New DP blog

Another useful discovery - DP Thinker - Pangloss isn't sure to whom we owe the pleasure though. Of course it's clearly a matter of privacy :-) but anyone want to own up?

Lisbon Treaty We Salute You

I almost thought I would never live to see the day but yes the Lisbon Treaty has cleared its final hurdle and will become European law possibly in December 2009.

It's all rather a damp squib for a UK privacy lawyer though. (Even one who is healthily sceptical that the Tories can get us out of this one, even when they do get in.) Pangloss's main interest was in wondering if the EU Charter's explicit addition of a right to protection of personal data as well as the well known right to respect for private life (cf Art 8, ECHR) might make a difference and if so, in what way. However for we delicate flowers of the UK and Poland, there will be no change on the human rights front: see Art 1 -

In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

Pangloss is sadly no EU law nerd, and would welcome comment from any such out there as to whether this means we are in any way likely to receive less comprehensive privacy protection than the rest of the EU? Examples? This seems particularly relevant given the general feeling that the UK is implementing EC DP law at the minimum or below : see the EU's continuing efforts to persuade the UK to buck up over Phorm, not to mention long-simmering confusion or dismay over (a) Durant v FSA and (b) relatedly, our lack of sync with the Art 29 WP as to when and if to treat IP addresses as personal data.

It also of course means the UK remains unbound, at least in theory, by Article 36 of the Charter of Rights on Access to services of general economic interest. So no danger of the UK fast following in the footsteps of Finland and declaring access to broadband a human right? Surprising, that :-)

However before we Anglo-Saxons despair, we should remember the guidance from the ECJ in Promusicae which indicated that whether signatories or not and whether (as seemed uncertain at the time) the Lisbon Treaty ever became binding, the principles of the Charter of Rights are still likely to be regarded as part of EC law in the guise of underlying "general principles of Community law".

Death, assets and virtual worlds

I'm briefly quoted in this timely article in the New York Times on virtual assets and what to do with them after death.

TalkTalk vs Mandy??

Two days ago Pangloss, commenting on Mandelson's newly elaborated plans to introduce a UK "3 Strikes", added;

Interesting thought from Twitter: "if my business was cut off for allegedly downloading illegally I'd be looking for someone to sue". Will any legislation have an immunity in it for ISPs a la the US DMCA? If not, start lobbying NOW, ISPs.."

This thought (which turns out to have originated from the helpful @futureidentity, aka Robin Wliton) seems to have occurred fairly swiftly to others too... According to the Grauniad, today:

TalkTalk, the second largest internet service provider in the UK, has threatened to launch legal action if business secretary Peter Mandelson follows through with his plan to cut off persistent illegal filesharers' internet connections.

Carphone Warehouse-owned TalkTalk, which has more than 4 million ISP customers and owns the Tiscali and AOL brands, claimed the government's plan was based on filesharers being "guilty until proven innocent" and constituted an infringement of human rights.

"The approach is based on the principle of 'guilty until proven innocent' and substitutes proper judicial process for a kangaroo court," said Andrew Heaney, the executive director of strategy and regulation at TalkTalk. "We know this approach will lead to wrongful accusations."

While the liberal blogosphere has on the whole greeted this news with unrestrained enthusiasm (Twitter is full of it), Pangloss is a litle sceptical as to whether it is any more than self-seeking good-PR sabre-rattling.

Firstly, what exactly is TalkTalk's title to sue here? Surely not anything mentioned in the interview above. The breach of human rights, if any, will surely be of the subscribers, not the ISP. Any wrongful accusations without due process will similarly be directed at users, not the conduit.

TalkTalk's (or any other ISP's) real worries seem obvious :

(a) the threat of being sued by aggrieved users for everything from breach of confidence, to acessory to false accusation, to co-publisher of a libel, as well as of course for breach of the actual contract for Internet services; and

(b) the costs of being involved in Mandy's Great Scheme, both in terms of actual money and loss of customer goodwill. The Guardian also usefully reports today that according to BT and Carphone Warehouse (ie TalkTalk) , Mandy's scheme might costs £420m pa, to be shared evenly between rightsholders and ISPs (and, incidentally, to solve an estimated loss to the music industry of half that - c £200m pa.)

These figures make it clear the latter is the real issue, not human rights, nor liability to customers. In fact, most ISPs will have extensive exclusion from liability clauses in their subscriber contracts already - although these may well be subject to challenge under the Unfair Terms Regulations and /or UCTA and thus unenforceable.

