Law and technology

Recent IP-related debates have raised the question of whether internet access should be a legally protected human right. An Australian academic is the latest to weigh in:

Internet use has become so woven into everyday life that some technology experts say online access should be legally protected, even to the point of considering it a human right. “It’s a social inclusion question,” said Cyberspace Law and Policy Centre executive director David Vaile

Much of the debate premises that internet access is already a human right, or soon will be. That view has popular support – a recent survey showed “almost four in five people around the world believe that access to the internet is a fundamental right” (FWIW, New Zealand’s previous Culture Minister also thought so). That result should not be surprising though: the right to do non-proscribed things can usually be considered a human right in some form.

[ Update: current ICT minister Steven Joyce says "declaring that the internet is a human right is not a priority for the government". ]

The real question is whether internet access – which in the absence of any restriction already is a right – should be elevated to a “legally protected human right”, and what would that mean in practice? Internet access is already legally enshrined in some countries. But should it be? Do we need it to be? We all happily rely on access to water, electricity, sanitation, and food without the need to see these rights written into law. So why internet access?

The fact is, New Zealand already has strong free speech and anti-discrimination laws providing a very high level of protection:

• Under section 44 of the Human Rights Act, it is illegal for any person or company to refuse to provide service to any person on a wide range of discriminatory grounds, including sex, race, political & religious opinions, etc.
• Freedom of expression, including the rights to “seek, receive and impart information and opinions of any kind”, is enshrined in the Bill of Rights Act 1990.

In any case, there is no shortage of ISPs happy to provide access to anyone who’s willing to pay. Why would any ISP not want to provide service to a paying customer, unless they themselves were being harmed in some way?

If the right to internet access were “enshrined”, what would the practical result be?

• If a customer didn’t pay their bill, would the ISP be prevented from stopping their service?
• Would ISPs be unable to enforce terms of use?
• Would prisoners be able to surf the net all day?
• Would parents and schools be unable to prevent children from accessing certain sites?

If the aim is to prevent Government censorship or disconnection of user accounts (such as s92A of the Copyright Act), new legislation is not needed to achieve that. Instead, the repeal of the offending legislation is the answer. New Zealand does not have a constitution capable of striking down laws, so any specific legislation expressly providing the right could be limited by another law. Similarly, all rights protected by the Bill of Rights Act are subject to “reasonable limits“. Whether this is an acceptable state of affairs is another question – especially in our unicameral MMP system with a history (in the prior government at least) of ramming through constitutional changes, without a mandate, on a simple majority.

As regards the disconnection sanction of s92A, this is not about being “banned from the internet” any more than it is about banning free speech. Free speech itself has some limitations (even in the US), and certainly consequences in many cases (e.g. defamation). Does internet access need to be elevated above free speech? Besides, internet disconnection as a preferred strategy of some rights-holder groups is not likely to last long. It is more smoke than fire, and is easily avoidable. When the internet becomes the only means of distributing music, movies and other IP, disconnecting – rather than “reforming” – potential customers will make little sense.

In the end, the internet is simply a (very important) technological invention. It should no more need enshrinement in law as a “fundamental right” than the right to use a telephone. Besides breaking the desirable “technology neutrality” of law, this would also seem to be a case of  “rights inflation“:

Deciding which norms should be counted as human rights is a matter of some difficulty. And there is continuing pressure to expand lists of human rights to include new areas. Many political movements would like to see their main concerns categorized as matters of human rights, since this would publicize, promote, and legitimate their concerns at the international level. A possible result of this is “human rights inflation,” the devaluation of human rights caused by producing too much bad human rights currency (Cranston 1973, Orend 2002, Wellman 1999, Griffin 2001b).

Effort is better spent on protecting existing rights, and limiting the power of government. Upper house anyone?

Computerworld reports:

A requirement that a component of a government IT tender be open-source has sparked debate on whether such a specification is appropriate.

The relevant part of the RFP (for the State Services Commission) puts the requirement as follows:

We are looking for an Open Source solution. By Open Source we mean:

• Produce standards-compliant output;
• Be documented and maintainable into the future by suitable developers;
• Be vendor-independent, able to be migrated if needed;
• Contain full source code. The right to review and modify this as needed shall be available to the SSC and its appointed contractors.

