these powers for benign social services could be used to bring criminal proceedings against the same individuals without restriction. This was always a red line during the open policy making pre legislative discussion where ORG participated. ORG has proposed various amendments to narrow down these further reuses of data, but we may have to revisit our proposals to further tighten them up.

We particularly welcome the Committee’s recommendations made on the Codes of Practice. The Government has so far refused to put key safeguards on the use of the powers on the face of the Bill, leaving these to the Codes. The Committee is under no doubt that the Codes are “legislative” in nature, despite the arguments by the government that these are not legally enforceable.

The report demands that the Codes are laid in draft form in front of Parliament for discussion and affirmative approval, and not just presented for filing in the statute book. They concede that further modifications could be made by negative procedure. Clarity on the full legal status of the Codes is critical, and we can only hope the Government will heed these recommendations, which chime with those of many others including ORG.

The Committee ask for various so-called “Henry VIII powers” peppered throughout the Bill to be narrowed down. These kind of powers add a provision to a Bill which enables the Government to repeal or amend it after it has become an Act of Parliament, and are an anachronism meant to be used sparingly for very narrow purposes. The Committee finds that some of these powers could be useful here to stop data sharing and narrow down future provisions, but the way they are written they could be used to expand the powers in the Bill without any accountability.

The report also tackles a fairly technical but potentially important point that ORG and others engaged in their process had missed so far: the so-called “dehybridisation clauses”. A Hybrid Instrument is a piece of legislation that disproportionately affects a particular group of people within a class. The clauses in the Bill simply state that this should be disregarded. This can be important due to an obscure provision in the House of Lords that gives those who are specially and directly affected by Hybrid Instruments

the opportunity to present their arguments against the SI [statutory instrument] to the House of Lords Hybrid Instruments Committee and then, possibly, to a select committee charged with reporting on its merits and recommending whether or not the SI should be approved by both Houses of Parliament. The hybrid instrument procedure is unique to the House of Lords and the process must be completed before the SI can be approved by both Houses.

We can see why the Government would want to remove this provision to speed up legislation, but it seems unfair and potentially abusive to simply decree that what may be a hybrid instrument should not be treated as such, thus denying those affected their right to make their case.

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January 16, 2017 | Ed Johnson-Williams

Let's save 'backdoor' for the real thing

The Guardian reported on Friday last week that WhatsApp - owned by Facebook - has a “backdoor” that “allows snooping on encrypted messages”. The report was based on research by Tobias Boelter, published in April 2016. The Guardian has since changed the word "backdoor" in its article to "vulnerability" or "security vulnerability".

A few days before the Guardian article was published, the journalist contacted ORG for a quote. She couldn’t discuss the details of the alleged security flaw so we gave a generic quote about the importance of transparency from companies that offer end-to-end encryption and the dangers to encryption within the Investigatory Powers Act.

The vulnerability that was reported theoretically works like this. Say Ed is texting his dad on WhatsApp.

  1. Ed texts his dad on WhatsApp and his dad texts back - all good, happy families.
  2. Then Ed texts his dad again but his dad’s phone is off. Ed's message is still on Ed’s phone waiting to be sent.
  3. WhatsApp or somebody else with access to WhatsApp's servers registers Ed’s dad’s mobile number with WhatsApp on a different phone. This could be done by stealing Ed’s dad's SIM card or using vulnerabilities in the mobile phone network to re-route SMS confirmations.
  4. Ed's WhatsApp app now sees the number that used to be linked to his dad’s phone is active again and automatically re-sends the message.
  5. The new phone receives the message that Ed intended to send to his dad. The message never reaches Ed’s dad’s phone.
  6. Depending on whether a non-default setting is enabled, Ed may receive a notification saying that his dad’s security code has changed because he reinstalled WhatsApp or switched phones.

This means that somebody collaborating with WhatsApp could theoretically read a small number of messages. This is very unlikely though and would be very easy to detect. This is not a backdoor that WhatsApp can use for routine access to users’ messages. And unless an app forces you to verify encryption keys with someone before you can send and receive messages with them, and also whenever they change their phone, then this vulnerability is going to be present.

WhatsApp have made an intentional decision about usability. It means that - in the example given above - if Ed’s dad’s phone was off because it was broken, Ed’s dad could put his SIM card into a new phone and still receive the messages without anyone having to change anything.

