US court upholds free / open source licences

Great news for the free software / open source world - in Jacobsen v. Katzer the US Court of Appeals for the Federal Circuit (a leading US IP court) has upheld a free software licence in a way which makes it much easier for the authors of free software to prevent its misuse. (The particular licence is the Artistic licence, but the principles apply across the board).

This is hugely significant as it resolves what has, until now, been a major dispute as to the effect of free software licences in US law.

The mainstream view - that of the proponents of free software (1, 2) - has been that free software licences set conditions on the use of the software. Breach those conditions (e.g. by modifying and then distributing code under a proprietary licence, or by failing to attribute) and the licence evaporates so that you are then infringing the copyright of the author. The full force of copyright law can then come into play - you can, for example, have an interlocutory injunction awarded against you restraining you from using the code.

Some, though, have argued that a free software licence amounts to a general licence to copy, modify, etc. with mere contractual restrictions on what the licensee can do. (E.g.) If true, this would mean that breaching the terms of the licence would merely be a breach of contract, not a breach of copyright. This would, for example, make it more difficult for the author to obtain an injunction against the infringer. It might also cast doubt on the enforceability of free software licences, for example by requiring authors to show that the elements of a contract were present before they could enforce restrictions against infringers.

Jacobsen v. Katzer resolves this argument conclusively in favour of the mainstream view, and holds that while free software licences may also have a contractual element, the restrictions they impose are conditions and not merely contractual restrictions. It also contains a striking judicial endorsement of the objectives and legitimacy of open source / free software generally.

Lessig and Groklaw have more.

Judge: Bulletin board users "say the first things that come into their heads"

In Smith v. ADVFN Plc & Others Mr Justice Eady of the English High Court recently showed a keen insight into the world of bulletin boards by noting that users are prone to reacting in the heat of the moment, not thinking about what they are doing, and saying the first thing that comes into their heads. A statement of the blindingly obvious? Perhaps. But the underlying point is important.

A perennial problem with defamation on the internet has been that of tone. Casual conversations - on bulletin boards or blog post comments - can feel as though they are transient and ephemeral. People write in a way which they would never use in a more formal setting such as a newspaper's letters page. But this perceived informality may clash with the approach taken by libel lawyers and courts, who are used to parsing newspaper articles closely for any possible defamatory meaning and who may apply this approach to turn the loose language of a post into something defamatory.

Offline, casual conversations also benefit from the more relaxed rules of slander, where oral (as opposed to written) communications generally don't give a person a right to sue for defamation unless they have suffered actual damage as a result. Online, though, the distinction between slander and libel evaporates so that (in most jurisdictions) an internet posting - however casual - will be treated as libel rather than slander, giving a person a right to sue irrespective of whether they have suffered any actual harm.

Significantly, however, in Smith v. ADVFN Mr Justice Eady took the informal nature of bulletin boards into account in deciding whether a claimant had a chance of succeeding in a defamation action, holding that these cases should often be treated as closer to slander so that the casual nature of posts should be taken into account when interpreting them. His summary of "the nature of bulletin boards" is worth quoting in full:

13. It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court.

14. This has been explained in the material before me and is, in any event, nowadays a matter of general knowledge. Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or “give and take”.

15. The participants in these exchanges were mostly using pseudonyms (or “avatars”), so that their identities will often not be known to others. This is no doubt a disinhibiting factor affecting what people are prepared to say in this special environment.

16. When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a “thread” and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.

17. It is this analogy with slander which led me in my ruling of 12 May to refer to “mere vulgar abuse”, which used to be discussed quite often in the heyday of slander actions. It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious.

More on this case - including the way in which the claimant attempted to use defamation actions to silence his critics - at The Register.

Fake Facebook profile case - Full decision now available

Remember the libel action brought by a businessman against a former friend who created a false Facebook profile under his name? The full text of that decision is now available on BAILII as Applause Store Productions Ltd and Firsht v. Raphael. The bulk of the decision is unremarkable and deals with the (unconvincing) attempts by the defendant to deny that he was responsible for creating the page, but there are some interesting comments showing how judges are putting a figure on damages where material is only available for a short period of time to a relatively small number of people:

Ultimately, I have to approach the question of damages in the same way as a jury would, giving a verdict without a reasoned judgment. I bear in mind, of course, that the profile and group were only available on Facebook between 19th/20th June and 6th July 2007, when Facebook appears to have taken the material down at Mr Firsht's request. Given the times when the material was put up and taken down, that is a period of 17 days (for the profile) and 16 days (for the group). I bear in mind also the limited extent of proved publication, but I accept that Facebook is a medium in which users do regularly search for the names of others whom they know, and anyone who searched for the name Mathew Firsht during those few days will have found the false group without difficulty. In my view, a not insubstantial number of people is likely to have done so. By that I have in mind a substantial two-figure, rather than a three-figure, number. I also accept that the Defendant has increased the hurt and upset of Mr Firsht by the allegations which he rashly made in his original Defence and by his persistence in a defence which I have founded to be built on lies, which has compelled Mr Firsht to give evidence and face lengthy cross-examination in a public trial.