The controversy is whether this is a mandate of open source licensing (which it isn’t). The government should not mandate open source licensing or proprietary licensing on commercial-line tenders. More precisely, it should not rule solutions in or out based on whether they are offered (to others) under an open source licence. The best options should be on the table.

The four stated requirements are quite sensible. As the SSC spokesman said, there is nothing particularly unusual about them in government procurement. These requirements (or variations on them) are similarly common in private-sector procurement and development contracts. In the public sector in particular though, vendor independence and standards-compliance help avoid farcical situations like the renegotiation of the Ministry of Health’s bulk licensing deal.

Open standards and interoperability in public sector procurement is gaining traction around the world. Recently, the European Union called for “the introduction of open standards and interoperability in government procurement of IT”. And in the recent UK election, all three of the main parties included open source procurement in their manifestos.

So why the controversy in this case? Most likely it’s the perhaps inapt use of the term “open source” in the RFP (even though the intended meaning is clarified immediately afterwards). The term “open source” is a hot-button word that means many things to many people, but today it generally means having code licensed under a recognised open source licence, many of which are copyleft. Many vendors simply could not (or would never want to) licence their code under such a licence, and it would be uncommercial and somewhat capricious for a Government tender to rule out some (or even the majority of) candidates based on such criteria.

However, it is clear that the SSC did not use the term in that context, and does not intend to impose such a requirement. An appropriate source-available licence is as capable of meeting the requirements as an open source licence (see my post on source available vs open source). The requirement for disclosure of code to contractors and future modification can be simply dealt with on standard commercial IP licensing terms.

A level playing field for open and proprietary solutions is the essential starting point, with evaluation – which in most cases should include open standards and interoperability – proceeding from there.

Technology policy and law is featuring prominently in the UK election campaign currently underway, with issues such as cloud computing, open source procurement and data protection finding their way into manifestos:

• Lib Dem manifesto focuses on ‘better’ IT procurement

“The Liberal Democrats’ election manifesto published today (14 April) called for improved government IT procurement, including the use of cloud computing and open-source software.”

• Tory manifesto: We will freeze new government IT spend

“The Conservative party has reiterated its plans to freeze major new IT spending and make changes in government procurement in its election manifesto… The Tories also pledged to create a “level playing field” for open source IT in government procurement, and to break up large IT projects into smaller parts to enable SMEs access to contracts.”

• Labour manifesto’s IT pledges: A triumph of hope over experience?

Labour repeatedly highlighted the importance of IT in its election  manifesto, which was launched today, but made few new IT-related promises.
The Labour Party stands on strengthening the digital economy, using open source in government IT …

• Election 2010: Pirate Party on tech (which deserves a mention as a tech-specific party!)

“Despite the name, the Pirate Party isn’t just about file sharing. Yes, it wants to ensure a right to file share, as well as format shift – such as moving songs from CDs to iPods, which is currently technically illegal. It also wants to cut copyright from 70 years to 10 and put labels on products to warn of the “defect” of DRM… On top of that, the party would ban spying on communications, end “compulsory ID cards” and toughen up data protection laws.”

More links on tech policies from: the SNP and Plaid Cymru, and the Greens.

Clearly, IT is figuring much more prominently in the upcoming UK election than in New Zealand’s last election in 2008. One reason is that the UK has suffered a number of major IT project blow-outs in recent years (such as the disastrous £12.7 billion NHS National Programme for IT) that have basically become minor election issues.

There are signs that technology is featuring more prominently in New Zealand’s political scene, though hopefully this will not be due to scandals over failed government IT projects.

However, the cynical last word must go to the Inquirer:

In short if you want to vote for someone on the basis of their enlightened IT policy you would be better off spoiling your ballot.

The Government’s decision to ban software patents has been harshly criticised as likely to damage investment and “suck the lifeblood” out of the New Zealand software development industry (Computerworld print edition, 12 April 2010). What evidence is there to support these contentions? Certainly none have been put forward. Here are comments from a trio of industry-leading organisations who know a thing or two about the industry:

• The CEO of the New Zealand Computer Society, Paul Matthews, says “on balance the evidence is clear that software patents are simply too harmful to our sector, and in fact all of New Zealand, to support. We were very happy to see Software Patents removed from the Bill and will be making it very clear to Government that we would be very disappointed to see them make an unwelcome return.”
• IP lawyer and former president of the New Zealand Software Association, Wayne Hudson, says that most of NZSA’s members can’t afford to “play the patent game”, and most members are “probably apathetic” to the issue.
• The CEO of Orion Health, New Zealand’s leading software exporter, Ian McCrae, supports the ban on software patents, saying the negatives outweigh the positives (Computerworld print edition, 12 April 2010).

