ORG policy update/2016-w17

This is ORG's Policy Update for the week beginning 25/04/2016.

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ORG's Work

  • ORG submitted a response to the European Commission's public consultation on the evaluation and modernisation of the legal framework for enhorcement of intellectual property rights (IPRED).

Official Meetings

  • Jim Killock attended a meeting regarding Mutual Legal Assistance Treaty at the Cabinet Office.

IP Bill Public Committee Sittings in Parliament

The Public Bill Committee on the Investigatory Powers Bill continued their sittings on 26 and 28 April.

Eleventh and Twelfth Sittings (26 April 2016)

Transcripts of both sittings are available here:

The amendments discussed covered areas of:

Power to issue bulk acquisition warrants

Joanna Cherry made a statement following her call to leave out the whole section on bulk powers from last week’s sittings. In her statement, Cherry referred to the oral and written evidence by David Anderson QC where he questions the “utility of bulk data collection” and their proportionality as stated in the Bill. She further stressed that David Anderson QC endorsed evidence submitted to the Joint Committee by Eric King and Jim Killock calling for an operational case for bulk powers. Her argument is that bulk powers facilitate “suspicionless surveillance”.

”While it may have some utility, as David Anderson has said, I am not convinced that it is either necessary or proportionate.”

Keir Starmer raised a point that there is no mention of the “filter stage” of data acquisition in the Bill despite Jonathan Evans, ex-Director General of the Security Service, giving a detailed account of the process including one. He suggested for the explanation to be included in the Code of Practice.

Bulk equipment interference warrants

Joanna Cherry made a call for narrowing down the scope of warrants to avoid situation created by execution of the GCHQ’s Optic Nerve programme, which involved hacking into webcams and obtaining number of indecent images of non-suspects.

Keir Starmer followed up on Cherry’s call and he drew attention to the thematic warrants and bulk powers. He makes clear that in the case of the two the Bill includes
“the same power for equipment interference, but we do not have the qualification of the subject matter […].”

Requirements to be met by warrants

Keir Starmer called for specification of operational purposes for bulk warrants and pointed out the lack of safeguards. Robert Buckland, the Solicitor General, responded to the call by stating that:

”[…] we respectfully submit that the amendments are unnecessary. As we know, what we are talking about […] is fragments of initial intelligence. That is what bulk acquisition is all about. It is about taking those fragments and then being able to identify potential subjects of interest that might pose a threat to the UK.”

Merely a handful of amendments were agreed on and quite a few were withdrawn and will be discussed at a later stage.

Thirteenth and Fourteenth Sittings (28 April 2016)

Transcripts of both sittings are available here:

The amendments discussed covered the areas of:

Commissioner and other Judicial Commissioners

Transcript of the debate

Main oversight functions

Transcript of the debate

Additional functions

Transcript of the debate

Again, only few amendments were agreed on.

The Public Committee will resume next week 3 May and is due to conclude on 5 May.

Oral Evidence on the IP Bill for Human Rights Committee

Human Rights Committee heard evidence on 27 April from Professor Iain Cameron, Faculty of Law, University of Uppsala and Professor Martin Scheinin, International Law and Human Rights, European University Institute and Michael Drury, former legal director of GCHQ on the implication of the Investigatory Powers Bill on human rights.

Martin Scheinin made a case for rights to non-discrimination and association and freedom of movement being impacted by the IP Bill. He also made it clear that proportionality assessment is nearly impossible to achieve regarding the bulk powers. He introduced an example from Germany and explained how they have a better understanding of proportionality.

Michael Drury challenged Scheinin’s definition of proportionality and further stated that the letter from 200 lawyers on the IP Bill does not set out a correct legal test and therefore is wrong.

The whole recording of the evidence session can be found here.

