Lex Ferenda

A suspected terrorist who is subject to a control order is being prevented from studying for AS-levels in chemistry and human biology. The Home Office says the courses provide information which could aid terrorism. The man, known as AE, is an unemployed Iraqi national in his mid-30s who was a medical student, according to the journal Nature. He is subject to restrictions running to 15 pages, including a 16-hour curfew and travel limits. His solicitor, Mohammed Ayub, of Chambers Solicitors in Bradford, said the curbs were excessive as the curriculum was readily available in libraries.

The Guardian, last Thursday.

Why stop at this, though? Poetry is dangerous, especially if you own books at the same time. But it’s OK, because the police assure us that in that case, “She had the ideology, ability and determination to access and download material, which could have been useful to terrorists. Merely possessing this material is a serious criminal offence.” Note the ‘could’, there. And yes, it’s the information-that-could-aid-terrorism weasel words there, backed up by s 58 of the Terrorism Act which makes such possession a crime, in many circumstances.

And we used to think the Offences Against The State legislation was draconian… indeed, even the huge Hederman Report on the package of legislation, where the majority favoured the let’s-keep-the-offences approach in most cases, found that our ‘useful information’ section (the OAS Amendment Act 1998, s should be repealed. (Worth mentioning in that regard that the defence under the Irish act seems a little better than that in the Terrorism Act over the water).

As far as I know, we don’t have any plans to introduce control orders in Ireland - yet. If we do get them, though, and then apply them as in the science case of last week, then why stop there? Indeed, as the solicitor says, the materials are available in libraries - so we should go after them too (not that that’s ever happened before, right?). And of course, judges and human rights lawyers are a fairly big threat, too. Control orders for budding law students, anyone? What’s more dangerous, in the Daily Mail mind - school-level chemistry or a degree in human rights (’bleeding heart soft-on-terror liberal’) law?

It’s good to be back. Don’t ask.

This week, a lot of electrons have been spilled about Facebook’s new advertising/information/obscure-tort-law-breaking systems. The excellent Fred Stutzman (a fellow participant on this year’s Summer Doctoral Programme) has been investigating the system, and has just published this insightful report on one particular implementation of the new system. He highlights the various code elements that bring about the controversial data sharing, finding that:

Therefore, regardless of your login state to Epicurious [the site he tested], any time you load (not just review) a recipe or any other Beacon-enabled page, Facebook knows exactly what you are looking at. In essence, this setup is sending your clickstream and path data to Facebook, precisely correlated to your Facebook identity. On Beacon-enabled pages, Facebook knows everything you do in Epicurious.

Certainly, from a European point of view, this may raise questions related to data protection. For example, sharing any information on purchases or viewing/browsing habits related to any of the sensitive data categories without the appropriate consent may be a serious issue (although, of course, a lot of this happens already and is justified through weasel words in terms of use etc). Given that many others are raising questions (or raising hell) over the links made between Facebook and non-Facebook sites for advertising purposes (see here on how to block it, or here on how it all fits together, here being the wisdom of Doc Searls or here (must-read!) on the range of legal issues), I’m sure this will be the subject of much speculation in the coming weeks.

One final word. The tort principle being quoted by many is this:

“One who appropriates to his own use or benefit the name of likeness of another is subject to liability to the other for an invasion of his privacy.” (Section 625c, Second Restatement of Torts)

This does seem quite familiar and I realised why. I wonder whether the principles set out in Irvine v Talk Sport (those bold children at Talk Sport using an image of Eddie Irvine for sales purposes without permission), which established the notion that an action for ‘passing off’ is not limited to where both parties are in the same field of activity or where there is actual potential for financial loss. That case is, of course, part of the developing field of ‘image rights’. Landmines ahead for Facebook here, too?

If I ever see this project (inserting ads on the first page of books borrowed from a public library), I will be faced with a hard choice. Will I deface them or just rip them out?

This sort of stuff makes me fear for the future of libraries. What’s next?

Peter Black (vote for his excellent law blog, Freedom to Differ, here) links to Jeffrey Feldman’s article at the Huffington Post on ‘The Real Meaning of “Free Press”‘ … it is very critical and angry in parts, relying on Lippmann’s view of the free press as an aspect of democracy (as distinct from an individual right), and concluding with a series of links to alternative media sources (with a suggestion that changing personal media habits can defend the role of the media as watchdog.

Reading it, I was reminded of something I read a few weeks ago and was quite impressed by - André Schiffrin’s short essay (published in Le Monde Diplomatique) on how to pay for a free press. Schiffrin’s concern is with independent publishers, mentioning trust models for newspapers and the experiences of various independent and not-so-independent publishers, with liberal dashings of Habermas, and concluding by wondering whether legislation (to support not-for-profit enterprises) would be helpful. It’s a pity that the analysis doesn’t deal with words other than in the form of dead trees, but nonetheless is an excellent (if somewhat ‘traditional’) read.

