Tech law update 21 June 2010

Copyright in compilations

The Independent has an update on YPG’s legal battles to uphold the copyright in its Yellow Pages listings (see my post earlier this year). The outcome of the latest Court proceedings – expected very soon – could be of interest to all database or “compilation” rightsholders.

One such group may be New Zealand television networks seeking to restrict use of their TV listings by third parties. In Australia, this was the subject of the landmark IceTV case – which confirmed there is no copyright in basic, factual TV listings. Recently, Sky Television’s lawyers sent out cease-and-desist letters to people who had written programs allowing its listings to be “screen-scraped”, on the flimsy grounds that such actions breached its copyright in those listings (assuming such copyright even exists).

Google Street View WiFi drama

Errata Security has a good technical explanation of Google’s WiFi sniffing controversy, which is the subject of a preliminary criminal investigation in New Zealand (see my post here). From the post:

Although some people are suspicious of their explanation, Google is almost certainly telling the truth when it claims it was an accident. The technology for WiFi scanning means it’s easy to inadvertently capture too much information, and be unaware of it… It’s really easy to protect your data: simply turn on WPA. This completely stops Google (or anybody else) from spying on your private data (assuming you haven’t done something stupid like chosen an easily guessed password, or chosen WEP instead of WPA). If you don’t encrypt your traffic, then by implication, you don’t care if people eavesdrop on it.

Meanwhile, details are emerging that the captured data included passwords and emails. This is hardly surprising given that a huge amount of computer activity involves these two things, and it doesn’t change the “case” against Google. As I wrote earlier, intention is a key issue, as is whether the captured data is “reconstructed into a communication that indicates confidentiality” and made use of.

Luke Appleby gave his take on the Google WiFi drama here. While my post looked at the criminal acts, Luke rightly points out that Google could also have run foul of s 133A of the Radiocommunications Act 1989. That is certainly worth a look by the Privacy Commissioner (not the police; and there is still a need for intention which has yet to be established), although substantive privacy issues should be the focus of any investigation, if warranted – a case which has yet to be made.

Copyright Amendment Bill submissions

Internet NZ has published its submission on the Copyright Amendment Bill. It includes a great detailed analysis by lawyer Rick Shera. While I have different views on some aspects, I support a good many parts of the submission. Paragraphs 86 and 87 of Rick’s analysis in particular raise key questions that need to be addressed by the Committee.

The submission also emphasises the range of business and government activities reliant on internet access. This is a point I submitted on earlier, and it will be interesting to see if other business sectors pick up on this. For example, do banks and online shops really want their customers to be disconnected for transgressions against another industry group? I’m sure the recording industry would not want their online customers disconnected because one of their kids is caught shoplifting at the local dairy.

Aussie net filter to be back-burnered

The Australian government’s daft plan to impose mandatory internet filtering, which only recently was being pushed ahead, is now likely to be shelved until after the election.

Is internet access a human right?

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?

Tech law update 2 June 2010

Legislation website upgrade

The excellent New Zealand Legislation website is to be upgraded over the next few years to improve search functions, among others. A welcome addition will be more historic legislation being made available online.

Aussie internet filter to go ahead

The Australian government is pushing on with its daft mandatory internet filter. New Zealand is currently trialling a similar scheme, but no plans have been announced to make it compulsory. Certainly, while IT-savvy Steven Joyce is ICT Minister this is unlikely to change. The good news is that we will have the benefit of watching how the Australian scheme goes before launching our own (which would have been a great approach for the ETS too…)

Software audits

A local report mentions “rumours” that Microsoft is taking a more aggressive stance on licence compliance audits. While some people typically react with alarm over such suggestions, basic auditing is quite reasonable, and Microsoft is within its rights to do so. It is important for commercial software firms whose revenue base can be substantially undermined otherwise. In my experience, Microsoft is very reasonable about how it approaches these things (a certain “licensing adviser / salesperson” I once dealt with was a different matter, although she was independent of Microsoft).

Turn left at “common sense”

In the US (of course) a woman is suing Google after she followed its maps into traffic:

When Google Maps’ walking directions instructed Lauren Rosenberg to walk along a very busy highway with no pedestrian walkway, she followed the directions exactly. Unfortunately, she was hit by a car in the process.

I wonder if she applies the same unquestioning adherence to her car navigation system?

ISP filtering

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.

Name suppression and the internet

The Law Commission has published its report on name suppression. On the issue of name suppression on the internet it makes one recommendation:

Where an Internet service provider or content host becomes aware that they are carrying or hosting information that they know is in breach of a suppression order, it should be an offence for them to fail to remove the information or to fail to block access to it as soon as reasonably practicable. [7.16]

With regards to hosts, this is largely the status quo. It is less clear what an ISP that is “carrying” suppressed information is supposed to do. It would be impractical and ineffective, for example, to require ISPs to block access to sites it didn’t host. Of course, once a suppressed name has been communicated beyond our shores, any restrictions imposed by New Zealand law ceases to have any effect. If a major sports star had name suppression in New Zealand, and it was reported by Australian newspapers, would every ISP in New Zealand be expected to block access to those Australian websites?

The report’s findings on internet issues are brief, and don’t quite grasp the essential difficulties that the internet presents to the name suppression regime.  It states:

Where information as to the identity of someone appearing before a court is already in the public domain, it will not generally be appropriate to grant name suppression. The law will not undertake an exercise in futility, which would bring its own authority and processes into disrepute. [3.65]

Yet in many recent cases involving name suppression, that is precisely what has occurred. Twitter, Facebook and other local and international web sites are routinely used to blithely report (or more often, speculate on) the identity of the individual. An invariable side effect is the gross defamation of innocent persons unlucky enough to fit some “non-identifying” criteria not covered by the suppression order. There is every reason to think this phenomenon will become more and more common. In fact, the application of a suppression order, in many cases, simply has the effect of causing more speculation and breaches of the order – a manifestation of the Streisand effect.

The report noted that name suppression is generally more readily available in New Zealand than in Australia or the United Kingdom. One interesting statistic which the report did not appear to have considered, however, is how effective name suppression orders (in high profile cases) have been. Anecdotal evidence as well as personal experience suggests they are increasingly ineffective.

If the law is not to permit exercises in futility, this issue may need to be revisited again before long.