Saturday, April 05, 2003

CFP conclusions

The conference is over; our transcript of Larry Lessig's speech below. Some health warnings may be appropriate …

Our coverage is very much on the spot stuff; it has summarizations, elisions, on-the-fly rewordings, and doubtless a fair few inaccuracies. Don't use it as a definitive guide. Instead, if something looks interesting, check out the main CFP site for MP3s and streaming of the various panels. We're happy to correct any glitches, and have started to do so already (thanks Bruce).

Finally, David Singer has also been blogging some of this stuff, at this site; check it out - a more analytical take than our own, stream-of-consciousness approach.


Keynote speech


Barry Steinhardt

Introducing Larry Lessig, I'll quote a piece from Wired by Stephen Levy on how Larry came to public attention in the Microsoft case. In the realm of Internet politics and law, no one even approaches Lessig's stature.He is a rock star, and has had the most brilliant career in Internet law, with two books, the Creative Commons project & c.


Larry Lessig

I want to talk about culture, about the criticism that culture permits. Every social system depends on this type of criticism, which, as we have seen historically, is extraordinarily hard to build. The First Amendment protects the press, but the ink wasn't dry before it was being violated. The ideal of freedom in the First Amendment took hundreds of years to build and takes extraordinary energy to keep. We pride ourselves as lawyers on the principles stated in cases like NYT versus Sullivan. But when the Smithsonian wanted to put up an exhibition on the debate about dropping the nuclear bomb, Congress voted unanimously to ban it. This is the struggle that a free society has to keep free the opportunity to criticize culture, and ideals that are dominant within that culture. This type of criticism has historically been free in our society, it is increasingly controlled. The lesson our lawyers fail to teach is that criticism is effective when it speaks a language that the culture understands. In 1969, Archie Bunker appeared on TV. This was an extraordinary piece of cultural criticism in its time, that spread across mainstream television, and defined an era of reflection on who we had become. That criticism was possible then. Today, too, we have that kind of freedom. (Lessig displays the video clip of Bush and Blair in a soppy love song music video – much laughter!) This is cultural criticism too. It's not CBS; it's is made by individuals and spread by technology and a medium that we all respect. This form of criticism teaches us that to criticize requires speech which people understand. This has always been the defining feature of a culture that permits this kind of criticism, a free and sane culture. What makes this freedom possible? In 1969 when Norman Lear had the idea for All in the Family and took it to ABC, he showed them the pilot and they found it too edgy. Lear made a second pilot -even edgier - and brought it back, they told him that he wasn't getting it. The same thing happened again and ABC said they wouldn't run it. He did what he was free to do; he took it to CBS who ran it. This ability to take it to a different channel is a story of how you can exercise artistic freedom. This made it possible for the show to become a part of this culture.

We've spent years celebrating this democratic technology, that allows people around the world to rip, mix and burn this culture in a way that enables criticism. The conditions under which these freedoms were possible are increasingly changing. This freedom from control that Lear experienced is changing. It is changing through an extraordinary concentration of channels of distribution – 80% of music is distributed through 5 firms. In 1947, 80% of newspapers were independent, today it is less than 20%. The number of foreign films shown has fallen drastically. There has been a radical transformation in the structure of the culture that mainstream America can see. These changes have come not just through the market alone but through government action. The FCC 'finsyn' rule controlled content of programming, and was repealed in 1994. It kept a separation between content and conduit. Because of this repeal, in 2002, 75% of prime time television is owned by the networks. The networks who would fire Norman Lear if he tried to make something too edgy; they would own the show. The structure of independence and choice of channels has been changed by changes in the ownership and rules governing television. A critic of the finsyn rule, whom I admire, said that repealing finsyn would put content out of business; all that television seen in people's homes would be controlled by three people, and that the losers in Congress's attempt to control it would be the consumers. Jack Valenti, who was that critic, lost that battle. He recognized the consequences of reducing the number of people who could control the distribution channels. We lost the freedom of Norman Lear to say that edgy is just what we need. Now, fewer people own more and control more of our culture than ever before. Never has there been more control over the creation and distribution of culture.

This concentration goes on in the background of a change in the character of copyright law. My favourite example, which I can't stop repeating, is Mickey Mouse. In 1928, Walt Disney, this hero of mine, developed the character of Mickey Mouse in Steamboat Willy. Steamboat Willy was ripped off explicitly from Steamboat Bill, a character developed by Buster Keaton. This is a kind of creativity, a Walt Disney kind of creativity. We should celebrate this creativity, the ability freely to rip, mix and burn the culture around us, to take from our culture and re-make it, to do to culture today what Walt Disney did to Buster Keaton in 1928. You can only do this if you have a cellphone with EFF's number programmed in. In 1971, another example, two cartoonmakers were banned from satirizing Mickey Mouse, after federal court action.

Why is there this extremism in protection and the scope of intellectual property rights? Bizarrely, it's because there is one thing that popular culture has learned from the digital revolution; it's binary thinking. It's the idea that it is either all or none, with nothing in between – either a totally free market with zero regulation, or total regulation with no position between the extremes. To question the extreme is to throw yourself on the other side, so we always find ourselves supporting an extreme. To question one extreme is to endorse the other. This must change in our debate. We have to stop selling these subtle ideas, weneed to show people something different between these two extremes. Not the idea free beer, but free speech. Not Britney Spears at zero cost, but the freedom to build, to criticize, to tinker and transform, to "Disnefy." This is a core part of our freedom, which has been taken away by this extremism.

I spent a lot of time talking and suing, it's a failed strategy. We're not a culture that understands much through talking alone, and we can't depend much on radical transformation through the courts any more. We need to find ways to build and to show people something different from what they imagine the debate is about. People think there are just two kinds of views out there, either all or nothing in copyright protection. But of course there are people who stand in the middle, who think copyright should protect some of their rights, even if not to the extreme lengths of Hollywood. In the beginning of the internet, we had an architecture that gave copyright holders no way to control their copyrights. It was a world as if there was no protection for IP. John Perry Barlow and others celebrated this. The IP holders quickly responded through litigation, legislation and coding to change that architecture, so that in the future we will have an architecture of perfect control. The default will be all content will be perfectly controlled. The problem is that we are solving for the extremes here, moving from one extreme to another. If people want to live in the extremes, let them, who cares. I've met people like this, they're kind of fun. But they're not all of us – the all control or no control people. Most of us are different from these extremes and live somewhere in the middle, where some rights are reserved. We've got to stop this process of defining the problem as if it were only the extremes, so we can define the middle to show people what the world really looks like. That's the purpose of this nonprofit project called the Creative Commons, which wants to show that most of us are in the middle, to build a layer of reasonable copyright law on top of this insanity. We want to build through this process a balance in the debate based on reasonableness – not through government action but voluntary action. Through the actions of thousands, maybe millions, who will mark their content with these tags and licence their content in a way that says they don't believe in the extremes. The tags go beyond fair use; they say about the content 'go ahead and sample me', 'share me', 'liberate me from my insane author.' So, if we're Communists, we're Jefferson Communists; from the beginning of our tradition, we have had the ideal, set content free. That's how America was before the extremists succeeded in transforming the rules that govern culture.

This concentration is only getting worse. On June 2nd, Michael Powell will be holding hearings. He believes that the world where six companies own everything is still too restrictive and will try to lift the rules on ownership of media. So we will have not six companies but three companies, which will control how content is expressed through the network world. This change needs to be fought, and it has been fought, by journalists, directors of film studios, and creators. They've gone out to say that this change in ownership would be destructive for creators. The NY Times and LA Times have been silent because these organizations are part of the problem. They answer to corporate boards who would themselves benefit from lifting these restrictions. There's unanimity among creators, but there is silence from the traditional channels, and a corruption of this culture of criticism. Our struggle has got to be to free culture, and creators, artists, musicians, DJs, from structures of control that direct how they express their creativity. Not so they don't get paid, but so that they aren't second guessed in their ability to criticize, to free the world from Disney Inc and get to the world of Walt Disney. We don't get there by talking, not by clever legal arguments, but by doing something to express it passionately. This is a time that the culture needs to criticize itself, especially when we are criticized around the world. In my brief opportunity to do something about this, Eldred v. Ashcroft at the Supreme Court, I was asked a question by Justice Kennedy, who said 'Counsel, I don't notice any harm to speech that's been caused by the changes that you are talking about'. I remember having a flash of recognition that there were two ways to answer this. My response in clever lawyer mode was to say that this is not an argument about the effect but about limits on Congress' power. I invoked a long line of authority, that the conservatives on that court had articulated, that supported our case. But at the moment I said this, I had this other flash, which was 'these justices need to get this as passion and not argument, to feel this.' And as I finished the sentence I wanted to say 'Justice Kennedy, it's obvious how this restricts speech. This extension to protect just 2% of creative work for 20 more years of corporate returns locks up everything else. The ability of others to cultivate a culture is silenced' That argument rings in my head every morning that I get up This strategy of just speaking to them in the traditional lawyerly way didn't motivate them. They didn't get it. Not just I have failed to make these issues of free culture salient. Salient to a broad range of Americans who need to see that we come from a tradition where culture was free, and we need a tradition where we free this culture again so that these extremes of total or zero control don't narrow us into a box where the creativity and passion that defined our past are lost. We need steps to free culture now, through your work in expressing the value of free culture, and showing instances of free culture that allow us to reclaim a tradition that we should be proud of, a tradition of resisting control.


