Lex Ferenda

By coincidence comes news of two cases addressing similar themes:

1. Copland v UK (link is to the Bailii version of the decision); this case was brought by a staff member at a further education college, arguing that the monitoring of her email and Web use was in violation of article 8 of the European Convention on Human Rights.

Some of the interesting questions addressed:

• What’s the status of email and website logging? According to the Court’s case-law, telephone calls from business premises are prima facie covered by the notions of “private life” and “correspondence” for the purposes of Article 8 § 1 (see Halford v UK, Amann v. Switzerland). It follows logically that e-mails sent from work should be similarly protected under Article 8, as should information derived from the monitoring of personal internet usage. [41] (full citations removed)
• How far do the general powers of a statutory body go? The Court is not convinced by the Government’s submission that the College was authorised under its statutory powers to do “anything necessary or expedient” for the purposes of providing higher and further education, and finds the argument unpersuasive [47]

Finally, I believe that the two paragraphs reproduced directly below (at 43/44 of the report) are of great interest in the context of data retention (information on the DRI case against the Irish government):

The Court recalls that the use of information relating to the date and length of telephone conversations and in particular the numbers dialled can give rise to an issue under Article 8 as such information constitutes an “integral element of the communications made by telephone” (see Malone v UK, § 84). The mere fact that these data may have been legitimately obtained by the College, in the form of telephone bills, is no bar to finding an interference with rights guaranteed under Article 8 (ibid). Moreover, storing of personal data relating to the private life of an individual also falls within the application of Article 8(1) (see Amann v Switzerland, § 65). Thus, it is irrelevant that the data held by the college were not disclosed or used against the applicant in disciplinary or other proceedings.

Accordingly, the Court considers that the collection and storage of personal information relating to the applicant’s telephone, as well as to her e-mail and internet usage, without her knowledge, amounted to an interference with her right to respect for her private life and correspondence within the meaning of Article 8.

News coverage: 1 | 2

2. US v Barrows (via Findlaw). Very interesting one here - employee brings his own machine to work, networks it, doesn’t put serious password protection etc on it - and thus has no reasonable expectation of privacy, meaning in this case that a particular search of it is valid and his conviction (child pornography-related) stands. Whlie obviously the particular circumstances here are not especially compelling, I’m troubled by the idea that failure to ramp up your encryption can diminish your privacy arguments, when expressed towards Government action (I can understand it in the context of media privacy).

The Toronto Star ran a story on its front page (yesterday, pictured above) about the regeneration of the docklands and surrounding area, accompanied with a lot of general discussion on anti-poverty and urban development strategies. Trinity College law graduate Karen Dowling was interviewed and is quoted at some length in the article. I think the journalist does paint too rosy a picture (both Catholic and Church of Ireland archbishops dedicated substantial chunks of their Easter sermons to concerns over ‘gangland crime’), and utterly misses the fact that shiny office buildings can’t hide the huge disparity between parts of Dublin in educational attainment … but it’s still a feel-good story and an interesting idea (for the Dubliners) of how others see the city (which, for the record, has higher crime rates than virtually any Canadian city).

ICANN debated .xxx yet again at its board meeting in Lisbon last week. (This post has been in draft form for a week already, sorry).

As is now common knowledge (BBC | New York Times), the proposal is dead (for now, and for the foreseeable future). Dot Triple Ex would have been used (obviously) for content of a sexually explicit nature, and the applicant (ICM) would have made some efforts at quality control.

The anti-.xxx folks really puzzled me throughout this process, and I still don’t get it. Most fundamentally, the whole notion of restricting .xxx allocations to ‘responsible’ publishers was developed in response to (frequently hysterical) public and governmental pressure - and then after years of said pressure, the fact that it would be a controlled system becomes the main reason to knock it down. We also saw the deeply unholy alliance of some adult entertainment producers (arguing that .xxx would lead to censorship as it would be easy to police/prevent access to such sites) and conservative religious groups (for reasons that I still don’t understand, arguing that it would mean more (MORE!) pornography on the Web). The US Bush adminstration intervened in opposition to triple x on a number of occasions.