The libel is, as Ms Skinner rightly said, not at the top end of the scale, although it is serious enough to say of a successful businessman that (as I have found the words to mean) he owes substantial sums of money which he has repeatedly avoided paying by lying and making implausible excuses, so that he is not to be trusted in the financial conduct of his business and represents a serious credit risk. I do take into account also the effect on Mr Firsht of the unpleasant allegations against him which the Defendant made in his original Defence, and the fact that the Defendant has persisted to trial in a case which I have found to be no more than a lie. It seems to me that a proper award for the libel of Mr Firsht, to include an element for aggravation of damage, is £15,000. The pleaded meaning in the case of the company - against which the allegations of debt and dishonest prevarication are not directly made - is just the consequential meaning, that as a result of Mr Firsht's conduct the company is not to be trusted in the financial conduct of its business and represents a serious credit risk. It seems to me that a substantially lower award should be made in respect of the company, and in my judgment the right figure is £5,000.

Funniest name for a firm of solicitors in Ireland?

When I read that an Irish firm of solicitors was named "Argue and Phibbs" I assumed that this was an urban legend. Apparently not:
Sligo Town on the Net has more on this wonderfully named firm.

Bebo, bullying and the law

The Irish Independent recently carried a story about what may be the first Irish case involving social networking to reach court:

A man has been prosecuted for putting offensive and obscene messages on social networking site Bebo in what is believed to be the first case of its kind to come before the Irish courts.

Paul Anthony Matthews (27) posted what a judge described as "outrageous" messages on a teenage girl's site on January 31 this year.

Matthews, of Carnbeg, Doylesfort Road, Dundalk, agreed to pay the victim €3,000 instead of going to jail.

The pioneering case was brought under Section 13 (1) of the Post Office Amendment Act 1951 for sending offensive or indecent material by means of telecommunication.

Matthews, a father of one, admitted posting explicit and abusive messages on the teenager's site. The victim cannot be identified because of a court order.

Dundalk District Court was told that Matthews had a previous disagreement with the then 16-year-old and posted the messages on her Bebo page. The teenager had made a complaint about Matthews to gardai regarding another matter and the Bebo messages were investigated.

Matthews was arrested and admitted when questioned that he had put up the messages on her site.

So what's the significance of this case? It's certainly not the first time that internet harassment has come before the courts in Ireland - as far back as 1999 a man was convicted of criminal libel for online postings (Mac Ruairí, “Man Jailed for Libel on the Internet”, Irish Examiner, December 21, 1999.) But it does seem to be the first time that this particular section has been applied to the internet, so it might be worth looking at it in more detail.

Section 13 has been heavily amended since it was enacted. (For the tortuous details see the Fourth Schedule of the Postal and Telecommunication Services Act 1983, section 7 of the Postal and Telecommunications Services Amendment Act 1999 and Regulation 4(8) of SI 306/2003.) The most recent change was brought about by the Communications Regulation (Amendment) Act 2007, which substitutes the following for section 13:

“Offences in connection with telephones.
13.—(1) Any person who—
(a) sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing

or

(b) for the purpose of causing annoyance, inconvenience, or needless anxiety to another person—
(i) sends by telephone any message that the sender knows to be false, or
(ii) persistently makes telephone calls to another person without reasonable cause,
commits an offence.

(2) A person found guilty of an offence under subsection (1) is liable on conviction—
(a) if tried on indictment, to a fine not exceeding €75,000 or to imprisonment for a term not exceeding 5 years, or to both, or (b) if tried summarily, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months, or to both.
(3) A contravention of this section is an offence under the Post Office Act 1908.
(4) On convicting a person for an offence under subsection (1), the court may, in addition to any other penalty imposed for the offence, order any apparatus, equipment or other thing used in the course of committing the offence to be forfeited to the State.
(5) In this section, ‘message’ includes a text message sent by means of a short message service (SMS) facility.”.

This is, however, quite a narrow section. It is limited to messages sent by "telephone" (which, while it might be stretched to cover the use of dial up, probably excludes the use of e.g. cable modems). Although it includes text messages it does not mention email or other internet messages and wouldn't seem to be wide enough to include them (a point also made by Kelleher & Murray - Information Technology Law in Ireland (2nd ed.) at 690). In fact, the legislative history on this point indicates that "cyber bullying" was expressly excluded from its scope, with the Minister for State (John Browne) rejecting an amendment extending the section to cyber bullying, stating:

The purpose of amending the Post Office (Amendment) Act 1951 was to increase fines to deter nuisance calls to the emergency call answering service, ECAS. The change proposed by the Senators is a wider offence and I understand from the debate on Tuesday that they are particularly concerned about tackling cyber bullying. The issues were raised again today by the Senators. This type of regulation falls outside the remit of the Bill. The sole intention of this provision is to address nuisance calls to the emergency services. I have listened carefully as did the Minister, Deputy Noel Dempsey, to the points raised by the Senators. The purpose of the Bill is to deal with the regulation of a service. The areas raised by the Senators would be more appropriate to the Department of Justice, Equality and Law Reform.

To respond to Senator Terry, it is an offence under section 10 of the Non-Fatal Offences against the Person Act 1997 to harass a person by use of any means, including by use of a telephone. Therefore, the issue is already dealt with to a certain extent.

Consequently (though bearing in mind we only have media reports to go on) it's hard to see how this section was applied to the defendant's conduct in this case.