Q&A

Nick Gillespie (editor of Reason magazine) – I wish Eldred v Ashcroft had gone your way of course, but I have trouble when you look back to a golden age of Archie Bunker, and say that we're deprived in contrast. I can't see today's proliferation of different viewpoints and media outlets as having less range of voices and perspectives than that era. Does anyone think that there is less diverse TV now than there was then? 10 years ago, our ability to collate and compile different information about what was going on in the Persian gulfwas nothing compared to now. We need to distinguish questions about who owns the means of production from content, but while today things aren't perfect but they're pretty good.

Lessig – I just came from a conference of film makers in St. Louis who say the range of opportunities to get into the mainstream distribution market are reduced. There are of course other channels, that are more diverse. The question is how to get into the channels that 80% of Americans see all the time. If you look at what has happened, empirically not ideologically, you see a homogenization of what constitutes mainstream culture.

Gillespie – there are more opportunities to exit mainstream culture.

Lessig – Reason magazine is a strongly libertarian magazine and strongly supportive of limits on copyright. To the extent that so much culture remains under the control of a small number of actors, that is a limitation on what I call free content.

Audience (community media person) – We've been trying to get this across. Michael Powell has said he doesn't care about our studies, we should just throw away the rules. He isn't interested in creator's views. The FCC's not accountable to voters. Do you have advice on how to make impact on this kind of mindset?

Lessig – there's no persuading Michael Powell on this issue. Period. I don't mean to criticize him in general, he's exactly right on where spectrum policy should go. On that issue, freeing spectrum licencing is a good check on this. You're not going to change Michael Powell. The only possible change is through Congress, to which the FCC is ultimately responsible. The hard question is whether Congress can do anything, with the views of the DC Circuit Court and the Supreme Court on the First Amendment, and on restricting Congress' role. There is some rumbling. The only way to resist that, is to resist Reason magazine's default attitude on that – the attitude of 'show me the effect, show me how we produce a less diverse culture for the bulk of Americans'. Only if you can show that, will it make any sense to talk about media regulation consistent with the First Amendment. Most people don't really care or seem not to think money affects the content of programming such as the news. Getting shows talking about how CNN is great on channels owned by sister companies.

Audience – I am pessimistic, I think that any legal victories will be neutralized by contractual arrangements. Most artists and inventors are bound by contractual agreements.It seems that the Creative Commons is trying to use contract law to benefit artists. What is your opinion on how to overcome the contractual realities?

Lessig – It's a huge problem. 200 hundred years of Supreme Court authority has weakened the constitutional protection for artists, who find themselves having to sign their rights away. I don't think that we can tackle this directly. We need to give artists another way to make money that don't depend on the old way of doing business and we have to stop Congress of using law to reinforce the last century's business model. In the last five years, the Congress has used law to say that the way that the music industry made money in the 1990's, is the way that it must work for the next 150 years. That insanity is the core problem here, and not contract, and it's the thing we must tackle first.

Audience (Mike Godwin) – In response to Nick's question, you said that music and movies are less consolidated than tv. There has been more diversity, because people have been looking for ways to make content more edgy, even as media has consolidated. You haven't commented on efforts to re-architect various open architectures on the internet so far, which have only increased in intensity since you wrote your first book.

Lessig – On your comment, my bias, like Reason magazine, was to believe that ownership didn't matter, and I agree that with lots of channels you can watch C-Span and BBC. This may be sour grapes on the part of creators, but people like Leonard Hill, who has been creating forever, report a big change in the opportunities available to them.

Godwin – It may be that they're being forced to be creative.

(inaudible comment from audience member)

Lessig – On the second part - you're right – the fears that we talked about when I first published Code, was that they would use technology to get more control over the spread of content than copyright law would give them. That's what has happened, and, what's worse, law backs it up. We see no effective limitations on this, either by courts or by legislatures. That's another reason why we have to be worried about concentration of control. We have longer duration, broader scope, broader reach, stronger protection, and concentration in the industry. This has all produced a more restricted free culture. I don't know how new this is that we're talking about it. I went back to the 1993 CFP proceedings, and found one discussion in CFP of copyright issues, something that you said. When you said it, there was a puzzled look from the audience, as if copyright law had made a brief appearance and disappeared. We're in a world where what you tried to get people to recognize as a danger, has become a core source of the danger. But my message is that talking hasn't done anything. We've been writing books, but mainstream people don't see the issue yet. They see questioning copyright as endorsing theft from Britney Spears.

Audience – There is a broader problem; the naïve anti-regulatory libertarian attitude that has taken hold in our political discourse since 1980. Because of this attitude, the only time that regulation is engaged in is when moneyed interests grab hold of the regulatory process and use it for their own ends, as in copyright. Do you agree with this way of looking at this, and are you interested in using your intellectual leadership to attack this broader discourse in our culture of libertarianism and anti-regulatory views.

Lessig – I did think about doing this once, about writing books saying that if you focus too much on this anti-regulatory strategy, you will be missing how different kinds of regulation threaten freedoms. More and more, I think that this is an unhelpful debate. Libertarians and anti-libertarians, both see that this has gone too far, and I want to capture this moment of recognition. In Eldred, the happiest moment for me was that we had not only Reason, but Phyllis Schafly, Milton Friedman, Ronald Coase saying that this had gone too far. That's not getting them to see that libertarianism is wrong. We need to build a coalition that cuts across left-right boundaries. It is not about conservative versus liberal, about libertarians versus statists; it's about a balance in the content of intellectual property, and a set of deeper values that we all agree on.

Audience – Couldn't you form a coalition with other people if you went the other way?

Lessig – If you frame this like the 1960's, like the traditional left-right question, you've lost. If you frame it like that, people won't listen any more. It's not just about that, it's not just Ralph Nader versus Milton Friedman. It's about why both Microsoft and Intel are both more interested in open access to architectures than they were ten years ago. I'm with you in spirit, I've gotten into a lot of trouble for it, but five years down the road, it's not the best strategy.

Audience – coalitions are great. We need coalitions that speak to people. So many people love mainstream TV and Britney Spears, and the companies that sell them? Can you talk to them about their insecurity about technology and the accelerating society? Can we say that we need some of these criticisms, especially at a time of accelerating change?

Lessig – I agree that there are these anxieties. Unfortunately, in the shadow of 9/11, I'm not sure how to speak to them. It's exactly the time that we should be doing this, using the expertise of the people in this room. Building systems that respect privacy, even if we do recognize patterns of behavior that have to be monitored. If we raise the level of discourse just one step, we could avoid the architectures that are being created now, which are much more pessimistic and dark than I thought when I wrote Code. But it is almost impossible to get the level of discourse up there. It has been so hard to get discourse at a high level with regard to easy questions like the IP questions; I'm not sure if I can do it with regard to the hard ones.

Stephanie Perrin – I was reluctant to come to the microphone, because so many Europeans and foreigners here have gone through the experience that Canada went through. Have you looked at this problem abroad? Jack Valenti went around the world in 1980's and 1990's making sure that there was access for US media in other countries. There were wars over teensie little screen quotas in Canada and Europe. The strategies that other people came up with to get access to their own media, books etc have actually worked. These strategies are useful to look at.

Lessig – Looking across the world, we see some of the greatest and some of the worst things. You've talked about some of the great things. On IP, people abroad adopt policy changes that will have no power in changing things. Japan's education ministry is pushing change in the copyright law that would protect old movies. Why is the education ministry interested in that? Mexico is considering life plus 100 years terms for copyright. This will decrease access to people's own culture, while Hollywood is cheaper and available. It seems to be such an easy case, but there is such a deficit of political action. I just don't get why people are doing this. People should resist American extremism, just for this purpose. Sometimes they do, and sometimes they don't; if you can teach us how to get more of it, that would be great.

Update - I've gone through Lessig's speech again, using the MP3 available at CFP, and made various tweaks/expansions.

Friday, April 04, 2003

Plenary Session 14 – can free speech survive the new intellectual property regimes

Jane Ginsburg, moderator


I will start out by explaining what these new IP regimes are, their merits and demerits, and how some are more controversial than others. In 1997, Congress enacted the DMCA.

