net.wars

As we're so fond of saying, technology moves fast, and law moves slowly. What we say far less often is that law should move slowly. It is not a sign of weakness to deliberate carefully about laws that affect millions of people's lives and will stay on the books for a long, long time. It's always seemed to me that the Founding Fathers very deliberately devised the US system to slow things down - and to ensure that the further-reaching the change the more difficult it is to enact.

Cut to today's Britain. The Internet may perceive censorship as damage and route around it, but politicians seem increasingly to view due and accountable legal process as an unnecessary waste of time and try to avoid it. Preventing this is, of course, what we have constitutions for; democracy is a relatively mature technology.

Today's Digital Economy bill is loaded with provisions for enough statutory instruments to satisfy the most frustrated politician's desire to avoid all that fuss and bother of public debate and research. Where legislation requires draft bills, public consultations, and committee work, a statutory instrument can pass both houses of Parliament on the nod. For minor regulatory changes - such as, for example, the way money is paid to pensioners (1987) - limiting the process to expert discussion and a quick vote makes sense. But when it comes to allowing the Secretary of State to change something as profound and far-reaching in impact as copyright law with a minimum of public scrutiny, it's an outrageous hijack of the democratic process.

Here is the relevant quote from the bill, talking about the Copyright, Designs, and Patents Act 1988:

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.

Lower down, the bill does add that:

Before making any order under this section the Secretary of State must consult such persons who the Secretary of State thinks likely to be affected by the order, or who represent any of those persons, as the Secretary of State thinks fit.

Does that say he (usually) has to consult the public? I don't think so; until very recently it was widely held that the only people affected by copyright law were creators and rights holders - these days rarely the same people even though rights holders like, for public consumption, to pretend otherwise (come contract time, it's a whole different story). We would say that everyone now has a stake in copyright law, given the enormously expanded access to the means to create and distribute all sorts of media, but it isn't at all clear that the Secretary of State would agree or what means would be available to force him to do so. What we do know is that the copyright policies being pushed in this bill come directly from the rights holders.

Stephen Timms, talking to the Guardian, attempted to defend this provision this way:

The way that this clause is formed there would be a clear requirement for full public consultation [before any change] followed by a vote in favour by both houses of Parliament."

This is, put politely, disingenuous: this government has, especially lately - see also ID cards - a terrible record of flatly ignoring what public consultations are telling them, even when the testimony submitted in response to such consultations comes from internationally recognized experts.

Timms' comments are a very bad joke to anyone who's followed the consultations on this particular bill's provisions on file-sharing and copyright, given that everyone from Gowers to Dutch economists are finding that loosening copyright restrictions has society-wide benefits, while Finland has made 1Mb broadband access a legal right and even France's courts see Internet access as a fundamental human right (especially ironic given that France was the first place three strikes actually made it into law).

In creating the Digital Economy bill, not only did this government ignore consultation testimony from everyone but rights holders, it even changed its own consultation mid-stream, bringing back such pernicious provisions as three-strikes-and-you're-disconnected even after agreeing they were gone. This government is, in fact, a perfect advertisement for the principle that laws that are enacted should be reviewed with an eye toward what their effect will be should a government hostile to its citizenry come to power.

Here is some relevant outrage from an appropriately native British lawyer specializing in Net issues, Lilian Edwards:

So clearly every time things happen fast and the law might struggle to keep up with them, in future, well we should just junk ordinary democratic safeguards before anyone notices, and bow instead to the partisan interests who pay lobbyists the most to shout the loudest?

Tell me to "go home if you don't like it here" because I wasn't born in the UK if you want to, but she's a native. And it's the natives who feel betrayed that you've got to watch out for.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of the earlier columns in this series. Readers are welcome to post here, follow on , or send email to netwars@skeptic.demon.co.uk.

Posted by Wendy M. Grossman at 8:57 PM | Permalink | Comments (0) | TrackBacks (0)

Sometimes laws sneak up on you while you're looking the other way. One of the best examples was the American Telecommunications Act of 1996: we were so busy obsessing about the freedom of speech-suppressing Communications Decency Act amendment that we failed to pay attention to the implications of the bill itself, which allowed the regional Baby Bells to enter the long distance market and changed a number of other rules regarding competition.

We now have a shiny, new example: we have spent so much time and electrons over the nasty three-strikes-and-you're offline provisions that we, along with almost everyone else, utterly failed to notice that the package contains a cookie-killing provision last seen menacing online advertisers in 2001 (our very second net.wars).

The gist: Web sites cannot place cookies on users' computers unless said users have agreed to receive them unless the cookies are strictly necessary - as, for example, when you select something to buy and then head for the shopping cart to check out.

As the Out-Law blog points out this proposal - now to become law unless the whole package is thrown out - is absurd. We said it was in 2001 - and made the stupid assumption that because nothing more had been heard about it the idea had been nixed by an outbreak of sanity at the EU level.

Apparently not. Apparently MEPs and others at EU level spend no more time on the Web than they did eight years ago. Apparently none of them have any idea what such a proposal would mean. Well, I've turned off cookies in my browser, and I know: without cookies, browsing the Web is as non-functional as a psychic being tested by James Randi.

But it's worse than that. Imagine browsing with every site asking you to opt in every - pop-up - time - pop-up - it - pop-up - wants - pop-up - to - pop-up - send - pop-up - you - a - cookie - pop-up. Now imagine the same thing, only you're blind and using the screen reader JAWS.

This soon-to-be-law is not just absurd, it's evil.

Here are some of the likely consequences.

As already noted, it will make Web use nearly impossible for the blind and visually impaired.

It will, because such is the human response to barriers, direct ever more traffic toward those sites - aggregators, ecommerce, Web bulletin boards, and social networks - that, like Facebook, can write a single privacy policy for the entire service to which users consent when they join (and later at scattered intervals when the policy changes) that includes consent to accepting cookies.

According to Out-Law, the law will trap everyone who uses Google Analytics, visitor counters, and the like. I assume it will also kill AdSense at a stroke: how many small DIY Web site owners would have any idea how to implement an opt-in form? Both econsultancy.com and BigMouthMedia think affiliate networks generally will bear the brunt of this legislation. BigMouthMedia goes on to note a couple of efforts - HTTP.ETags and Flash cookies - intended to give affiliate networks more reliable tracking that may also fall afoul of the legislation. These, as those sources note, are difficult or impossible for users to delete.

It will presumably also disproportionately catch EU businesses compared to non-EU sites. Most users probably won't understand why particular sites are so annoying; they will simply shift to sites that aren't annoying. The net effect will be to divert Web browsing to sites outside the EU - surely the exact opposite of what MEPs would like to see happen.

And, I suppose, inevitably, someone will write plug-ins for the popular browsers that can be set to respond automatically to cookie opt-in requests and that include provisions for users to include or exclude specific sites. Whether that will offer sites a safe harbour remains to be seen.

The people it will hurt most, of course, are the sites - like newspapers and other publications - that depend on online advertising to stay afloat. It's hard to understand how the publishers missed it; but one presumes they, too, were distracted by the need to defend music and video from evil pirates.

The sad thing is that the goal behind this masterfully stupid piece of legislation is a reasonably noble one: to protect Internet users from monitoring and behavioural targeting to which they have not consented. But regulating cookies is precisely the wrong way to go about achieving this goal, not just because it disables Web browsing but because technology is continuing to evolve. The EU would be better to regulate by specifying allowable actions and consequences rather than specifying technology. Cookies are not in and of themselves inherently evil; it's how they're used.

Eight years ago, when the cookie proposals first surfaced, they, logically enough, formed part of a consumer privacy bill. That they're now part of the telecoms package suggests they've been banging around inside Parliament looking for something to attach themselves to ever since.

I probably exaggerate slightly, since Out-Law also notes that in fact the EU did pass a law regarding cookies that required sites to offer visitors a way to opt out. This law is little-known, largely ignored, and unenforced. At this point the Net's best hope looks to be that the new version is treated the same way.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, follow on Twitter or by email to netwars@skeptic.demon.co.uk).

Posted by Wendy M. Grossman at 8:25 PM | Permalink | Comments (0) | TrackBacks (0)

There's an old sort-of joke that goes, "What's the best way to kill the Internet?" The number seven answer, according to Simson Garfinkel, writing for HotWired in 1997: "Buy ten backhoes." Ba-boom.

The US Senate, never folks to avoid improving a joke, came up with a new suggestion: install a kill switch. They published this little gem (as S.773) on April 1. It got a flurry of attention and then forgotten until the last week or two. (It's interesting to look back at Garfinkel's list of 50 ways to kill the Net and notice that only two are government actions, and neither is installing a "kill switch").