(It may be, however, that the prosecution mistakenly had in mind the previous version of section 13(1) which appeared to be substantially wider in that it prohibited the sending of any grossly offensive etc. message "by means of the telecommunications system operated by [any authorised undertaking]" - a formula which may have been wide enough to include internet connections.)

Instead, one would expect this type of situation should be dealt with (if criminal charges are necessary) by the offence of harassment under section 10 of the Non Fatal Offences Against the Person Act 1997, which explicitly includes communication with a victim "by any means".

At this point one might wonder - so what? Does it matter whether this conduct is dealt with under one of these offences rather than the other? I'd suggest that it does. Section 13 is designed to deal with nuisance telephone calls. These are peculiarly direct, immediate, personal and invasive of one's privacy. Consequently the law applies a low threshold - a single instance of gross offensiveness - before these become criminal. But this is very unusual. The law doesn't generally criminalise mere offensiveness, even gross offensiveness, nor should it. But if section 13 were extended to all internet communications then it would have just that effect - prohibiting a great deal of speech on the basis that some readers might find it grossly offensive. (Something which would, for example, make criminals of those who post the Danish cartoons portraying Mohammed.) Indeed, as Eoin O'Dell recently reiterated "It is precisely to allow the expression of offensive opinions that the right to freedom of expression is necessary."

Having said that, there may be a case for extending section 13 or a similar provision to some internet communications. For example, nuisance emails and instant messages share many of the characteristics of text messages, and in some circumstances messages left on a person's social networking page might be as invasive. But any extension of the law must be carefully limited to avoid damage to freedom of expression.

Update (10 May 2010): - I've now been informed that after being alerted to these issues the original trial judge accepted that there was a flaw in the proceedings, declared a mistrial and reentered the matter. Last week, on the matter again being listed in Dundalk Judge Hamill considered this point and ruled that the charge was inappropriate.

Free books on technology and the law - A reader's guide

A 19th Century Irish judge (Sir James Mathew) once said that "In England, justice is open to all – like the Ritz Hotel." Unfortunately, litigation has not become much cheaper in the meantime. But other aspects of the law have. In particular, there has been an explosion in the number of high quality books on law and technology available for free download - both free as in beer and free as in speech. Here are some of my favourites.

It's almost obligatory to start with Lawrence Lessig, who was one of the first lawyers to make his work freely available and was instrumental in setting up the Creative Commons movement to enable others to do likewise. Three of his books are available:

Free Culture is one of the more influential books on the use and abuse of intellectual property law and at the same time manages to be both readable and entertaining.

Code 2.0 scarcely needs an introduction. Lessig's analysis of how code can be used as a form of regulation, and the risks this presents, was an instant classic when first published in 2000 and this second edition confirms that many of his insights have become increasingly relevant in the meantime.

The Future of Ideas is another classic - covering much of the same ground as Code and Free Culture, it looks at what he calls the corruption of the values of the early internet, an internet counterrevolution which threatens to stifle creativity and innovation.

Building squarely on Lessig's work, Johnathan Zittrain's The Future of the Internet - And How to Stop It is a perceptive discussion of how the innovation and freedom permitted by an open internet is under threat from increasing restrictions both on the network itself and the devices which connect to it.

On a similar topic is Matthias Klang's doctoral dissertation, Disruptive Technology. He argues that new technologies "disrupt the, previously established, social norms that make large parts of our democratic social interaction" while simultaneously the regulation of new technologies may undermine democratic participation, for example by imposing contractual restrictions on speech online which would not apply offline.

The Wealth of Networks by Yochai Benkler covers some of the same ground, but has a different focus in arguing that a networked environment and a growth in the sharing of information (such as via Creative Commons licences) brings about deep, structural changes in society - notably a shift from markets to non-market social behaviour - which face resistance from a variety of entrenched incumbents who stand to lose out.

Turning specifically to privacy, Daniel Solove's The Future of Reputation is a superb look at the interaction of privacy, reputation and freedom of expression on the Internet, and takes a broad view of how social mechanisms such as shaming might develop online.

John Logie's Peers, Pirates and Persuasion is an interesting and enjoyable look by a non-lawyer at the growth of a maximalist copyright system and specifically the rhetoric used by each side in the "filesharing wars". (That link appears to be unreliable, but the book is also available on Scribd.)

Perspectives on Free and Open Source Software, edited by Joseph Feller and others, is a collection of essays covering a wide range of issues such as: the motivation of contributors to open source software, the security issues it presents, the business model underlying it, the challenge of open source for the legal system and the application of open source / free software principles in the world of science. This remains possibly the best introduction for anyone (lawyer or not) curious about free / open source software.

The OSCE Media Freedom Internet Cookbook is another must read. This collection of essays by various authors offers some very interesting perspectives on the challenges of reconciling individual and media freedom with regulation of the internet while also covering a variety of topics from "hate speech" to internet hotlines to education for media literacy. In particular, Gus Hosein's piece on the Open Society and the Internet is a perceptive look at the promises of and threats to internet freedom.

Last, but certainly not least, is a collection of essays by the individual who started many of these debates about opening software, knowledge and society. Free Software, Free Society: Selected Essays of Richard M. Stallman includes classic pieces such as "The right to read" and "Why software should be free".

Ireland's first case on the legality of screen scraping?

