Lex Ferenda

The front page of the National edition (though not the other widely circulated edition, the City Final) of the Evening Herald has the headline : “PRIVACY CHIEF CAUGHT OUT BY HACKER” and the subheading “SECURITY BREACH : Data Protection Commissioner left red-faced by blogger“. Fiona Dillon wrote the article, which continues on page 4.

It’s possibly one of the silliest things I’ve seen from the Irish press in relation to technology for a while, and that’s saying something. Below, you can see the relevant parts of the article. Now, what actually happened is set out here : the blogger in question simply linked to a document that was available on the website (though without a link from the relevant pages, i.e. news updates or reports or whatever). No hacking took place (at all). I understand that they have to sell newspapers but to allege hacking where it is clearly untrue is shoddy and sensationalist at best and perhaps even dangerous and unethical. Of course, I approve of teasing the Commissioner when something like this happens - but doing it in a way that blares about HACKING is totally uncalled for.

The comment attributed to the Commissioner is also clearly inaccurate - it is not (as he is reported to have said) about a report “on our web which was due to be put on our website this morning” - the report was on the website and this idea of “our web”, suggesting access to internal pages, is manifestly and demonstrably wrong. But at least that’s on an inside page.

Oh, and yes, they spelled embarrassing and Commissioner’s wrong. On the front page. Well done, Herald.

Also discussed on RTÉ, here.

Extract from front page:

THE office of the country’s privacy chief was at the centre of an embarrasing security breach today after a blogger hacked into its website.

Details of the Data Protection Commioners annual report were accessed and released by a blogger a day before the report was due for release.

The report for 2007 was only officially published at 11am today. But the details were already on the internet yesterday after a blogger found the report on the Commissioner’s website.

Data Commissioner Billy Hawkes acknowledged his office had fallen was victim to “a security breach” but played down the significance of it.

Extract from page 4:

The Data Protection Commissioner Billy Hawkes said today: “A very resourceful blogger has managed to access the copy of our Annual report on our web which was due to be put on our website this morning.

“It obviously was pre loaded, and thanks to his technological knowledge he was able to access the version that we pre loaded but didn’t intend to be in the public domain until 11am.

“So I think it’s a wonderful illustration for a Data Protection Commissioner whose about to launch an annual report warning about security that actually even our own office can be, as it were, be a victim of a security breach.”

Jonathan Zittrain’s book, The Future of the Internet - And How To Stop It, is published this May in the UK. I received a review copy and read it over the course of a weekend, and then got distracted and didn’t write up the scrawl that was the review. (Pictured is my copy, complete with all the fun of the colour tabs; also in shot is my own little tethered, ungenerative device, and my supergenerative pencil).

Zittrain has been writing about technology and law for some time, and has spent his academic career at the Berkman Center for Internet and Society at Harvard Law School (while also picking up a professorship at Oxford, among other things). He is also associated with the OpenNet Initiative (and is one of the editors of the wonderful book that resulted from its work, Access Denied). To many, though, he is associated with the idea of ‘generativity’, discussed at length in his article, The Generative Internet, published in the 2006 Harvard Law Review. This book builds both on this article and on his other work, and takes account of developments after the law review article, including the commentary it provoked.

I read the book in two ways. One was for purely selfish purposes - searching for arguments, citations, examples, views that would contribute to my thesis. On that score, I was particularly happy with the depth of footnoting . It avoids the irrelevance that characterises so much US law review writing (page-long footnotes produced by putting a search term into Lexis and including the result), but the notes still occupy 70 or so pages of useful text, including a lot of unusual and overlooked news reports, blog posts, etc that are unique to this book.

The second way of reading was with a view to this blog post, and in particular trying to answer the questions : how would someone use this book? What does it add to the cyberlaw literature?

I actually think that The Future Of The Internet is a book that would (or should) appeal to policy-makers. Zittrain’s approach is balanced both in terms of ideology and indeed the relationship between law and technology (the discussion on net neutrality is a particular - and greatly welcome - example of this). While its core argument about the benefits and threats of generative systems and devices is perhaps a little more difficult than the idea that “code is law”, the real-world applications are discussed clearly, including some fascinating analysis of historical artefacts from typewriters to duct tape to CompuServe (are we allowed call CompuServe an artefact yet?), which reappear in the present-day environment in surprising ways.