To be fair, "kill switch" is an emotive phrase for what they have in mind, which is that the president:

may declare a cybersecurity emergency and order the limitation or shutdown of Internet traffic to and from any compromised Federal Government or United States critical infrastructure information system or network

Now, there's a lot of wiggle room in a vague definition like "critical infrastructure system". That could be the Federal government's own servers. Or the electrical grid, the telephone network, the banking system, the water supply, or even, arguably, Google. (It has 64+ percent of US search queries, and if you can't find things the Internet might as well be dead.) But what this particular desire of the Senate's sounds most like is those confused users who think they can catch a biological virus from their computers.

Still, for the media, calling the Senate's idea a "kill switch" is attention-getting political genius. We don't call the president's power to order the planes out of the sky, as happened on 9/11 a "crash switch", but imagine the outcry against it if we did.

Technically, the idea that there's a single off switch waiting to be implemented somewhere, is of course ridiculous.

The idea is also administrative silliness: Obama, we hope, is kind of busy. The key to retaining sanity when you're busy is to get other people to do all the things they can without your input. We would hope that the people running the various systems powering the federal government's critical infrastructure could make their own, informed decisions - faster than Obama can - about when they need to take down a compromised server.

Despite wishful thinking, John Gilmore's famous aphorism, "The Net perceives censorship as damage and routes around", doesn't really apply here. For one thing, even a senator knows - probably - that you can't literally shut down the entire Internet from a single switch sitting in the President's briefcase (presumably next to the nuclear attack button). Much of the Internet is, after all, outside the US; much of it is in private ownership. (Perhaps the Third Amendment could be invoked here?)

For another, Gilmore's comment really didn't apply to individual Internet-linked computer networks; Google's various bits of outages this year ought to prove that it's entirely possible for those to be down without affecting the network at large. No, the point was that if you try to censor the Net its people will stop you by putting up mirror servers and passing the censored information around until everyone has a copy. The British Chiropractic Association (quacklash!) and Trafigura are the latest organizations to find out what Gilmore knew in 1993. He also meant, I suppose, that the Internet protocols were designed for resilience and to keep trying by whatever alternate routes are available if data packets don't get through.

Earlier this week another old Net hand, Web inventor Tim Berners-Lee, gave some rather sage advice to the Web 2.0 conference. One key point: do not build your local laws into the global network. That principle would not, unfortunately, stop the US government from shutting off its own servers (to spite its face?), but it does nix the idea of, say, building the network infrastructure to the specification of any one particular group - the MPAA or the UK government, in defiance of the increasingly annoyed EU. In the same talk, Berners-Lee also noted (according to CNET): "I'm worried about anything large coming in to take control, whether it's large companies or government."

Threats like these were what he set up W3C to protect against. People talk with reverence of Berners-Lee's role as inventor, but many fewer understand that the really big effort is the 30 years since the aha! moment of creation, during which Berners-Lee has spent his time and energy nurturing the Web and guiding its development. Without that, it could easily have been strangled by competing interests, both corporate and government. As, of course, it still could be, depending on the outcome of the debates over network neutrality rules.

Dozens of decisions like Berners-Lee's were made in creating the Internet. They have not made it impossible to kill - I'm not sure how many backhoes you'd need now, but I bet it's still a surprisingly finite number - but they have made it a resilient and robust network. A largely democratic medium, in fact, unlike TV and radio, at least so far. The Net was born free; the battles continue over whether it should be in chains.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, follow on Twitter, or by email to netwars@skeptic.demon.co.uk.

Posted by Wendy M. Grossman at 7:09 PM | Permalink | Comments (0) | TrackBacks (0)

There's a lot I didn't know at the time about the founding of the Internet Corporation for Assigned Names and Numbers, but I do remember the spat that preceded it. Until 1998, the systems for assigning domain names (DNS) and assigning Internet numbers (IANA) were both managed by one guy, Jon Postel, who by all accounts and records was a thoughtful and careful steward and an important contributor to much of the engineering that underpins the Internet even now. Even before he died in October 1998, however, plans were underway to create a successor organization to take over the names and numbers functions.

The first proposal was to turn these bits of management over to the International Telecommunications Union, and a memorandum of understanding was drawn up that many, especially within the ITU, assumed would pass unquestioned. Instead, there was much resentment and many complaints that important stakeholders (consumers, most notably) had been excluded. Eventually, ICANN was created under the auspices of the US Department of Commerce intended to become independent once it had fulfilled certain criteria. We're still waiting.

As you might expect, the US under Bush II wasn't all that interested in handing off control. The US government had some support in this, in part because many in the US seem to have difficulty accepting that the Internet was not actually built by the US alone. So alongside the US government's normal resistance to relinquishing control was an endemic sense that it would be "giving away" something the US had created.

All that aside, the biggest point of contention was not ICANN's connection to the US government, as desirable as that might be to those outside the US. Nor was it the assignment of numbers, which, since numbers are the way the computers find each other, is actually arguably the most important bit of the whole thing. It wasn't even, or at least not completely, the money (PDF), as staggering as it is that ICANN expects to rake in $61 million in revenue this year as its cut of domain name registrations. No, of course it was the names that are meaningful to people: who should be allowed to have what?

All this background is important because on September 30 the joint project agreement with DoC under which ICANN operates expires, and all these debates are being revisited. Surprisingly little has changed in the arguments about ICANN since 1998. Michael Froomkin argued in 2000 (PDF) that ICANN bypassed democratic control and accountability. Many critics have argued in the intervening years that ICANN needs to be reined in: its mission kept to a narrow focus on the DNS, and its structure designed to be transparent and accountable, and kept free of not only US government inteference but that of other governments as well.

Last month, the Center for Democracy and Technology published its comments to that effect. Last year, and in 2006, former elected ICANN board member Karl Auerbach">argued similarly, with much more discussion of ICANN's finances, which he regards as a "tax". Perhaps even more than might have been obvious then: ICANN's new public dashboard has revealed that the company lost $4.6 million on the stock market last year, an amount reporter John Levine equates to the 20-cent fee from 23 million domain name registrations. As Levine asks, if they could afford to lose that amount then they didn't need the money - so why did they collect it from us? There seems to be no doubt that ICANN can keep growing in size and revenues by creating more top-level domains, especially as it expands into long-mooted non-ASCII names (iDNs).

Arguing about money aside, the fact is that we have not progressed much, if at all, since 1998. We are asking the same questions and having the same arguments. What is the DNS for? Should it be a directory, a handy set of mnemonics, a set of labels, a zoning mechanism, or a free-for-all? Do languages matter? Early discussions included the notion that there would be thousands, even tens of thousands of global top-level domains. Why shouldn't Microsoft, Google, or the Electronic Frontier Foundation operate their own registries? Is managing the core of the Internet an engineering, legal, or regulatory problem? And, latterly, given the success and central role of search engines, do we need DNS at all? Personally, I lean toward the view that the DNS has become less important than it was, as many services (Twitter, instant messaging, VOIP) do not require it. Even the Web needs it less than it did. But if what really matters about the DNS is giving people names they can remember, then from the user point of view it matters little how many top-level domains there are. The domain info.microsoft is no less memorable than microsoft.info or microsoft.com.

What matters is that the Internet continues to function and that anyone can reach any part of it. The unfortunate thing is that none of these discussions have solved the problems we really have. Four years after the secured version of DNS (DNSsec) was developed to counteract security threats such as DNS cache poisoning that had been mooted for many more years than that, it's still barely deployed.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, follow on , or send email to netwars@skeptic.demon.co.uk.

Posted by Wendy M. Grossman at 8:13 PM | Permalink | Comments (0) | TrackBacks (0)

For quite a few years now, the Canadian law professor Michael Geist has been writing a column on technology law for the Toronto Star. (Brief pause to admire the Star for running such a thing.) This week, he settled down with a simple question: where does copyright policy come from?

The story is that about a month ago the Conference Board of Canada recalled three reports on intellectual property rights after Geist accused the Board of plagiarism and also of accepting funding for the reports from various copyright lobby groups. The source of the copied passages: the International Intellectual Property Alliance. According to its own Web site, the IIPA was "formed in 1984 to represent the US copyright-based industries." It includes: the Association of American Publishers, the Business Software Alliance, the Entertainment Software Association, the Independent Film and Television Alliance, the Motion Picture Association of America, the National Music Publishers' Association, and the Recording Industry Association of America. We know *those* guys, or most of them.