The Sunday Business post reports that Ryanair has started proceedings in the High Court against Bravofly seeking to prevent it from screen-scraping the Ryanair site in order to provide users with a portal through which they can compare fares across airlines.

Ryanair have been trying to block screen scrapers for some time now. Most recently they were rapped on the knuckles by the ASA for placing advertisements telling consumers that:

"IF YOU BUY A RYANAIR TICKET THRU AN ONLINE AGENT YOU'RE BEING RIPPED OFF... *THEY OVERCHARGE BY 100% OR MORE *THEY DON'T PROVIDE CORRECT TERMS AND CONDITIONS *THEY DON'T NOTIFY SCHEDULE CHANGES *THEY DON'T PROVIDE WEB CHECK-IN OR PRIORITY BOARDING"

This seems to be the first time, though, that they have resorted to legal proceedings and the first time that the Irish courts will consider the legality of screen scraping. From the report in the Sunday Business Post it would seem that Ryanair is primarily relying on the restrictions imposed by its terms of use, but presumably we'll see argument as to whether screen scraping violates their rights under the Database Directive (though whether this claim will stand up in light of the British Horseracing Board caselaw is another matter). OUT-LAW have some analysis of the uncertain position under English law, while this article in the Loyola Consumer Law Review gives an up to date summary of the position under US law.

Update 8.07.08 - The Irish Independent and Irish Times have more details. From the Irish Times:

Ryanair has claimed the alleged "screen-scraping" activities of Bravofly breach provisions of the Trademarks Act and the Copyright and Related Rights Act, amount to "passing off" and also breach the conditions for accessing the Ryanair website.

It claims that Bravofly, without permission from Ryanair, has offered detailed information on Ryanair's flight services and had also used Ryanair's name and harp device logo in presenting that information.

It also claims that Bravofly has established and maintains hypertext links from its websites to the Ryanair website, without Ryanair's authorisation.

Ryanair claims it had written to Bravofly asking for undertakings that the screen-scraping activities would cease but no such undertakings had been received.

Ryanair is seeking court orders restraining the alleged activities and also wants damages, including exemplary damages, and/or an account of profits for alleged negligence and/or wrongful interference with Ryanair's economic interests and contractual relations.

The airline contends the matter is of real commercial significance as its website is at the heart of its marketing and sales strategy and some 98 per cent of its flight bookings are transacted via the website. Any action which wrongfully impinges on the effectiveness of the Ryanair website has an impact on sales and marketing activities and the attractiveness of the website as a platform for the advertising and sale of third-party goods and services, it says. It claims the activities of Bravofly are diverting potential business from Ryanair.

Symposium - Privacy v. Publicity in the Virtual World

The Darklight Film Festival is hosting what should be a very interesting symposium on Privacy v. Publicity in the Virtual World this Friday, June 27th in the Film Base, Curved Street, Temple Bar at 10am:

For a new generation of 'digital natives' privacy is no longer a requirement. Web 2.0 has brought with it a transformation in how we view the need for privacy and engage with the public realm - but at what cost? The discussion will be prefaced by a keynote address from Daniel J. Solove, Associate Professor of law at the George Washington University Law School, and author of The Digital Person: Technology and Privacy In the Information Age. Chaired by Irish Times writer Karlin Lillington, the panel will also feature Irish blogging guru Damien Mulley and solicitor/digital rights expert Caroline Campbell.

Issues to be considered include:

* Can bloggers say what they like?

* What's wrong with having nothing to hide?

* Who is really stalking you on Facebook? .. Does anyone care anymore?

* Is there a generation gap in approaches to online privacy?

Civil servants' illegal disclosure of personal information is "routine and very comprehensive"

The Independent has an update on the Data Protection Commissioner's investigation into the Department of Social and Family Affairs:

FOURTEEN employees of the Department of Social and Family Affairs are being investigated for allegedly passing comprehensive personal information to insurance companies on a regular basis.

The Irish Independent has learned that some of the alleged breaches -- which came to light in April 2007 -- involve "one of Ireland's largest insurance companies" and date back to 2006.

The allegations involve the passing of personal and sensitive information, contained on data systems within the Department of Social and Family Affairs (DSFA), to third parties for commercial benefit.

The DSFA carries all personal details on all individuals in the state including PPS numbers, dates of birth, addresses as well as earnings details.

Private investigators work for the insurance companies to compile cases against drivers. But there is concern about the level of information that the inspectors for the insurance companies are obtaining.

Protection Commissioner Billy Hawkes said in an email to the DSFA last June: "I inspected five investigator files yesterday during a planned call back to X (large insurance company).

"This revealed very-worrying levels of disclosure from the DSFA to private investigators. From what I could discern, such disclosures are routine and very comprehensive."

I've blogged before about other examples in this Department of disregard for citizens' privacy.

Data protection and bulletin boards

John Breslin of (amongst other things) Boards.ie has an interesting post on a data protection complaint from a banned user. The complaint? After the banning, all the posts he had previously made appeared with the word "Banned" next to them (which is the default setting for many forum software packages). The view of the Data Protection Commissioner was that this was an unauthorised disclosure of personal information (i.e. the user's status on the site), apparently on the basis that the username was very close to his real name:

Quite apart from the narrow data protection aspect of this particular case, it raises an interesting issue about the social dynamics of social software and whether the law might hinder effective moderation.

