CyberLaw Blog

Archive for April 17th, 2009

Whitehall’s got Phorm

In light of criticism from the EU, will the UK government enact a new law on internet privacy or simply brazen it out once again?

Nothing is going well for the Phorm behavioural advertising system this week. The EU commission has started legal action because the UK hasn’t regulated it properly, and now Amazon are joining LiveJournal, mySociety and others in demanding an immediate end to the monitoring of traffic to their websites.

The Phorm system learns your interests by snooping on your internet web traffic. Your ISP does the necessary wiretap in exchange for a cut when advertisers pay a premium for learning precisely what to try and sell you. It’s rather like the postman getting money to peek at your letters, so you can receive a better class of junk mail.

It’s hardly necessary to use the language of privacy, because the law says it’s illegal to intercept internet traffic without permission from both ends of the link. However, legal niceties don’t seem to have worried BT, the UK’s largest ISP. They’ve spent years trying to get the technical kinks out of the system. Last autumn’s trial was half-way legal (or as lawyers say, completely illegal) because they finally asked one end of the link (their customers) for permission; a nicety they ignored in earlier secret tests.

Naturally people have been complaining; to the information commissioner, to the interception tribunal and to the police. The first two don’t think it’s their bailiwick, and the City of London police refused to act; apparently because BT didn’t really intend to do anything wrong – a novel legal theory, which I assume they will be dusting off again after recent tragic events.

Frustrated, the complainers have headed for Brussels, where for the first time they got a serious hearing. The commission saw that EU law was broken and swapped letters with Whitehall. They responded that no UK statute was infringed, either in the recent trial where half the necessary permission was sought, or in the earlier totally secret regimes.

Brussels has believed what they were told – which is not as disappointing as it sounds, for yesterday they took the first steps towards dragging the UK before the European court for a failure to correctly implement EU law and prevent illegal interception. They’re also, to their particular credit, concerned about the process issues, and want to know why there is no institution in the UK tasked with dealing with companies performing illegal interception.

So Whitehall now has to decide whether to enact a new law, or to reread the one we already have and write back contritely to Brussels. Sadly, history suggests they’ll just brazen it out until a European court rules against the UK once again. Our current wiretap laws result directly from adverse judgments in Malone (1984) and Halford (1997). So, as they say in legal circles, Whitehall’s got form.

(Via Latest news, sport, business, comment and reviews from the Guardian | guardian.co.uk.)

U.K. Attacks Extreme Porn: “Recently, the U.K. has begun a clampdown on ‘extreme porn.’ Meanwhile, across the rest of Europe, various countries are limbering up to clamp down on adults viewing what they deem to be unsavory material on the Internet.”

(Via XBIZ.com | News & Articles.)

Pirate Bay guilty verdict: Now what?: “

Setting sail for the Supreme Court

The four men behind BitTorrent tracker website The Pirate Bay were handed stiff sentences of one year each this morning and ordered to stump up $3.6m in damages to the entertainment industry.…

“

(Via The Register – Public Sector.)

BT blocks up to 40,000 child porn pages per day: “

Cleanfeed busy

Between 35,000 and 40,000 attempts to access child pornography sites via BT Retail’s broadband network are blocked every day, it was revealed today.…

“

(Via The Register – Comms.)

Bush-era NSA wiretap violations exposed: “

US hawks not amused

The New York Times has broken the latest news in the National Security Agency’s warrantless wiretapping odyssey: that the NSA has been routinely scanning American communications at a rate far beyond what had been envisioned by Congress when the telecoms immunity and FISA wiretapping revisions passed last summer.…

“

(Via The Register – Public Sector.)

Councils to loose some spy powers: “The end for super pooper-scooper snoopers?Home Secretary Jacqui Smith has opened a public consultation on how snooping laws should be used by local authorities…”

(Via The Register – Public Sector.)

HOME SECRETARY OUTLINES REVIEW OF REGULATION OF INVESTIGATORY POWERS ACT (RIPA)
067/2009, 17 April 2009
The Consultation paper can be downloaded as a PDF file.

