ORG policy update/2017-w18

This is ORG's Policy Update for the week beginning 01/05/2017.

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ORG’s work

ORG submitted our response to the Espionage Act consultation. We also delivered nearly 24,000 petition signatures to the Law Commission asking them to drop their proposals to increase sentences and widen the scope of offences in the Espionage Act. The threat of 14 years in prison for handling classified and secret documents could stop journalists and whistleblowers from exposing corruption and government wrongdoing.
OpenTech 2017 is an informal, low cost, one-day conference on slightly different approaches to technology, experience and democracy. Come and hear ORG and others speak on 13 May in London.

Planned local group events:

What is the government doing with the new nationality data collected from every child in state school? To answer this question and more ORG Brighton are teaming up with defenddigitalme for an event on Tuesday 9 May all about the National Pupil Database.

Parliament

Committee report on social media companies

The Home Affairs Committee published a report on social media companies and their processes for tackling hate speech and illegal content.

The Committee recommended the Government assess whether failure to remove illegal material should in itself be a crime. The report suggested the Government consult on stronger law and fines for companies who fail to remove illegal content.

The report made a recommendation to charge social media companies if the police are forced to identify and ask them to remove content. The Committee also advised that companies should publish regular reports on their safeguarding activity including the number of staff, complaints and action taken.

The full report is available here.

The Committee’s report did not specify how these requirements would be enforced or what measures would be used to assess whether the number of staff is sufficient.

The report also does not deal with over-blocking/over-removal of content. The Committee did not make comments on how accidental content removal should be handled or what remedies should be in place.

Jim Killock took on the Committee's recommendations in a blog.

Security researcher Alec Muffett analysed the Committee’s report in more detail here.

Other national developments

IPAct leaked consultation

ORG received a copy of a Home Office consultation on technical capability notices as specified in the Investigatory Powers Act. This is a 4-week consultation concluding on 19 May.

The Home Office labeled this consultation as “targeted”, meaning it has not been officially publicised to the tech industry or public.

The Secretary of State is not under any obligation to consult the public, but instead must consult only a small selection of organisations listed in Section 253 (6) of the Investigatory Powers Act:

(6) Before making any regulations under this section, the Secretary of State must consult the following persons—
(a) the Technical Advisory Board,
(b) persons appearing to the Secretary of State to be likely to be subject to any obligations specified in the regulations,
(c) persons representing persons falling within paragraph (b), and
(d) persons with statutory functions in relation to persons falling within that paragraph.

The leaked Statutory Instrument states that all communications companies will be obliged to provide real-time access to the full content of any named individual within one working day, as well as any "secondary data" relating to that person. This requirement relates to encrypted content too which raises a question of whether companies can employ real end-to-end encryption.

Furthermore, communications providers will be required to make bulk surveillance possible by introducing systems that can provide real-time interception of 1 in 10,000 of its customers.

Espionage Act consultation

The consultation launched by the Law Commission on the new Espionage Act concluded this week. ORG submitted our response as well as petition signatures asking the Law Commission to drop the proposals.

ORG’s response highlighted several problems with the proposals:

Wider offences

The proposals introduced the term foreign power in lieu of the enemy that could dramatically widen the scope of the offence. Such an offence could easily include non-state actors, including NGOs.

Increasing sentences

The proposals do not contain detailed analysis of how increasing sentences from two to 14 years could be established proportionately.

Expanded scope to economic information

Including economic information relevant to national security could cause conflation of the national interest and that of large firms.

Extraterritoriality

Proposals want to expand the offences to to non British nationals acting outside the UK, however this would be difficult to establish and enforce.

Prohibited places

The very notion of prohibited places needs to be reconsidered in an age when online high resolution digital maps are universally available.

Lack of a public interest defence

The arguments presented against a public interest defence in the consultation document appear to show a worrying rejection of the very concept of public interest, not just the problems of implementation.

The Law Commission’s proposals lack any mentions of previous cases of espionage. The document makes no reference to Edward Snowden and Wikileaks although these cases would appear to be the driving force behind the new legislation.

ORG recommended that the Law Commission conducts fuller research and a wider investigation to provide a better-informed, balanced view.

You can read our consultation response in full here.

Europe

CJEU ruling on Kodi boxes

The European Court of Justice (CJEU) ruled that it is illegal to sold piracy-configured media players.

Kodi boxes and other similar media players with third party add-ons are designed to receive the latest TV shows, films and sports events. A Dutch-based seller of the media players Filmspeler previously argued in front of the Dutch court that their sale did not constitute a communication to the public and as such they are not in breach of the EU Copyright Directive.

The Dutch court referred the case to the CJEU to rule on whether it is illegal to sell a product with pre-installed add-ons containing hyperlinks to websites from where copyrighted works are made available without copyright holders’ permission.