Written Evidence by the ex-director of GCHQ

Sir David Pepper KCMG, GCHQ director from 2003 to 2008, has submitted written evidence to the Public Committee on the Investigatory Powers Bill. The main concern he discussed in the evidence is for the bulk powers and their inevitable need for running of the Agencies. He calls assertions that the Agencies use bulk powers to examine large numbers of random British citizens “pure fantasy”. He concludes saying:

“It is impossible to have both perfect security and complete privacy in our current circumstances. The test of the Bill must be whether it achieves the right balance. In my view its proposals do so. They will allow the Agencies to continue to use their current capabilities as the environment develops […].”

Questions in Parliament

Question on the IP Bill in the House of Lords

Lord Strasburger asked the government question regarding clause 217 of the Investigatory Powers Bill whether it will give them the power to force a company to weaken their encryption (referring to the FBI-Apple case in the US).

Lord Keen of Elie responded denying the unlimited power of the clause 217 to force companies to remove electronic protection from their products. Clause 217 “deals with technical capability notices—a notice which is given after discussion with the Technical Advisory Board to a company requiring it to retain the ability to decrypt information.” He further stressed that it only applies to a reasonable extent for the company to comply.

Question on Cyber Innovation Centre

Alex Chalk MP asked the Secretary of State for Culture, Media and Sport, what are the likely benefits of the Cyber Innovation Centre for Cheltenham's local economy.

Ed Vaizey MP responded that the Centre will help develop new cyber security products and start new companies that will hopefully become world-class firms.

Question on the Intellectual Property in the House of Lords

Baroness Neville-Rolfe, answered questions regarding intellectual property in the light of World Intellectual Property Day. She stated that Department for Culture, Media and Sport and Department for Business, Innovation and Skills both are undertaking measures to reduce costs for SMEs (mediation, IP insurance and fee reductions).

Lord West of Spithead asked whether any actions have been taken to stop the Chinese from cyberattacks on intellectual property across all UK business areas.

Baroness Neville-Rolfe responded that there has been progress in talks with China. She explained that they have some common ground with China who now can see the importance in the value of intellectual property for the Chinese economy.

Other National Developments

Theresa May's Case for Withdrawal From the ECHR

Theresa May MP proclaimed in a speech stating her position on leaving the EU that even though she is in favour of staying in the EU, the UK should withdraw from the European Convention on Human Rights (ECHR). She said:

”The ECHR can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights.”

The statement was met with cross-party criticism. It has been pointed out by David Davis MP that May's stance – to stay in the EU and withdraw from the European Court of Human Rights (ECtHR) lacks consistency and logic. Leaving the ECtHR would mean that the European Court of Justice would take over with more force.

Jim Killock said:

“Theresa May will be defending mass surveillance in the ECtHR over the next weeks, as they examine what we have learnt about huge programmes gathering everyone’s data. This is the same court that Theresa May believes she should not have to answer to. “The government built GCHQ’s programmes without discussion in parliament. The ECtHR has provided a way for impartial judges to examine what our government has done, even when they preferred to bypass democratic procedure.”

Elizabeth Denham Confirmed as New Information Commissioner

Elizabeth Denham appeared as a preferred candidate for the role of Information Commissioner in front of the Culture, Media and Sport select committee. The committee published their report on the proceedings of appointment.

Ms Denham was questioned by the committee on several topics:

  • “A comparison of the British and Canadian FoI and data protection regimes
  • Her understanding of the EU Framework underpinning UK data protection law
  • Whether and how the powers of the UK ICO might be extended in relation to FoI
  • The application of FoI to all forms of communication, including social media, whenever any government information was under consideration
  • Whether FoI should apply to non-Government entities delivering public services
  • The application of the commercial confidentiality exemption from FoI to government contracts
  • Issues of victims’ access to information highlighted by the Hillsborough inquiry
  • The responsibility that company directors should have for cyber security
  • Tackling nuisance calls
  • The implications of amending the Regulation of Investigatory Powers Act to extend data retention
  • Press Regulation: Lessons to be learned from Operation Motorman and the Leveson inquiry
  • The ICO’s relations with Parliament
  • The management challenge of moving from a relatively small state system to a national regulator
  • Funding of the ICO
  • The challenge of relocating to the UK”

The report concludes:

”On the basis of the evidence presented, we approve Elizabeth Denham’s appointment as Information Commissioner. We wish Elizabeth Denham well in her new post and look forward to working with her in the future.”