One obligation concerns the role of communication service providers and potentially infringing material on the internet. The portion of the act concerned with limiting cSP liability for 'mere conduit' service providers who have no liability for infringements done by their service users. Also, CSPs won't be found liable if they cooperate with notice and takedown, and the burden is on the right holder to identify potentially infringing material. This alleviates the liability of CSPs hosting or providing connectivity. The next piece of the DMCA has achieved much attention and opprobrium – protecting access to a copyrighted work or unauthorized copying or distribution of a protected work. This makes it illegal to engage in circumventing access control, or to sell, distribute or offer a device (software) designed to circumvent access control. It also applies to anti-copying controls. The DMCA address those supplying the means to circumvent access control, not the perpetrators. The copyright management information (not the same thing as DRM, digital rights management, a broader idea which includes rights controls) provision makes it unlawful to remove or tamper with the information that identifies the work's author or other information related to its copyright. In implementation, a relevant case construed copyright management information provisions as not protecting against framing that obscured some information on the framed website. The best known case involving mere conduit is the RIAA v Verizon where RIAA sued to find out the names of Verizon's customers who were alleged rights infringers. There was also the Harlan Ellison case, where Ellison sued AOL because a few over-enthusiastic fans had put his novels onto chatrooms. Ellison lost (discussion of legal niceties).

I leave to the panelists to discuss the cases involving the most controversial provisions of the DMCA, those related to the anti-circumvention devices. I note that in the Lexmark case, I said that this was an egregious overstatement, and that the lawyers involved should be censured, just before the decision came down that their arguments held.

Chuck Sims

These immunities were introduced partly to facilitate the spread of computer technology, had the income streams of the conduit streams and the host streams been endangered. The provision is devised as not endangering First Amendment interests. I think it's a net gain for speech interests. The provision that has received most attention in the circles of people in this room is I am a lawyer who defended the statute in a Second Circuit, and a three judge panel agreed unanimously that the statute was not constitutional, and was perfectly consistent with First Amendment interests. I think it's useful to go back to the provisions of the copyright clause in the constitution, which explains why Congress did what it did. This is the word "securing," the exclusive right to authors' respective works. This is not only to allow income streams, but to secure them. The reason that Congress enacted this in 1998, after WIPO, was because these streams of income, which have been in place for a few hundred years, were increasingly insecure. It was precisely the leakages caused by incredible advances in storage technology, in copying technology, in allowing copied works to be spread across the world that meant that these streams were in danger. I'm sure that the amount that has been lost in the last five years, was greater than in the last few years. The motion picture industry, the book industry etc, were withholding their works from the market; they said that we need protection, or we won't be able to build these things. We can't make our work available digitally, because once we send one out without protection, the income stream that we're entitled to get will be instantaneously lost. One only has to look at what's happened to the recording industry over the last few years to see what's been lost.

Most arguments that are made against the DMCA misunderstand it. People say that the DMCA abolishes fair use, undermines fair use. A recent case rejected this argument in the same terms as the Second Circuit, but more pungently. He said that while certain fair uses may be more difficult, no fair use has been prohibited. People can criticize, comment and review as they have always done. There are great paintings by great painters in our living rooms, and we have rights to them, but nobody has any right to go into someone's living room. When I grew up, before VCRs and videocassettes, there was the same right to make fair use of movies that there is today. But it was a little more difficult, because the technology wasn't there; MGM would only release Gone With the Wind every five years, and you weren't allowed to bring a camera in to the theatre. Did this mean that your First Amendment rights were violated, because you couldn't bring a camera in? There wasn't a First Amendment problem – fair use exists within whatever access the content holder chooses to provide. Every judge who has looked at the relevant portions of the DMCA has upheld it. I stop there; this interferes with what people want to do; with what's convenient. But we have laws to secure the income streams that the constitution says we have to secure.

Yochai Benkler

Let me start by showing you what it is that we're talking about (commences short video clips from McDonald's Ad, Star Trek etc on big screen). We've spoken for twenty minutes and Eldred has not been mentioned. This is the fundamental divide between those who think it is about whether free speech can survive given intellectual property regimes, and the people who want to discuss the specifics of intellectual property. The constitution asserts rights less heavily when people want to define other people's speeches. There is more freedom to make your own works, than to use the works of others. This is the highest protection of speech. (another video showing Michael Jackson). This is the core of speech, what free speech is intended to protect. This is less important (satirical video showing George W. Bush as rising sun turning happy little bunny rabbits into fireballs, that uses images from C-Span and the Teletubbies). When we start with the First Amendment, we have to remember that one man's vulgarity is another man's literature, that how you say something is as important as what you says, that a law that says that you cannot use certain words are is a restriction of free speech. This is how these provisions limit the First Amendment. Any law that tells you "use a different word, use a different image," is a law against free speech. If you are told to use a different image to protect the rights of Britney Speech, this is against free speech. So we should not start from the law. So we have just had a decision in Eldred which is a wrong decision, a weak decision, an interpretation of the First Amendment that cannot hold in the long term. What is unstable about it, is that it says that as long as Congress doesn't change a statute too much, you don't need First Amendment scrutiny. But there is a paradox here; you need First Amendment scrutiny to determine this. The First Amendment first of all requires fair use, as established in Harper v. Row, and the Court has said that Congress can't change the traditional contours of copyright. So the battle is over what the traditional contours of copyright are. You couldn't make a copy of the picture in the theatre – that was technology. But what is preventing you now is law, and law has to be justified. What is really at stake is a transformation. For 150 years we have seen a concentration of production of information around the owners of capital. But digital technology means that everyone can take, cut and paste information, and pass it on to everyone else. It is a phenomenal freedom, but it challenges a basic business model. The industrial giants, who built a model based on passive consumers, aren't going to go quietly, and they're fighting.

On an optimistic view, the situation is slightly less stable than it was before. These people now have to defend this as traditional contours of copyright, which is difficult. There is also a political movement building up. Finally, there is a cultural movement seeking to circumvent this; people are beginning to develop the habits to make their own and to share it around the owners of capital. And that is promising.


Ginsburg - The Supreme Court has continually said that the dichotomy between free speech and copyright is a false one; copyright makes it worthwhile for people to be authors. Is this a false or real dichotomy?


Sims – I think it is a false dichotomy. One good example is whether this country should be at war. Has the DMCA had any conceivable impact on public support, the one way or the other, the arguments that can be disseminated, the formation of groups and power one way or the other. It has nothing to do with that. It is an infringement to take Chomsky's work or Ken Pollack's work and to put it all on a website, saying this is what we should do. Benkler thinks this a violation of the First Amendment; I think it's not. Just because you can't put this up, doesn't violate the First Amendment. There isn't a violation of free speech interests.

Benkler – There are two separate arguments. The first is whether copyright law affects the war on Iraq. This is saying that the inability of people to use copyrighted materials affect their discourse. But the First Amendment is about the freedom of people to express themselves as they are. It is about individual expression, just as much as it is about democracy. If I want to use a set of copyrighted materials to express myself as I am, and I am not allowed, this creates a tension at least with the First Amendment. I don't want to get rid of all copyright; no-one seriously suggests that. Just as people who criticize the contours of libel law because of the First Amendment aren't saying that we shouldn't have a libel law. I am not saying that copyright is constitutional, but its contours must be governed by the First Amendment. You must justify these contours, by discussing how they affect the right of people to speak as they wish. I have no doubt that copyright law helps speech – whether 75 years of protection is necessary is another matter. Whether the DMCA is necessary is another.

Ginsburg – Yochai, you gave a clip, which didn't violate the First Amendment, because it clearly uses parody.

Benkler – What about the second clip?

Ginsburg – It was a parody too.

Benkler – You need to know the law, one way or the other; that is already a constraint.

Ginsburg – If it makes intuitive sense, then it's probably fair use. On matters like parodies, in other words transformative use, where you make something more of it, this is privileged under copyright. How did you make that clip. What if the material you wanted to use was protected technologically? You may have had fair use right, but not been able to use it. The courts have said that fair use need not be used in the most convenient manner, and we are not yet in a world where everything is locked up digitally. But let's say, it gets harder to find the unprotected analog copy, you might be in the position of not doing it, where we would all lose, or in fact violating the law. The law will let you do that, but it won't allow you to buy a device that would allow you to do that. The actual act is fair use, but can you do it without the device. This is where the tension is, and where the test will come, if we get to the point where exercising fair use is not only not convenient, but presents a serious burden.


Audience – In one free speech case, the court claimed that Congress can criminalize software. What do you think?

Sims – The Second Circuit simply said that if Congress can criminalize hardware, it can criminalize software. Just like it can criminalize burglary tools, it can criminalize software intended to steal.

Audience – Deeply technical legal question – hard to summarize well.

Audience – Benkler's difficulty with showing the clips shows that we do need access to technology to express ourselves.

Benkler – The question of code as speech is a hard one as a practical and First Amendment matter. I think that the position that code is free speech is problematic, but it is also problematic to say that code can be regulated. I think it should be more regulated by the First Amendment, than at the moment where it is copyright law. Regarding easy usability, this is not the problem. The problem is prohibiting people from using images as they can. Where image and sound mesh with text, quotation is prohibited, because the only way to quote video is by streaming to a corner. We don't have to wait for complete lockup in order to enforce the justification of law.

Audience – copies given to individuals do not usually represent lost sales as David Boies said in the Napster case.