So what would be the ISP's actual grounds for an action? No one has a right in this country simply to dispute a statute because they don't like it. Victims of a human rights violation - an unlawful act under s 7 of the HRA 98 - may indeed question the validity of a statute in any domestic proceedings, though under HRA 98, no UK court has the right to strike down legislation, merely to make a declaration of incompatibility, leaving it to the governement then to sort out what the hell to do.

Is TalkTalk itself a victim of any ECHR or HRA human rights violation? I don't see how. (Indeed it was once controversial if a juristic person could suffer a human rights violation - though this now seems to be accepted in some cases.) What they might argue is the rather muzzy domestic law tort that the government has interfered with their business contracts. This would be controversial (doesn't a government have the right to do exactly that? case law mainly concerns dirty practice by commercial competitors) and would attract considerably less public sympathy of course.

Another more plausible line of attack would be that any legislation was in breach of EC law forbidding ISPs from being required to generally monitor the public under art 15 of the E-Commerce Directive - although this has not stopped the French passing HADOPI - twice :-)

Pangloss is glad to see ISPs like TalkTalk, whom she has always regarded as being stuck between a rock and a hard place in this matter, coming out firmly against Mandelson's proposals and even gladder to see them endorse her own arguments that 3 strikes is likely to be in breach of ECHR guarantees of due process and privacy. But frankly - sue Mandelson? Oh come on, as someone else might say...

Google Street View

Just discovered this wonderful Pixar-esque video of how Google Street View protects privacy. If only life was really like this!!

Mandelson ploughs on

Pangloss feels compelled to report on yesterday's doings at the C&binet meeting (stupid name..)

The Beeb reports Mandelson as follows:

"

I have no expectation of mass suspensions. People will receive two notifications and if it reaches the point [of cutting them off] they will have the opportunity to appeal," he told the audience at the C&binet Forum, a talking shop set up by government to debate the issues facing the creative industries.

The pay-off for tough penalties against persistent file-sharers would be a more relaxed copyright regime, Mr Mandelson said.

The details of it would need to be hammered out at European level but it would take account of the use of copyright material "at home and between friends", he said."

So to state the bleeding-edge obvious:

- 3 strikes will be rubber stamped quickly by Parliament (it'll need to to avoid the end of the Labour regime); getting changes through the EC on fair use/fair dealing will take 2-6 years - if it happens at all. Some trade off.
- Still no detail on whether disconnection will require judicial oversight let alone a court order. Silence plus the enforced clamp down in the European Parliament on Amendment 138 would rather indicate not. It will be administarative fiat to cut off, with the onus placed on consumers, probably without legal aid, to appeal to the courts. This is so not natural justice.

As`Jim Killock of ORG noted:

"Even MI5 disagree with Mr Mandelson - they are convinced we will see a rise of a 'Dark Net' of infringers. Nobody at C&binet from an online music service, as opposed to an old media company, thought that peer-to-peer [file-sharing] was a threat to their businesses."

Same old same old..

Interesting thought from Twitter: "if my business was cut off for allegedly downloading illegally I'd be looking for someone to sue". Will any legislation have an immunity in it for ISPs a la the US DMCA? If not, start lobbying NOW, ISPs..

Pangloss has a lodger who for all she knows downloads night and day on the house wi fi. Will it become my responsibility to interrogate her and if necessary demand access to her computer? Hello DDR..

Death and Facebook

Ok back to business as usual..

Pangloss is always pleased to see things she's been lecturing about for a year turn into reality, and here comes one again. Facebook have decided to formalise the procedures they already, to some extent had, for "memorialising" the profiles of users who have become deceased. The Grauniad reports:

"When someone leaves us, they don't leave our memories or our social network. To reflect that reality, we created the idea of 'memorialised' profiles as a place where people can save and share their memories of those who've passed," explained Max Kelly, Facebook head of security, on the company's blog.

But what does it mean, that an account gets "memorialised"? The contact information and status updates are removed, and the profile is set private. No one can log into it any more. Only Facebook friends can locate the profile via search and leave posts on the wall for remembrance."

Although neither the Guardian nor Facebook mention it, it seems likely this too is a response to the recent demand by the Canadian Privacy Commissioner that FB put their house in order. But is this really the best option, or the only alternative (as it has been presented) to deletion by default?

As Pangloss has suggested before, is it not really up to the user themselves if they wish to see their site "memorialised", or if they feel this might be mawkish and upsetting? Would it not be better and indeed simpler for FB to provide a preference switch for the user to say in advance what they want, rather than relying on the impetus of the family to make a choice on death? And what if the user leaves a wish in their will which conflicts with what the family say to FB - will anyone have an interest to intervene?