Elizabeth Denham will replace Christopher Graham who has served as Information Commissioner since 2009.

Investigatory Powers Tribunal Report

The Investigatory Powers Tribunal has published a report of its works between 2011 and 2015 in efforts to be more transparent. The report outlines background to the Tribunal, how the Tribunal works, key decisions and outcomes, relevant legislation and Tribunal members. Sir Michael Burton, President of the Investigatory Powers Tribunal, said in his statement accompanying the report that the last two years have recorded significant changes in the workload and the day-to-day activities partially due to the Snowden disclosures and followed by an increase in claims by non-governmental organisations. He believes that

”the Tribunal’s methods generally work well. I trust they have gained the confidence of those applying to us, and that they are recognised as fair and sensible by those organizations we investigate as a result of the applications made to us. It is of course worth emphasising that the Tribunal can only investigate complaints made to it.”

The IPT report has been regarded as long overdue after its annual 2015 report was cancelled without any further information on when it could be expected. Instead, they released a statement clarifying that the IPT is not required to report publicly and only does so voluntarily. However, the IPT provides access to all decisions in major cases on its website.

China Signs MOU on Copyright Protection Collaboration

China's biggest Internet search engine Baidu has signed a memorandum of understanding (MOU) on Copyright Protection Collaboration with the International Publishers Copyright Coalition (IPCC). The Intellectual Property Office (IPO) reported that the memorandum outlines a collaboration programme to address online IP infringement. The signing was witnessed by the Director of Copyright and Enforcement at the UK Intellectual Property Office Dr Ros Lynch, currently visiting for UK-China Copyright Week. She said:

“Our work is fundamentally underpinned by industry engagement. In the UK, we recognise that government and legislation can only reach so far. It is important that rights holders and Internet platforms work together to help protect IP.”

More discussions over the week will focus on:

  • “exchanging IP enforcement best-practice, including online copyright initiatives such as the Infringing Website List and cross-border joint operations to tackle counterfeit goods;
  • policy topics related to China’s ongoing Copyright Law revisions including on collective licensing, artist resale right, exceptions and limitations to copyright and music/audiovisual rights;
  • a UK-China IP Salon event on Women in Intellectual Property as part of the British Embassy Beijing Be Yourself women’s empowerment campaign.”

The MOU is not legally binding but has been regarded as an improvement following Baidu's reputations covered in complaints and lawsuits on the intellectual property infringement at home and abroad. Similar MOU was signed last year with Alibaba, Chinese e-commerce company.

Stop Terrorists' & Extremists' Online Presence

The UK police Counter Terrorism Internet Referral Unit (CTIRU) led the operation Stop Terrorists' & Extremists' Online Presence on 15 April to initiate awareness to promote the red reporting button on police and partner websites. The operation was supported by Europol and several international law enforcement agencies, Internet industry and civil society and third sector organisations. The initiative urged the public to report material that breached counter terrorism laws and criminal offences.

The collected material referred to speech offences in propaganda films, terror training manuals and videos and publications supporting extremism. A 36-hour operation collected over 3500 items of harmful and illegal material referred for removal from the Internet.

The material has not been referred to a court and the public does not have access to the list of takedowns. It is yet to be seen whether the CTIRU and government will publish the specifics of what has been taken down and reasoning behind it, on accounts of their accountability.

Europe

Leaked European Commission Communication on Platforms

A draft version of the Communication on Platforms from the European Commission has been leaked to the public, making it clear that there is no case for general regulation of online platforms across the board at the moment. The document, however, does not rule out future regulation in the light of potential developments.