It would be incredibly difficult for WhatsApp to use the vulnerability to read messages this way at scale without gaining a terrible reputation for not delivering messages. Lots of people would receive a notification saying that the security key of many of their intended recipients had changed. Messages would go missing. The risk to the company of actively tampering with someone's message stream is very high and would be very complicated to get right. And if you’re worried about law enforcement, they have other ways (such as hacking the phone) to target an individual WhatsApp user’s messages that would be cheaper, quicker, and more difficult for the target to detect.

Lots of people recommend Signal as an alternative to WhatsApp. Signal is a highly respected encrypted messaging app which is preferable to WhatsApp for many reasons. Unlike WhatsApp, Signal does not collect data about users and share that data with Facebook. Facebook’s business model is to collect as much data about people as possible to help sell advertising. And unlike WhatsApp, Signal’s code is open-source meaning it’s possible to verify that it’s working properly. Some people find Signal more difficult to use than WhatsApp.

But Signal are planning to use the same behaviour as WhatsApp that was reported as a backdoor in an attempt to make their app easier for people to use. As Matthew Green, Assistant Professor at Johns Hopkins University, said on Twitter in response to the Guardian’s article, “I wish we could put the word "backdoor" in a glass case and only bring it out when something is really deserving.”

It is a struggle to get people to use secure messaging tools. Facebook and WhatsApp’s business model leaves much to be desired and Signal does a lot more to respect the privacy of its users. But WhatsApp have been successful in getting millions of people to encrypt the contents of their messages end-to-end.

The UK’s Investigatory Powers Act has powers in it for the Government to serve companies with Technical Capability Notices for the “removal of electronic protection applied by a relevant operator” to force them to carry out hacking and intercept data for the Government.

There are big fights ahead on encryption and we have to remain vigilant to those. Let’s save the word “backdoor” for the real thing.

Update: I fixed point 3 to say that if's Ed's dad's SIM card were stolen, it could be used to re-register Ed's dad's WhatsApp account on a different phone. It used to say if 'Ed's SIM card' were stolen.

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December 21, 2016 | Javier Ruiz

EU Court slams UK data retention surveillance regime

Here’s our quick overview of what the CJEU has told the UK and Sweden they must do to fix requirements for data retention.

The full judgment can be read here.

Generalised Data Retention

The CJEU has repeated arguments, made previously in the Digital Rights Ireland case, to rule that generalised data retention is disproportionate and unlawful.

The UK case did not ask about general data retention. In the original sentence that triggered this CJEU case, the UK High Court argued that general retention was acceptable as long as the safeguards were strong:

 “70. In oral argument Ms Rose modified her stance on point (i). She accepted that the CJEU cannot have meant that CSPs can only lawfully be required to retain the communications data of “suspects or persons whose data would contribute to the prevention, detection or prosecution of serious criminal offences”. Such a restriction would be wholly impracticable. Rather the Court must be understood to have held that a general retention regime is unlawful unless it is accompanied by an access regime which has sufficiently stringent safeguards to protect citizens’ rights set out in Articles 7 and 8 of the Charter.” (from the High Court judgment)

Unfortunately for the UK government, ORG and PI were there to argue the opposite, alongside the joined Swedish case brought by Tele2 Sverige AB, a telecoms company challenging the compatibility of generalised data retention orders in that country.

The CJEU has made it clear that generalised data retention is not acceptable:

 103 Further, while the effectiveness of the fight against serious crime, in particular organised crime and terrorism, may depend to a great extent on the use of modern investigation techniques, such an objective of general interest, however fundamental it may be, cannot in itself justify that national legislation providing for the general and indiscriminate retention of all traffic and location data should be considered to be necessary for the purposes of that fight (see, by analogy, in relation to Directive 2006/24, the Digital Rights judgment, paragraph 51).

 Retention must be restricted somehow to a section of the public more likely to be of use to investigations, possibly by geography:

 111 As regard the setting of limits on such a measure with respect to the public and the situations that may potentially be affected, the national legislation must be based on objective evidence which makes it possible to identify a public whose data is likely to reveal a link, at least an indirect one, with serious criminal offences, and to contribute in one way or another to fighting serious crime or to preventing a serious risk to public security. Such limits may be set by using a geographical criterion where the competent national authorities consider, on the basis of objective evidence, that there exists, in one or more geographical areas, a high risk of preparation for or commission of such offences.

 Summed up in the ruling:

 1. Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication.

This will come as a shocker to the UK government, which could be forgiven for safely assuming that at least the basic principles of retention would be accepted by the CJEU, given the opinion of the Advocate General and the views of UK courts.