Another problem, which the Guardian has also spotted, is that FB has simultaneously rolled out a "Reconnect" feature which encourages users to get back in touch with friends they've lost touch with. From FB's company blog, one user comment exposes the problem:

"hey i don't know if you read all of these, but facebook has suggested that i "reconnect" with two friends in the last two days, both of whom died over 18 months ago. please, please, please stop this as it is disturbing and creepy."

Er, yes. Oops?

Pangloss wonders bye the bye if is coincidental these changes have been made fairly shortly after the Jewish New Year and the Day of Atonement (Yom Kippur) when one remembers the dead and gone .. a connection recently made by Jewish Week who interviewed Pangloss a month back on this exact matter. The idea floated there that eulogy posts on FB memorialised profiles are a sort of collective post death mourning in these godless times, is an interesting and slightly scarey one. How long before FB goes 3D and starts offering an optional virtual funeral with avatars of deceased and friends? (And what adverts would they sell alongside??)

Pangloss herself is laid up right now with a bad back, by the way, and definitely feels after all this like she has one foot in the web 2.0 grave..

A sad but True Tale of Non-Honest Non-Chartered Accountants

This is a bit of a departure from normal practice. But what after all is the point of running something as self indulgent a waste of time as a blog if you can't use it (a) to vent a bit and (b) to provide public service information? :)

Pangloss is not unbusy - perhaps a mere gnat by comparison to the Masters of the Universe of Olswangs and Clifford Chance and perhaps even Queen Mary, but, even so, kinda busy you know. So for a number of years her practice has been to pay someone to prepare her self assessment tax return in January. Many moons ago, she noticed a quiet but well appointed outfit called Gillespies Accountants conveniently situated on Edinburgh's Lothian Road which boldly advertised flat rate self assessment. Inside was an aged retainer who revealed to Pangloss (who actually had a first career as a tax editor but it was mainly about CTT which had more or less been abolished so no bloody use) the glories of capital allowances, taking off money for the home office, and generally managing to secure far more in tax savings than he cost. Pangloss was entranced and became a regular. The procedure was simple: dump an envelope of receipts and invoices on his desk, come back in a couple days, and write a cheque to the IR , left to be sent who knows where, and a cheque to Gillespies. Short, swift and satisfying.

Several years later, Pangloss re arrives in Auld Reekie and around the post festive time, searches out her benefactor. Alas, he has gone to the great accounting firm in the sky. But lo, Gillespies still exists, albeit in far less convenenient premises in the middle of the giant hole in the road formerly known as Haymarket. Miracle! she breathes, and hastens thereto (performing several illegal left turns). The place is a post festive Marie Celeste, inhabited by one young and extremely distracted looking accountant called Campbell Walker who is a bit like the manic depresive insane patient David Tennant played in his very first role in Taking Over The Asylum. But ne'er mind, looks aren't everything right? And they'rer still (fairly) cheap.

So receipts are unbundled all over the desk and Pangloss flees merrily unburdened before her car is towed away, and then comes back again, braving icy weather, bagpipers and lost haunted buses, to sign the forms, and sign a cheque to HMRC and Gillespies and escape again. Phew.

Now imagine her surprise when some eight months later (because the post is decrepit and at least one letter had clearly never made it to her new temporary address with its communal postie area) she discovers that (a) her tax was never paid and (b) the HMRC are now charging a hefty surcharge for late payment with threats of sending the boys round. Imagine her surprise at having thought professional accountants she had paid to do this might have managed to send off a cheque in time. Imagine her not surprise at discovering Gillespies have nonethless long banked the cheque she wrote them. Imagine her not surprise redoubled at discovering that no cheque had indeed been processed by HMRC at the right time. Imagine also her consternation at not having kept her old cheque book because come on guys, cheque factories are closing down all over Britain they're so twentieth century and Pangloss looks everything up on RBS's very efficient online direct banking these days.

And imagine further her surprise on ringing Gillespies, and after ooh, only a two week wait on an urgent enquiry, being directed to the Eminence Grise Senior Partner (think Wolfram and Hart here) receiving not an apology, not an explanation, and certainly not an offer to pay the surcharge, but instead a denial of all knowledge of any cheque, or having lost one , or having not asked for one when one was needed, and a thinly disguised accusation (by someone who's very clearly seen too many cop shows) of it all being NOT ONLY some kind of elaborate fraud to gain a princely sum of about £200, BUT ALSO, ABSOLUTELY, HER OWN FAULT for being one of the people who dared to get their self assessment done - for money - at the last minute.