This week, Geist settled down to examine the sources more closely in a lovely bit of spaghetti-detangling. Basically, just two organizations - Canada's equivalents of the MPAA and RIAA - were the source of multiple reports as well as funding for further lobbying organizations. "The net effect," Geist writes, "has been a steady stream of reports that all say basically the same thing, cite to the same sources, make the same recommendations, and often rely on each other to substantiate the manufactured consensus on copyright reform." And of course, these guys don't mean "copyright reform" the way Geist - or the Electronic Frontier Foundation or the Open Rights Group would. We say reform, we mean liberalize and open up; they say reform, they mean tighten and extend. I'd call their way "business as usual".

What's interesting, of course, is to compare Geist's handy table of who recommended what and to whom to the various proposals that are flying around the UK and Europe at the moment. To wit:

Create an IP Council. The Digital Britain report, launched ten days ago, calls this the "Digital Rights Agency", and there's even an entire separate report (PDF) outlining what it might be good for. It would include industry representatives working in collaboration with government (but would not be a government agency), and it would, among other things, educate the public. Which leads us to...

Create public education awareness programs. Of course, I predicted something like this in 1997 - for 2002.

Create an Intellectual Property Crime Task Force. While I'm not aware of speciific Briitsh proposals for this, I would note that Britain does have various law enforcement agencies already who deal with physical forms of IP counterfeiting, and the Internet Watch Foundation has throughout its history mentioned the possibility of tackling online copyright infringement.

Tougher penalties. The Digital Britain report is relatively polite on this one. It says flatly that for-profit counterfeiters will be pursued under criminal law, and calls file-sharing, flatly, "wrong", but also says that most people would prefer to remain within the law (true) and therefore it intends to encourage the development of legal downloading markets (good). However, it also proposes that ISPs should use methods such as bandwidth throttling to deter persistent file-sharers.

Implement the WIPO Internet treaties and anti-circumvention measures. Already done. Anti-circumvention was a clause in the 2001 European Union Copyright Directive and was enacted in the UK in 2003, with some exceptions for cryptographic research.

Increase funding and resources to tackle IP crime. Well. Where agencies come doubtless funding will follow.

The Digital Britain report's proposed next steps include passing legislation to enact sanctions such as bandwidth throttling. There's also a consultation on "illicit peer-to-peer filesharing" (deadline September 15); the government's proposals would require ISPs to notify alleged infringers, keep records of how often they've been notified, and allows rightsholders to use this information, anonymized, to decide when to initiate legal action. Approving the code will be Ofcom, for the time being. The consultation document helpfully reviews the state of legislative play in other countries.

It's extremely rare that we get a case where the origins of a particular set of policies can, as Geist has done here, be traced with such clarity and certainty. And it means that advocates of real copyright reform were right to distrust the claims in this area - the figures the industry claims represent losses to rightsholders from file-sharing - no matter how neutral the apparent source.

I first heard the term "policy laundering" from Privacy International's Gus Hosein; it's used to describe the way today's unwanted policies are shopped around until their sponsors can find a taker. The game works like this, as Geist shows: you publish reports until a government agency - any government agency - adopts your point of view in an apparently neutral document. Then you cite that to other governments until someone passes the laws you want. Then you promote that legislation to other countries: Be the envy of other major governments.

The Digital Britain report sells these policies as aiding the British intellectual property industry. But that's not where they came from originally. Does anyone really think the MPAA and RIAA have Britain's best interests at heart?

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and links to earlier columns in this series. Readers are welcome to post here, follow on Twitter or send email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 10:52 PM | Permalink | Comments (0) | TrackBacks (0)

The bad thing about the Open Rights Group's new site, Statebook is that it looks so perfectly simple to use that the government may decide it's actually a good idea to implement something very like it. And, unfortunately, that same simplicity may also create the illusion in the minds of the untutored who still populate the ranks of civil servants and politicians that the technology works and is perfectly accurate.

For those who shun social networks and all who sail in her: Statebook's interface is an almost identical copy of that of Facebook. True, on Facebook the applications you click on to add are much more clearly pointless wastes of time, like making lists of movies you've liked to share with your friends or playing Lexulus (the reinvention of the game formerly known as Scrabulous until Hasbrouck got all huffy and had it shut down).

Politicians need to resist the temptation to believe it's as easy as it looks. The interfaces of both the fictional Statebook and the real Facebook look deceptively simple. In fact, although friends tell me how much they like the convenience of being able to share photos with their friends in a convenient single location, and others tell me how much they prefer Facebook's private messaging to email, Facebook is unwieldy and clunky to use, requiring a lot of wait time for pages to load even over a fast broadband connection. Even if it weren't, though, one of the difficulties with systems attempting to put EZ-2-ewes front ends on large and complicated databases is that they deceive users into thinking the underlying tasks are also simple.

A good example would be airline reservations systems. The fact is that underneath the simple searching offered by Expedia or Travelocity lies some extremely complex software; it prices every itinerary rather precisely depending on a host of variables. These may not just the obvious things like the class of cabin, but the time of day, the day of the week, the time of year, the category of flyer, the routing, how far in advance the ticket is being purchased, and the number of available seats left. Only some of this is made explicit; frequent flyers trying to maxmize their miles per dollar despair while trying to dig out arcane details like the class of fare.

In his 1988 book The Design of Everyday Things, Donald Norman wrote about the need to avoid confusing the simplicity or complexity of an interface with the characteristics of the underlying tasks. He also writes about the mental models people create as they attempt to understand the controls that operate a given device. His example is a refrigerator with two compartments and two thermostatic controls. An uninformed user naturally assumes each thermostat controls one compartment, but in his example, one control sets the thermostat and the other directs the proportion of cold air that's sent to each comparment. The user's mental model is wrong and, as a consequence, attempts that user makes to set the temperature will also, most likely, be wrong.

In focusing on the increasing quantity and breadth of data the government is collecting on all of us, we've neglected to think about how this data will be presented to its eventual users. We have warned about the errors that build up in very large databases that are compiled from multiple sources. We have expressed concern about surveillance and about its chilling impact on spontaneous behaviour. And we have pointed out that data is not knowledge; it is very easy to take even accurate data and build a completely false picture of a person's life. Perhaps instead we should be focusing on ensuring that the software used to query these giant databases-in-progress teaches users not to expect too much.

As an everyday example of what I mean, take the automatic line-calling system used in tennis since 2005, Hawkeye. Hawkeye is not perfectly accurate. Its judgements are based on reconstructions that put together the video images and timing data from four or more high-speed video cameras. The system uses the data to calculate the three-dimensional flight of the ball; it incorporates its knowledge of the laws of physics, its model of the tennis court, and its database of the rules of the game in order to judge whether the ball is in or out. Its official margin for error is 3.6mm.

A study by two researchers at Cardiff University disputed that number. But more relevant here, they pointed out that the animated graphics used to show the reconstructed flight of the ball and the circle indicating where it landed on the court surface are misleading because they look to viewers as though they are authoritative. The two researchers, Harry Collins and Robert Evans, proposed that in the interests of public education the graphic should be redesigned to display the margin for error and the level of confidence.

This would be a good approach for database matches, too, especially since the number of false matches and errors will grow with the size of the databases. A real-life Statebook that doesn't reflect the uncertainty factor of each search, each match, and each interpretation next to every hit would indeed be truly dangerous.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 1:28 AM | Permalink | Comments (0) | TrackBacks (0)

It's not about Phorm, it's about snooping. At Wednesday morning's Parliamentary roundtable, "The Internet Threat", the four unhappy representatives I counted from Phorm had a hard time with this. Weren't we there to trash them and not let them reply? What do you mean the conversation isn't all about them?

We were in a committee room many medieval steps up unside the House of Lords. The gathering, was convened by Baroness Miller of Chilthorne Domer with the idea of helping Parliamentarians understand the issues raised not only by Phorm but also by the Interception Modernisation Programme, Google, Microsoft, and in fact any outfit that wants to collect huge amounts of our data for purposes that won't be entirely clear until later.

Most of the coverage of this event has focused on the comments of Sir Tim Berners-Lee, the indefatigable creator of the 20-year-old Web (not the Internet, folks!), who said categorically, "I came here to defend the integrity of the Internet as a medium." Using the Internet, he said, "is a fundamental human act, like the act of writing. You have to be able to do it without interference and/or snooping." People use the Internet when they're in crisis; even just a list of URLs you've visited is very revealing of sensitive information.