The UK has pioneered population level data retention and drove the adoption of the original EU Data Retention Directive after the London bombings in 2005. It will now be forced to rethink its approach.

Access only allowed for serious crime:

The Court accepts that some data retention can be necessary and acceptable, as it had previously said in the Digital Rights Ireland case, but only for very limited purposes defined in the e-privacy directive. Within this narrower retention regime, access should be even more restricted.

The CJEU fully supports the ruling by the UK High Court, which triggered the case, that only serious crime is an acceptable purpose for accessing retained data.

The case hinges on the interpretation of Article 15 of the EU e-privacy Directive 2002/58, which sets out limitations to the confidentiality of communications. The UK government had argued that the purposes for which retention was acceptable were not restricted by those included in this article, but instead should cover the broader set of purposes in Article 13 of the Data Protection Directive 95/46 (now replaced by the GDPR):

 (e) an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters;

(f) a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in cases referred to in (c), (d) and (e);

(g) the protection of the data subject or of the rights and freedoms of others.

The CJEU rejected this point saying that the list in Art 15 is a narrow closed list of the allowed purposes that allow for data to be retained:

 90 It must, in that regard, be observed that the first sentence of Article 15(1) of Directive 2002/58 provides that the objectives pursued by the legislative measures that it covers, which derogate from the principle of confidentiality of communications and related traffic data, must be ‘to safeguard national security — that is, State security — defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system’, or one of the other objectives specified in Article 13(1) of Directive 95/46, to which the first sentence of Article 15(1) of Directive 2002/58 refers (see, to that effect, judgment of 29 January 2008, Promusicae, C‑275/06, EU:C:2008:54, paragraph 53). That list of objectives is exhaustive, as is apparent from the second sentence of Article 15(1) of Directive 2002/58, which states that the legislative measures must be justified on ‘the grounds laid down’ in the first sentence of Article 15(1) of that directive. Accordingly, the Member States cannot adopt such measures for purposes other than those listed in that latter provision.

Furthermore, the CJEU says that even in the area of fighting crime, laws should be proportionate and access must be narrowed:

 115 As regards objectives that are capable of justifying national legislation that derogates from the principle of confidentiality of electronic communications, it must be borne in mind that, since, as stated in paragraphs 90 and 102 of this judgment, the list of objectives set out in the first sentence of Article 15(1) of Directive 2002/58 is exhaustive, access to the retained data must correspond, genuinely and strictly, to one of those objectives. Further, since the objective pursued by that legislation must be proportionate to the seriousness of the interference in fundamental rights that that access entails, it follows that, in the area of prevention, investigation, detection and prosecution of criminal offences, only the objective of fighting serious crime is capable of justifying such access to the retained data.

The new leaked e-privacy Regulation maintains a similar list in its Article 11(1) so this ruling should stand:

 Union or Member State law may restrict by way of a législative measure the scope of the obligations and rights provided for in Articles 5, 6, 7, and 8 of this Régulation when such a restriction respects the essence of the fundamental rights and is a necessary, appropriate and proportionate measure in a démocratie society to safeguard national security (i.e. State security), defence, public security, and the prévention, investigation, détection- or prosecution of criminal offences or the exécution of criminal penalties, or of unauthorised use of electronic communications systems. Any législative measure refeiïed to in paragraph l shall be in accordance with the Charter of Fundamental Rights of the European Union, in particular with Articles 7, 8, 10 and 52 thereof.

The IPA contains a much broader set of purposes for access to communications data by some 48 public authorities that include NHS trusts and the Gambling Commission. It is very hard to see how this can be squared with the ruling.

Prior review and authorisation by a court or independent administrative body

 The CJEU has also fully endorsed the UK High Court ruling that required independent authorisation for access to retained data:

 120 In order to ensure, in practice, that those conditions are fully respected, it is essential that access of the competent national authorities to retained data should, as a general rule, except in cases of validly established urgency, be subject to a prior review carried out either by a court or by an independent administrative body, and that the decision of that court or body should be made following a reasoned request by those authorities submitted, inter alia, within the framework of procedures for the prevention, detection or prosecution of crime.

This is a blow to the UK legal system, where authorisation is performed by a 'Designated Senior Officer', who is part of the same organisation that requests the data.

Other issues raised in the judgment:

The CJEU judgment also raises a few other issues that  were not explicitly raised by the UK Court of Appeal. However, they will be very important for any future legislation in this area.

Freedom of expression

The Court reiterates the points previously made in the Digital Rights Ireland case that data retention engages not just privacy but also freedom of expression, “one of the essential foundations of a pluralist, democratic society”.