One of the way in which moderators on forums discourage certain behaviour is by putting users into a sin bin or banning them. Going one step further by naming and shaming - i.e. publicising the sanction by labeling posts from those users - has a social effect in two ways. At a general level it may help to reinforce the norms of the site by publicly reinforcing the message that certain types of behaviour are unacceptable and at the individual level it may also act as a deterrent to the user who knows that any sanction against them will be publicised.

If this sounds familiar it's because this argument mirrors, on a much smaller scale, the role of publicity in the criminal justice system. It also mirrors the increasing tendency in other areas for public bodies to "name and shame", whether it be young offenders in England or the list of tax defaulters in Ireland who settle with the Revenue.

The broader issue this raises is whether naming and shaming is an acceptable option - and if acceptable in (e.g.) the context of tax defaulters, why not in the context of troublesome users? Should it matter whether it's a public or private body naming and shaming? Should it matter that the gravity of the "offence" is much greater in one case than the other? If bulletin boards / forums can't publicly reveal which users have been banned or sin-binned, will this make the life of moderators more difficult?

How not to protect a domain name - the D4hotels saga

Remember D4hotels.com - the low cost hotels site which completely failed to protect variants of its name against cybersquatters? Well it now transpires that the ownership of D4hotels.com itself is now contested:

A dispute over ownership of the D4hotels.com domain name and website has come before the Commercial Court.

MJBCH Ltd, the leaseholder of the former Berkeley Court Hotel and the former Jury's hotels in Ballsbridge and The Towers, claims exclusive entitlement to the operation and management of the domain name and website.

It has alleged it had a hotel operation and management agreement with the two defendant companies -- Cloud Nine Management Services Ltd and Beechside Company Ltd, trading as The Park Hotel, Kenmare -- to manage the hotels as the Ballsbridge Inn, Ballsbridge Towers and the Ballsbridge Court hotel, but that agreement was terminated in February.

In those circumstances, it claims the defendants have no entitlement to use the d4 domain name and website.

...

The defendant companies deny the claims and say they at no time abandoned their rights to or property in the domain name, website or business name.

They companies say that, under their agreement with MJBCH of October 2007, they were authorised to act as the exclusive operator and manager of the hotels and that the domain name D4hotels.com was registered by Beechside in September 2007.

They also say the management agreement was summarily terminated by MJBCH in February and that at no stage had it been agreed the D4 domain name and website would become the property of MJBCH.

While there's very little detail in this report, it suggests that there was no explicit agreement as to ownership of the intellectual property in the domain name and the site itself - which if true is one of the most fundamental mistakes one can make when establishing an online business. This, together with the failure to protect domain name variants, means that I will be using this case in class as a cautionary tale.

Update (27.1.09): It now seems that this case has been settled.

NY Attorney General forces ISPs to filter Internet

In another bad day for the end to end principle, the New York Times reports that the Attorney General of New York has succeeded in forcing ISPs to filter their users' internet connections. The expressed motivation is to prevent users from accessing child pornography, though this will be trivially easy to circumvent. There are many problems with internet filtering, and I've written a short summary of them (in a different context) for the Digital Rights Ireland blog. But the New York scenario raises one particular problem - whether this form of censorship, implemented and administered by private actors (who will face an incentive to overblock), can be reconciled with the rule of law. The issues raised are very similar to those presented by the UK Cleanfeed system, about which Colin Scott and myself had this to say at the inaugural TELOS Conference last year:

This presents a number of challenges for the rule of law. Even if an individual ISP’s actions can be described as voluntary, the effect is to subject users without their consent to a state mandated regime of internet filtering of which they may be unaware. The Internet Watch Foundation (IWF), which determines which URLs should be blocked, has a curious legal status, being a charitable incorporated body, funded by the EU and the internet industry, but working closely with the Home Office, the Ministry of Justice, the Association of Chief Police Officers and the Crown Prosecution Service. There is no provision for site owners to be notified that their sites have been blocked. While there is an internal system of appeal against the designation of a URL to be blocked, that mechanism does not provide for any appeal to a court – instead, the IWF will make a final determination on the legality of material in consultation with a specialist unit of the Metropolitan Police.

Consequently the effect of the UK policy is to put in place a system of censorship of internet content, without any legislative underpinning, which would appear (by virtue of the private nature of the actors) to be effectively insulated from judicial review. Though the take-up of the regime may be attributable to the steering actions of government, the way in which the regime is implemented and administered complies neither with the process or transparency expectations which would attach to legal instruments.

There is also cause for concern about the incentives which delegating filtering to intermediaries might create. From the point of view of the regulator, requiring intermediaries to filter may allow them to externalise the costs associated with monitoring and blocking, perhaps resulting in undesirably high levels of censorship. But perhaps more worrying are the incentives which filtering creates for intermediaries. Kreimer has argued that by targeting online intermediaries regulators can recruit “proxy censors”, whose “dominant incentive is to protect themselves from sanctions, rather than to protect the target from censorship”. As a result, there may be little incentive for intermediaries to engage in the costly tasks of distinguishing protected speech from illegal speech, or to carefully tailor their filtering to avoid collateral damage to unrelated content. Kreimer cites the US litigation in Centre for Democracy & Technology v. Pappert to illustrate this point. In that case more than 1,190,000 innocent web sites were blocked by ISPs even though they had been required to block fewer than 400 child pornography web sites.

