Evidence to the Joint Committee on Privacy and Injunctions

I spent a fun afternoon yesterday with a mixture of MPs and Lords and three other excellent expert witness on internet industries and regulation/governance discussing what should be done about individuals with accounts on social network sites such as Twitter breaching privacy and super injunctions. Our evidence session was about one hour and we were followed by executives from Northern and Shell (publishers of Express Newspapers and owners of Channel 5).

Update You can also access the video stream from the BBC Democracy Live site which is better quality than the Parliament Stream and may work better on Apple Devices

Kid Tweets That She Muscled Governor Brownback. Should She Be Made To Apologize? I Say YES!

Here is the story from the Associate Press:

"A Kansas teenager who wrote a disparaging tweet about Gov. Sam Brownback is rejecting her high school principal's demand that she apologize.

Emma Sullivan (twitter@emmakat988) told The Associated Press on Sunday that she's not sorry and an apology letter wouldn't be sincere.

The Shawnee Mission East senior was in Topeka last week when she sent a tweet from the back of a crowd of students listening to Brownback. It read: "Just made mean comments at gov. brownback and told him he sucked, in person."

She actually made no such comment..."

Thereafter Brownback's Media hound found the tweet while searching the Governor's name. When she read the tweet, she contacted the school. The Principal got a call from the Governor's office, and had heart palpitations. He ordered the 18 year old woman to write an apology to help him with "damage control."

Our Question is: Should Ms. Sullivan apologize and for what should she apologize?

The kid claims to be liberal. Okay. She also claims not to like Governor Brownback. Okay again. She has decided not to write the apology...and every liberal and libertarian it seems supports her decision... NOT ME.

I am not being contrarian, I just think that there are some serious issues here that may not be affected by this young woman's right to free speech.

1. She was at a school function, representing her High School.
2. She lied, she said she told Brownback off, in person.
3. She tweeted, against the rules of the school at a time she was in class.

Now I want to make the following clear. If she had tweeted, on her personal twitter account at 3:30PM that she saw Brownback and wished she had told him he sucked, well then no problem.
That isn't what happened here. Here she was invited to meet with the Governor of her state.Not because she was someone who the governor would normally meet with, but because she was chosen by her school to go. While she was in the Governor's home or office, she took out her cellphone, and reported she told the man "He sucked" (Skip the fact that the statement is both juvenile and vulgar) in person. That was both against the rules about texting in class, AND, it was a lie.

Now imagine if she had said something dumber like she had assaulted or God forbid shot the man? Would that be okay?? What First Amendment line had been crossed? Isn't that still political speech? She is still saying she doesn't like the man. She is still lying. She would still be doing it on school time.

No, I don't agree that she is putting forth her opinion. I think she was going for a laugh, which is also okay as far as it goes, but the truth is, it was disrespectful not of Brownback (after all it goes with the territory of being a politician) but of the Office of the Governor. It was also a disrespect of her position as a campus leader of her school and all the people in it, including the few that may like the Governor, AND, she broke her school texting rule.

Now that doesn't mean she should have written a mea cupla, nor promise to help Brownback win his next campaign. It does mean that this college bound woman should show some understanding that: 1. The Governor of your state deserves your respect as the leader of the state and the choice of the people of your state; 2. You broke school rules and you are sorry for that, and; 3. That as a school leader, she has an obligation to represent her student body by asking smart questions, reporting accurately what was said and if she disagreed she had the right to state an opinion that criticized Brownback.

I am not asking her to agree with Brownback, but respect for our institutions is an important thing for schools to teach. The proper way to engage in debate is an important thing for leaders to learn. (Remember when some wingnut congressman yelled out at Obama during his State of the Union "you're a liar"? that kind of comment does not spur on the debate. It doesn't bring the other side into understanding your grievances. Saying Brownback "sucks" is just juvenile and frankly makes me think Ms. Sullivan is stupid. All I know is, she is entitled to an opinion, but you don't have the right to come into my house and crap on my carpet. Verbally, that is what she did. Her principal is right to demand an APPROPRIATE Apology. Not one that necessarily makes the Governor or his people happy, but one that indicates that the student understands where she went wrong.