Other distinguished speakers included Professor Wendy Hall, Nicholas Bohm representing the Foundation for Information Policy Research, the Cambridge security research group's Richard Clayton, the Open Rights Group's new executive director, Jim Killock, and the vastly experienced networking and protocol consultant Robb Topolski.

The key moment, for me, was when one of the MPs the event was intended to educate asked this: "Why now?" Why, in other words, is deep packet inspection suddenly a problem?

The quick answer, as Topolski and Clayton explained, is "Moore's Law." It was not, until a couple-three years ago, possible to make a computer fast enough to sit in the middle of an Internet connection and not only sniff the packets but examine their contents before passing them on. Now it is. Plus, said Clayton, "Storage."

But for Kent Ertegrul, Phorm's managing director, it was all about Phorm. The company had tried to get on the panel and been rejected. His company's technology was being misrepresented. Its system makes it impossible for browsing habits to be tracked back to people. Tim Berners-Lee, of all people, if he understood their system, would appreciate the elegance of what they've actually done.

Berners-Lee was calm, but firm. "I have not at all criticized behavioral advertising," he pointed out. "What I'm saying is a mistake is snooping on the Internet."

Right on.

The Internet, Berners-Lee and Topolski explained, was built according to the single concept that all the processing happens at the ends, and that the middle is just a carrier medium. That design decision has had a number of consequences, most of them good. For example, it's why someone can create the new application of the week and deploy it without getting permission. It's why VOIP traffic flows across the lines of the telephone companies whose revenues it's eating. It is what network neutrality is all about.

Susan Kramer, saying she was "the most untechie person" (and who happens to be my MP), asked if anyone could provide some idea of what lawmakers can actually do. The public, she said, is "frightened about the ability to lose privacy through these mechanisms they don't understand".

Bohm offered the analogy of water fluoridation: it's controversial because we don't expect water flowing into our house to have been tampered with. In any event, he suggested that if the law needs to be made clearer it is in the area of laying down the purposes for which filtering, management, and interference can be done. It should, he said, be "strictly limited to what amounts to matters of the electronic equivalent of public health, and nothing else."

Fluoridation of water is a good analogy for another reason: authorities are transparent about it. You can, if you take the trouble, find out what is in your local water supply. But one of the difficulties about a black-box-in-the-middle is that while we may think we know what it does today - because even if you trust, say, Richard Clayton's report on how Phorm works (PDF) there's no guarantee of how the system will change in the future. Just as, although today's government may have only good intentions in installing a black box in every ISP that collects all traffic data, the government of ten years hence may use the system in entirely different ways for which today's trusting administration never planned. Which is why it's not about Phorm and isn't even about behavioural advertising; Phorm was only a single messenger in a bigger problem.

So the point is this: do we want black boxes whose settings we don't know and whose workings we don't understand sitting at the heart of our ISPs' networks examining our traffic? This was the threat Baroness Miller had in mind - a threat *to* the Internet, not the threat *of* the Internet beloved of the more scaremongering members of the press. Answers on a postcard...

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML)

Posted by Wendy M. Grossman at 7:46 PM | Permalink | Comments (0) | TrackBacks (0)

This week the EU's legal affairs committee, JURI, may vote - again - on term extension in sound recordings. As of today, copyright is still listed on the agenda.

Opposing term extension was a lot simpler at the national level in the UK; the path from proposal to legislation is well-known, well trodden, and well-watched by the national media. At the EU level, JURI is only one of four committees involved in proposing and amending term extension on behalf of the European Parliament - and then even after the Parliament votes it's the Commission who makes the final decision. The whole thing drags on for something close to forever, which pretty much guarantees that only the most obsessed stay in touch through the whole process. If you had designed a system to ensure apathy except among lobbyists who like good food, you'd have done exactly this.

There are many reasons to oppose term extension, most of which we've covered before. Unfortunately, these seem invisible to some politicians. As William Patry blogs, the harm done by term extension is diffuse and hard to quantify while easily calculable benefits accrue to a small but wealthy and vocal set of players.

What's noticeable is how many independent economic reviews agree with what NGOs like the Electronic Frontier Foundation and the Open Rights Group have said all along.

According to a joint report from several European intellectual property law centers (PDF), the Commission itself estimates that 45 extra years of copyright protection will hand the European music industry between €44 million and €843 million - uncertain by a factor of 20! The same report also notes that term extension will not net performers additional broadcast revenue; rather, the same pot will be spread among a larger pool of musicians, benefiting older musicians at the expense of young incomers. The report also notes that performers don't lose control over their music when the term of copyright ends; they lose it when they sign recording contracts (so true).

Other reports are even less favorable. In 2005, for example, the Dutch Institute for Information Law concluded that copyright in sound recordings has more in common with design rights and patents than with other areas of copyright, and it would be more consistent to reduce the term rather than extend it. More recently, an open letter from Bournemouth University's Centre for Intellectual Property Policy Management questioned exactly where those estimated revenues were going to come from, and pointed out the absurdity of the claim that extension would help performers.

And therein is the nub. Estimates are that the average session musician will benefit from term extension in the amount of €4 to €58 (there's that guess-the-number-within-a-factor-of-20 trick again). JURI's draft opinion puts the number of affected musicians at 7,000 per large EU member state, less in the rest. Call it 7,000 in all 27 and give each musician €20; that's €3.78 million, hardly enough for a banker's bonus. We could easily hand that out in cash, if handouts to aging performers are the purpose of the exercise.

Benefiting performers is a lobbyists' red herring that cynically plays on our affection for our favorite music and musicians; what term extension will do, as the Bournemouth letter points out, is benefit recording companies. Of that wackily wide range of estimated revenues in the last paragraph, 90 percent, or between €39 million and €758 million will go to record producers, even according to the EU's own impact assessment (PDF), based on a study carried out by PriceWaterhouseCooper.

If you want to help musicians, the first and most important thing you should do is improve the industry's standard contracts and employment practices. We protect workers in other industries from exploitation; why should we make an exception for musicians? No one is saying - not even Courtney Love - that musicians deserve charity. But we could reform UK bankruptcy law so that companies acquiring defunct labels are required to shoulder ongoing royalty payment obligations as well as the exploitable assets of the back catalogue. We could put limits on what kind of clauses a recording company is allowed to impose on first-time recording artists. We could set minimums for what is owed to session musicians. And we could require the return of rights to the performers in the event of a recording's going out of print. Any or all of those things would make far more difference to the average musician's lifetime income than an extra 45 years of copyright.

Current proposals seem to focus on this last idea as a "use it or lose it" clause that somehow makes the rest of term extension all right. Don Foster, the conservative MP who is shadow minister for the Department of Culture, Media, and Sport, for example, has argued for it repeatedly. But by itself it's not enough of a concession to balance the effect of term extension and the freezing of the public domain.

If you want to try to stop term extension, this is a key moment. Lobby your MEP and the members of the relevant committees. Remind them of the evidence. And remind them that it's not just the record companies and the world's musicians who have an interest in copyright; it's the rest of us, too.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 5:46 PM | Permalink | Comments (0) | TrackBacks (0)

Governments move slowly; technology moves fast. That's not a universal truth - witness Obama's first whirlwind week in office - but in the early days of the Net it was the kind of thing people said smugly when they wanted to claim that cyberspace was impervious to regulation. It worked well enough for, say, setting free strong cryptography over the objections of the State Department and ITAR.

This week had two perfect examples. First: Microsoft noted in its 10-Q that the EU may force it to do something about tying Internet Explorer to Windows - remove it, make it one of only several browsers consumers can choose from at setup, or randomly provide different browsers. Still fighting the browser wars? How 1995.

Second: the release of the interim Digital Britain report by the Department for Culture, Media, and Sport. Still proposing Digital Rights Management as a way of protecting rightsholders' interest in content? How 2005.

It probably says something about technology cycles that the DRM of 2005 is currently more quaint and dated than the browser wars of 1995-1998. The advent of cloud computing and Google's release of Chrome last year have reinvigorated the browser "market". After years of apparent stagnation it suddenly matters again that we should have choices and standards to keep the Internet from turning into a series of walled gardens (instead of a series of tubes).

DRM, of course, turns content into a series of walled gardens and causes a load of other problems we've all written about extensively. But the most alarming problem about its inclusion in the government's list of action items is that even the music industry that most wanted it is abandoning it. What year was this written in? Why is a report that isn't even finished proposing to adopt a technological approach that's already a market failure? What's next, a set of taxation rules designed for CompuServe?