Most people (in my view) seem to be arguing that ICANN ‘doesn’t do content’ and has a technical mandate. Fine. They’re all wrong. ICANN regulates content purely by existing. I thought we killed off this idea that you can divorce technical standards and policies from politics/content regulation/law/etc some time around the 1950s? In a rush to reassure themselves that they were a) protecting the public from the evil porn and b) defending ICANN’s role as being about tech only (anyone spotting the contradiction), the majority of the Board has really confused an already murky situation.

For the record, I don’t have any particular reason to favour the introduction of the new top-level domain. However, I’m motivated to write by the sheer stupidity of much of the objectors.

The three most fundamental (and laughably unaware) objections are as follows:

1. .xxx = more porn. Anti-porn advocates, however, countered that sites would be free to keep their current “.com” address, in effect making porn more easily accessible by creating yet another channel to house it. (MSNBC 2006). Right, so if I register lexferenda.net I now have doubled my ‘channels’? Come off it. (And yes, I’m aware of landrush/trademark/etc but that is separate to this mysterious extra-domain-means-extra-channel codswallop).
2. .xxx legitimises pornography. Sure, because if you don’t approve it, all those millions of pages on .com (alongside Google and NBC and Microsoft and even Lex Ferenda) will be delegitimised? Can anyone - anyone - tell me how this works? Please?
3. Stopping .xxx protects children. I’m delighted to hear that. I presume that since ICANN’s brave decision last week, children sleep safer in their beds? Oops, no. Never mind that much of the explicit content on the Internet is neither targeted at or accessed by minors - and that legislators around the world are doing their utmost to make it harder for under-18s to get access to this sort of content - apparently the fact that no-one can apply for hotstuff.xxx makes things safer for them. Again - maybe it’s just my wee little brain but I just don’t get it.

Worse, still, is the fact that there are some good arguments against .xxx that have been sidelined; Seth Finklestein wrote about this in the Guardian in January, and there’s a fascinating exchange between Kieren McCarthy and Milton Mueller here, touching on concepts of global free expression (and more!) - but that, as always, gets drowned out by an army of Helen Lovejoys.

More from (dissenting Board members) Joi Ito and (especially persuasive) Susan Crawford. Crawford highlights the role of ‘astroturfed’ public comments (Disgusted of Tunbridge.Com, basically), and also discusses the role of governments and others in lobbying on this matter.

If you have the heart, the Board’s transcript can also be read.

The New York Times has been doing some great digging on the relationship between higher education institutions and loan companies; here’s the detailed article by Jonathan Glater, setting out some of the less-than-clean practices that some universities and loan companies seem to be engaging in (particularly kickbacks). A fabulous follow-up demonstrates that the problems relate to individuals as well as systems:

The directors of financial aid at Columbia University, the University of Texas at Austin and the University of Southern California held shares in a student loan company that each of the universities recommends to student borrowers, and in at least two cases profited handsomely.

The ‘preferred lender’ system is bizarre. It’s up there with the current discussion in the UK over how Gordon Brown can massage the budget for universities by selling off the debt (accumulated by students, mostly as a result of the recent reintroduction of higher education fees) of the (publicly owned) Student Loan Company. If it works, it’s truly absurd.

Of course, there’s this and this, but I think it’s important to highlight this from the Free Software Foundation’s Defective By Design campaign:

This is really big news. We’ll be sending Steve the open letter with over six thousand signatures and a thank you note with a DefectiveByDesign.org T-Shirt in recognition of this step towards eliminating DRM. Thank you for signing the open letter and spreading the word these last few weeks.

In the coming days and weeks we will see how the rest of the music industry responds to EMI’s move. We’ll keep you updated on ways you can help eliminate DRM, not only in music, but also in operating systems, hardware and libraries.

The Defective By Design folks has kept the pressure up re: DRM for some time. They’ve done it from the free software perspective, which is very important. Although the Jobs ‘Thoughts On Music‘ letter was an indication of a shift, today’s news is confirmation of it. Three cheers. As an Apple user, it’s good to see this blemish disappear.

PS: “audio quality indistinguishable from the original recording”? I’ll believe it when I hear it.

2007 Baseball season starts today