Sexual abuse on College campuses, Internet Identity Theft Protection and a Few Silly Laws

Thanksgiving was really good. I had a great time hanging with the family. Of course between courses, we had a long discussion about the Penn State situation. Then just as the Penn State Drama begins to simmer down, (I will not rehash the last 250 or so comments, the most ever on this blog, just click the link above.) Syracuse University fires its long time Assistant Coach Bernie Fine. Now originally Syracuse put him on paid leave, but another person has come forward to announce he was molested by Fine and a tape of Fine's wife is offered where she admits she had sex with a the then 18 year old ball boy who claims Fine molested him until he was 28...,(really, 28? Okay that is going to provide some fodder for the defense.) This story is getting more sordid by the day, yet I am so very unimpressed with yet another major University refusing to let the legal system do its job and waiting before casting dispersions upon someone based on what so far appears to be fairly flimsy "facts." My big question is "How are these guys ever going to get a fair trial??"

OK onto another Scary College Professor story. This one involves Professor Grant D. Smith an eEngineering
Prof from Univ. of Utah who, while flying first class to Boston, takes out his laptop and begins to watch alleged Child Porn!! Fellow passengers in First Class take out their phones and take pictures of what he is watching, they then send those pics to a family member who then calls the cops to report Smith to the authorities, where he is arrested at Logan Airport. This ought to be interesting. There are like 10 crimes here. Smith possession of Child Porn, using a cell phone while in mid air (aren't you supposed to turn them off? I don't know any more I haven't flown in a long while but this article in Sunday's NY Times makes me think you still must power off.) Possession by the picture taker/witness, transmission in interstate commerce to the friend, the friends receipt and possession of child porn, his transmission to police of same. Interesting no?? Smith's defense team will not be allowed to have the photos to see if they are real or nor how they could have gotten on his laptop because the government restricts the access to these photos to include not allowing the defense to have them. Of course the Just-Us Dept. lawyers can have them anytime they want and send them where they want to "test them"etc.

So far it appears that the state is prosecuting, however I think this will soon be taken federal as the penalties for possession of child porn carry such harsh jail times that the possessor prosecuted by the feds, will face far more time than the person doing the molesting will as the molester only is prosecuted in state. Further proof that criminals have no lobby in Congress.
In this case, Smith faces an uphill battle given the photos taken, but then again, we should know not to jump the gun on these things. At least Univ of Utah has a sane approach. The Professor is placed on Admin. leave, until the case is completed, then if guilty he is fired. Seems reasonable, let the courts run their course then decide. Wish Penn State and Syracuse would have shown similar trust in the judicial system to let it do its job.
As for Smith, I would eschew the usual suspect criminal attorneys and get one that works significantly in Cyber-sex crimes. The area is becoming an important sub-specialty of Criminal Law and he will need that expertise to help him avoid a very VERY long jail term.

I remember sending my boys to college campuses in the summer to learn from the college coaches how to play soccer. We also sent them to scholastic camps at Northwestern, Princeton and to the World College in Italy to learn debate skills. I spoke to my sons about those experiences and about whether those were positive experiences. Both acknowledged they were. I asked about the relationships between the participants and the teachers and both said they saw nothing inappropriate, but that the opportunity for abuse is always there, especially in Summers on large campuses with few people around but with lots of buildings. I think if there is any fall out from these scandals, it has to be how parents are going to determine if they can trust the adults with whom they entrust their children. I have no answer, but I think we really need to look into the supervisory relationships, staffing, dorms, and other things before we send the kids into even the most prestigious opportunities.

In another Cyber/ Interent Crime related story, Yahoo provides us with the 25 dumbest passwords. If you use one of these passwords, you are either asking to get hacked or you are a moron. I mean really a password called "Password"? 123456? ABC123?? Who are you the Jackson 5??.

A strong password is made up of letters that do not spell out a word, and those letters should be a mix of Upper and lower case letters. Add some numbers and some signs ie: (!@!@#$#%$%^&). Hence Hb3%eI2* would be a fairly strong password. (Now PLEAASSSEEEE don't use that as a password...) Sigh...