The one bit of good, forwarding-thinking news - which came as a separate announcement from Intellectual Property Minister David Lammy, is that apparently the UK government is ready to abandon the "three strikes" idea for punishing file-sharers - it's too complicated (Yes, Minister rules!) to legislate. And sort of icky arresting teenagers in their bedrooms, even if the EU doesn't see anything wrong with that and the Irish have decided to go ahead with it.

The interim report bundles together issues concerning digital networks (broadband, wireless, infrastructure), digital television and radio, and digital content. It's the latter that's most contentious: the report proposes creating a Rights Agency intended to encourage good use (buying content) and discourage bad use (whatever infringes copyright law). The report seems to turn a blind eye to the many discussions of how copyright law should change. And then there's a bunch of stuff about whether Britain should have a second public service broadcaster to compete "for quality" with the BBC. How all these things cohere is muddy.

For a really scathing review of the interim report, see The Guardian , where Charles Arthur attacks not only the report's inclusion of DRM and a "rights agency" to collaborate on developing it, but its dirt path approach to broadband speed and its proposed approach to network neutrality (which it calls "net neutrality", should you want to search the report to find out what it says).

The interim report favors allowing the kind of thing Virgin has talked about: making deals with content providers in which they're paid for guaranteed service levels. That turns the problem of who will pay for high-speed fiber into a game of pass-the-parcel. Most likely, consumers will end up paying, whether that money goes to content providers or ISPs. If the BBC pays for the iPlayer, so do we, through the TV license. If ISPs pay, we pay in higher bandwidth charges. If we're going to pay for it anyway, why shouldn't we have the freedom of the Internet in return?

This is especially true because we do not know what's going to come next or how people will use it. When YouTube became the Next Big Thing, oh, say, three or four years ago, it was logical to assume that all subsequent Next Big Things were going to be bandwidth hogs. The next NBT turned out to be Twitter, which is pretty much your diametrical opposite. Now, everything is social media - but if there's one thing we know about the party on the Internet it's that it keeps on moving on.

There's plenty that's left out of this interim report. There's a discussion of spectrum licensing that doesn't encompass newer ideas about spectrum allocation. It talks about finding new business models for rightsholders without supporting obsolete ones and the "sea of unlawful activity in which they have to swim" and mentions ISPs - but leaves out consumers except as "customers" or illegal copiers. It nods at the notion that almost anyone can be a creator and find distribution, but still persists in talking of customers and rightsholders as if they were never the same people.

No one ever said predicting the future was easy, least of all Niels Bohr, but it does help if you start by noticing the present.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 10:56 PM | Permalink | Comments (0) | TrackBacks (0)

The 17 judges of the European Court of Human Rights ruled unanimously yesterday that the UK's DNA database, which contains more than 3 million DNA samples, violates Article 8 of the European Convention on Human Rights. The key factor: retaining, indefinitely, the DNA samples of people who have committed no crime.

It's not a complete win for objectors to the database, since the ruling doesn't say the database shouldn't exist, merely that DNA samples should be removed once their owners have been acquitted in court or the charges have been dropped. England, the court said, should copy Scotland, which operates such a policy.

The UK comes in for particular censure, in the form of the note that "any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance..." In other words, before you decide to be the first on your block to use a new technology and show the rest of the world how it's done, you should think about the consequences.

Because it's true: this is the kind of technology that makes surveillance and control-happy governments the envy of other governments. For example: lacking clues to lead them to a serial killer, the Los Angeles Police Department wants to copy Britain and use California's DNA database to search for genetic profiles similar enough to belong to a close relative .The French DNA database, FNAEG, was proposed in 1996, created in 1998 for sex offenders, implemented in 2001, and broadened to other criminal offenses after 9/11 and again in 2003: a perfect example of function creep. But the French DNA database is a fiftieth the size of the UK's, and Austria's, the next on the list, is even smaller.

There are some wonderful statistics about the UK database. DNA samples from more than 4 million people are included on it. Probably 850,000 of them are innocent of any crime. Some 40,000 are children between the ages of 10 and 17. The government (according to the Telegraph) has spent £182 million on it between April 1995 and March 2004. And there have been suggestions that it's too small. When privacy and human rights campaigners pointed out that people of color are disproportionately represented in the database, one of England's most experienced appeals court judges, Lord Justice Sedley, argued that every UK resident and visitor should be included on it. Yes, that's definitely the way to bring the tourists in: demand a DNA sample. Just look how they're flocking to the US to give fingerprints, and how many more flooded in when they upped the number to ten earlier this year. (And how little we're getting for it: in the first two years of the program, fingerprinting 44 million visitors netted 1,000 people with criminal or immigration violations.)

At last week's A Fine Balance conference on privacy-enhancing technologies, there was a lot of discussion of the key technique of data minimization. That is the principle that you should not collect or share more data than is actually needed to do the job. Someone checking whether you have the right to drive, for example, doesn't need to know who you are or where you live; someone checking you have the right to borrow books from the local library needs to know where you live and who you are but not your age or your health records; someone checking you're the right age to enter a bar doesn't need to care if your driver's license has expired.

This is an idea that's been around a long time - I think I heard my first presentation on it in about 1994 - but whose progress towards a usable product has been agonizingly slow. IBM's PRIME project, which Jan Camenisch presented, and Microsoft's purchase of Credentica (which wasn't shown at the conference) suggest that the mainstream technology products may finally be getting there. If only we can convince politicians that these principles are a necessary adjunct to storing all the data they're collecting.

What makes the DNA database more than just a high-tech fingerprint database is that over time the DNA stored in it will become increasingly revealing of intimate secrets. As Ray Kurzweil kept saying at the Singularity Summit, Moore's Law is hitting DNA sequencing right now; the cost is accordingly plummeting by factors of ten. When the database was set up, it was fair to characterize DNA as a high-tech version of fingerprints or iris scans. Five - or 15, or 25, we can't be sure - years from now, we will have learned far more about interpreting genetic sequences. The coded, unreadable messages we're storing now will be cleartext one day, and anyone allowed to consult the database will be privy to far more intimate information about our bodies, ourselves than we think we're giving them now.

Unfortunately, the people in charge of these things typically think it's not going to affect them. If the "little people" have no privacy, well, so what? It's only when the powers they've granted are turned on them that they begin to get it. If a conservative is a liberal who's been mugged, and a liberal is a conservative whose daughter has needed an abortion, and a civil liberties advocate is a politician who's been arrested...maybe we need to arrest more of them.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 5:02 PM | Permalink | Comments (0) | TrackBacks (0)

The (only) good thing about a war is you can tell when it's over.

The problem with the "War on Terror" is that terrorism is always with us, as Liberty's director, Shami Chakrabarti, said yesterday at the Homeland and Border Security 08 conference. "I do think the threat is very serious. But I don't think it can be addressed by a war." Because, "We, the people, will not be able to verify a discernible end."

The idea that "we are at war" has justified so much post 9/11 legislation, from the ID card (in the UK) and Real ID (US) to the continued expansion of police powers.

How long can you live in a state of emergency before emergency becomes the new normal? If there is no end, when do you withdraw the latitude wartime gives a government?

Several of yesterday's speakers talked about preserving "our way of life" while countering the threat with better security. But "our way of life" is a moving target.

For example, Baroness Pauline Neville-Jones, the shadow security minister, talked about the importance of controlling the UK's borders. "Perimeter security is absolutely basic." Her example: you can't go into a building without having your identity checked. But it's not so long ago - within the 18 years I've been living in London - that you could do exactly that, even sometimes in central London. In New York, of course, until 9/11, everything was wide open; these days midtown Manhattan makes you wait in front of barriers while you're photographed, checked, and treated with great suspicion if the person you're visiting doesn't answer the phone.

Only seven years ago, flying did not involve two hours of standing in line. Until January, tourists do not have to register three days before flying to the US for pre-screening.

It's not clear how much would change with a Conservative government. "There is a very great deal by this government we would continue," said Neville-Jones. But, she said, besides trackling threats, whether motivated (terrorists) or not (floods, earthquakes, "we are also at any given moment in the game of deciding what kind of society we want to have and what values we want to preserve." She wants "sustainable security, predicated on protecting people's freedom and ensuring they have more, not less, control over their lives." And, she said, "While we need protective mechanisms, the surveillance society is not the route down which we should go. It is absolutely fundamental that security and freedom lie together as an objective."