The CJEU’s ruling followed an opinion from the Advocate General that stated that Filmspeler is communicating infringing materials to the public. Filmspeler engaged in this by providing hyperlinks to content published by known copyright infringing sites on Kodi devices and advertising the media player as a way to watch content for free.

The CJEU ruling said that

”direct access to the protected works published without the permission of the copyright owners” and “must be regarded as an act of communication to the public.”

The European Court clarified that reproduction of content may only be exempt from reproduction rights when it is temporary, transient or incidental, an integral part of technological process, without any independent economic significance and solely enables transmission between third parties.

Not all of these conditions were met in the case and therefore streaming copyrighted content from an infringing website can be considered illegal.

The case will now go back to the Dutch court. It is likely they will follow the CJEU ruling.

This ruling could have a serious impact in the UK after the Digital Economy Act passed last week. The Act contains provisions that widen the scope of the online copyright infringement offence. Individuals found guilty of online copyright imprisonment could now face up to ten years in prison. As reported in the media this week, large numbers of people using Kodi boxes could be at risk of imprisonment.

International developments

NSA halted “upstream” collection

The US National Security Agency announced that they will end the practice of “upstream” collection of messages sent by American citizens. This collection method included messages of people other than just targets of the NSA.

This practice was authorised under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The NSA changed their practices following an order from the Federal Intelligence Surveillance Court that narrowed the authorised scope of NSA surveillance.

The NSA and the court previously agreed on the NSA continuing the collection but storing bundled messages in a special repository that analysts could search for specific messages without exposing the other content. This method did not address the problem sufficiently. As a result, the NSA is now dropping the collection method involving US persons’ message traffic.

ORG media coverage

See ORG Press Coverage for full details.

2017-04-27-BBC News-Police to use facial recognition at Champions League final: Author: Chris Baraniuk; Summary: Jim Killock quoted on police having to explain why surveillance at football matches is justified and how they will use the collected data.
2017-04-28-Baltic Times-Lithuanian president: Online voting wouldn't ensure secrecy and security: Summary: ORG mentioned in relation to a research on e-voting.
2017-04-28-The Inquirer-Parliament has handed personal privacy to pornography pedlars: Author: Dave Neal; Summary: Jim Killock quoted on DEAct handing responsibility for people's privacy into the hands of porn companies.
2017-04-28-Mashable-How Britain is trying to control the porn you watch: Author: Gianluca Mezzofiore; Summary: Myles Jackman quoted on DEAct posing significant concerns regarding privacy, security and censorship
2017-05-01-Quartz-The UK wants new laws to fine Google, Twitter, and Facebook for failing to deal with hate speech: Author: Joon Ian Wong; Summary: Alec Muffett quoted on the Government restricting freedom of speech online by putting more restrictions on social media websites.
2017-05-01-Torrent Freak10 Years in Jail For Internet Pirates Now Reality in the UK: Author: Andy; Summary: ORG mentioned in relation to our campaign on online copyright infringement offences in the DEAct.
2017-05-03-Wired-World Press Freedom Index reveals how the UK's media is under threat: Author: Alexandra Simon-Lewis; Summary: Jim Killock quoted on extensive surveillance powers are threatening investigative journalism and freedom of expression in the UK.
2017-05-03-The Inquirer-Copyright infringement now punishable with up to 10 years in jail: Author: Ben Woods; Summary: ORG mentioned in relation to our campaign on online copyright infringement offences in the DEAct.
2017-05-03-Daily Mail-Thousands of Kodi TV box users could face up to TEN YEARS in prison under controversial new law: Author: Shivali Best

fe:Summary: ORG mentioned in relation to our campaign on online copyright infringement offences in the DEAct.

2017-05-03-Wales Online-New law means using Kodi to stream pirated films and TV shows could earn you 10 years in jail: Author: Jeff Parsons; Summary: ORG mentioned in relation to our campaign on online copyright infringement offences in the DEAct.
2017-05-03-Motherboard-UK Cops Can Now Remotely Disable Phones Even If No Crime Has Been Committed: Author: Joseph Cox; Summary: Myles Jackman quoted on DEAct 'drug dealing telecoms restriction order' being an entirely unprecedented and potentially draconian power allowing police to prevent the use of phones or other communications devices.
2017-05-03-Sputnik News-Free Speech Coalition: New UK Espionage Act Must Contain Public Interest Defense: Summary: ORG quoted on the Espionage Act being a full frontal attack on journalism.
2017-05-04-The Independent-Digital Economy Act: UK police can now disable phones, even if users con’t commit a crime: Author: Aatif Sulleyman; Summary: Myles Jackman quoted on DEAct 'drug dealing telecoms restriction order' being an entirely unprecedented and potentially draconian power allowing police to prevent the use of phones or other communications devices.
2017-05-04-The Register-Leaked: The UK's secret blueprint with telcos for mass spying on internet, phones – and backdoors: Author: Kieran McCarthy; Summary: ORG mentioned as a source of the leaked IPAct consultation on technical capability notices.

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