Lastly I thought you would all get a kick from this story about how it is illegal to hail a cab for someone you aren't traveling with in NYC. It is a little known law but it provides a cop with probable cause to stop you and even if that PC escalates to search you. The law was aimed at the Squeggy men. There are some decent underpinnings to the law, but I think it lends itself to selective prosecution defenses. It might be a trite over-broad and vague too.

Anyway, flame away all you rush to judgment types out there. For those who have a few ideas on how to judge what camps and opportunities are safe for kids please leave a comment. For any one with ideas on Safety of Identity please share your knowledge.

Happy Thanksgiving.

Giving Parliamentary Evidence Tomorrow

Tomorrow afternoon I am taking a jaunt to provide evidence to the Joint Select  Committee on Privacy and Injunctions. I'm on at circa 2.15pm with Dr. Ian Brown of the Oxford Internet Institute, Ashley Van Haeften, Trustee of Wikimedia UK and Nicholas Lansman, Secretary General of the Internet Service Providers Association. The whole thing can be watched live (and then archived) from the UK Parliament Channel - http://www.parliamentlive.tv/Main/Home.aspx I have a list of questions but can't share them with you, I also have my suit pressed and a new pair of shoes. 

It is a busy day tomorrow as I'm teaching 12 - 1, then at 6.00pm we have the excellent and entertaining Barefoot Technologist discussing the key themes of her book Barefoot into Cyberspace. If you are in the vicinity of the LSE's new Academic Building at 6.00pm - we're in the Moot Court Room on the seventh floor - join us.

Baker & McKenzie Debate on Meltwater

Yes the blog lives. I've been so busy the last six months or so that this was the first thing to go by the wayside but now I have a couple of important things to blog so here is the first...

Last Tuesday Ben Allgrove and Iona Harding at Baker & McKenzie's New Bridge Street offices arranged an excellent debate entitled "Is Meltwater the End of Browsing". I was asked to argue in favour of the motion alongside the excellent and entertaining Neil Wilkof (Head of IP at Herzog, Fox and Neeman and IP Kat). Ranged against us were the formidable Justine Pila (St. Catherine's Oxford) and the the passionate Dominic Young (former Chairman and Director of NLA).

Did we win? Yes we did! We went from one vote to nine (an 800% increase) while the pro-NLA stance offered by Justine and Dominic went from nineteen votes to twenty-six (an increase of only 37%) or if you prefer straight numbers - we won eight additional votes, the other side only seven additional votes. Full details are on IP Kat.

In truth I don;t think either side scored a clear victory but in a room predominantly filled with in house lawyers from content providers I found our winning of eight votes to be cathartic.

My argument was based upon a change of status for web content which is passively browsed and is set out in full below.

NLA v Meltwater – Draft Outline of Argument

Argument: NLA v Meltwater is the end of Browsing

Key Principles:

1.      Consumptionis clearly distinguishable from reproduction and while copyright law restrictsthe latter it permits the former.

2.      While in copyrightlaw consumption is a permitted act (see 1), in digital distribution thispermitted act becomes a permissible act due to the operation of the system.

3.      Thisreflects an important legal migration in regard to digital consumption – wemove from permitted to permissible to what – not permitted?

4.      The InfoSocDirective, Article 5, is designed to rebalance this movement both fordistributors and consumers.

5.      The movementseen in recent cases Infopaq and in particular Meltwater has removed theprotection awarded to end users at 4.

6.      In the UKpost Meltwater environment web surfing once again is placed in its pre November2003 scenario – browsing is not an activity as of right (permitted) it is onlyallowed at the discretion of the copyright holder (permissible) which may beremoved or revoked at any time (not permitted) – this is in breach of thespirit and in my view the letter of the InfoSoc Directive.

1.      It is thetradition of copyright law that it protects restricted acts, restricting themto the copyright holder and their licensees. These acts all involve the makingor distribution of copies or adaptations. There is no copyright restriction onconsumption and there never has been. Thus if a copy of a book is left on apark bench and I pick it up and start reading it I commit no infringement.Equally if I walk along the street and look through the window of a gallery (oreven private home) and look upon an Albers hanging upon the wall, I commit noinfringement and need no license. Licences are only required where one isdealing with a restricted act (eg a PRS license for playback in private venueswhere the public or a sample of the public (such as employees) are listening.)The act of consumption (in the analogue world) is one which has never required a license. It is nota permissible act it is a permitted act.