There has been an ongoing debate on definition of online platforms with, mostly, Internet firms being very vocal on the issue. The leaked document defined platforms as “direct interactions between users via online systems […] that capitalise on data-driven efficiencies enabled by network effects”. The used definition of online platforms would include: "Google's AdSense, DoubleClick, Ebay and Amazon Marketplace, Google and Bing Search, Facebook and YouTube, Android and Apple Store, Facebook Messenger, PayPal, TOMTOM and BlaBlaCar."

The list is not extensive and is underlining what the European Union’s issue is. The vast majority of the platforms are US or Asia based. For this reason the Commission will secure creating conditions for new EU businesses in key strategic sectors.

The document is also tackling copyright issues from several angles. More pressure is put on companies like Google or Facebook to control copyright infringement themselves. However, this approach raises concerns over online monopolies monitoring online activity and creating less user-friendly terms of service instead of laws.

It has been referred several times to ‘fair payments’ for copyright in the document. This issues has been introduced previously with ancillary copyright (Google tax). Google News service uses snippets of published articles to describe search results and publishers consider this infringement on their copyright. For this reason they demand compensation and following what is written in the document, they might get it.

Even though the leaked document is just a draft, it is unlikely to change much before its publication being due less than a month away (25 May).

Gender Equality to be One of the Pillars of Digital Single Market Strategy

The European Parliament voted on the newly published report “Gender Equality and Empowering Women in the Digital Age” to make gender equality one of the core pillars of the Digital Single Market Strategy. The report was adopted with substantial majority. The report highlights several areas requiring improvement: labour market, participation, education and training, investment and funding entrepreneurship and fight against violence against women in a digitalised world.

International Developments

FBI refuses to disclose iOS security flaw to Apple

FBI confirmed that they will not disclose the security flaw that enabled them to access the iPhone in the San Bernardino case. According to the statement, FBI did not purchase the rights to the technical details of the hacking tool. By not holding the rights to the technical specifications of hacking, FBI possibly found a loophole to avoid disclosing security vulnerabilities as outlined in an official policy on the Vulnerabilities Equities Process (VEP) stating that discovery of vulnerabilities in commercial information technology has to be reported to the company to protect consumers.

ORG Media Coverage

See ORG Press Coverage for full details.

2016-04-21-Business Insider- The UK Government is planning to introduce 10-year jail sentences for online pirates
Author: Rob Price
Summary: ORG mentioned in relation to responses to consultation on the increase of the jail sentence.
2016-04-22- The Inquirer-UK government considers 10-year jail terms for piracy
Author: Dave Neal
Summary: Jim Killock quoted on concerns for offences being properly related to commercial infringements.
2016-04-22- Ars Technica- UK ploughs ahead with plan for 10-year jail term for online file sharing
Author: Glyn Moody

Summary: ORG mentioned in relation to responses to consultation on the increase of the jail sentence.

2016-04-22- Wired-Jail time for web piracy could rise from 2 to 10 years
Author: Matt Burgess
Summary: Jim Killock quoted on concerns for offences being properly related to commercial infringements.
2016-04-25- Telecom Paper- UK govt increases online copyright violation penalties
Summary: ORG mentioned in relation to responses to consultation on the increase of the jail sentence.
2016-04-22-Bit-Tech- Government mulls 10-year sentences for digital pirates
Author: Gareth Halfacree
Summary: ORG mentioned in relation to responses to consultation on the increase of the jail sentence.
2016-04-22-Advanced Television-UK: 10-year sentence for online piracy
Author: Colin Mann
Summary: Jim Killock quoted on concerns for offences being properly related to commercial infringements.
2016-04-22-Kit Guru- UK government wants 10 year jail sentences for online piracy
Author: Matthew Wilson
Summary: Jim Killock quoted on concerns for offences being properly related to commercial infringements.
2016-04-26-Sputnik News-'In EU Face': UK Mass Surveillance Behind Theresa May's Calls to Quit ECHR
Summary: Jim Killock quoted on the GCHQ programs built by the government being in check thanks to the European Convention on Human Rights.

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