Pangloss was so perplexed she almost didn't manage to point out that THIS WAS HOW GILLESPIES M ADE MOST THEIR MONEY.

And so to the Web. Strangely Gillespies have no website so Pangloss cannot name and shame the Senior Partner she spoke to. Let's call him CrackerPot. Nor, it turns out, are they chartered accountants. or members of ICAS. Which means they have no regulator to report them to. Unlike lawyers, you can call youself "accountant" it seems and not be part of any professional body. In fact, they are in fact as duely accredited as any other self respecting homeopath, clairvoyant or witch doctor.

Pangloss feels very stupid. But if I didn't know this stuff, how in **'s name is an ordinary member of the public meant to? And is it not some kind of major failing in the 8 million, 342,000 consumer protection laws we have now that calling yourself "Accountants" involves no professional regulation of any kind?

Would anyone out there like to do some pro bono work in professional negliegence for grateful academic? :-) Alternately just pass this on, and if you live in or nearabouts Edinburgh please do NOT risk the attitude I befell - choose life, don't choose Gillespies. Please pass on!

Oh dear

Via b2fxxx. comes the news that the Council has indeed shoved through the deeply unsatisfactory compromise version of Amendment 138 to the Telecoms Package over the , well not quite dead but fatally wounded body of the European Parliament. Sez Ray:

"La Quadrature du Net are unhappy with the revised version of amendment 138 to the telecoms package agreed by the Council and representatives of the EU parliament.

"Yesterday, representatives of the European Parliament, an institution that ordinarily prides itself for protecting human rights at home and abroad, decided to surrender to the pressure exerted by Member States. The Parliament gave up on amendment 138, a provision adopted on two occasions by an 88% majority of the plenary assembly, and which aims at protecting citizens' freedom in the online world. Instead of ensuring that no restriction to Internet access would be imposed without the prior ruling of a judge, amendment 138 will instead be replaced by a weak provision1, that does not carry any new important safeguard for citizen's freedoms.

The European Parliament, who regularly boasts itself about its credentials in the field of human rights, has endorsed the false idea that it had no power in protecting their constituents' rights under current rules. This decision was taken consciously by rapporteur Catherine Trautmann, in order not to risk a confrontation with the Council of EU and to quickly finish with the Telecoms Package. She, along with the rest of the Parliament delegation deliberately ignored existing texts and case law pointing to the fact that it had the competence to adopt the core principles of amendment 1382. They didn't even try to reword the original amendment in order to preserve its initial objective."

Thanks Ray for the update. This is depressing but largely expected. Sigh.

The new text reads as follows, according to La Quadrature:

"3a. Measures taken by Member States regarding end-users' access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances and imposed if they are necessary, appopriate and proportionate within a democratic society, and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. In particular, any measures may only be adopted as a result of a prior, fair and impartial procedure ensuring inter alia that the principle of presumption of innocence and the right to be heard of the person or persons concerned be fully respected. Furthermore, the right to an effective and timely judicial review shall be guaranteed.

This shall not affect the competence of a Member State, in conformity with its own constitutional order and with fundamental rights, to establish a requirement of a judicial decision authorising the measures to be taken."

This is at least slightly better than one earlier version of the compromise amendment Pangloss saw (which may explain the cave) . But the sting in the tail is the last para. Clearly by implication for some member states , of a certain constitutional tradition (which, one wonders? could it include France? and perhaps the UK?), a "proper" judicial decision will not be necessary before disconnection, no matter how much flannel is in the previous para.

"Effective judicial review" at end para 2 also makes it clear that any right to a prior court order before disconnection has vanished, leaving only post factum appeal (which in light of consumer ignorance, and inertia, and the costs of proving someone messed up on IP identification is an almost meaningless remedy for the masses).

Oddly the Register today merely reports that the Telecoms package has to be settled before end year or fall entirely, which left six weeks to negotiate, and suggests

"The Council and Parliament are [still] in disagreement over a clause in a Commission-proposed reform package for telecoms regulation which would stop internet users being cut off for alleged file-sharing without a court's authority."

Can someone confirm the Quadrature de Net version of events?

EDIT: the all-knowing Monica Horten also seems to report confusion as to whether this text has actually been accepted.

EDIT 2: Surely there is a Downfall mashup out there about amendment 138 by now? This has to be the last days in the bunker..