2.      As we areall aware digital distribution unbalances this traditional model. To consumemeans to make a local copy. Local copies can be made at several points alongthe distribution model, including two final copies at consumption (1 a cachecopy) and (2 a screen copy). This is purely an effect of the digitaldistribution model. It is because instead of sending the original from point Ato point B we instead make a copy of the original available at point B. Thismakes consumption dependent upon the making of a copy and consumption as aresult moves from being a permitted act to one which requires the permission ofthe copyright holder (i.e. a license). If we strip away the technicality though there is nothing in factdifferent in reading a newspaper in physical form and reading a newspaper on aniPad or Kindle. Both are acts of consumption not acts of distribution oradaptation. 

3.      This createsa vital distinction in our manner of (legal) consumption. Whereas consumptiondid not require a license or permission of the copyright holder in the analogueworld it appears it is needed in the digital world – see e.g. Shetland times vWills 1997. This moves consumption from being a permitted act to being apermissible act – i.e. one that requires the permission of the copyrightholder. This permission unlike the freedom offered by a permitted act can bewithdrawn at any time as it is at the whim of the copyright holder. Thus afreedom is converted and lost. We lose the freedom to consume.

4.      This changein position was recognised at an EU Level. It was recognised both in thedistribution chain (also affected by the change in fact) and at the point ofconsumption. This is clear from both the recitals and the articles.

(31) A fair balance of rights and interests between the differentcategories of rightholders, as well as between the different categories ofrightholders and users of protected subject-matter must be safeguarded. Theexisting exceptions and limitations to the rights as set out by the MemberStates have to be reassessed in the light of the new electronic environment.Existing differences in the exceptions and limitations to certain restrictedacts have direct negative effects on the functioning of the internal market ofcopyright and related rights. Such differences could well become morepronounced in view of the further development of transborder exploitation ofworks and cross-border activities. In order to ensure the proper functioning ofthe internal market, such exceptions and limitations should be defined moreharmoniously. The degree of their harmonisation should be based on their impacton the smooth functioning of the internal market.
(32) This Directive provides for an exhaustive enumeration ofexceptions and limitations to the reproduction right and the right ofcommunication to the public. Some exceptions or limitations only apply to thereproduction right, where appropriate. This list takes due account of thedifferent legal traditions in Member States, while, at the same time, aiming toensure a functioning internal market. Member States should arrive at a coherentapplication of these exceptions and limitations, which will be assessed whenreviewing implementing legislation in the future.
(33) The exclusive right of reproduction should be subject to anexception to allow certain acts of temporary reproduction, which are transientor incidental reproductions, forming an integral and essential part of atechnological process and carried out for the sole purpose of enabling eitherefficient transmission in a network between third parties by an intermediary,or a lawful use of a work or other subject-matter to be made. The acts ofreproduction concerned should have no separate economic value on their own. Tothe extent that they meet these conditions, this exception should include actswhich enable browsing as well as acts of caching to take place, including thosewhich enable transmission systems to function efficiently, provided that theintermediary does not modify the information and does not interfere with thelawful use of technology, widely recognised and used by industry, to obtaindata on the use of the information. A use should be considered lawful where itis authorised by the rightholder or not restricted by law.
Article 5
Exceptions and limitations
1. Temporary acts of reproduction referred to in Article 2, whichare transient or incidental [and] an integral and essential part of atechnological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by anintermediary, or
(b) a lawful use of a work or other subject-matter to be made, andwhich have no independent economic significance, shall be exempted from thereproduction right provided for in Article 2.

Myunderstanding of Article 5 (especially in light of Recital 33) is that Art.5(1)specifically permits the distribution of digital copyright products, whileArticle 5(2) permits consumption (problem – this darn term “a lawful use” nowthe other side will argue this means licensed I’m going to say permitted). Theidea of article 5(2) is to place digital consumption on the same footing asanalogue consumption.