Sims – David Boies lost the Napster case. You're not living in reality if you think this. There are huge numbers of lost sales; the traditional markets of the record people are being drained quickly. We're living in a world where everything that Al Jazeera is saying is available. People are criticizing a possible future world, which no-one who looks at things seriously thinks is going to happen. It's not in the interests of copyright holders to have complete lock-in.
Plenary session 13 – keynote from the right and left, Former Rep. Bob Barr and Rep. Jerry Nadler


Barry Steinhardt

I want to take this opportunity to thank the organizations who made this conference possible, and some of whose representatives have been at this conference – Microsoft, Hewlett Packard, Yahoo, IBM, the Markle Foundation, OSI, Public Voice and the ACLU.

Now, to introduce Congressman Nadler, my own Congressman, who is serving his sixth full term, first elected in 1992 after 16 years in the NY state assembly, and has emerged as a national leader on civil liberties issues. He has been a defender of individual rights and religious freedom. He has been said to epitomize liberalism as it is supposed to be.

Congressman Barr is my favourite conservative Republican member of Congress. We are proud of our work with Congressman Barr on a number of issues, and on some others we can agree to disagree. William Safire has described him as Mr. Privacy. He has a chair on privacy at the American Conservative Union. He is a board member of the Patrick Henry Center, and is on many boards and a frequent contributor on these issues around the country.


Congressman Nadler
Congressman Barr, with whom I've differed over the year, has been an ally on privacy issues – this is not a right/left issue. In times of crisis, people view this nation's fundamental liberties as a threat to security, but these liberties secure us against threats. There is a pattern to this; we have always harmed our own liberties during times of crisis, apologizing for it 20 or so years later. The historians have always found that we didn't need to do what we did.

Some curtailment of liberty may be needed but just accepting it at face value is wrong. We get less of reasoned arguments and more ad hominem attacks on critics of these measures, and this does not serve our nation well. On the Patriot Act, when Ashcroft spoke to the Senate committee for one hour, the Attorney General never provided satisfactory answers to the questions that provisions being sought by the government would not have helped prevent 9/11. Even more worrisome, the House approved these encroachments on liberty without getting answers to these questions. The Judiciary Committee, probably the most ideologically divided committee in Congress, managed to come up with a consensus draft of the Patriot Bill. This agreement was achieved by a bipartisan coalition which protected civil liberties and was agreed 36 to nothing. The bill disappeared over the following weekend, and the DoJ came up with a completely new bill. This was presented to the House (227 pages in print that was warm to the touch) on the Wednesday, the debate was at 10am and the vote was at 1pm. Some said you can't deal with a bill of this size and sensitivity without it being properly vetted, at least overnight, for example by the representatives, lawyers, ACLU, etc. The Chairman of the committee responded to my raising this point by saying that these ideas in the bill had been around for some time and so didn't need a full debate. The ideas had been around for a time, but we had to vote on the basis of summaries and it was unacceptable. Organisations like ACLU, CDT, EPIC and others did lots of work on the Senate subcommittee bill but it was binned.

There are rumours that the DoJ is drafting a follow up bill to the Patriot Act. A Senate committee asked if a bill was being developed and was told it was not. Shortly after, a draft proposal was leaked to the press. Why deny you are drafting such a bill? My conclusion – this is to keep the bill secret, wait until another attack or crisis (or perhaps until the war with Iraq had started), and then introduce the bill and say we have to pass it tomorrow and can't wait until the day after, ram it through sight unseen saying lives will be lost otherwise. My thanks to the brave person in the DoJ who leaked the bill. When or if there is another act of terrorism (and it will happen despite our safeguards) the panic will open the door for unjustifiable breaches of our civil liberties.

The Total Information Awareness programme. People here know the problems with that programme and the Patriot Act. This will mine information from a variety of sources – anywhere you leave an electronic trail, credit cards, bridge and tunnel authorities, phone companies – looking for patterns of activities and will allow for unrestrained intrusion of the government into citizens' information without warrant. It means intrusion first and accusation second. Senator White (sp?)'s report would require a 90 day delay clause against non-US citizens and against US citizens, further permission would be required. We need to put a complete stop to this until it can be adequately reined in. There is the government's CAPPSII program to flag suspicious travelers and label people without them knowing it is moving forward. This would stop people getting on a plane (without their prior knowledge and on the basis of secret information) without due process. This goes well beyond screening passengers and stopping them from bringing dangerous implements onto the plane. There are also concerns about data sharing between law enforcement. Military agencies do not have the same restrictions on data sharing and access as law enforcement. These barriers are being broken down and threaten the legitimate right to privacy. Bob Barr and I proposed that there should be a privacy impact statement for every proposed government policy, in the same was as environment impact statements are required in other areas. There is no harm in thinking about things before you do them, and instituting this as a matter of process.

Finally, the presdent has made an unprecedented claim to detain individuals without lawyers, habeas corpus, judicial review, nothing, based on some secret information. People can be thrown into jail incommunicado for ever and this applies to US citizens and non-citizens. You have no means to challenge the detention. The magna carta said the king cannot arrest and hold someone without saying why. We've had two recent and terrible court decisions. The fourth circuit court said it has no way to hear a habeas corpus claim over prisoners in Guantanamo Bay because it has no jurisdiction. Here in NY a couple of weeks ago, an alleged enemy combatant was arrested at the airport – the government was said to be allowed to hold him indefinitely on the basis of having some evidence, for example a phone call from a jilted lover. This is unprecedented since Magna Carta. If a person is a prisoner of war, they may not have habeas corpus but they do have rights under the Geneva Convention, but the government is saying they are not prisoners of war.

We have problems of privacy and also basic, core problems with the concepts of the liberty of the individual.

Rep. Bob Barr

Thank you Jerry, and also thank you to the ACLU and people here for their work on issues regarding freedom and privacy. About three years ago, I asked a chairman of a subcommittee to hold a hearing on the right to privacy. But because the word privacy does not appear in the constitution, my chairman said we could not hold a hearing on it. But, even thought the word does not appear literally, it is an extremely important concept on which the constitution and the bill of rights are based. Privacy is one of the keystones of civilization. Ayn Rand has written on this and says the difference between a tribal society and a civilized society is that we as individuals do not live communally and are entitled to privacy, ownership of private property and intangible things like ideas. If you fast forward from the fundamental concept of privacy and private ownership of assets to the eighteenth century, and look at the thinking and wording of the bill of rights, you see that privacy is implicit, subsumed and presumed in the bill of rights. If there is no right to privacy then why would you need a fourth amendment? Why would you want to stop the government from invading your home and your things unless you thought privacy was fundamental? Secondly, the idea of the right to have freedom of thought and speech, keep and bear arms (and you can argue about the extent of that), but the notion implies a fundamental concept of private ownership and access that is protected from the government or the collective body. Therefore, when we talk about privacy, we are talking about one of the most fundamental concepts not just of representative and democratic government but of civilization itself. Privacy is fundamental to freedom.

The concept of information is also extremely important. Just as industrial wealth, military strength etc. were indices of national power in the 19th century, information is an indice of power in this century. Information is power. Access to information, the ability to accumulate information, these allow you to have power and influence events. The ability to protect information and keep it private is a fundamental counterpoint. I really appreciate the work the ACLU and CFP people are doing to protect this information and promote the discussion of how we should protect freedom.

When you look at the legislative process of the Patriot Act, and go back to the Oklahoma City bombing in 1996, then the attacks on 9/11 you see there are immutable laws operating. No matter how much power government has, it always wants more. Secondly, once government takes power or you give power to government, it never gives it back. You rarely if ever get a second bite of the apple so you must get it right in the first place. Privacy is an expendable commodity and there is a limited amount of it out there. When government gets the power to access information, it takes it from one place, the people, taking power over information away from us. Executive branches, republican or democrat, hate oversight and will never voluntarily surrender to it. You have to bring them kicking and screaming but it is essential. Congress has not shown itself willing to do oversight in a meaningful way. Another immutable law is that the Executive Branch never admits error. In all my years I never heard of a federal person coming after a terrible catastrophe and saying we made a mistake and we will do a better job and come back here in 6 months to tell you how. I've yet to hear any witness take that approach. They come forward and say yes there was a problem but it's the fault of Congress because you did not give us more power or money. That almost always happens and it's unfortunate because it never gets to the root of the problem and gives government more power. You never know if the existing power was being used properly and if there really is a basis to give the government more power. A couple of years after the Oklahoma bombing (and that was followed by new legislation) the TWA flight went down over Long Island. Before we even know what had happened, we had people in Congress, on the Sunday talk shows saying it had occurred because insufficient powers to fight terrorism had been given. Thankfully, cooler heads prevailed, but that is the initial reaction we see in almost every instance. Then in 2001, the 9/11 attacks were followed by the Patriot Act. Jerry was kind in saying the proposal was rushed through with very little hearings, in fact the administration wanted there to be no hearings at all. So at least we had some limited opportunity to vet the issues though questions were unanswered and still remain unanswered. We still don't know if the government has been able to absorb the powers and moneys that flowed from it. Now Son of Patriot has been proposed. I direct your attention to the analysis of the leaked draft on the ACLU website. New and frightening questions are raised with respect to surveillance, the Foreign Intelligence Surveillance Act, abilities to consider groups as terrorists when they have nothing to do with terrorism, international or domestic, but that are protesting issues the government doesn't like. We hope CAPPS II will be limited somewhat so it doesn't become a TIA equivalent that peruses all your various types of data before you get on a plane. CAPS II would be very inefficient, costly, and without justification for doing investigations without probable cause. These are not good approaches to fighting terrorism. To prevent this, we need to stay in contact with our congressmen, with organizations like this, to communicate our concern with what is going on. Jerry is a fortunate exception, but most congressmen do not pay attention to these concerns because they are not hearing it from their constituents. I spoke to librarians yesterday to tell them to tell their representatives know of their concerns (and those of library users) about the right to privacy in this context. If representatives hear repeatedly and over a period of time about these issues, we will be able to get hearings and get them to the floor for a vote. But what we have now is a knee jerk reaction and the problems are getting worse and worse rather than resolving the existing problems. Please, don't just work on these issues just during these conferences. It is a constant process of communicating these concerns to representatives so we can get good oversight, good hearings on these issues, on these fundamental issues that are changing the bill of rights and how we operate and perceive ourselves in our society.