Orin Kerr has more.

Edit (13.06.08): Richard Clayton indicates that the New York Times coverage may be inaccurate. He suggests that what the ISPs have agreed to is limited to removing certain newsgroups and taking down sites which they host - but does not include filtering of sites hosted elsewhere. There's also some confusion as to just what the effect on usenet will be, with Declan McCullagh reporting that in the case of Verizon all the newsgroups in the alt.* hierarchy will no longer be offered.

The Future of the Internet and How to Stop It

Jonathan Zittrain's superb new book The Future of the Internet and How to Stop It is now available for free download. His central theme is that the freedom associated with general purpose PCs and an end-to-end internet is increasingly being threatened - a variety of forces (including a push by the content industry for DRM, security fears, and state regulation) are leading towards a growth in "tethered appliances" outside the control of their users, coupled with increased internet filtering and gatekeeping. The result is to dramatically shift the balance struck by the law and possibly to threaten traditional freedoms. From the synopsis:

IPods, iPhones, Xboxes, and TiVos represent the first wave of Internet-centered products that can’t be easily modified by anyone except their vendors or selected partners. These “tethered appliances” have already been used in remarkable but little-known ways: car GPS systems have been reconfigured at the demand of law enforcement to eavesdrop on the occupants at all times, and digital video recorders have been ordered to self-destruct thanks to a lawsuit against the manufacturer thousands of miles away. New Web 2.0 platforms like Google mash-ups and Facebook are rightly touted—but their applications can be similarly monitored and eliminated from a central source. As tethered appliances and applications eclipse the PC, the very nature of the Internet—its “generativity,” or innovative character—is at risk.

A must read.

Deutsche Telekom used call data to spy on reporters

From the New York Times:

Germany was engulfed in a national furor over threats to privacy on Monday, after an admission by Deutsche Telekom that it had surreptitiously tracked thousands of phone calls to identify the source of leaks to the news media about its internal affairs.

In a case that echoes the corporate spying scandal at Hewlett-Packard, Deutsche Telekom said there had been “severe and far-reaching” misuse of private data involving contacts between board members and reporters...

Spiegel Online has more:

The company itself, led by then CEO Kai-Uwe Ricke and monitored by a supervisory board headed up by then Deutsche Post CEO Klaus Zumwinkel, (more...) is accused of being behind the alleged spying. And the Berlin consulting firm, whose chief executive sent the April 28 fax, was hired to carry it out. The goal of the "Clipper" and "Rheingold" surveillance programs, as well as other "secondary projects," the fax makes clear, was to "analyze several hundred thousand landline and mobile connection data sets of key German journalists reporting on Telekom and their private contacts."

But that wasn't all. The same procedure, according to the memo, was repeated with "several supervisory board members on the employee side" -- "for a total period of one-and-a-half years.

Data Protection and Search Engines - The Article 29 Working Party Weighs In

The Article 29 Working Party has issued its long-awaited Opinion on Data Protection Issues Related to Search Engines. This is a substantial document and will need close consideration, but some highlights spring out and are worth excerpting.

The WP confirms that the Data Retention Directive (contrary to what has been claimed by some) does not apply to search engines:

Search engine services in the strict sense do not in general fall under the scope of the new regulatory framework for electronic communications of which the ePrivacy Directive is part. Article 2 sub c of the Framework Directive (2002/21/EC), which contains some of the general definitions for the regulatory framework, explicitly excludes services providing or exercising editorial control over content:

"Electronic communications service" means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services, as defined in Article 1 of Directive 98/34/EC, which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;

Search engines therefore fall outside of the scope of the definition of electronic communication services.

A search engine provider can however offer an additional service that falls under the scope of an electronic communications service such as a publicly accessible email service which would be subject to ePrivacy Directive 2002/58/EC and Data Retention
Directive 2006/24/EC.

Article 5(2) of the Data Retention Directive specifically states that “No data revealing the content of the communication may be retained pursuant to this Directive”. Search queries themselves would be considered content rather than traffic data and the Directive would therefore not justify their retention. Consequently, any reference to the Data Retention Directive in connection with the storage of server logs generated through the offering of a search engine service is not justified.

Consent cannot be implied in the case of anonymous users:

Consent cannot be construed for anonymous users of the service and the personal data collected from users who have not chosen to authenticate themselves voluntarily. These data may not be processed or stored for any other purpose than acting upon a specific request with a list of search results.

The "necessary for the performance of a contract" exception will seldom be available:

Processing may also be necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract. This legal basis may be used by search engines to collect personal data that a user voluntarily provides in order to sign-up for a certain service, such as a user account. This basis may also be used, similar to consent, to process certain well-specified categories of personal data for well-specified legitimate purposes from authenticated users. Many internet companies also argue that a user enters into a de facto contractual relationship when using services offered on their website, such as a search form. However, such a general assumption does not meet the strict limitation of necessity as required in the Directive.

