ACTA, article, TPP

ACTA vs TPP: The Case for Transparency in International Treaty Negotiations

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ACTA (the Anti-Counterfeiting Trade Agreement) has shown us that openness when negotiating trade agreements leads to a better result – but it looks like this lesson that hasn’t been learnt by the negotiators of the TPP (Trans Pacific Partnership) free trade agreement.

At the beginning of the year Tech Liberty was involved in the campaign against the ACTA treaty. A major part of the problem with ACTA was that while we knew it was attempting to push more offensive IP laws, the secrecy around the negotiations meant we didn’t know what was in them.

Traditional Closed Model of Treaty Negotiation

ACTA followed the traditional model of negotiating a trade agreement (PDF), which goes something like this:

  1. A number of countries get together and decide to negotiate an agreement.
  2. The countries send their delegates to a series of meetings.
  3. The delegates discuss what sort of things will be in the treaty and come up with an agenda.
  4. Delegates present papers about particular topics.
  5. Work starts on a draft agreement.
  6. The delegates work through the draft removing points of difference.
  7. The text is finalised and returned to the governments for signing.
  8. In the democratic countries, the governments consult the people and then decide whether to sign the treaty or not.
  9. The governments make any required law changes and then sign the treaty.

You’ll note that the consultation with the people comes after the treaty text has been finalised. The process is structured so that there’s no chance that a government could consult, then come back to the negotiations and ask for more changes to be made (and indeed, this could be a bit chaotic).
Continue reading ACTA vs TPP: The Case for Transparency in International Treaty Negotiations →

commentary, conference

Kiwicon: RFID (in)securities

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We’ll be writing some summaries of some of the relevant sessions at Kiwicon – the hacker conference in Wellington.

Anne Galloway from the VUW School of Design presented the keynote speech – RFID (in)securities. RFID tags are the tiny bits of circuitry that nearby scanners can read – such as used in Snapper cards and passports.

She brought a social anthropology view of RFID to a conference full of hardcore geeks and was brave enough to start by defining “discourse” and how it is used to create understanding. She then discussed three popular discourses around RFID:

  • RFID is awesome
  • RFID is evil
  • RFID is fun

Continue reading Kiwicon: RFID (in)securities →

article, filtering

Dear Independent Reference Group – Do Your Job

Dear Independent Reference Group,

Please do your job.

Yours, Tech Liberty

We believe that secret censorship is a threat to our democracy. We need to be careful when giving our government the ability to limit what we can see and hear – which is why we require the Chief Censor to publish their decisions. This openness, the ability for anyone to review and challenge, helps prevent abuse of the censorship scheme.

One of our objections to the government’s Internet censorship filter was that the Department of Internal Affairs has refused to release the list of censored sites. They say that they’ll only censor certain types of material, but how can we know that they’re sticking to this without being able to see the list?

The DIA did respond to these concerns by establishing the Independent Reference Group to provide at least some semi-independent oversight of the filter, although they had to be persuaded to let the IRG have access to the list of blocked sites. Then, from the minutes of the IRG’s meeting on 15th October 2010:

Members of the Group were invited to identify any website that they wish to review. They declined to do so at this stage.

Now, we quite understand that members of the IRG don’t want to look at those sites. But that’s not the point – they have a responsibility to ensure that the filter “…is operated with integrity and adheres to the principles set down in the Code of Practice.”

This oversight isn’t going to work if the IRG don’t exercise it. The filter list grew from 153 entries in June to 538 in November – surely it would have made sense to have a look at the list and select some of the additions for a brief review?

Recommendation

We recommend that at each meeting the IRG should randomly select a sample of newly added sites and review the content to ensure that the filter is not being abused. Anything less is neglecting their duty.

commentary, copyright

Account holder liability vs IPAP

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One of the major changes in the Copyright (Infringing File Sharing) Amendment Bill was the replacement of ISPs with something new called an IPAP. The reasoning appeared to be that it was unclear when the obligation to maintain mappings of IP addresses to users (i.e. one of the duties of an ISP) kicked in. The new definition added various exclusions and inclusions that determined whether you were an IPAP or an account holder.

What this hid from view was that if you weren’t an IPAP, then you must be an account holder. And, as an account holder, you became liable for everything done through that account. In fact, it’s easier to think about the implications of the bill this way:

Whoever is named as holding the last publically identifable address is liable for all infringement attributed to that address.

You can only escape this liability (and become an IPAP with all of their obligations) if you meet all of the following tests:

  1. Provide any form of digital communications to someone else
  2. Allocate an IP address to that person or organisation
  3. Bill the person or organisation
  4. Are primarily in the business of providing such services
  5. Are providing your services to fixed users on a continual basis, not on a transient basis

Approaching it from this point of view makes it easier to see what obligations and exposures you have.