Audience – there are concerns that banknotes will be equipped with tracking measures.

Nadler – I haven't heard anything about this.

Barr – I've not heard anything about it.

Audience (rep. from N. Dakota legislature) – I can't imagine measures like what happened in Congress and the Senate on the Patriot Act happening in the N. Dakota legislature. Didn't you object enough?

Nadler – Some of us were screaming at the time. I voted against because of the provisions and the process. The Chair said the ideas had been around for a long time as I said earlier. The rules of the house provide that you can't vote on a bill that hasn't been around for more than 24 hours. But as a matter of practice, every rule I've seen since I've been there is that all points of order against the bill are waived. When I was in the NY legislature, we had a measure that a bill couldn't be voted on in under 3 days unless in case of an emergency. I think we ought to have more iron clad rules. 66 members of the house voted against the bill, some because of the process.

Barr – last year we had a bill related to airport security. While we were waiting for the bill to come to the floor, I noticed a provision that had been added giving airport security personnel the power to arrest. That worried me and we were able to get it taken out, but if we hadn't noticed it at the time, it probably would have gone through. Not only would we have had the problems we've already seen with these personnel but they'd have had the power to arrest people on the spot. It's a problem and both parties to do it.

Nadler – it's not just terrorism related bills. The budget was also put together hastily and with several billion dollars of individual projects. It was a 3000 page bill. A number of provisions for the home district of the ranking member of the Appropriations Committee were left out because a page fell out of the bill on its way to the printers.

Henry Farrell – I am impressed by your commitment to privacy but I didn't hear any mention of the effects of US administration policy, and bills passed in Congress on the privacy of individuals outside the US. I'll give three examples. Europe and Canada have to share airline data without the protections of CAPPSII; the administration has pushed for criminal data sharing without safeguards, and Patriot means that non-US citizens will have to have biometric identification to come into the US. Are you concerned about this at all, or does US lawmakers' concern for privacy and liberty stop at America's borders?

Nadler - Privacy is a fundamental right and applies to persons not citizens. I think I did mention that the bill I proposed on the TIA says you can't do it, period. I thought that the final proposal was a step in the right direction, though the measures are prohibited for Americans but not foreigners. I was not aware of these particular things you just said. Very often we're not aware of the implications, and that's a general problem. If there are problems for people who want to come here but aren't here now, then we don't hear about it. I also said, I think, that I'm opposing a bill that I find obnoxious beyond belief that the US would exercise power in a geographic area (Cuba) but not have to look after rights.


Barr - There are ramifications to your question but things we have to keep in mind. Privacy is worse in countries you mention. Biometrics and video surveillance is worse in the UK. Privacy is a problem everywhere. There are many instances where we ought to be more sensitive and we'll do better on fighting terrorism if we operate in an international context. There ought to be much more coordination and look at what we're imposing on other nations, in terms of developing international protocols, etc. Secondly, I agree with Jerry, privacy is an underpinning of civilization globally and should be looked at in a global context. There are also some things that every nation has a right to do, notwithstanding the fact that other nations may not agree with. And this might have to be done very quickly and implemented very quickly, such as manifests on international passengers into this country. And it might not be appropriate to wait till every country has agreed, for months and months. In terms of long term loaws and regulations, though, it is appropriate that we pay more attention to the international and global ramifications and coordinate with other nations. That will result in better coordination.

Nadler – let me add. The US is at war with terrorism, not just Iraq. The US has a right and duty to protect its citizens. There is no human right to come to the US. We have a right to inspect ships etc. we have to debate openly and clearly how to balance the privacy concerns, not in haste but we do have to address those concerns.
The Stupid Security Awards

Simon Davies

These awards had their genesis in an encounter I had at Price Waterhouse Coopers. We had to line up, with very rude security guards, who demanded ID and were pretty aggressive. When we passed through, I was given a piece of red paper in plastic, that I could have gotten duplicated at Kinko's. There wasn't any real security; it was just an illusion. And this happened at this hotel as well, where we were asked for a photo ID. Someone asked for a pair of scissors here, and was denied, because they might be a security threat. And a sewing kit would have been a weapon of mass destruction then. So this hotel gets the first honorable mention in the stupid security contest.

Many of these stories fall into several categories.

There were two contenders for most egregiously stupid rose head and shoulders above the rest. A mother was flying Delta from JFK; and had three bottles of breast milk. Security demanded that she drink an entire bottle of her breast milk to show that it wasn't a security threat. This gets the most egregiously stupid award. The second contender regarded a bottle of cologne in Philadelphia. He was asked to show that it wasn't an obnoxious chemical. He tried to demonstrate it by spraying the cologne in the air. Here's where it gets strange. The airport filed a code red hazardous materials alert, bringing haz-mat people in. They brought people to the emergency room, which was quarantined for three hours. Some cops went to a doughnut shop, which was closed for 24 hours. Eventually it was verified that it was cologne, and the Saudi student was released without charge.

The most counter-productive award. Shortly after Richard Reed tried to light his shoes, a passenger was singled out for further examination. He was told to take off his shoes; he did and the security guy slammed them down on the floor. Since they didn’t explode, they were identified as OK.

The most inexplicable security award is for San Francisco general hospital. Because there were so much security hassles at the front door, people started to use the side doors, which were left unguarded as an alternative. So people started to stumble aimlessly around, looking for someone to help them.

The BBC implemented a cosmetic security service – I gave them a bag, and they handed it back. I asked them to check the sideflaps, and my coat; if I was going to be harassed, I wanted to be harassed properly. The security man refused; said that I would be harassing him if he didn't stop.

The most intrusive security search. There is a pattern whereby busty blonde women are being singled out for exceptionally intense searching. But the opposite happens too. In Michigan correctional facilities, they are demanding that any woman entering the prison has to wear a bra. So a woman wrote to a physician, saying that she couldn't wear a bra, but had to see her husband. So the physician asked the prison why the rule was imposed. This woman, after two medical certificates, and a call from a physician, was finally allowed to see her husband. We give them the most intrusive award.

We're getting a lot of nominations from pilots. A BA pilot says that whenever he reports to work, he is searched as rigorously as any passenger. He can't bring a nail clipper, for example. At one airport in Germany, the air crew has to do a semi strip and then get back on a bus. But the bus crew isn't searched; because of a union rule. Once I am on the airplane, I have an axe behind me, which I can easily use to kill the other pilot. Or I could just point the aircraft towards the ground on takeoff, killing everyone on board, if I was too lazy to inflict mayhem with an axe.

There are many of these stories, that we want to publicize. The consequences of confiscating barrels of nail clippers, when they can just walk a few yards to the duty free after the check, and buy new nail clippers. There are hundreds and hundreds of these stories; we will try to put them up on the website. We are not enlightened, but rather terrified. We'd like feedback as to how we can use this to get a reaction from the security industry. We might be able to take legal action against illusory security. We hope that we will have many of these awards in the future.


Plenary Session 9 – Data retention in Europe and America

This was the session Henry was chairing and Maria was also speaking at. Marco Cappato (member of the European Parliament), Ian Brown (Foundation for Information Policy Research, London), and Cedric Laurent (EPIC). More later …

Gus Hosein (Privacy International, London)

The US cannot fight terrorism alone and is actively seeking the cooperation of other governments. John Ashcroft, the great diplomat, is going around to other countries to gather support, saying the enemy of terrorism is information. Definitions of terrorism differ. Policies differ also, and some countries such as the UK want to lead the world on these issues, for example by being the first to legislate on internet interception and surveillance. The Australians are using the Council of Europe Cybercrime Convention to say they need access to encryption keys even though they're not signatories to the Convention, and the Convention doesn't require it.