93 Accordingly, the importance both of the right to privacy, guaranteed in Article 7 of the Charter, and of the right to protection of personal data, guaranteed in Article 8 of the Charter, as derived from the Court’s case-law (see, to that effect, judgment of 6 October 2015, Schrems, C‑362/14, EU:C:2015:650, paragraph 39 and the case-law cited), must be taken into consideration in interpreting Article 15(1) of Directive 2002/58. The same is true of the right to freedom of expression in the light of the particular importance accorded to that freedom in any democratic society. That fundamental right, guaranteed in Article 11 of the Charter, constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the Union is founded.

This is important because it could make it harder to justify the blanket retention of Internet Connection Records, which could be deemed a 'reading list'. Measures that made ordinary citizens refrain from accessing materials or expressing opinions online this could well impinge the “essence of the right”. This would move the argument away from safeguards on access to the records towards the broader direct impact of the measures, in a way that an analysis purely focused on individual privacy may not.

Notification

Open Rights Group and other human rights groups have long argued that people whose data is accessed should be notified, once this will not impact on investigations. Our calls have always been rejected on the grounds that investigations can go cold and be revived later on, and this would give too much information to suspects.

The CJEU has, almost unprompted, taken the opportunity to remind national courts that this is indeed a basic component of the legal framework around surveillance:

121 Likewise, the competent national authorities to whom access to the retained data has been granted must notify the persons affected, under the applicable national procedures, as soon as that notification is no longer liable to jeopardise the investigations being undertaken by those authorities. That notification is, in fact, necessary to enable the persons affected to exercise, inter alia, their right to a legal remedy, expressly provided for in Article 15(2) of Directive 2002/58, read together with Article 22 of Directive 95/46, where their rights have been infringed.

This would shake the secretive UK surveillance regime to its core, almost more than introducing independent authorisation, as it might be feasible to maintain the current black box model with the use of secret court orders or extending the role - and resources - of the Judicial Commissioners in the IPA. Having to notify discarded suspects would be a crack through which light may reach the darker corners of the current regime.

Given that there are over half a million requests a year for communications data, notification was perceived as introducing a huge administrative burden. It would also give visibility and raise social awareness of the extent of surveillance.

Only suspects' data can be accessed

In addition to rejecting generalised retention and narrowing down access to serious crime with independent authorisation, the CJEU has further established that as a rule only the data of people suspected of direct involvement in those crimes can be accessed. Accessing other people’s data must be an exception and also based on specific evidence of how this may help investigations.

119 Accordingly, and since general access to all retained data, regardless of whether there is any link, at least indirect, with the intended purpose, cannot be regarded as limited to what is strictly necessary, the national legislation concerned must be based on objective criteria in order to define the circumstances and conditions under which the competent national authorities are to be granted access to the data of subscribers or registered users. In that regard, access can, as a general rule, be granted, in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime (see, by analogy, ECtHR, 4 December 2015, Zakharov v. Russia, CE:ECHR:2015:1204JUD004714306, § 260). However, in particular situations, where for example vital national security, defence or public security interests are threatened by terrorist activities, access to the data of other persons might also be granted where there is objective evidence from which it can be deduced that that data might, in a specific case, make an effective contributionto combating such activities.

The IPA contains powers for the bulk acquisition of communications data by the Security and Intelligence Agencies, which had been in place through secretive interpretations of previous legislation. MI5 has been getting a copy of all of the country’s phone calls, texts and possibly other data for decades. Clearly, this would not fit the criteria set out by the CJEU and we expect these practices to be challenged in court.

Retained data must be kept in the EU

This was a point raised in the original UK ruling and unsurprisingly it was ratified by the CJEU. It is worth repeating as a reminder of the dire consequences that leaving the EU data protection regime, including data retention, would have for the UK digital economy.

122 With respect to the rules relating to the security and protection of data retained by providers of electronic communications services, it must be noted that Article 15(1) of Directive 2002/58 does not allow Member States to derogate from Article 4(1) and Article 4(1a) of that directive. Those provisions require those providers to take appropriate technical and organisational measures to ensure the effective protection of retained data against risks of misuse and against any unlawful access to that data. Given the quantity of retained data, the sensitivity of that data and the risk of unlawful access to it, the providers of electronic communications services must, in order to ensure the full integrity and confidentiality of that data, guarantee a particularly high level of protection and security by means of appropriate technical and organisational measures. In particular, the national legislation must make provision for the data to be retained within the European Union and for the irreversible destruction of the data at the end of the data retention period (see, by analogy, in relation to Directive 2006/24, the Digital Rights judgment, paragraphs 66 to 68).

