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This page provides occasional items, linked to the original articles, as we attempt to keep up with the rapidly changing situation on civil liberties.
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Virgin Media to trial filesharing monitoring system • The Register

Posted by James Hammerton @ 6:34 pm on 29 November, 2009.
Categories privacy and surveillance, British politics.
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Virgin Media to trial filesharing monitoring system reports the Register:

Virgin Media will trial deep packet inspection technology to measure the level of illegal filesharing on its network, but plans not to tell the customers whose traffic will be examined.

The system, CView, will be provided by Detica, a BAE subsidiary that specialises in large volume data collection and processing, and whose traditional customers are the intelligence agencies and law enforcement.

The trial will cover about 40 per cent of Virgin Media’s network, a spokesman said, but those involved will not be informed. “It would be counter-productive because it doesn’t affect customers directly,” he said.

CView will operate at the centre of Virgin Media’s network on aggregate traffic, the spokesman emphasised, and seek only to determine the proportion of filesharing traffic that infringes copyright.

The system will look at traffic and identify the peer-to-peer packets. In a step beyond how ISPs currently monitor their networks, it will then peer inside those packets and try to determine what is licensed and what is unlicensed, based on data provided by the record industry.

This is analogous to the post office opening and reading random letters and parcels to see if any copyrighted material is being illegally distributed across the postal network.

Telegraph: Criminal checks for all sixth formers

The Telegraph reports:

The Government has pledged that all 16 to 18 year olds will complete 50 hours of community work as part of its move to raise the school leaving age.

In the speech announcing the plan, which will be a Labour manifesto pledge, Gordon Brown specifically mentioned that teenagers would make a difference by “helping in an old people’s home or tutoring younger pupils”.

But under the Government’s strict new vetting regime, anyone over the age of 16 working with children or vulnerable adults will have to start registering with the new Independent Safeguarding Authority (ISA) from November next year.

Critics of the reach of the controversial new vetting and barring scheme said half a million teenagers a year could be forced to undergo criminal checks.

Whilst those whose voluntary work does not involve children or vulnerable adults could in theory escape vetting, in practice it is likely that schools and organisations hosting volunteers will find it easier to take a blanket approach and vet everyone.

More on the Digital Economy Bill

Posted by James Hammerton @ 10:32 pm on 24 November, 2009.
Categories privacy and surveillance, democracy and the rule of law, British politics.
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Further to my earlier article about the Digital Economy Bill, I shall now consider the disconnection scheme set out in sections 4 to 14 (which amend the Communications Act 2003) in more detail:

  • Section 4 requires internet service providers to notify subscribers of reported infringements of copyright where the copyright owner has provided an IP-address and a time for the alleged infringement. (The copyright owner isn’t necessarily told who the subscriber is at this point.) “Notification” is deemed to have occurred if the ISP has sent an email to the email address they have for the subscriber or sent a letter to the postal address they have.
  • Section 5 requires an ISP to send information to copyright owners indicating which of the owners’ infringement reports relate to which subscriber.
  • Sections 6 to 9 set out the details of how the “initial obligations” codes (sections 4 and 5 operate under these codes, i.e. an ISP must be subject to such a code for section 4 and 5 to apply), will operate.
  • Section 10 sets out how the Secretary of State must go about assessing whether to require an ISP to limit or suspend the internet access of particular subscribers.
  • Section 11 allows the Secretary of State to impose obligations on an ISP to limit or suspend some subscribers’ internet access.
  • Sections 12 and 13 set out how codes relating to the obligations to limit internet access are drawn up.
  • Section 14 allows the Secretary of State to impose a fine of upto £250K on ISPs that contravene obligations to inform subscribers or limit their access.

There are several points to note about this:

  • The copyright owner need not provide evidence of the infringement, merely the IP address and the time at which it happened. That’s all that’s required for the ISP to be obliged to send notifications to a subscriber.
  • Copyright owners can make such reports to ISPs if it appears to them that the subscriber to an internet access service has infringed copyright or if the subscriber allowed such infringement to occur. This may have implications for internet cafes, people providing anonymous access to the internet and anyone who provides public access to wi-fi, since they may be deemed to be “allowing” copyright infringement.
  • There seems to be no allowance for the possibility that someone’s machine has been compromised and used for copyright infringement, or for the fact that IP addresses don’t always indicate which machine downloaded a particular file.
  • The sending of notifications and the limiting of access can all occur without taking someone to court. The Secretary of State decides whether or not subscribers’ internet access should be limited, after a period where warnings have been sent. This opens the door to politically motivated decisions.