Some of the chapters function well as standalone pieces, too. For example, the discussion of Wikipedia in chapter 6 (a restrained but mildly enthusiastic verdict) can be used by teachers as part of a discussion on Wikipedia or peer production or similar, but also relates well to the rest of the book. It will be important to keep things up to date, though; for example, some of the relatively hypothetical discussions on social networks and Web 2.0 platforms have indeed been verified in part by recent events (which the author has commented on on his blog, fair dues to him); will The Future of The Internet 1.1 be on the way? That, I suppose, is the danger of a book drawing on a mix of prediction and current facts - things move on very quickly.

Now, I did enjoy this book, and have seen bits of it in earlier presentations and classes (the author taught on the Summer Doctoral Programme I participated in last year; a summary of a class covering much of the material in the book is here), so it’s hard to offer direct criticism (especially when others have offered such useful comments, for example here). One thing I would say is that I would have appreciated a bit more by way of an exploration of the links between Zittrain’s analysis of the Internet and broader debates on the ‘post-capitalist’ society, development issues, etc. Perhaps that’s more appropriate for another book that builds upon part of Zittrain’s analysis (in the same way that he added to things written by Lessig and Benkler, in particular), and I’m showing the bias of my own interests, but certainly, that’s the question I was left with : if he is right about the drive towards tethering as a response to the ills of the modern Internet, what does this *mean* for debates on corporate power and the ups and downs of globalisation. Indeed, even after reading this, I find it hard to put the author into a neat political or ideological ‘box’ - make of that what you will.

Overall, two thumbs up for this, and a recommendation for anyone serious about cyberlaw, Internet policy, media regulation or the computer industry to read it, reflect on it, and parse the footnotes I will post a number of what I hope are useful summaries of the book during the month of May…but you can read it for yourself here. That’s right, actual online text complete with an amazing feedback loop. What’s not to like?

The Right Honourable, Deputy Governor General, Privy Councillor (not to mention Chief Justice of Canada) Beverly McLachlin will give a lecture in the School of Law, Trinity College Dublin next month (information here). The topic is “Human Rights Protection in Canada” and all are welcome, but please take the time to email the School if you wish to attend. The event takes place on Tuesday week (May 6th) and I’m not going to be around, so please enjoy it on my behalf…

It promises to be a very interesting talk. For extra credit, you could prepare by reading some of Chief Justice McLachlin’s opinions (helpfully collated on Wikipedia here). We already had a former Supreme Court of Canada judge visiting us this year (Louise Arbour, UN High Commissioner for Human Rights). The questions at that event were excellent - and some of Arbour’s comments rightfully made the news the following day. I’m not sure if the Irish media has a huge awareness of who Chief Justice McLachlin is, but she and her Court are well worth looking at, even while all the ‘North American’ focus is on Hillary vs Barack episode 29480. (And I can’t end this post without another plug for The Court, Osgoode Hall’s Supreme Court blog.

(Follow-up to Fontastic).

Canada’s public broadcaster, the CBC, has two programmes that deal with technology and culture and law and politics in a particularly useful way. The first is Search Engine (welcomed with joy here; website here) and the second one is Spark (website here). I’ve been meaning to blog about Spark for some time, as recent themes (such as online health information, Scrabulous and online TV each could have inspired a blog entry. Oh well. Anyway, the final straw in the guilt-trip for not blogging about this lovely show is the episode all about writing and fonts. Including a great game exploring the common ground shared by the names of fonts, coffees and babies!

Listen to it here and then subscribe to the podcast.

So, recently things have been quiet here. Perhaps it’s balancing the flurry of posts during the BILETA conference in March! I’ll try to keep things a bit more regular for the next few weeks anyway.

The teaching year has come to an end (although exams lie ahead, and they look an awful lot different from this side of the table - it’s still an unusual feeling), and the weather has started to improve (a little). I’ve been involved in two fascinating side projects (well, fascinating to me) this month, which I’ll not bore you the details of. The first was participating (as an advisor to one of the objectors) in the oral hearing held by the Environmental Protection Agency (the Irish one) regarding a “waste-to-energy facility”/”mass-burn incinerator” (depends on who you ask) proposed for the Poolbeg peninsula just a couple of miles east of where I’m sitting. And the second was serving (as a representative of ‘learner interests’) on a panel appointed by the Higher Education Authority to review the Irish Universities Quality Board. Neither hearing nor review panel will report for some time but I’ll be keeping my eyes open; information on the review is available here.