Personalised advertising raises particular problems:

Search engine providers that wish to provide personalised advertising in order to increase their revenues, may find a ground for the legitimate processing of some personal data in Article 7 (a) of the Directive (consent) or Article 7 (b) of the Directive (performance of a contract) but it is difficult to find a legitimate ground for this practice for users who have not specifically signed in based on specific information about the purpose of the processing. The Working Party has a clear preference for anonymised data.

Search engines may not store information purely on the basis that it may be useful in later criminal proceedings:

Law enforcement authorities may sometimes request user data from search engines in order to detect or prevent crime. Private parties may also try to obtain a court order addressing a search engine provider to hand over user data. When such requests follow valid legal procedures and result in valid legal orders, of course search engine providers will need to comply with them and supply the information that is necessary. However, this compliance should not be mistaken for a legal obligation or justification for storing such data solely for these purposes. Moreover, large amounts of personal data in the hands of search engine providers may encourage law enforcement authorities and others to exercise their rights more often and more intensely which in turn might lead to loss of consumer confidence.

A maximum retention period of six months is permissible, and users must be informed in advance:

In practice, the major search engines retain data about their users in personally identifiable form for over a year (precise terms vary). The Working Party welcomes the recent reductions in retention periods of personal data by major search engine providers. However, the fact that leading companies in the field have been able to reduce their retention periods suggests that the previous terms were longer than necessary. In view of the initial explanations given by search engine providers on the possible purposes for collecting personal data, the Working Party does not see a basis for a retention period beyond 6 months...

In case search engine providers retain personal data longer than 6 months, they will have to demonstrate comprehensively that it is strictly necessary for the service. In all cases search engine providers must inform users about the applicable retention policies for all kinds of user data they process.

Update: Lilian Edwards has more on the Opinion, including the problems it poses for people search services.

Filter or Else! Music Industry Sues Irish ISP

I've written a short update for the Society for Computers and Law on the music industry litigation against Eircom. Excerpt:

The music industry in Ireland started its campaign against peer-to-peer downloading and uploading in 2003/2004 when it started an education and awareness campaign. That campaign included national advertising aimed at end-users and specific warnings addressed to intermediaries such as companies and universities, as well as instant messages sent to users who were uploading particular songs.

In 2005 the music industry changed tack and brought the first action before the Irish courts (EMI and ors. v Eircom and ors. [2005] 4 IR 148) seeking to identify 17 individuals alleged to be illegally file-sharing. In that case the High Court granted disclosure of these identities under the Norwich Pharmacal [1974] AC 133 jurisdiction. Two further applications were made to the High Court in 2006 and 2007, identifying some 99 users in all. However, despite the significant publicity which these actions received, they do not appear to have any more than a short-term effect in deterring Irish users from sharing music.

At this point, and in line with the strategies pursued by the industry body IFPI elsewhere, the music industry in Ireland appears to have decided to shift the focus of its attention from the end-user towards the intermediary, and in particular towards seeking to compel ISPs to police the behaviour of their users.

The full text is available on the SCL site (no subscription required).

A public service announcement about public surveillance

This animated short by David Scharf is one of the best explanations I've seen as to why we should be worried about sleepwalking into a surveillance society, not to mention a beautifully crafted piece of visual art in its own right.



You can see larger, better quality versions of the video at http://www.huesforalice.com/bbs/.

Domain Name Registrars - The New Points of Control?

Jonathan Zittrain has pointed out that regulation of the internet has tended to proceed - whether by way of litigation or legislation - by identifying particular intermediaries and compelling them to act as points of control over user behaviour. The intermediaries targeted have included hosts, ISPs, search engines, hyperlinkers and financial intermediaries (which have been compelled, for example, to stop credit card payments to gambling sites). Some relatively recent developments suggest that domain name registrars are joining them in the firing line - and that this may result in some interesting cross-border legal issues.

An early example took place in the Rate Your Solicitor saga, where the plaintiff in an Irish defamation action succeeded in 2006 in persuading US registrar Godaddy to disable the rateyoursolicitor.com domain (apparently for false WHOIS data) notwithstanding that Godaddy would appear to have enjoyed immunity under section 230 CDA. (Not that this deterred the critics of Irish lawyers, who promptly moved to rate-your-solicitor.com where they remain today.)

At around the same time, the plaintiffs in the Spamhaus litigation set out to persuade an Illinois court to order ICANN (rather than the Canadian registrar!) to suspend the Spamhaus domain name - on the basis that Spamhaus (located in the UK) could not otherwise be made to comply with that court's order. (Ultimately, however, the court accepted that ICANN and the registrar were not involved in the defendant's actions nor able to control them, and consequently an order should not be directed towards them.)

The Spamhaus case didn't, however, deter the lawyers acting for Bank Julius Baer in its attempt to silence Wikileaks.org, who succeeded (albeit temporarily) last month in persuading the Californian courts to issue an interim order requiring the registrar (Dynadot) to disable the Wikileaks.org domain name and remove all DNS hosting records. (This despite the lack of any obvious role for the Californian courts in adjudicating on a dispute between a Cayman Islands bank, its Swiss parent company, a Swiss former employee, and the various individuals around the world responsible for Wikileaks, and despite the lack of any full hearing.) Daithi has a particularly good post on why this amounted, in effect, to an internet death penalty and was a disproportionate prior restraint on speech.