Plans to stop investigatory powers being used under the Regulation of Investigatory Powers Act (RIPA) for trivial purposes were announced by the Home Secretary today. The plans include a review of which public authorities can use them and proposals to raise the level of authorisation to sign them off in local authorities.

The public consultation also includes plans to cut down paperwork for the police so they are better able to fight crime.

The review of RIPA launched today will invite views on:

• which public authorities should be able to authorise key investigatory techniques, such as the use of communications data or covert surveillance in public places, under RIPA;
• the purposes for which these investigatory techniques should be used;
• the option of raising the rank of the local authority employee authorising the use of investigatory techniques to senior executive; and
• whether elected councillors should also play a role in the authorisation.

Many of the investigations that rely on the techniques regulated by RIPA are vital to protecting public safety, not just for serious crime and terrorism but they can also make a real difference to people’s everyday lives. For example by stopping rogue traders or trapping fly tippers who dump tonnes of rubbish on an industrial scale.

But there have been some cases where RIPA has been clearly misused. Last year the Home Secretary announced that the government is not prepared to see investigations under RIPA used for trivial issues, like people putting their bins out on the wrong day or dog fouling offences.

Home Secretary Jacqui Smith said:

“Our country has a proud tradition of individual freedom. This involves freedom from unjustified interference by the State. But it also includes freedom from interference by those who would do us harm.

“The government is responsible for protecting both types of freedom. In order to do this, we must ensure that the police and other public authorities have the powers they need. But we must also ensure that those powers are not used inappropriately or excessively.
“The government has absolutely no interest in spying on law-abiding people going about their everyday lives. I don’t want to see these powers being used to target people for putting their bins out on the wrong day or for dog fouling offences.
“I also want to make sure that there is proper oversight of the use of these powers which is why I am considering creating a role for elected councillors in overseeing the way in which local authorities use RIPA techniques.”
The consultation includes draft Codes of Practice. These codes will replace the existing Codes of Practice on Covert Surveillance and Covert Human Intelligence Sources. They will provide greater clarity on when the use of RIPA techniques would be proportionate. They make it clear that RIPA should not be used in relation to trivial offences, and they provide examples so everyone can understand how and when these techniques should be used.
The consultation includes details about all the public authorities able to use certain techniques under RIPA, including the ranks at which those techniques can be authorised and the purposes for which they can be used.

The government wants members of the public to say whether it is appropriate for these public authorities to be part of the RIPA framework. In light of recent public concerns, the government is particularly interested in public views on the way local authorities use techniques under RIPA and how they should deal with crimes such as rogue trading or fly-tipping on an industrial scale.
Local Government Minister John Healey said:
“Whether cracking down on rogue traders, loan sharks or fly-tippers, councils are in the front line in tackling some of the toughest problems faced by communities. So it is right they have the powers they need to do this effectively.
“But these powers must be used in a way that commands the public’s confidence and should be used properly and proportionately. This consultation kicks off a clear and open debate about the use of these powers which is central to strengthening confidence in the system.”

Unfair terms law can protect consumers for existing and future contracts, says Court of Appeal: “Consumer protection body the Office of Fair Trading (OFT) is allowed to use laws on unfair contracts to take action on existing as well as future contracts, the Court of Appeal has ruled.”

(Via OUT-LAW News.)

Internet data to be stored from today: “Internet service providers will have to store details of web and email traffic and details of internet phone calls for 12 months from today as expanded European legislation comes into effect.”

(Via OUT-LAW News.)

EU – European Framework for Safer Mobile Use – implementation report: “(GSM Association)
Two years on from the introduction of the European Framework for Safer Mobile Use by Younger Teenagers and Children, Pricewaterhouse Coopers published a report summarising the status of its implementation in the EU. The report shows that the Framework has been transposed into codes of conduct in 22 EU Member States and that mobile operator signatories have taken substantial action to implement these codes alongside other voluntary activities.

“

(Via QuickLinks Update.)

Pirate Bay founders sent to jail: “Four men behind The Pirate Bay – one of the world’s biggest file-sharing site – are convicted of copyright infringement.”

(Via BBC News.)