Ofcom (the UK communications regulator) is carrying out a review of public service broadcasting. In connection with the review, they have taken the wrapping off a blog, the Ofcom PSB Review Blog, which is an interesting way to add some spice to the familiar ‘public consultation’ ballet. Just a few posts so far, although they even used SlideShare to embed a presentation, which is a nice touch. I’m involved in a review process at Trinity College (the Statutes Review Working Party), and although the webpages are on the local page (meaning I can’t link to them), we’ve been trying to do something similar with that consultation, putting relatively informal updates on a blog. We haven’t been bombarded with comments, one might say, but it’s a useful way to engage with a different part of the audience. The (still unpublished) Broadcasting Bill in Ireland was the subject of an e-consultation which had similar objectives.

Another particularly helpful element that Ofcom and others are including in their consultations is a feed for the blog, of course (it comes by default in virtually all blogging software). Indeed, if you are a consultation-junkie, you should look at the beta service from TellThemWhatYouThink - they have a feed of all UK government and agency consultations which is pretty cool.

With thanks to slaw.ca for the heads-up, I’m delighted to see that the Osgoode Hall Review of Law and Policy has now appeared (here). It is a “new, online legal journal created and managed by students at Osgoode Hall Law School at York University in Toronto, Canada” (where I spent a happy year far too long ago) and sets itself the target of having a quick turnaround. The journal will include student articles (like this nice administrative law casenote by current Osgoode student Chris Piggott) as well as contributions from more established scholars (for example, a version of Prof. David Vaver’s lecture on IP, delivered at the School last year, is included in the first edition of the journal). While Osgoode of course already publishes the more formal Osgoode Hall Law Journal, the new review joins a growing club of online, flexible publications. Welcome welcome.

Spotted at Waterstone’s in Glasgow last week.
Photo taken with cameraphone.
And no, it wasn’t April 1st.

A blast from the media law past in today’s Observer, where we learn that the British Board of Film Classification (BBFC) (or a member of its classification committee in a personal capacity - you decide) has invited Nigel Wingrove to resubmit ‘Visions of Ecstasy‘ (don’t get excited, it’s just a database entry) for classification. This short film was banned at the time of its 1980s release and is the subject of a well-known European Court of Human Rights decision, Wingrove v UK, which Wingrove lost, with the UK benefitting from a wide ‘margin of appreciation’ in its regulation of certain kinds of offensive speech; the influential elements include the finding that “whereas there is little scope under Article 10 para. 2 of the Convention for restrictions on political speech or on debate of questions of public interest (citations of political speech cases omitted)), a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion. Moreover, as in the field of morals, and perhaps to an even greater degree, there is no uniform European conception of the requirements of ‘the protection of the rights of others’ in relation to attacks on their religious convictions.”

The Observer reporter speculates on the symbolism of a possible certification and the links with the debate on the repeal of blasphemy laws in the UK. We will see. For a little bit of amusement, have a look at the Irish register of prohibited publications - while books are unbanned after 12 years, magazines (periodicals: part 3 of the list), once properly banned, stay on the list until they are taken off, although I doubt if many of them (such as ‘Daring Detective’ - banned 1951) are still publishing.

Now tell me search engines and databases are bland neutral tools and the Internet means censorship is impossible?

U.S. Funded Health Search Engine Blocks ‘Abortion’ (Wired)

Popline makes abortion a dirty word (The Galloping Beaver)

American Library Association Office for Intellectual Freedom

When I see this sort story, some people tell me that it’s proof that the system works and that censorship is impossible and the fuss proves it. I disagree. When we find out that a doctor has done something wrong, we don’t say ‘oh, great, at least we know’ - we ask serious questions about judgement and systems and training and funding and more. Well, at least we try to in the bizarre Irish health system. In this case, just as in the Verizon fuss-that-wasn’t-a-fuss (coincidentally abortion-related too!), the quick withdrawal/policy change/climbdown doesn’t reassure me - it scares me and makes me wonder how often this happens, especially given the accidental discovery of the fake-search-function on Popline.