Now the New York Times reports that the US government has ordered domain name registrars to disable domain names which it alleges breach its ban on trade with Cuba:

Steve Marshall is an English travel agent. He lives in Spain, and he sells trips to Europeans who want to go to sunny places, including Cuba. In October, about 80 of his Web sites stopped working, thanks to the United States government.

The sites, in English, French and Spanish, had been online since 1998. Some, like www.cuba-hemingway.com, were literary. Others, like www.cuba-havanacity.com, discussed Cuban history and culture. Still others — www.ciaocuba.com and www.bonjourcuba.com — were purely commercial sites aimed at Italian and French tourists.

“I came to work in the morning, and we had no reservations at all,” Mr. Marshall said on the phone from the Canary Islands. “We thought it was a technical problem.”

It turned out, though, that Mr. Marshall’s Web sites had been put on a Treasury Department blacklist and, as a consequence, his American domain name registrar, eNom Inc., had disabled them. Mr. Marshall said eNom told him it did so after a call from the Treasury Department; the company, based in Bellevue, Wash., says it learned that the sites were on the blacklist through a blog.

Either way, there is no dispute that eNom shut down Mr. Marshall’s sites without notifying him and has refused to release the domain names to him. In effect, Mr. Marshall said, eNom has taken his property and interfered with his business. He has slowly rebuilt his Web business over the last several months, and now many of the same sites operate with the suffix .net rather than .com, through a European registrar. His servers, he said, have been in the Bahamas all along.

What's the significance of this? As in some of the other cases, it means that internet speech may be shut down without any prior notice to a party, and without any hearing. It also means that disputes which have no underlying connection with a particular jurisdiction may end up subject to the law of that jurisdiction:

Susan Crawford, a visiting law professor at Yale and a leading authority on Internet law, said the fact that many large domain name registrars are based in the United States gives the Treasury’s Office of Foreign Assets Control, or OFAC, control "over a great deal of speech — none of which may be actually hosted in the U.S., about the U.S. or conflicting with any U.S. rights."

"OFAC apparently has the power to order that this speech disappear," Professor Crawford said.

There's also a very important practical point here. Website owners are already acutely aware that hosting liability varies from jurisdiction to jurisdiction - and for that reason many chose to host in the US where section 230 CDA makes it less likely that a host will take down a site based on vague and unjustified threats. These cases illustrate that domain owners should be equally cautious in deciding which registrar to use - pick a registrar located in the wrong jurisdiction, or one which (as Dynadot appeared to do in the Wikileaks case) caves in too easily and you may find your domain name vanishes.

German Constitutional Court recognises a new right of "Confidentiality and Integrity of Computer Systems"

On 27 February the German Constitutional Court issued what's being described as a landmark ruling which recognises a new fundamental right of privacy, confidentiality and integrity in computer systems. The case was brought to challenge a law which, amongst other things, permitted government agencies to hack into computer systems, for example by using a Trojan Horse to monitor suspects' internet use. The reasoning of the Court was based on its finding that computer systems will often contain information presenting a complete picture of a person's most private life:

[Computer systems] alone or in their technical interconnectedness can contain personal data of the affected person in a scope and multiplicity such that access to the system makes it possible to get insight into relevant parts of the conduct of life of a person or even gather a meaningful picture of the personality.

Ralf Bendrath has detailed analysis of the decision and its background. Meanwhile, the IPKat suggests that this may have implications for the use of privacy invasive DRM and for disclosure of information held by ISPs in civil cases.

'Cause I'm the Taxman: Facebook and the Revenue

Now my advice for those who die,
Declare the pennies on your eyes.
'Cause I’m the taxman,
Yeah, I’m the taxman. - The Beatles

There's been a good deal of media coverage of the revelation by Evert Bopp that the Revenue is gathering information from Facebook and other social networking sites as part of its audits of individuals. There has been a tendency to present this as a privacy issue, leading to discussion of whether information on social networking sites should be treated as essentially in the public domain. This seems to me, however, to be the wrong way of looking at this question, not least because a definition of privacy remains elusive. Leaving privacy per se aside, are there other reasons why this sort of material should not be used?

There are, for me, at least two reasons. First, this material is often unreliable. As one Irish blogger demonstrated recently, it's quite easy to fake profiles in the name of others and to do so in a convincing way (Google cache). Consequently government agencies should be slow to use information derived in this way. Where they do so they should inform the individual concerned and offer an opportunity for that person to correct or challenge the material. (Something which would in any event be required by the Data Protection Rules.)

Secondly, and perhaps more importantly, this may lead to irrelevant criteria being used in a way which harms individuals. The legitimacy of bureaucracy is based, at least in part, on the impersonal application of general rules. Bureaucrats are not allowed to take other factors - such as the sexual orientation of the individual - into account, and indeed are expressly prohibited from inquiring about these factors. But where social networking profiles are being searched, it is likely that this principle may be undermined. For example, suppose that Blogger X is openly out on their blog. That is no business of the Revenue (for example) in dealing with him. But if an official is influenced by their search, we may find him being discriminated against in a way which would not have been likely otherwise.

Daniel Solove has considered some of the issues arising from what he describes as the "self exposure problem" in his fascinating new book The Future of Reputation: Gossip, Rumor and Privacy on the Internet - the full text of which is now available online under a non-commercial CC licence. It's required reading for anyone interested in this area.