5.  There arereasons to be concerned by Infopaq and Meltwater. Infopaq started the narrowingof the temporary copies exemption (i.e. the one needed to allow distributionchains and consumption). The problem is paragraphs 62-64 of Infopaq and itsapplication in Meltwater. Starting with Infopaq, at para.54 it sets out thetemporary copies exemption as seen in Article 54.
54      The article set out five cumulativeconditions, namely:
(a) the act is temporary;
(b) it is transient or incidental;
(c) it is an integral and essential part of a technological process;
(d) the sole purpose of that process is to enable a transmission in anetwork between third parties by an intermediary or a lawful use of a work orprotected subject-matter; and
(e) the act has no independent economic significance.

Thenby paragraph 62:

62      Legal certainty forrightholders further requires that the storage and deletion of the reproductionnot be dependent on discretionary human intervention, particularly by the userof protected works. There is no guarantee that in such cases the personconcerned will actually delete the reproduction created or, in any event, thathe will delete it once its existence is no longer justified by its function ofenabling the completion of a technological process.

63      This finding is supportedby recital 33 in the preamble to Directive 2001/29 which lists, as examples ofthe characteristics of the acts referred to in Article 5(1) thereof, acts whichenable browsing as well as acts of caching to take place, including those whichenable transmission systems to function efficiently. Such acts are, bydefinition, created and deleted automatically and without human intervention.

64      In the light of theforegoing, the Court finds that an act can be held to be ‘transient’ within themeaning of the second condition laid down in Article 5(1) of Directive 2001/29only if its duration is limited to what is necessary for the proper completionof the technological process in question, it being understood that that processmust be automated so that it deletes that act automatically, without human intervention,once its function of enabling the completion of such a process has come to anend.

Thus somewhere the court has withoutjustification added a new requirement: that the copy be deleted without theneed for human intervention. This is notin Article 5 nor required by the recitals. The only reason for this appearsto be to balance the interests of the rights holders. This is a hard policydecision to ensure that permanently stored digital copies (stored in permanentmemory and which require human intervention for deletion) and external hardcopies do not benefit from the transient copies protection (this is clear inparagraphs 66 and 67 of Infopaq).

Now we come to Meltwater. Here theCourt of Appeal start from the Infopaq end point – that found by Proudman J.that “the temporary copies exception is solely concerned with incidental andintermediate copying so that any copy which is 'consumption of the work',whether temporary or not, requires the permission of the copyright holder. Aperson making a copy of a webpage on his computer screen will not have adefence under s. 28A CDPA simply because he has been browsing. He must firstshow that it was lawful for him to have made the copy. The copy is not part ofthe technological process; it is generated by his own volition. The whole pointof the receipt and copying of Meltwater News is to enable the End User toreceive and read it. Making the copy is not an essential and integral part of atechnological process but the end which the process is designed to achieve.Storage of the copy and the duration of that storage are matters within the EndUser's control. It begs the question for decision whether making the copy is toenable a lawful use of the work. Moreover, making the copy does have anindependent economic significance as the copy is the very product for which theEnd Users are paying Meltwater.”

In other words because a browsercommands a copy to be made they interfere in the technical process, thuscausing the copy to be made. Applying Inofpaq this is not permitted underArt.5(1). This leads to the ludicrous decision that “As is clear from aconsideration of recital 33 as a whole, the reference to "browsing"is "to the extent that they meet these conditions". ‘They’ refers tothe acts of reproduction. The acts of reproduction are those occasioned by thevoluntary human process of accessing that webpage. Accordingly, they fail tosatisfy any of the conditions to which recital 33 refers. S.28A does notprovide even a limited defence to the claims of infringement to which thebusiness of Meltwater is likely to give rise. This is plainly wrong “they”mean: (1) acts of temporary reproduction; (2) which are either “anintegral and essential part of a technological process and carried out for thesole purpose of enabling either efficient transmission in a network betweenthird parties by an intermediary” (distribution) OR “a lawful use of a work”(consumption) and (3) which have no separate economic value on their own.