Who is liable?

A public library providing Internet access terminals fails to meet points 4 and 5. This means they are liable for all infringement by anyone who uses their terminals.

An airport that provides free wireless Internet access to passing travellers fails to meet points 3, 4 and 5. They are liable for any copyright infringement by anyone passing through the terminal using their wifi.

I have a server from a hosting provider to that I pay for. Since the hosting providers meets all of points 1 through 5, they have the obligations of an IPAP, and must forward notices to me. I am liable for any infringement made through my server, for example, after the server is hacked into and software installed on it without my knowledge.

If you share an internet connection with your flatmates and your name in on the account? You don’t meet point 4, so you are liable for any infringement by your flatmates.

As the law is currently written, can any business or person risk giving Internet access to someone else?

article, privacy

1-Day finds that anonymity is hard

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Update: 1-Day claims that they have tweaked the feature so that customers can choose to use aliases. However, there appears to be no way to enter an alias when signing up for an account or proceeding through checkout without an account (18/11/2010).

Update 2: 1-Day support are unaware of any new alias feature. They suggest entering an initial instead of your first name. The site continues to publish live customer data (18/11/2010).

Update 3: 1-Day have now added a checkbox for “Make my purchase public” to the sale process and have included a link that explains the feature. We think that this is sufficient notification and allows people to opt out if they wish, although it would be better if the checkbox was not ticked by default (23/11/2010).

1-Day is another of the many “deal a day” sites. An extra feature on this particular site is Watch People Shop – a dynamic map of NZ with “Sharon in Lower Hutt bought a Mistral Bread Maker 5 minutes ago” overlaid.
Continue reading 1-Day finds that anonymity is hard →

meta

Tech Liberty: looking back at our first year and forward to the next

We published our first article on Tech Liberty a year ago. In it we defined what we saw as the problem:

  • The government believes it has the power to intercept, search and block our communications – if they’re done over the Internet.
  • The media companies want to ignore the right to a fair trial and skip straight to the punishment phase – if you download music files instead of copying a CD.
  • Border agencies and the Police believe they have a right to unlimited access to your private data – but only if it’s on computer, not on paper.
  • The government wants to be able to punish others by disconnecting them from the Internet – but we wouldn’t ban people from using paper and pen.

There are those who think that they can ignore our existing rights and freedoms because new technology has made them obsolete.

We don’t agree.

Our First Year

Since then we’ve:

  • Written 70 articles for our website and published two guest editorials (security risks of internet filtering, copyright).
  • Received 15,000 visitors who looked at 27,000 pages and left 134 comments.
  • Made two written (Copyright, Search and Surveillance) and one oral submission (Search & Surveillance) to Parliamentary Select Committees.
  • Established an @TechLiberty Twitter presence with 287 followers and 469 updates.
  • Assisted people in their legal issues with Customs and Sky TV.
  • Written a guest editorial about internet filtering for the National Business Review.
  • Been quoted in a variety of online and print media and been interviewed on TV and radio.

Major issues we’ve written about and worked on include:

What’s Next

We’re pleased with what we’ve achieved in our first year. We think that these are important issues and that we’ve helped to influence people and improve the quality of debate around them.

We believe that New Zealand needs a group like Tech Liberty – while people like Internet NZ and the Creative Freedom Foundation continue to do good work, both have their own focus and we are the only group with a broader interest in defending the rights of New Zealanders in the digital sphere.

Some of the major issues we expect to be working on in our second year include:

  • The Trans Pacific Partnership – it appears that it’s going to be another attempt to impose draconian and unfair copyright laws in New Zealand.
  • The Search and Surveillance Bill – government has gone too far in the conflict between “law enforcement convenience” and “protecting our civil liberties”.
  • The Law Commission’s revamp of the Official Information Act – we want to see more openness and transparency in Government and think that modern online publishing technology is part of the solution.

As part of this we’re also looking at changing how we do things:

  • We are investigating what is involved with becoming a mass-membership organisation.
  • We intend to establish a fund to help finance our work.
  • Improving our internal communications so we can better support contributors all over the country.

Join Us

What we do need is more people to help us with this work.

We are currently a Wellington-based collective but we’re looking for people across the country who can help us with one or more of the following roles:

  • Join the core collective and work with us to develop Tech Liberty.
  • Providing professional legal assistance to help us in interpreting current and proposed laws and helping people who face legal problems.
  • Adopt an issue and become our internal expert, writing articles and submissions about it.
  • Assist us with advice about becoming a membership organisation.

Or, if you’ve just got a bee in your bonnet about a particular issue, write us a guest editorial.