The UN, NATO, and the Council of Europe all passed resolutions or similar measures exhorting nations to fight terrorism. The G8, in Canada in 2002, made recommendations based on previous work on counter-terrorism and electronic communications. APEC and the African Union released statements and conventions on combating terrorism. These are not without controversy. ASEAN tried to come up with a treaty, the US was involved in the negotiations; ASEAN countries objected to the US messing around with their countries' sovereignty and the proposal was dropped.

Cooperation is not immediate nor is it easy. For example, Germany initially refused to assist the US in a specific investigation because the suspect might eventually face the death penalty, but later agreed although there had been no material change in the situation. In October, we heard that the EU was negotiating a secret treaty on sharing criminal information, but we haven't heard any more about that. The Germans are now actively assisting the Americans. The Japanese are not cooperating as well, and are refusing to extradite Fujimori, who is a Japanese citizen to face possible charges in Peru. The EU was discussing a definition of terrorism a little while back, that potentially covered protests by globalization protesters and others. Canada had a problem in November 2002 when it was discovered that Hezbollah was not on its list of terrorist organizations. The Foreign Ministry said Hezbollah was a political party in the Lebanon and so should not be on the list. But, a few days later, responding to a newspaper story on the organization promoting terrorism in Israel, Hezbollah was put on the list. However, the statement that Hezbollah had been promoting terrorism was found to have been fabricated by the journalist – nonetheless the organization stayed on the banned list.

The US has to make some unlikely and unpleasant allies. The US recently put several Chechen organizations on its own blacklist, while claiming this was not being done to gain support from the Russians for the war on terror. In Morocco, 3 Saudis were jailed for an Al Qaeda plot for 10 years, despite the fact that their defence argued that the suspects had been tortured. US moves to secretly transfer suspects to countries that practice torture have also been reported.

The situation worldwide is not entirely bleak, there is some hope. For example, a law passed in India on preventing terrorism has been revisited. Sunset clauses in the Canadian law and the Patriot Act are chances to make up for the lack of input into the original legislation.

Different countries are coming up with their own anti-terrorism policies, but there is an underlying pressure from the US driving them and also the international organizations. It is no longer clear cut to see where policy is coming from. The biggest challenge is to see where and when does national deliberation take place. If policies come from abroad, when do we have a chance to influence them?

Tracy Cohen

Starts with the OAU convention on the prevention and combating of terrorism, Algiers 1999. Regional anti-terrorism conventions and agreements started to emerge in Africa in the 1990s. These efforts pre-dated September 11th and are linked to broader African Union goals of developing peace and stability and general economic development. They try to link broad and endemic problems of organized crime (drug trafficking, arms dealing) in the continent to developments on terrorism globally.

The OAU Convention was drafted based on a UN resolution 1373. A plan to operationalise it was drafted in Algiers in 2002. It promotes multi-lateral cooperation between states, forestalls terrorism and provides a framework for cooperation between African countries. States can legislate domestically to implement it and also set up processes to do mutual legal assistance. The definition of a terrorist act is quite wide-ranging and could be used to criminalize legitimate protest. There is an exemption for liberation and self-determination struggles in relation to colonial, occupying or aggressive forces. The Convention came into force at the end of 2002 and its implementation is contemplated in a plan of action also drafted in Algiers in 2002. The plan of action gives more specific steps to be taken – greater border control, prevention of financial crime, and a criminal database, computerized monitory of entry of all individuals, and more.

There are policy issues coming out of this Convention. It will become increasingly difficult to keep domestic laws isolated, and to stop a race towards the bottom from happening. Domestic laws usually have an overall scope that encroach on constitutional rights of speech and association, and often have lower standards of proof. There are implementation issues – for example in border surveillance, where the only country capable of adopting the provisions is South Africa, in the absence of population lists and fully fledged passport systems in most countries. Mutual legal assistance is supposed to be carried out in compliance with national laws, but there are very different notions of what the rule is, between states in Africa, and with states outside Africa. We have to be sure that the rubric of terrorism is not used to extend state power and squash dissent. Mugabe has used the term of terrorism to justify measures against the opposition in Zimbabwe. More hopefully, there is the possibility of some steps to protect human rights.

Toshi Ogura

The definition of terrorism may vary and has different usages. I will speak about the global context of terrorism in Asia and Japan. It is strongly influenced by global measures against terrorism. In October 2001, APEC issued a statement offering support (especially on transport security and financial data) on fighting terrorism. There is also the Council of Europe Convention on Cybercrime and the OECD's work. Based on this international consensus, the Japanese government follows. There is new legislation implementing the Council of Europe convention, with measures on hacking, virus, data preservation and others.

Secondly, there is the human rights aspect and also law enforcement and human trafficking. Human transportation and money transfer are targets for government control. The consequences for human rights are significant. Human trafficking is a disastrous crime, particularly against women and children, and is extremely difficult to deal with. Governments seemed to overlook it. After 9/11, governments including Japan became more involved in human traffic control. 9/11 has been used as a means to strengthen immigration control and the victims of human trafficking have not been helped. The human rights of others which may be violated by the greater controls also need to be considered. The airport security system in Japan needs to be considered. There are two major international frameworks for airport security post 9/11. Based on them, Japan has taken measures and is strengthening control of passports and visas with new legislation. Japan is also introducing APIS, Advanced Passenger Information System, which shares this data between participating governments. CCTVs in airport public areas and check-in procedures have also developed. Face recognition technology has been incorporated into the CCTV system.

I would like to emphasise the human rights aspects in all these issues.

David Banisar

I will summarise anti-terrorism legislative and policy developments in Europe. I live in the UK these days. 'Europe' is a very varied place – 50 countries, 40 languages, countries that have centuries old democracies and others that have been democratic for only a few years. There are also very different legal traditions. Many countries have also had terrorism laws for many years because of existing problems, for example the UK and Germany so this isn't a new phenomenon for them. For some, the laws haven't changed as substantially as in the US with the Patriot Act, and you don't have the same levels of constitutional protection and the Supreme Court to appeal to as in the US. The European Court of Justice has 40 years or so of experience, but not as much as the US Supreme Court. The civil society groups are not as big as in the US, for example the ACLU. The policies are set by Justice and Home Affairs ministries and the European Parliament still does not have as much power as Congress or national parliaments have. There have been new laws in many countries.

In September 2001, the EU decided to move forward on the European Arrest Warrant so that alleged criminals could be moved between states without cumbersome extradition procedures. A shared definition of terrorism was also produced by the EU. Europe also deals with a far greater number of amnesty seekers and refugees than the US and this is a big concern in the UK. Restrictions on banking havens and banking secrecy are under pressure in Switzerland, even though it is not an EU member. Changes in wiretapping laws have occurred, with the continuation of CALEA's influence across Europe. Interception and traffic data seizure have been made easier, with less or no judicial involvement. Switzerland, the UK, France and others have all adopted data retention laws in the last few years, and the EU was pressured to remove protections against data retention last year by the US. In many countries, the law has not changed, but the authority and funding available for agencies fighting terrorism have been increased. We thought we had the cybercrime treaty on the ropes, then September 11th happened and everyone signed within a couple of months. Fortunately, only a tiny number of countries have actually adopted it. On cryptography, sharing of DNA profiles and fingerprints under Schengen, identity cards are being proposed in the UK and Netherlands – many new policies, laws and restrictions.

In the US and Canada, we have seen great government restrictions on government information available. Nonetheless, to finish on a positive note, a dozen countries have adopted freedom of information laws in the last couple of years.

John Wadham, Liberty, UK

The UK has had anti-terrorism laws for some time and they're getting worse. Liberty is the smaller UK version of the ACLU. When we were first set up in 1984, one of our first reports was on anti-terrorism legislation relating to Northern Ireland. The government is trying to consolidate its legislation on anti-terrorism, specifically in the Anti-Terrorism, Crime and Security Act 2001. If people come together to commit criminal damage, they can be labeled as terrorists if their motives are political or religious. People detained for questioning on ordinary decent crimes – murder, rape, etc. – can be detained for 48 hours, while those suspected of terrorism can be held for 7 days without charge. It's a criminal offence not to tell the police. It's a criminal offence if you do not disclose information about money laundering. Once the new provisions came in, we saw new data issues as well as data retention – data sharing between the Inland Revenue and the police. A lot of the legislation's new powers do not specifically relate to terrorism but to crime generally. The legislation is not restricted to data issues, but is also about free speech. The previous legislation banned some political organizations, mainly groups related to political causes outside the UK. But it is even an offence to profess to be a member of a particular political group. So, if I was to say I was a member of Hamas, even if it wasn't true, that would be a crime in the UK. If you organized a meeting for me to come to and profess to be a member of an illegal organization, then you too would be committing a crime. Internment, or detention without trial, is a huge issue.

There are now 13 people who are being detained who were detained in December 2001. They are not only not going to be tried, but the process of their detention and internment means that the information against them is being withheld. These people have been detained for 18 months. That has been justified on the basis that there is an emergency. In October 2000, the UK adopted the European Convention on Human Rights into national law. It's not got the status of the US constitution but it is a good measure. However, the UK opted out of that Convention on the basis that there was an emergency to the life of the nation. The problem for the people who are detained is when will this emergency stop? When will we know that the threat to the nation has finished? Foreign citizens can be detained, not British citizens. The consequences are that people are being detained not for something they have done but for something that some people think they will do. Liberty has challenged this as it is discriminatory to bring in internment powers on the basis of whether you're a foreigner or not. Unfortunately we have lost in the Appeals Court and now it is going to the House of Lords. This is a scar on the constitutional process and on human rights process in the UK.