To be sure, Neville-Jones took issue with some of the present government's plans - the Conservatives would not, she said, go ahead with the National Identity Register, and they favour "a more coherent and wide-ranging border security force". The latter would mean bringing together many currently disparate agencies to create a single border strategy. The Conservatives also favour establishing a small "homeland command for the armed forces" within the UK because, "The qualities of the military and the resources they can bring to complex situations are important and useful." At the moment, she said, "We have to make do with whoever happens to be in the country."

OK. So take the four core elements of the national security strategy according to Admiral Lord Alan West, a Parliamentary under-secretary of state at the Home Office: pursue, protect, prepare, and prevent. "Prevent" is the one that all this is about. If we are in wartime, and we know that any measure that's brought in is only temporary, our tolerance for measures that violate the normal principles of democracy is higher.

Are the Olympics wartime? Security is already in the planning stages, although, as Tarique Ghaffur pointed out, the Games are one of several big events in 2012. And some events like sailing and Olympic football will be outside London, as will 600 training camps. Add in the torch relay, and it's national security.

And in that case, we should be watching very closely what gets brought in for the Olympics, because alongside the physical infrastructure that the Games always leave behind - the stadia and transport - may be a security infrastructure that we wouldn't necessarily have chosen for daily life.

As if the proposals in front of us aren't bad enough. Take for example, the clause of the counterterrorism bill (due for its second reading in the Lords next week) that would allow the authorities to detain suspects for up to 42 days without charge. Chakrabarti lamented the debate over this, which has turned into big media politics.

"The big frustration," she said, "is that alternatives created by sensible, proportionate means of early intervention are being ignored." Instead, she suggested, make the data legally collected by surveillance and interception admissible in fair criminal trials. Charge people with precursor terror offenses so they are properly remanded in custody and continue the investigation for the more serious plot. "That is a way of complying with ancient principles that you should know what you are accused of before being banged up, but it gives the police the time and powers they need."

Not being at war gives us the time to think. We should take it.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 2:29 PM | Permalink | Comments (0) | TrackBacks (0)

This week we got the detail on what went wrong at Her Majesty's Revenue and Customs that led to the loss of those two CDs full of the personal details of 25 million British households last year with the release of the Poynter Review (PDF). We also got a hint of how and whether the future might be different with the publication yesterday of Data Handling: Proecures in Government (PDF), written by Sir Gus O'Donnell and commissioned by the Prime Minister after the HMRC loss. The most obvious message of both reports: government needs to secure data better.

The nicest thing the Poynter review said was that HMRC has already made changes in response to its criticisms. Otherwise, it was pretty much a surgical demonstration of "institutional deficiencies".

The chief points:

- Security was not HMRC's top priority.

- HMRC in fact had the technical ability to send only the selection of data that NAO actually needed, but the staff involved didn't know it.

- There was no designated single point of contact between HMRC and NAO.

- HMRC used insecure methods for data storage and transfer.

- The decision to send the CDs to the NAO was taken by junior staff without consulting senior managers - which under HMRC's own rules they should have done.

- The reason HMRC's junior staff did not consult managers was that they believed (wrongly) that NAO had absolute authority to access any and all information HMRC had.

- The HMRC staffer who dispatched the discs incorrectly believed the TNT Post service was secure and traceable, as required by HMRC policy. A different TNT service that met those requirements was in fact available.

- HMRC policies regarding information security and the release of data were not communicated sufficiently through the organization and were not sufficiently detailed.

- HMRC failed on accountability, governance, information security...you name it.

The real problem, though, isn't any single one of these things. If junior staff had consulted senior staff, it might not have mattered that they didn't know what the policies were. If HMRC used proper information security and secure methods for data storage (that is, encryption rather than simple password protection), they wouldn't have had access to send the discs. If they'd understood TNT's services correctly, the discs wouldn't have gotten lost - or at least been traceable if they had.

The real problem was the interlocking effect of all these factors. That, as Nassim Nicholas Taleb might say, was the black swan.

For those who haven't read Taleb's The Black Swan: The Impact of the Highly Improbable, the black swan stands for the event that is completely unpredictable - because, like black swans until one was spotted in Australia, no such thing has ever been seen - until it happens. Of course, data loss is pretty much a white swan; we've seen lots of data breaches. The black swan, really, is the perfectly secure system that is still sufficiently open for the people who need to use it.

That challenge is what O'Donnell's report on data handling is about and, as he notes, it's going to get harder rather than easier. He recommends a complete rearrangement of how departments manage information as well as improving the systems within individual departments. He also recommends greater openness about how the government secures data.

"No organisation can guarantee it will never lose data," he writes, "and the Government is no exception." O'Donnell goes on to consider how data should be protected and managed, not whether it should be collected or shared in the first place. That job is being left for yet another report in progress, due soon.

It's good to read that some good is coming out of the HMRC data loss: all departments are, according to the O'Donnell report, reviewing their data practices and beginning the process of cultural change. That can only be a good thing.

But the underlying problem is outside the scope of these reports, and it's this government's fondness for creating giant databases: the National Identity Register, ContactPoint, the DNA database, and so on. If the government really accepted the principle that it is impossible to guarantee complete data security, what would they do? Logically, they ought to start by cancelling the data behemoths on the understanding that it's a bad idea to base public policy on the idea that you can will a black swan into existence.

It would make more sense to create a design for government use of data that assumes there will be data breaches and attempts to limit the adverse consequences for the individuals whose data is lost. If my privacy is compromised alongside 50 million other people's and I am the victim of identity theft does it help me that the government department that lost the data knows which staff member to blame?

As Agatha Christie said long ago in one of her 80-plus books, "I know to err is human, but human error is nothing compared to what a computer can do if it tries." The man-machine combination is even worse. We should stop trying to breed black swans and instead devise systems that don't create so many white ones.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

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It's easy to found an organization; it's hard to keep one alive even for as long as ten years. This week, the Foundation for Information Policy Research celebrated its tenth birthday. Ten years is a long time in Internet terms, and even longer when you're trying to get government to pay attention to expertise in a subject as difficult as technology policy.

My notes from the launch contain this quote from FIPR's first director, Caspar Bowden, which shows you just how difficult FIPR's role was going to be: "An educational charity has a responsibility to speak the truth, whether it's pleasant or unpleasant." FIPR was intended to avoid the narrow product focus of corporate laboratory research and retain the traditional freedoms of an academic lab.

My notes also show the following list of topics FIPR intended to research: the regulation of electronic commerce; consumer protection; data protection and privacy; copyright; law enforcement; evidence and archiving; electronic interaction between government, businesses, and individuals; the risks of computer and communications systems; and the extent to which information technologies discriminate against the less advantaged in society. Its first concern was intended to be researching the underpinnings of electronic commerce, including the then recent directive launched for public consultation by the European Commission.

In fact, the biggest issue of FIPR's early years was the crypto wars leading up to and culminating in the passage of the Regulation of Investigatory Powers Act (2000). It's safe to say that RIPA would have been a lot worse without the time and energy Bowden spent listening to Parliamentary debates, decoding consultation papers, and explaining what it all meant to journalists, politicians, civil servants, and anyone else who would listen.

Not that RIPA is a fountain of democratic behavior even as things are. In the last couple of weeks we've seen the perfect example of the kind of creeping functionalism that FIPR and Privacy International warned about at the time: the Poole council using the access rules in RIPA to spy on families to determine whether or not they really lived in the right catchment area for the schools their children attend.

That use of the RIPA rules, Bowden said at at FIPR's half-day anniversary conference last Wednesday, sets a precedent for accessing traffic data for much lower level purposes than the government originally claimed it was collecting the data for. He went on to call the recent suggestion that the government may be considering a giant database, updated in real time, of the nation's communications data "a truly Orwellian nightmare of data mining, all in one place."

Ross Anderson, FIPR's founding and current chair and a well-known security engineer at Cambridge, noted that the same risks adhere to the NHS database. A clinic that owns its own data will tell police asking for the names of all its patients under 16 to go away. "If," said Anderson, "it had all been in the NHS database and they'd gone in to see the manager of BT, would he have been told to go and jump in the river? The mistake engineers make too much is to think only technology matters."

That point was part of a larger one that Anderson made: that hopes that the giant databases under construction will collapse under their own weight are forlorn. Think of developing Hulk-Hogan databases and the algorithms for mining them as an arms race, just like spam and anti-spam. The same principle that holds that today's cryptography, no matter how strong, will eventually be routinely crackable means that today's overload of data will eventually, long after we can remember anything we actually said or did ourselves, be manageable.