Further reading:

Enabling clause in the new Digital Economy Bill

Posted by James Hammerton @ 11:41 pm on 20 November, 2009.
Categories privacy and surveillance, democracy and the rule of law, British politics.
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The government has finally published its Digital Economy Bill, which has started its progress through Parliament in the House of Lords.

This bill confirms earlier reports that it would contain proposals (sections 4 to 11) to disconnect users from the internet after they’ve received warnings for copyright infringement (but without any judicial process).

Exactly how they’ll detect whether a user’s downloads are illegal copyrighted material is unclear, but could easily be an excuse for introducing wholesale monitoring of the content of users’ internet traffic. Section 17 is a blatant enabling clause that it seems to me could be used for exactly this purpose:

(1) The Secretary of State may by order amend Part 1 or this Part for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur.

(2) The following provisions apply to the power conferred by this section.

(3) Subsections (4) to (6) do not limit that power.

(4) The power may be exercised so as to make new provision or to amend or repeal provision (whenever made).

(5) The power may be exercised so as to—

(a) confer a power or right or impose a duty on any person;
(b) modify or remove a power, right or duty of any person;
(c) require a person to pay fees.

(6) The power includes power to—

(a) make different provision for different cases;
(b) make transitional or saving provision;
(c) make any consequential amendment, repeal or revocation of provision (whenever made) contained in or made under an Act.

(7) The power does not include power to create or modify a criminal offence.

Thus these orders can be used to alter any legislation and confer any powers and any duties for the purpose of preventing or reducing copyright infringement, the only limitation being they can’t create or modify criminal offences.

These orders would be made by statutory instrument requiring a single vote in each of the Houses of Parliament. If this Bill becomes law, the Secretary of State will be handed considerable power which can be used with minimal parliamentary scrutiny. Sadly this is typical of much recent legislation which has weakened the roll of parliament and strengthened the power of the executive via such techniques.

Does the EU give a damn about the rule of law?

Posted by James Hammerton @ 6:48 pm on 15 November, 2009.
Categories democracy and the rule of law, British politics, European Union politics.
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Christopher Booker writing in the Telegraph claims:

On October 31 the five-year term of all the Brussels Commissioners expired. Under the Treaty they should therefore have stepped down. But because of the hiatus before the newly-ratified Constitution comes into force next month, the existing Commissioners simply decided to stay on until a new Commission is appointed. When Lord Willoughby pointed out that there is no authorisation for this in the Treaty and that they are therefore acting illegally, the former Commissioner Lord Kinnock leaped up to claim that the Commissioners were perfectly entitled to stay in office under Article 216 of the Treaty.

Had Lord Windbag actually looked at the Treaty before opening his mouth, he would have seen that the sole purpose of Article 216 is to lay down that any Commissioner found “guilty of serious misconduct’ or who “no longer fulfils the conditions required for the performance of his duty” must be “compulsorily retired”. Since the current Commissioners “no longer fulfil the conditions required”, they should all thus be retired immediately.

Total internet surveillance in Britain

Hat Tip: Samizdata

Britain’s slide into total surveillance will take another step soon as the Telegraph reports:

All telecoms companies and internet service providers will be required by law to keep a record of every customer’s personal communications, showing who they are contacting, when, where and which websites they are visiting.

Despite widespread opposition over Britain’s growing surveillance society, 653 public bodies will be given access to the confidential information, including police, local councils, the Financial Services Authority, the Ambulance Service, fire authorities and even prison governors.

They will not require the permission of a judge or a magistrate to access the information, but simply the authorisation of a senior police officer or the equivalent of a deputy head of department at a local authority.

Ministers had originally wanted to store the information on a massive Government-run database, but chose not to because of privacy concerns.

However the Government announced yesterday it was pressing ahead with privately-held “Big Brother” databases which opposition leaders said amount to “state-spying” and a form of “covert surveillance” on the public.

It is doing so despite its own consultation showing there is little public support for the plans.

Yet again, the government sets up a scheme of mass indiscriminate surveillance, yet again access to the information is given to numerous public bodies, with officials able to use them on their own authority and without any need for a warrant.

The Stasi would be proud of this sort of thing. Britain is becoming increasingly like a hi-tech version of East Germany.

The fallacy of “nothing to hide”.

[Hat tip: Tim Worstall]

Sometimes people justify draconian measures by suggesting that if you have nothing to hide, then you have nothing to fear. This is a slogan for the unthinking, it assumes the innocent have nothing to hide and that the authorities can always be trusted. It is patently false, as this report in the Telegraph illustrates:

A City lawyer, Lorraine Elliott, was fired from a £150,000-a-year job working on a Government contract after a vetting check showed that she had been wrongly accused of forging a signature on her daughter’s nursery application form.