Q&A
Audience – do you agree with the definition of terrorism being used?

Tracey Cohen – Which definition? The OAU definition was laundered from South Africa to the OAU. I disagree with its use because it will probably be struck down by the courts in South Africa. For example, if the unions have a strike in Johannesburg that disrupts traffic and inadvertently causes damage to property, then they could be called terrorists. This is not likely to stand before the courts.

Toshi Ogura – According to Prime Minster Kozuimi, an individual who planted a bomb is not a terrorist, but others have accused him of being one. The definition of terrorism is subjective so it is very difficult to define.

John Wadham – I'm not sure that I accept that it is necessary to have a definition of terrorism if the consequences are that people involved in offences with political motivations have less rights. This is not just because it seems logical and not discriminatory, but in the UK, we had terrorism legislation for a long time. In the 70-s and 80s people found guilty of terrorism spent 20 years in prison were later found to have been innocent. They didn't have a fair trial, and the rules around their detention and arrest were wrong and resulted in wrong prosecutions. So for these reasons, I have difficulties with the definition of terrorism.


Thursday, April 03, 2003

Our CFP Panel

The panel after lunch on data retention will have both Maria and I presenting; thus we won't be in a position to blog it. Will try to stick up a proper summary at a later stage.
Plenary Session 8 – The Great Wall of China


Kimberly Heitman

In Australia, the default position is that ISPS must block all content that might be rated as R or X or illegal should be blocked. However a compromise was reached in which the ISPs would make an approved software filter available to users, so that they could block objectionable content. Two years later, it's turned out that users haven't been especially interested in downloading filters, many of which are from the US, and reflect American Bible Belt values. So the Australian government is revisiting the question of supply side filters at the ISP level as an alternative, as the current approach just isn't working. The current Australian government is quite authoritarian, and wants to make ISPs adopt its values and approach. Freedom of expression does not have constitutional protection in Australia, so that the government can determine what kind of Internet access we get to access sites.

One other aspect that is important is the passage of a Cybercrime Bill which requires people to hand over their encryption key on demand. This gets rid of the protection that so many people need around the world.

Ben Edelman, Harvard University Berkman Center

Edelman is looking at the implementation of filtering. Who is filtering, what are they doing, and how are they doing it? Among countries that filter the Internet are China, Saudi Arabia, Vietnam, the United Arab Emirates, Singapore and the US. China perhaps filters millions of sites, Singapore only a couple of hundred, and pretty half heartedly. The US has some filtering at the AG's office. Edelman will concentrate in this talk on China and Saudi Arabia.

What is filtered in Saudi Arabia and China? In Saudi Arabia, 90% of a sample of the top porn sites is blocked. World religions are also blocked, including Islam – according to the Saudi government, you should not get information on religion from the Internet. Finally, there's sensitive political content, such as human rights and Israel.

In China, Western news services are frequently blocked. Political sites, tend to be blocked, and pornography is blocked, but only in a half hearted fashion; Hustler isn't blocked. So it's not as focused as in Saudi Arabia.

The different countries implementing filtering have chosen different technologies. In Saudi Arabia, a cluster of centralized proxy servers are used; in China, it's routers.

There are differences in the granularity of filtering. At the moment, router based blocking is pretty scattershot; groups of web servers are blocked. In the future, more specific blocking may be possible. There are important implications flowing from the kind of filtering used. Proxy servers look at the specific URL, and then decide whether to block it. Router based filtering has to block an entire server; it only looks at IP addresses. In Saudi Arabia, filtering is relatively speaking, more granular; in China less so, because of the technologies chosen.

In Saudi Arabia, there is blocking of certain websites that raised an eyebrow. Religioustolerance.org, the Encyclopedia Britannica's "women" entry and so on. China, in contrast, blocks Blogspot completely, Network Solution's main domain name redirection service and so on; it's much more broad. China is, however, getting more sophisticated.

Kijoong Kim

Speaking about Internet content regulation in South Korea (nb – sound quality is iffy, and non-native English speaker, so that this summary is a little terse and spotty). Broadcasting is still subject to censorship in Korea. As are motion pictures, recorded music, games and so on. There has been a constitutional debate on censorship (described by the speaker in detail). The board of censorship is appointed by the President. The government has sought to extend this system since 1995, based on existing telecommunications law. A board appointed by the ministry has sought the removal of certain content on the Internet, which are considered prurient. There is a blacklist of 140,000 websites abroad that are considered unsuitable. There have been efforts to censor the Internet on the same basis as censorship of communications. The Korean ministry of information and communication proposed a PICS based rating system in 2000, but the proposal was defeated after activists initiated Distributed Denial of Service attics on the MIC website.

Arturo Quirantes

He is talking briefly to the situation regarding Internet content in Spain. Before, when the sky was the limit in the Internet, there were no limits on the Internet; the Internet was seen as a growth industry to be encouraged. Government didn't want to intervene. Now there is a law that is so broad that it covers anything, whether it's to do with the Internet or not. It came in in 2002, and requires web publishers to register sites with the government or pay large fines. If I have a site with a link to harmful content, such as how to make a bomb, I am liable for the consequences. The idea is that it would be in the ISPs interest to police the Internet; otherwise they would be made liable for the consequences. So some ISPs are doing a sort of preemptive censorship. So they say that we are concerned about child pornography, and we have been offering a free Web service, and we are going to shut it down. They are just using the child pornography issue as an excuse; they are in fact shutting down these free services for economic reasons. No-one knows what this law will mean for the Internet in Spain. In Spain, there is the problem of ETA, the Basque terrorist movement, and the political party that is linked to it. The political party has a website, which is banned. But the judge has said that he can't shut it down, but I can prevent most people from accessing it. He has said to the ISPs, "I forbid you to allow your customers to access this domain." Thus, many Spanish people can't access it, because it is blocked. There is a similar situation with Spain's only Basque language newspaper. This also was accused of having links to terrorism, so a judge ordered that it be shut down. This was easy, because the server was located in the newspaper offices. But there were other services hosted on the same server; a free email service, and other Basque language services. We don't know how this case will turn out. This didn't use the new Internet law; this powerful new tool has not yet been used. But even before this law came in, we've seen cases of filtering, censorship and blocking. The government is starting to lose its fear of the Internet, and is beginning to think that it's a place where they can lay their hands on. We can expect many more cases of censorship. The law is a very good tool to use for Internet filtering. And now that all Spanish ISPs are subject to traffic data retention, the threat is greater. We have to rely on telephone company's word that they won't use traffic data for bad purposes; we have no other protection.

Will Doherty, EFF

The Children's Internet Protection Act in the US is familiar to many of you. The ACLU and librarians have challenged the library related part of the law; that's now in front of the Supreme Court. The school related part of the Act hasn't been challenged at all, which means that schools are required to implement flawed software blocking solutions. This is all about sexual issues; not bomb making and the like. There are a host of legal cases that are related to Internet blocking technology.

Blocking technology doesn't work – it blocks lots of material that it shouldn't, and doesn't include a lot of material that it ought to block. They use people to do human review, but they just can't keep up. Software just can't judge the complexity of human language.

What gets blocked? Sometimes it's illegal, obscene, child pornographic and harmful materials. But often it's "controversial" content such as activist groups, gay and lesbian sites and so on. There are alternatives to Internet blocking, such as media education. There are recent developments that are even more disturbing than internet blocking. The Department of Justice has started to seize domain names, as in the iSONews.com case. The DoJ has started to seize sites selling drug paraphernalia, and redirecting the traffic to a Department of Justice web page. We're beginning to see ISP censorship, not government censorship as such. YellowTimes.org lost its ISP, apparently for posting PoW pictures. Al Jazeera had to find a European site after a US provider cancelled service.

How can we circumvent Internet censorship? Representative Christopher Cox proposed the Global Internet Freedom Act to try to break through Chinese censorship; this wasn't apparently intended to apply to libraries in the US. There are hacktivist tools like PeekaBooty etc.

Audience – There is legislation in the pipeline in Australia; how far will the government go in enforcing it?

Panel – You need to have a whole host of regulations accompanying such a law. Once you start to think that the ISP is responsible what the user does, their license becomes dependent on whether they block certain kinds of access, break encryption etc. Once you start down that road, you can't stop.

Audience – We heard two criticisms of filtering. First, that content that is proscribed by the state ought not to be proscribed, and second that technology used to filter will also block access to other kinds of content. Leaving aside the normative questions, in the first type, what can we do to make sure that only the "right" type of content is filtered; that which is intended.