Add to that the New Zealand Open Source Society (which has been the leading voice against software patents), other leading firms such as Catalyst IT, and numerous others, and it is clear that a very large part of the industry is either happy or apathetic about the ban on software patents.

The cross-party Commerce Committee (chaired by former lawyer, and opposition MP, Lianne Dalziel, and deputy-chaired by National MP Peseta Sam Lotu-Iiga, also a lawyer) unanimously recommended the ban, accepting the submissions in favour. The Commerce Minister, Simon Power (another former lawyer) says “the Government believes the committee has dealt with the issue in a sensible manner and has found a reasonable solution”.

So who is actually unhappy about this decision?

• Microsoft New Zealand, which says it is “concerned”, although it acknowledges it doesn’t actually do software development in this country;
• Microsoft partner Intergen (a leading NZ firm), which says it damages the industry [see comments section], although it was (by its own account) not interested in putting in a submission to the Select Committee (Computerworld print edition, 12 April 2010), and according to IPONZ does not hold any patents in its name or its parent company’s name.
• NZICT (whose Tier 1 members include major patent-holders Microsoft, IBM, and HP), though it appears not to have a policy position on this apparently critical issue, did not make a submission to the Select Committee, and did not mention software patents in its 17 November 2009 submission on “New Zealand’s research, science and technology priorities”.
• Patent attorneys AJ Park and Baldwins, both of which have filed software patents on behalf of international patent holders.

So, in the main, it appears that those unhappy about the decision are limited to the local subsidiaries of major international patent holders, their association (NZICT), and their local business partners. Their opposition is understandable. There are certainly some advantages to software patents to existing holders – but there are more disadvantages and other reasons not to allow them.

Banning software patents will align New Zealand with the European Union and remove a significant threat to the local industry. The general unavailability of software patents in the EU does not seem to have held back the IT sector in that region (or indeed the development of the internet itself). No compelling arguments have been put forward to indicate that New Zealand will somehow have a different experience after the new law takes effect. Instead, as the Select Committee unanimously found and the Government has agreed, the removal of software from patentability is a positive move, and one that has support across New Zealand’s IT industry.

The Department of Internal Affairs’ (DIA) internet filter has gone live. The system is aimed at blocking illegal images of children. While this is a voluntary scheme (unlike Australia’s scheme), the experience in the UK has been that there will be pressure on ISP’s (including direct Ministerial threats) to join the “voluntary” scheme, lest they become a known haven for those seeking illegal content. Now, all UK ISP’s subscribe to the Cleanfeed filter.

In New Zealand, any move to make the filter mandatory would require legislation. While many opponents of the filter would likely oppose legislation, it would at least have the effect of defining the parameters of the filter and its regulation. The legislation would need to comply with the Bill of Rights Act (unsatisfactory though that law may be), or be passed with a statement expressly acknowledging where it breaches that Act. This would clear up concerns (or at least bring them into the open) that the filter may one day start to gradually be used for other purposes, such as blocking breaches of name suppression. It would make the filtering accountable to Parliament and the Courts. Also, the enabling legislation does not need to create make filtering mandatory – it could ensure that ISP’s remain free to choose whether or not to sign-up.

As long as the scheme remains voluntary and unregulated, though, no legislation is needed. While the objective is admirable (putting aside major questions over effectiveness), concerns include:

• What information is being stored in the system, who has access to that information, and is it in compliance with the Privacy Act 1993?
• What oversight is there on the content being filtered?
• Is there a risk that the system could be extended to include material covered by name suppression orders?
• Is pressure being brought to bear on ISPs to join the system?

For now, some ISP’s have expressed strong concerns about the filter which, as long as it remains voluntary, makes it unlikely that full sign-up will be achieved in the short term.