The most interesting question is: what of the next ten years? Nigel Hickson, now with the Department of Business, Enterprise, and Regulatory Reform, gave some hints. On the European and international agenda, he listed the returning dominance of the large telephone companies on the excuse that they need to invest in fiber. We will be hearing about quality of service and network neutrality. Watch Brussels on spectrum rights. Watch for large debates on the liability of ISPs. Digital signatures, another battle of the late 1990s, are also back on the agenda, with draft EU proposals to mandate them for the public sector and other services. RFID, the "Internet for things" and the ubiquitous Internet will spark a new round of privacy arguments.

Most fundamentally, said Anderson, we need to think about what it means to live in a world that is ever more connected through evolving socio-technological systems. Government can help when markets fail; though governments themselves seem to fail most notoriously with large projects.

FIPR started by getting engineers, later engineers and economists, to talk through problems. "The next growth point may be engineers and psychologists," he said. "We have to progressively involve more and more people from more and more backgrounds and discussions."

Probably few people feel that their single vote in any given election really makes a difference. Groups like FIPR, PI, No2ID, and ARCH remind us that even a small number of people can have a significant effect. Happy birthday.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 2:48 PM | Permalink | Comments (0) | TrackBacks (0)

Early this week the news broke that the Home Office wants to create a giant database in which will be stored details of all communications sent in Britain. In other words, instead of data retention, in which ISPs, telephone companies, and other service providers would hang onto communications data for a year or seven in case the Home Office wanted it, everything would stream to a Home Office data center in real time. We'll call it data swallowing.

Those with long memories - who seem few and far between in the national media covering this sort of subject - will remember that in about 1999 or 2000 there was a similar rumor. In the resulting outraged media coverage it was more or less thoroughly denied and nothing had been heard of it since, though privacy advocates continued to suspect that somewhere in the back of a drawer the scheme lurked, dormant, like one of those just-add-water Martians you find in the old Bugs Bunny cartoons. And now here it is again in another leak that the suspicious veteran watcher of Yes, Minister might think was an attempt to test public opinion. The fact that it's been mooted before makes it seem so much more likely that they're actually serious.

This proposal is not only expensive, complicated, slow, and controversial/courageous (Yes, Minister's Fab Four deterrents), but risk-laden, badly conceived, disproportionate, and foolish. Such a database will not catch terrorists, because given the volume of data involved trying to use it to spot any one would-be evil-doer will be the rough equivalent of searching for an iron filing in a haystack the size of a planet. It will, however, make it possible for anyone trawling the database to make any given individual's life thoroughly miserable. That's so disproportionate it's a divide-by-zero error.

The risks ought to be obvious: this is a government that can't keep track of the personal details of 25 million households, which fit on a couple of CDs. Devise all the rules and processes you want, the bigger the database the harder it will be to secure. Besides personal information, the giant communications database would include businesses' communication information, much of likely to be commercially sensitive. It's pretty good going to come up with a proposal that equally offends civil liberties activists and businesses.

In a short summary of the proposed legislation, we find this justification: "Unless the legislation is updated to reflect these changes, the ability of public authorities to carry out their crime prevention and public safety duties and to counter these threats will be undermined."

Sound familiar? It should. It's the exact same justification we heard in the late 1990s for requiring key escrow as part of the nascent Regulation of Investigatory Powers Act. The idea there was that if the use of strong cryptography to protect communications became widespread law enforcement and security services would be unable to read the content of the messages and phone calls they intercepted. This argument was fiercely rejected at the time, and key escrow was eventually dropped in favor of requiring the subjects of investigation to hand over their keys under specified circumstances.

There is much, much less logic to claiming that police can't do their jobs without real-time copies of all communications. Here we have real analogies: postal mail, which has been with us since 1660. Do we require copies of all letters that pass through the post office to be deposited with the security services? Do we require the Royal Mail's automated sorting equipment to log all address data?

Sanity has never intervened in this government's plans to create more and more tools for surveillance. Take CCTV. Recent studies show that despite the millions of pounds spent on deploying thousands of cameras all over the UK, they don't cut crime, and, more important, the images help solve crime in only 3 percent of cases. But you know the response to this news will not be to remove the cameras or stop adding to their number. No, the thinking will be like the scheme I once heard for selling harmless but ineffective alternative medical treatments, in which the answer to all outcomes is more treatment. (Patient gets better - treatment did it. Patient stays the same - treatment has halted the downward course of the disease. Patient gets worse - treatment came too late.)

This week at Computers, Freedom, and Privacy, I heard about the Electronic Privacy Information Center's work on fusion centers, relatively new US government efforts to mine many commercial and public sources of data. EPIC is trying to establish the role of federal agencies in funding and controlling these centers, but it's hard going.

What do these governments imagine they're going to be able to do with all this data? Is the fantasy that agents will be able to sit in a control room somewhere and survey it all on some kind of giant map on which criminals will pop up in red, ready to be caught? They had data before 9/11 and failed to collate and interpret it.

Iron filing; haystack; lack of a really good magnet.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 2:11 PM | Permalink | Comments (0) | TrackBacks (0)

There was a wonderful cartoon that cycled frequently around computer science departments in the pre-Internet 1970s - I still have my paper copy - that graphically illustrated the process by which IT systems get specified, designed, and built, and showed precisely why and how far they failed the user's inner image of what it was going to be. There is a scan here. The senior analyst wanted to make sure no one could possibly get hurt; the sponsor wanted a pretty design; the programmers, confused by contradictory input, wrote something that didn't work; and the installation was hideously broken.

Translate this into the UK's national ID card. Consumers, Sir James Crosby wrote in March (PDF)want identity assurance. That is, they - or rather, we - want to know that we're dealing with our real bank rather than a fraud. We want to know that the thief rooting through our garbage can't use any details he finds on discarded utility bills to impersonate us, change our address with our bank, clean out our accounts, and take out 23 new credit cards in our name before embarking on a wild spending spree leaving us to foot the bill. And we want to know that if all that ghastliness happens to us we will have an accessible and manageable way to fix it.

We want to swing lazily on the old tire and enjoy the view.

We are the users with the seemingly simple but in reality unobtainable fantasy.

The government, however - the project sponsor - wants the three-tiered design that barely works because of all the additional elements in the design but looks incredibly impressive. ("Be the envy of other major governments," I feel sure the project brochure says.) In the government's view, they are the users and we are the database objects.

Crosby nails this gap when he draws the distinction between ID assurance and ID management:

The expression 'ID management' suggests data sharing and database consolidation, concepts which principally serve the interests of the owner of the database, for example, the Government or the banks. Whereas we think of "ID assurance" as a consumer-led concept, a process that meets an important consumer need without necessarily providing any spin-off benefits to the owner of any database.

This distinction is fundamental. An ID system built primarily to deliver high levels of assurance for consumers and to command their trust has little in common with one inspired mainly by the ambitions of its owner. In the case of the former, consumers will extend use both across the population and in terms of applications such as travel and banking. While almost inevitably the opposite is true for systems principally designed to save costs and to transfer or share data.

As writer and software engineer Ellen Ullman wrote in her book Close to the Machine, databases infect their owners, who may start with good intentions but are ineluctibly drawn to surveillance.

So far, the government pushing the ID card seems to believe that it can impose anything it likes and if it means the tree collapses with the user on the swing, well, that's something that can be ironed out later. Crosby, however, points out that for the scheme to achieve any of the government's national security goals it must get mass take-up. "Thus," he writes, "even the achievement of security objectives relies on consumers' active participation."

This week, a similarly damning assessment of the scheme was released by the Independent Scheme Assurance Panel (PDF) (you may find it easier to read this clean translation - scroll down to policywatcher's May 8 posting). The gist: the government is completely incompetent at handling data, and creating massive databases will, as a result, destroy public trust in it and all its systems.

Of course, the government is in a position to compel registration, as it's begun doing with groups who can't argue back, like foreigners, and proposes doing for employees in "sensitive roles or locations, such as airports". But one of the key indicators of how little its scheme has to do with the actual needs and desires of the public is the list of questions it's asking in the current consultation on ID cards, which focus almost entirely on how to get people to love, or at least apply for, the card. To be sure, the consultation document pays lip service to accepting comments on any ID card-related topic, but the consultation is specifically about the "delivery scheme".