Mrs Elliott, 42, had her details logged on the police national computer after she was wrongly accused by her estranged husband of signing his name on the form.

She was arrested but cleared within 24 hours, and checks at the school found no evidence of wrongdoing. However, officers kept details of her arrest – effectively giving her a record.

Mrs Elliott disclosed yesterday how the “black mark” caused her to fail a security check and cost her a job working on the National Identity Card scheme.

The mother of three, from Tenterden, Kent, said the arrest had potentially ruined her 25-year career. “It’s infuriating that details about me and my arrest are still retained on the police computer system for all to see despite the fact that I was never charged because there was no evidence,” she said.

It is deeply ironic that this should happen to someone who wished to work in the National Identity Scheme…

DNA to be held for 6 years in England and Wales

[I earlier misread the article. I thought they’d decided to retain for violent/sexual offences for upto 6 years, but actually they’ve changed from earlier proposals where such retention was for 12 years with 6 years blanket retention, to “merely” 6 years blanket retention].

Last year the European Court of Human Rights ruled against the British government’s policy on DNA retention of everyone who is arrested in England and Wales. The government has finally announced their new policy, namely that DNA will be held for 6 years rather than indefinitely, as was the case prior to the ECHR ruling or for 6 to 12 years as in their earlier proposals. However it is 6 years retention for all offences, no matter how trivial, and thus more draconian than anywhere else. And remember this applies to anyone arrested, not merely those charged or convicted of an offence.

Number of local council snoopers clipped

The Register report that the number of local council officials who can authorise use of surveillance powers under RIPA is set to be cut:

The number of local officials who can authorise access to communications records and order surveillance operations will be cut under changes to snooping regulations announced today.

The Home Office’s move follows repeated controversy over the use of the Regulation of Investigatory Powers Act (RIPA) by local authorities probing trivial trangressions such as littering and people putting their bins out on the wrong day.

Only director-level officials will now be able to authorise use of RIPA powers, Alan Johnson said.

Whilst this may reduce some of the worst excesses and is a small step in the right direction, it fails to address the fundamental problem lying behind such powers, namely that officials are able to use them under their own authority without adequate oversight and there is no effective way of holding them accountable for the use of these powers. The use of these powers should require officials to obtain a warrant from a judge, where they must persuade the judge that the use of surveillance is both necessary and proportionate and must explain what evidence of criminal activity they expect to uncover. Parliament must also be able to exercise effective scrutiny, both via an annual report but also a committee that meets regularly to over see the system. More radically, I wonder whether people should be informed of the surveillance done on them, once the investigations are safely over, for how else is one to discover that such powers are being abused?

Freedom is the right to say Wolfgang Werle was convicted of murdering Walter Sedlmayer

As Samizdata point out convicted murderer, Wolfgang Werle, is trying to sue Wikipedia under a German privacy law:

Wikipedia is under a censorship attack by a convicted murderer who is invoking Germany’s privacy laws in a bid to remove references to his killing of a Bavarian actor in 1990.

Lawyers for Wolfgang Werle, of Erding, Germany, sent a cease-and-desist letter (.pdf) demanding removal of Werle’s name from the Wikipedia entry on actor Walter Sedlmayr. The lawyers cite German court rulings that “have held that our client’s name and likeness cannot be used anymore in publication regarding Mr. Sedlmayr’s death.”
Half-brothers Wolfgang Werle (right) and Manfred Lauber go on trial for murder in Munich’s district court. They are accused of the popular actor Walter Sedlmayr in July 1990 have murdered and robbed in his apartment. (AP-Diether Endlicher)

Half-brothers Wolfgang Werle (right) and Manfred Lauber go on trial for murder in Munich.

German media have already ceased using Werle’s full name regarding the attack. Jennifer Granick, an attorney with the Electronic Frontier Foundation, says German publications must also alter their online archives in a bid to comport with laws designed to provide offenders an avenue to “reintegrate back into society.”

“It’s not just censorship going forward. It’s asking outlets to go back and change what is already being written,” Granick said in a telephone interview.

This insane policy must be stopped. As Perry concluded in his Samizdata article:

As the world networks together, increasingly we cannot tolerate legal attacks anywhere because the repercussions will not stay neatly within national borders, so neither can our hostility to such assaults on our liberty… now let us also do something about Britain’s intolerable defamation laws.

I’ll have more to say on Britain’s laws soon…

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