The effect of two policy decisions isdamaging. Infopaq was about ensuring semi permanent copies do not somehow sneakthrough the temporary copies exemption by ensuring copies kept for a shortperiod but at the control of a human actor are not included. Meltwater has nowextended this to browsing which is specificallyexempted in Recital 33.

      6.  Thus in theUK post Meltwater environment web surfing once again is placed in its preNovember 2003 scenario – browsing is not an activity as of right (permitted) itis only allowed at the discretion of the copyright holder (permissible) whichmay be removed or revoked at any time (not permitted) – this is in breach ofthe spirit and in my view the letter of the InfoSoc Directive.  

A Strong Defense of Joe Paterno: Why Paterno Was Morally & Ethically Right Not To Go Further in The Sandusky Sex Abuse Case

In the comments section of an article in an SI online blog post by Joe Posnanski, Columbia Univ. Adjunct Professor Scott Semer assails Joe Paterno for not taking greater actions in the Jerry Sandusky case (Link is to the actual Grand Jury Report. It is not for the squeamish.)

Semer rests his opinions as a lawyer and an Adjunct Professor of Transactional Law at Columbia Univ. in NYC. He takes what I believe is the majority opinion as to Coach Paterno's decisions which is that he did the least he could do to cover himself but owed a moral duty to do more.

I too am an attorney, a criminal defense lawyer, a former special prosecutor, and an adjunct professor of Trial Advocacy, and as to his judgment of Paterno I completely disagree with Professor Semer. I think Paterno did what was both morally and legally correct.

After contacting his chain of command superiors, he let them do their jobs. He knew there was a campus police force that investigates ( and prosecutes ) crimes on campus. He took whatever information he had to the head of his department. He took it to the person who is, for all intents and purposes, the police commissioner of a 256 person police force which according to the Campus website says: "(The University Police are) governed by a state statute that gives our officers the same authority as municipal police officers."

Paterno didn't just give his information to a superior, he turned it over to the highest ranking official in that police department. That man, PSU's VP of Business called in the ACTUAL WITNESS and spoke to him. In other words Paterno could see an investigation.

Suggesting Paterno should have then done more is both ridiculous and dangerous. Paterno should not have approached Sandusky,for fear he tip him off to the investigation; he should not have called University police after nothing happened because 1. A police department has a right to set its policing priorities. The Courts have consistently held that: it is a "fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen." Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).
2. Once he reported the incident (and not having any information as to the progress of any investigation or the results thereof) Paterno had no other action he could reasonably take. If he pressed further or went public he risked opening himself and the University up to a law suit from Sandusky for libel , and that is assuming Paterno thought the grad assistant was both reliable and accurate. By that person's own admission he was distraught. He would be accused of trying to eliminate a potential competitor for his job. He would also call into question the safety of the campus and without any proof of his own on the allegations of another. Pattern is not a witness and arguably isn't even an "outcry witness." ( an outcry witness is one who verifies that another witness was so distraught that what they are saying must be true. To be an outcry witness the original witness must make his statement to you first and within a few minutes top hours after witnessing the incident. More than a couple of hours usually spoils the outcry's reliability. It gives the maker too much time to make up the testimony)
3. Assuming Paterno did go to the Chief of Police for the Penn State police department, the person under Gary Schultz, would that not be an act of insubordination? What if he were wrong? He would lose a long time friend and PSU family member. He would hurt alums, recruits and his teams. His fellow coaches could not trust him, all of this without being an actual witness to anything. Taking one man's word against anothers.

Noone wants to see kids hurt, and I believe Coach Paterno heads that list. People suggesting he needed to do more either don't understand the law of criminal investigation, or have a different ax to grind ( like the head of the PA State Police who is grand standing in saying people have a greater responsibility than to report crime to the local Authority. He would be the first guy to defend a civil rights suit against his agency, (brought by a crime victim claiming that the failure to arrest caused her injuries) by invoking the Warren case.)

Paterno handled this exactly as he should have and to suggest otherwise is to use 20/20 hindsight to judge what was a fluid real time situation. I guess the path is always clear for the Monday Morning Quarterback.