This is the kind of consultation where we're really damned if we do and damned if we don't. Submit comments on, for example, how best to "encourage" young people to sign up ("Views are invited particularly from young people on the best way of rolling out identity cards to them") without saying how little you like the government asking how best to market its unloved policy to vulnerable groups and when the responses are eventually released the government can say there are now no objectors to the scheme. Submit comments to the effect that the whole National Identity scheme is poorly conceived and inappropriate, and anything else you say is likely to be ignored on the grounds that they've heard all that and it's irrelevant to the present consultation. Comments are due by June 30.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 1:06 PM | Permalink | Comments (0) | TrackBacks (0)

Apparently the US Congress is now being scripted by Jon Stewart of the Daily Show. In a twist of perfect irony, the House of Representatives has decided to hold its first closed session in 25 years to debate - surveillance.

But it's obvious why they want closed doors: they want to talk about the AT&T case. To recap: AT&T is being sued for its complicity in the Bush administration's warrantless surveillance of US citizens after its technician Mark Klein blew the whistle by taking documents to the Electronic Frontier Foundation (which a couple of weeks ago gave him a Pioneer Award for his trouble).

Bush has, of course, resisted any effort to peer into the innards of his surveillance program by claiming it's all a state secret, and that's part of the point of this Congressional move: the Democrats have fielded a bill that would give the whole program some more oversight and, significantly, reject the idea of giving telecommunications companies - that is, AT&T - immunity from prosecution for breaking the law by participating in warrantless wiretapping. 'Snot fair that they should deprive us of the fun of watching the horse-trading. It can't, surely, be that they think we'll be upset by watching them slag each other off. In an election year?

But it's been a week for irony, as Wikipedia founder Jimmy Wales has had his sex life exposed when he dumped his girlfriendand been accused of - let's call it sloppiness - in his expense accounts. Worse, he stands accused of trading favorable page edits for cash. There's always been a strong element of Schadenpedia around, but the edit-for-cash thing really goes to the heart of what Wikipedia is supposed to be about.

I suspect that nonetheless Wikipedia will survive it: if the foundation has the sense it seems to have, it will display zero tolerance. But the incident has raised valid questions about how Wikipedia can possibly sustain itself financially going forward. The site is big and has enviable masses of traffic; but it sells no advertising, choosing instead to live on hand-outs and the work of volunteers. The idea, I suppose, is that accepting advertising might taint the site's neutral viewpoint, but donations can do the same thing if they're not properly walled off: just ask the US Congress. It seems to me that an automated advertising system they did not control would be, if anything, safer. And then maybe they could pay some of those volunteers, even though it would be a pity to lose some of the site's best entertainment.

With respect to advertising, it's worth noting that Phorm, which we is under increasing pressure. Earlier this week, we had an opportunity to talk to Kent Ertegrul, CEO of Phorm, who continues to maintain that Phorm's system, because it does not store data, is more protective of privacy than today's cookie-driven Web. This may in fact be true.

Less certain is Ertegrul's belief that the system does not contravene the Regulation of Investigatory Powers Act, which lays down rules about interception. Ertegrul has some support from a informal letter from the Home Office whose reasoning seems to be that if users have consented and have been told how they can opt out, it's legal. Well, we'll see; there's a lot of debate going on about this claim and it will be interesting to hear the Information Commissioner's view. If the Home Office's interpretation is correct, it could open a lot of scope for abusive behavior that could be imposed upon users simply by adding it to the terms of service to which they theoretically consent when they sign up, and a UK equivalent of AT&T wanting to assist the government with wholesale warrantless wiretapping would have only to add it to the terms of service.

The real problem is that no one really knows how Phorm's system works. Phorm doesn't retain your IP address, but the ad servers surely have to know it when they're sending you ads. If you opt out but can still opt back in (as Ertegrul said you can), doesn't that mean you still have a cookie on your system and that your data is still passed to Phorm's system, which discards it instead of sending you ads? If that's the case, doesn't that mean you can not opt out of having your data shared? If that isn't how it works, then how does it work? I thought I understood it after talking to Ertegrul, I really did - and then someone asked me to explain how Phorm's cookie's usefulness persisted between sessions, and I wasn't sure any more. I think the Open Rights Group: Phorm should publish details of how its system works for experts to scrutinize. Until Phorm does that the misinformation Ertegrul is so upset about will continue. (More disclosure: I am on ORG's Advisory Council.

But maybe the Home Office is on to something. Bush could solve his whole problem by getting everyone to give consent to being surveilled at the moment they take US citizenship. Surely a newborn baby's footprint is sufficient agreement?

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by Wendy M. Grossman at 4:12 AM | Permalink | Comments (0) | TrackBacks (0)

This year, 2008, may go down in history as the year geeks got politics. At etech this week I caught a few disparaging references to hippies' efforts to change politics. Which, you know, seemed kind of unfair, for two reasons. First: the 1960s generation did change an awful lot of things, though not nearly as many as they hoped. Second: a lot of those hippies are geeks now.

But still. Give a geek something that's broken and he'll itch to fix it. And one thing leads to another. Which is why on Wednesday night Lawrence Lessig explained in an hour-long keynote that got a standing ovation how he plans to fix what's wrong with Congress.

No, he's not going to run. Some 4,500 people on Facebook were trying to push him into it, and he thought about it, but preliminary research showed that his chances of beating popular Silicon Valley favorite, Jackie Speier, were approximately zero.

"I wasn't afraid of losing," he said, noting ruefully that in ten years of copyfighting he's gotten good at it. Instead, the problem was that Silicon Valley insiders would have known that no one was going to beat Jackie Speier. But outsiders would have pointed, laughed, and said, "See? The idea of Congressional reform has no legs." And on to business as usual. So, he said, counterproductive to run.

Instead, he's launching Change Congress. "Obama has taught us that it's possible to imagine many people contributing to real change."

The point, he said, will be to provide a "signalling function". Like Creative Commongs, Change Congress will give candidates an easy way to show what level of reform they're willing to commit tto. The system will start with three options: 1) refusing money from lobbyists and political action committees (private funding groups); 2) ban earmarks (money allocated to special projects in politicians' home states); 3) commit to public financing for campaigns. Candidates can then display the badge generated from those choices on their campaign materials.

From there, said Lessig, layer something like Emily's List on top, to help people identify candidates they're willing to suppot with monthly donations, thereby subsidizing reform.

Money, he admitted, isn't the entire problem. But, like drinking for an alcoholic, it's the first problem you must solve to be able to tackle any of the others with any hope of success.

In a related but not entirely similar vein, the guys who brought us They Work For You nearly four years ago are back with UN democracy, an attempt to provide a signalling function to the United Nations> by making it easy to find out how your national representatives are voting in UN meetings. The driving force behind UNdemocracy.com is Liverpool's Julian Todd, who took the UN's URL obscurantism as a personal challenge. Since he doesn't fly, presenting the new service were Tom Loosemore, Stefan Mogdalinski, and Danny O'Brien, who pointed out that when you start looking at the decisions and debates you start to see strange patterns: what do the US and Israel have in common with Palau and Micronesia?

The US Congress and the British Parliament are all, they said, now well accustomed to being televised, and their behaviour has adapted to the cameras. At the UN, "They don't think they're being watched at all, so you see horse trading in a fairly raw form."

The meta-version they believe can be usefully and widely applied: 1) identify broken civic institution; 2) liberate data from said institution. There were three more ingredients, but they vanished the slide too quickly. But Mogdalinski noted that where in the past they have said "Ask forgiveness, not permission", alluding to the fact that most institutions if approached will behave as though they own the data. He's less inclined to apologise now. After all, isn't it *our* data that's being released in the public interest?

Data isn't everything. But the Net community has come a long way since the early days, when the prevailing attitude was that technological superiority would wash away politics-as-usual by simply making an end run around any laws governments tried to pass. Yes, technology can change the equation a whole lot. For example, once PGP escaped laws limiting the availability of strong encryption were pretty much doomed to fail (though not without a lot of back-and-forth before it became official). Similarly, in the copyright wars it's clear that copyrighted material will continue to leak out no matter how hard they try to protect it.

But those are pretty limited bits of politics. Technology can't make such an easy end run around laws that keep shrinking the public domain. Nor can it by itself solve policies that deny the reality of global climate change or that, in one of Lessig's examples, back government recommendations off from a daily caloric intake of 10 percent sugar to one of 25 percent. Or that, in another of his examples, kept then Vice-President Al Gore from succeeding with a seventh part to the 1996 Communications Act deregulating ADSL and cable because without anything to regulate what would Congressmen do without the funds those lobbyists were sending their way? Hence, the new approach.

"Technology," Lessig said, "doesn't solve any problems. But it is the only tool we have to leverage power to effect change."

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her Posted by Wendy M. Grossman at 4:09 AM | Permalink | Comments (0) | TrackBacks (0)