Panel - In terms of just filtering that which is intended to be filtered, I think that transparency is best. Recording what kinds of content is being blocked. I've been suing a filtering company, seeking a declaratory judgment that if I decrypt their list of blocked sites, I can publish it without fear. There's a motion to dismiss being ruled on.

Audience – There are similar laws in Germany to those in Spain, holding the provider liable for blocking the page. This is not transparent, the blacklist will only be given to the provider. We don't know which page will be blocked, and which will not. Filtering does work, when people don't know that it's working

Edelman – When you try to get to a blocked site from China, you get a standard error message, just as if you'd typed in gibberish.

Audience – To what extent have firms colluded with foreign governments in creating these systems.

Panel – The only real evidence I've seen on that was in the fight over Yahoo!'s doing Nazi memorabilia on their auction website. The courts didn't do a good job, but Yahoo! did collaborate with the French government and removed most of the content.

Audience – Regarding Google's action or inaction in China. As far as I know, Google is blameless in China; Google was as surprised as anyone when China banned it. It's China blocking certain searches, not Google.

Audience – Are there any regulations between America and China to prevent information being received?

Edelman – I'm not sure that I understand the question.
CFP Day II
Henry and I are now on Day II of CFP. Sorry to say we didn’t manage to make all of the early morning session (again). It was on internet architecture and freedom of speech.

Plenary session 7 – human rights and the internet

Dinah PoKempner, Deputy General Counsel at Human Rights Watch


Dinah gave a run down of various dissidents in China, Vietnam and other countries who have been detained because they used the Internet to express crtical views, disseminate information such as a US embassy piece on democracy, or simply email friends in other countries.

While many people prefer to use email to protest these kinds of things, letter-writing is much more effective. In the US, Congressmen take much more notice of hand-written letters, and they also tend to be more timely. Email chains can be hopelessly out of date, still circulating long after the dissident has been released and won a Nobel prize.

Human Rights Watch distributed a piece of paper and an envelope to everyone in the audience, and an information pack on internet dissidents, and urged CFP participants to write to express their concerns. Future updates by email are available from Human Rights Watch

Other relevant organizations Dinah gave links to include;


Bobson Wong, Executive Director, Digital Freedom Network
I will focus not on activism today, but on using the internet for education. We publish articles online, publish internet tools for activists, do online chats with human rights activists and experts, etc.

I will talk about some of the themes and lessons we have learnt. We deal with smaller organizations and lesser known activists. They are very small operations of one or two people without a lot of technological know how. There are a lot of problems for activists, particularly in developing countries, with using the Internet. There is a real need for content management systems for them to get their information up on the internet and archive it. This information is used by journalists and funders in the developed world. They need portable access tools and open source and/or low cost software. But they are not tech savvy so they won’t be able to use Linux etc. Only a tiny minority of human rights activists encrypt their email – cryptography products are difficult to use, especially if they are in English and that’s not the user’s first language.
There needs to be more interaction with the activists and people writing these applications.

Improving cyber-rights is an area of expertise for cyber-rights activists like the CFP crowd, but not for traditional human rights activists. There needs to be more communication between both kinds of activists. In Asia, the issue is not so much internet censorship as internet access. In the US one in two people has internet access, in Africa, it’s one in a hundred and twelve. Access and censorship are two sides of the same coin. If activists had more access to communications technologies, they could get their messages out more effectively. I met an activist from Zimbabwe who does innovative work on internet activism on human rights and she said 'we need technology, not just food.' It’s up to all of us to make sure the technology we use and promote gets to the people who really need it.

Chair – how do we make the connection between the tools and the people who really need to use them? People in the audience with experience or ideas in this area, please participate in the Q&A session. Lack of access to technology will also mean that less developed countries will fall further and further behind.

Elisa Munoz, Director, The Crimes of War Project
The organization was founded by a group of journalists who covered the Balkans over 10 years, got home and felt they had failed. They didn’t know anything about the laws of war so when they reported that, e.g. , a hospital had been blown up, they didn’t say anything about the illegality of that under the Geneva Convention. Putting together a guide for journalists about the laws of war called 'Crimes of War the Public Should Know', they found the source material very dense. After publication, they wanted to continue to get the message across and started the Crimes of War Project at the American University in Washington DC. This project has tried to cover major conflicts since then and now has a website which uses the book as a source to analyse conflicts as they happen. They also organize seminars for journalists around the world and have produced a video. The organization is made up of three people so the website is our primary resource for outreach. The objectives are to provide information, encourage better understanding and appreciation for international law, promote consultation amongst journalists, agencies etc. on increasing compliance with that law, and provide a forum for debate about international law related to conflict situations.

Why is this important? Let’s say you’re a journalist in Iraq and biological weapons are being used, hospitals are being bombed. How do you know what this means in terms of the law and what is legal and illegal? The law is rather complex. Crimes of War tries to bridge this knowledge gap. We have set up a 24 hour hotline for journalists to call us at any time and we get an answer to them from our panel of legal experts within 24 hours. To give an example of current issues, in the last couple of weeks we’ve had allegations of breaches in the laws of war – fake surrenders, wearing of civilian clothes by soldiers, use of women and children, use of illegal combatants, use of hospitals and civilian facilities to launch attacks, killing prisoners of war, blowing up highway bridges, targeting utilities and media outlets, and others. Journalists need to know how to determine the legality of complex and confusing situations quickly. We need to be able to trust that reporting is accurate as the public and also for human rights organizations.

Since access to the conflict is difficult and we’re not big enough to have our own presence, we are trying to make analyses of whether events were legal or illegal depending on legal advice from around the world, not just in the US or based on US military analysis. Some of the opinions we’ve posted include whether or not attacks on Iraqi TV are legitimate, the legality of Iraqi guerilla attacks, and prisoners of war issues. There is great interest in prisoners of war and this is a great contradiction to the fact that there are still hundreds of prisoners of war in Guantanamo. This is striking when the US is demanding that US prisoners of war be released and treated in a certain way. Donald Rumsfeld was talking about the possible use of riot control gas in Iraq – would that be legal? We have published longer essays on the legality of the conflict as a whole, and other pieces such as trying Saddam for war crimes, and the Bush doctrine of pre-emptive strike. We try to provide sensitive coverage on a wide range of issues and be ahead of the curve so that journalists will rely on it to put our analysis into the mainstream press.

We prefer to publish on the web as it’s cheaper and faster. We post a magazine every month and expert analysis on a chosen topic with different views on it. We also post understandable pieces in layman’s terms, and in a readable form for use by journalists.

What has the effect of the war been on our organization? We have many more calls from journalists, much more traffic on our site, and PBS has asked to syndicate some of the pieces on the site. We are providing what we hope is objective analysis of the legality of conflict situations.

Patrick Ball, Deputy Director of the Science and Human Rights Program of the American Association for the Advancement of Science

There are many reasons why it is a pleasure and an honour to be a human rights activist, not least sitting on this inspiring panel. I’m going to do something different and talk about technology for a moment. Think back to CFP 1998 in Austin, when I debated with the DoJ on the use of cryptography by human rights activists for whom it was a matter of life and death. But access is only part of the issue, being able to use cryptography is also important. As a previous speaker showed, actual use of cryptography is quite limited.

Carl Ellison’s law says that the user base for strong cryptography declines by half for every additional keystroke required to make it work (laughter in the audience). We need to think about ways to overcome this limitation. I will talk about projects today that are overcoming this limitation. We need to think of the internet as more than the web, i.e. the virtualization of data and why it is important.

It is an appropriate response to be angry or sad about human rights violations, but to do anything useful, we need information and a sense of the large picture which produces these atrocities. This means having good research. Most people can’t retain that much information so it needs to be written down. One way to do this is to build a structured database. But when the data is in one place, it needs to be protected. In 1998, I only understood part of the threat. I was afraid that someone would come and take the data away from me and be able to use it to share with those whose stories we were writing about. But another 'attack' is far more common – simply losing the data. Even very technologically sophisticated people like this audience do not necessarily have remote back-ups of all their work. Losing the data for human rights activists is a huge risk for activists. How can they report to their donors or continue their advocacy without the data? Back up is also subject to Ellison’s Law – people don’t do it if it requires another step, even if they know that it is literally life and death for them. So we have to build secure, off-site back up that is easy to use. Using free software, this is not that hard to do.

Mark Levine, please put your hand up. The Martis Project software is available free and its aim is to prevent data loss. It looks like Outlook or Eudora and is intuitive to use. It sends and saves the data, in encrypted form, to a remote location over the internet. All you have to do is log in and everything else happens automatically.

The other project is the Guatemala Data Mirror Project, and it is even simpler. It uses the home directory, or ‘my documents’ folder, and everything in there is transparently and securely backed up through a secure shell connection to replicate everything in the directory to a server in the US.

We are moving to simpler and simpler solutions. People can always raise more complex situations that aren’t matched by what we can provide, but we can concentrate our efforts on 80% of the people whose problems we can optimally solve.

Questions and Answers

Audience – I work for German NGO and it is really important to work together on issues such as those we currently face in Germany on freedom of information and censorship, etc. etc.
Bobson – we need to network more. Translation is important.