Read about our principles and then send us an email, we’d love to hear from you.

article, copyright

Copyright infringement notices aren’t traffic tickets

One of the notable changes in the latest revisions of the Copyright (Infringing File Sharing) Bill is the addition of section 122MA. This section states that infringement notices issued by media companies against individuals are conclusive evidence to prove wrong-doing.

Some have interpreted this to mean guilt on accusation has made a return back into the bill, after S92A was suspended and finally defeated for doing the exact same thing. In response, it is claimed that this does not re-introduce guilt on accusation, but instead is based on the traffic ticket model, where guilt is presumed unless they are contested.

But traffic tickets are quite different to the claims made by media companies.

  • Traffic tickets are issued by sworn police officers, or by automated systems that are held to rigorous standards. Media companies and their notice sending robots are not held to the same standards and have no statutory obligations or penalities for wrongful claims. The industry has resisted attempts to inspect their automated systems.
  • Police are subject to oversight by their superiors, the Independent Police Complaints Authority and ultimately parliament and the public. They have a responsiblity to be impartial and to act in the public good. Media companies and their agents have no oversight at all and act purely in the interest of their own profits.
  • Tickets issued by officers are unlikely to identify the wrong person, while automated systems have a number of checks and balances to ensure that only solid and provable tickets are issued. Media companies have already engaged in carpet-bombing users with claims that cannot be substantiated, and they rely on ISPs to always identify the correct account holder.

Google noted in their submission on S92A that 37% of the notices received under the DMCA were unable to be substantiated as valid copyright claims, and a whopping 57% were businesses targeting their rivals. Judge David Harvey noted in his submission on S92A that 30% of the copyright claims being heard in New Zealand failed to even establish a rightful copyright claim. Considering this error rate, surely we can’t be proposing to accept untested claims from media companies as conclusive evidence?

We believe that 122MA is trying to allow the Copyright Tribunal to make rulings based “on the papers” where there is no contest being made about the claims. But rather than following a traffic ticket model – making any claim made by a media company conclusive proof – we believe the Tribunal already has sufficient scope and experience to make that determination itself. This is similar to how the Disputes Tribunal works and is a sensible model for handling copyright infringement claims.

Section 122MA should be removed in its entirety.

copyright, guest article

Guest post: Letter to Mr Power re Copyright

Sam Fickling sent us a copy of his letter to the Commerce Minister, Simon Power, about the proposed changes to the Copyright (Infringing File Sharing Amendment) Bill. He has kindly given us permission to publish it here.

Mr Power,

Once again I believe that, for the most part, the ongoing modifications to the Copyright (Infringing File Sharing) Amendment Bill are improving the legislation and building a fair and workable framework with which to protect both rights holders and Internet users. However, the recent recommendation by the Commerce Committee to insert section 122MA into the bill has unfortunately brought the debate around this legislation back to where it started.

Originally, the main objection I, and many other individuals and organisations, had against the Copyright (Infringing File Sharing) Amendment Bill was the concept of ‘guilt upon accusation’. While this concept had been removed from more recent drafts of the bill, it has made a return with section 122MA. I must re-iterate my original objections to the concept of ‘guilt upon accusation’ and the fact that this is in complete contradiction to the established laws and legal principles of New Zealand where accused parties are innocent until proven guilty! Furthermore, in established legal principles, the burden of proof lies with the accuser and this should most certainly not be reversed “in recognition of uncertainty about findings of copyright infringement”!
Continue reading Guest post: Letter to Mr Power re Copyright →

commentary, copyright

Copyright Bill Roundup

A round-up of comments and information about the latest report on the Copyright (Infringing File Sharing) Amendment Bill.

First, the report of the Commerce Select Committee (PDF).

We found that the bill raised complex issues around the challenges faced by rights holders in an environment of rapidly-developing technologies, which are changing consumer expectations and behaviours. We have attempted to strike a balance between the rights of copyright holders to have their intellectual property rights protected, and the reality that the Internet has now allowed far greater access to copyrighted works through file sharing.

Continue reading Copyright Bill Roundup →

article, filtering

An Update on Internet Censorship in NZ

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Yesterday Telecom announced that they were joining the DIA’s Internet censorship scheme.

It seems that a lot has happened since we did our last update.

Increase in the number of ISPs

The ISPs using the system are now:

  • Maxnet
  • Watchdog
  • TelstraClear
  • Airnet
  • Xtreme

Telecom are obviously next and Vodafone are also apparently well on the way to implementing it. According to the DIA, “Discussions are continuing with Ihug/Vodafone, Woosh, Orcon and 2degrees. Design changes are being investigated to adapt the system for performance on mobile devices.” However public statements from Orcon have said they have no plans to implement the filter.

Even so, this means that most users of the Internet in New Zealand will be using a filtered connection.
Continue reading An Update on Internet Censorship in NZ →