This post is about some ideas brought together by two podcasts and a newspaper article, from a few days ago…

First of all, there’s this repeat of a classic This American Life show. I try not to blog about TAL constantly (this here was one of my lapses) - I resist the urge after each episode, otherwise this would be Lex Devoted Radio Fan and it might be a bit boring to read. However, this show - rightly beloved by listeners - is worth mentioning, not least for its synchrony with the other material mentioned below.

“Mapping” (go listen to it!) deals with the age-old question of maps and representation of the world, and in the traditional TAL fashion, is divided into five Acts. The innovation, as I saw it (or heard it, or perhaps even sensed it) was to have an act for each of the five senses. So, for example, ‘taste’ was a piece on how a writer, Jonathan Gold, compiled a ‘food map’ of Pico Boulevard in Los Angeles.

The act on ’sound’ was the one that caught my particular attention, and not just as a result of the (perfect) use (at 13.30 and 15.15) of Telephone and Rubber Band (by the Penguin Café Orchestra) as the musical bed for part of the piece. This piece featured a short but compelling discussion (with a guy called Toby Lester) on how each household object has a pitch, and how they interact (e.g. producing minor chords or even the Devil’s Chord (devil’s interval / tritone / augmented fourth) of lore.

These ideas were picked up (in my head, at least) in the first episode of the BBC’s The Sounds of Science show (Radio 4). This was a lot of fun - coming back to the Devil’s Chord but also discussing key/scale/tone, Western v non-Western tradition, dissonance (with lots of spice/food metaphors) and more.

The Observer, too, got in on the game (last Sunday), reporting on a study in the Ecologist of the aspects of the modern environment that people find irritating. Some of these, too, are related to sounds and music. A little curmudgeonly, but prompting interesting reflections and connections with the two radio pieces.

Note to my dearest Lexferendans:

My host tells me that this site seems to have been the subject of two DDOS attacks over the last 24 hours. I’m travelling at the moment so don’t panic if you are (temporarily) locked out - we will get things up and running again. Funny, this never happened when I posted about coffee and cheap travel … the world is full of surprises, it seems.

This seems like an interesting event - a conference (obviously with a particular starting point for debate) on commercialisation in Irish education, organised by the Campaign for Commercial-Free Education (hence the starting point) with the support of various unions (teacher and student) and school principals, and taking place in TCD Saturday week. I won’t be at it as I have a schedule clash, but the programme (and guest speaker, author Alex Molnar) may interest some of you….

…is an anagram, says Twenty Major (over here), of Ace Internet Marketing. I couldn’t possibly comment.

I’m sorry for the delay in approving some of your comments. See, some clever kid has decided to to flood Lex Ferenda (and in particular the thread about Ace) with spam. After some response to a post of mine, they proceeded to attack the post and the site as a whole. As I hold all first-time comments for moderation, marking them for deletion took some time, and I’m very sorry if I deleted any *real* comments in the meantime.

In the meantime, I’ve received another love letter from Ace. Now, as you recall, someone purporting to speak for them (although later claiming not to be a principal) has threatened to sue me about this post. The recent missive contains a bizarre and probably unenforceable beefed-up disclaimer. In particular, I am asked not to “peruse, use, disseminate, distribute or copy” the message. (How am I supposed to read it then???)

I do not have a contract with the sender, of course, and it is a virtually worthless disclaimer. I see no grounds for an expectation of confidentiality in its contents, and indeed this is an unsolicited message with someone I have no business or private relationship with. However, recognising that this mail (as distinct from previous ones) does contain a statement that “this email is private” I will simply summarise its contents here.

A further request is made for removal of the original post (I will not comply with this request and I have responded accordingly). It is suggested that it is time to “nip this in the bud” as I have not taken their warnings. (An unusual statement that Ace Internet Marketing is not a company is also included, which would seem to be confusing).

The email also includes a question as to my motives here. I have none. I write about Internet law. Damien’s blog highlighted an interesting question of apparent disregard for IP laws. While not agreeing with all IP law (of course), I wrote about the apparent violation of copyright law. Of course, the original post has now disappeared. Admission of wrongdoing perhaps?

The footer, containing the supposed disclaimer (it has changed in every mail!), says that if I receive the message in error, I should contact legal@techstore.ie. I wonder if techstore.ie are aware of the threats.

Thanks to all the people who added comments to the original post about the libel threat and in particular those who made fun of the unusually badly spelled and punctuated threat of legal action. You may also enjoy an exchange in the comments on Damien’s blog - an anonymous person of dubious origin is criticising Damien’s reaction to the unauthorised copying of his content. I wonder who it is….