If you want to support our work in future cases, and help to ensure that this ruling is enforced, please join ORG today.

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December 20, 2016 | Jim Killock

Is the government misleading the Lords about blocking Twitter?

Last week we reported that the UK government expect the BBFC to ask social media providers, such as Twitter, to block the use of their service by accounts that are associated with porn sites that fail to verify the age of their users.

Twitter censoredThe Bill is even worse than we illustrated. The definition of a “pornographic website” in Clause 15 (2) is purely a site that operates on a “commercial basis”. This could catch any site—including Twitter, Reddit, Tumblr—where pornography can be found. The practical limit would therefore purely be down to the discretion of the regulator, the BBFC, as to the kind of commercial sites they wanted to force to use Age Verification. However, the BBFC does not seem to want to require Twitter or Reddit to apply age verification—at least, not yet.

However, we also got one part wrong last week. In relation to Twitter, Reddit and other websites where porn sites might promote their content, the Bill contains a power to notify these “ancillary services” but has no specific power to enforce the notifications.

In other words, they expect Twitter, Google, Facebook, Tumblr and other companies to voluntarily block accounts within the UK, without a specific legal basis for their action.

This would create a toxic situation for these companies. If they fail to “act” on the “notifications”, these services will leave themselves open to the accusation that they are failing to protect children, or actively “supplying” pornography to minors.

On the other hand, if they act on these notices, they will rightly be accused by ourselves and those that are censored of acting in an unaccountable, arbitrary manner. They will not have been legally obliged to act by a court; similar content will remain unblocked; and there will be no clear remedy for someone who wished to contest a “notification”. Liability for the blocks would remain with the company, rather than the BBFC.

The government has not been clear with the Lords that this highly unclear situation is the likely result of notifications to Twitter—rather than account blocks, as they have suggested.

There are very good reasons not to block accounts after a mere notification. For instance in this case, although sites can contest a classification at the BBFC, and an internal appeals process will exist, there is no external appeal available, other than embarking on an expensive judicial review. It is not clear that a classification as pornography should automatically lead to action by ancillary services, not least because compliance automatically results in the same content being made available. To be clear, the bill does not aim to remove pornography from Twitter, Reddit users or search engines.

Why then, has the government drafted a bill with this power to notify “ancillary services”, but no method to enforce? The reason appears to be that payment providers in particular have a long standing agreement amongst themselves that they will halt payments when they are notified that someone is taking payments for unlawful activity. Similarly, large online ad networks have a similar process of accepting notifications.

There is therefore no need to create enforcement mechanisms for these two kinds of “ancillary providers”. (There are pitfalls with their approach—it can lead to censorship and unwarranted damage to businesses—but let us leave that debate aside for now.)

It seems clear that, when the bill was written, there was no expectation that “ancillary providers” would include Twitter, Yahoo, or Google, so no enofrcement power was created. 

The government, in their haste, has agreed with the BBFC that they should be able to notify Twitter, Google, Yahoo and other platforms. They have agreed that BBFC need not take on a role of enforcement through court orders.

The key point is that the Lords are being misled by the government as things stand. Neither the BBFC or government have explored with Parliamentarians what the consequences of expanding the notion of "ancillary providers” is.

The Lords need to be told that this change means that:

  1. the notices are unenforceable against Internet platforms;
  2. they will lead to public disputes with the companies;
  3. they make BBFC’s decisions relating to ancillary providers highly unaccountable as legal responsibility for account blocks rest with the platforms.

It appears that the BBFC do not wish to be cast in the role of “national censor”. They believe that their role is one of classification, rather than enforcement. However, the fact that they also wish to directly block websites via ISPs rather flies in the face of their self-perception, as censorship is most clearly what they will be engaging in. Their self-perception is also not a reason to pass the legal buck onto Internet platforms who have no role in deciding whether a site fails to meet regulatory requirements.

This mess is the result of rushing to legislate without understanding the problems involved. The obvious thing to do is to limit the impact of the “ancillary services” approach by narrowing the definition to exclude all but payment providers and ad networks. The alternative—to create enforcement powers against a range of organisations—would need to establish full accountability for the duties imposed on ancillary providers in a court, something that the BBFC seems to wish to avoid.

Or of course, the government could try to roll back its mistaken approach entirely, and give up on censorship as a punishment: that would be the right thing to do. Please sign our petition if you agree.

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