Today’s report of the “successful” renegotiation of the Ministry of Health’s bulk licensing deal with Microsoft provides a text-book example of why the Government must properly mandate open standards and multi-vendor capable solutions for future state-sector IT procurement. From the article:

Mr Hesketh says the health sector is paying slightly more for software licences under the new three-year agreement. …

“We got the best possible deal out of Microsoft we could have got at this time.” …

The commission has encouraged government agencies to investigate alternatives to Microsoft products, including open-source software, but this was not an option for the sector as Microsoft is heavily embedded in its infrastructure, says Mr Hesketh.

There is no suggestion that Microsoft software is not perfectly suitable, and in all likelihood the best, choice for the Ministry at present time. But it makes a mockery of the idea of “renegotiating” a deal when an alternative supplier is, by the purchaser’s own admission, “not an option”. By definition, monopolies do not compete. At least when there is a viable alternative (even if not an ideal one), it enables price and other such factors to be negotiated to some degree and a competitive assessment to take place. Not so in a one horse race.

Nor would it be fair to criticise the current management for the single-vendor dependent situation it finds itself in. In fact, it is very likely that Microsoft was the best choice at all relevant times in the past, resulting in the current situation through no fault of anyone (and commendably smart business and great products by Microsoft). The point is that it provides an example (if another is needed) of why proprietary lock-in in the taxpayer-funded (public) sector should be avoided where possible going forward.

It would be interesting to hear some further explanation as to how the MoH can possibly claim the outcome as a “win”, when the result was it ended up paying more than the old deal – especially when the State Services Commission all-of-government negotiations broke down over price.

The article says the “win” claimed by the MoH is that each department did not need to “go through their own legal process of vetting the agreement and doing the negotiation process. We did that once rather than 24 times”. This is a highly dubious claim for several reasons:

• In what way were the “negotiations” possibly going to be different for each department? A supplier in a monopoly position, who has already hard-balled the biggest Government procurement agency, is hardly going to negotiate 24 much smaller deals. The commercially sensible premise is “take it or leave it”.
• If the SSC had no ability to leverage on price, there is no basis for claiming as “savings” the cost of not negotiating 24 much smaller sub-agency agreements.
• The “marginal cost” of legally vetting an agreement of the type negotiated here should not be significant for a lawyer familiar with software procurement and licensing issues. 90% of it would be boilerplate, standard terms and disclaimers (see The allure and illusion of commercial software support). If the agreement was identical to an already “vetted” version, as would seem likely, the marginal cost would be around zero.

Equally as dubious is the claim that the deal allows “licences to be transferred between the participating health sector agencies at no extra cost should they be reformed or reconfigured”. How much of a benefit is this? Let’s see:

• The standard EULA’s in Microsoft Office 2007, SQL Server 2008 and Windows 7 Ultimate (to pick 3 examples) allow no-cost transfers to a third party.
• At law, the benefits of a contract can (generally) be transferred freely “by default”.
• In the case of any statutory reforming / reconfiguring departments, legislation is able to deal with assignment of assets (including intangibles) to the new entities.

So how is the free transfer of licenses, already provided for in the standard EULA’s, regarded as a “win”?

The Government recently called for freer access to state data. This was promptly followed up by the release of the draft NZ Government Open Access and Licensing (NZGOAL) framework. It endorsed the view of the NZ Council for Humanities:

“Now more than ever is there a very present need to bring information the Government holds on behalf of its people into the public domain so that it may be used in ways that stimulate innovation, generate cultural creativity, social interaction and dialogue, while also kick starting economic growth.”

Amen. Last month Tim O’Reilly put the question succinctly: “can government become a platform?… the real secret of success in Government 2.0 is thinking about government as a platform.”

He elaborates:

“Rather than licensing government data to a few select ‘value added’ providers, who then license the data downstream, the federal government (and many state and local governments) are beginning to provide an open platform that enables anyone with a good idea to build innovative services that connect government to citizens, give citizens visibility into the actions of government and even allow citizens to participate directly in policy-making.”

The legal profession should be at the forefront of this process, but it has a history of lagging in such matters – even in the United States, as reported here following September’s Gov 2.0 Summit in Washington DC:

“Unfortunately, the legal profession was missing from the proceedings, convicted in absentia for being part of the problem instead of part of the solution.”

Let’s hope that as this process moves forward, through Government programmes and the efforts of those such as Open New Zealand, the legal profession and justice system is a full participant, and able to be part of the solution.