Tuesday, February 28, 2006
Sunday, February 26, 2006
Security, Spam and EBay Law round up
Finally tonight, folks, also worth noting: yet another intensely sensible comment on trust and security from Bruce Schneier, my man of the moment:
and a clip I've meant to blog for some time - Yahoo! and AOL have reinvented the email postage stamp, only a year after Bill Gates did, we all laughed at him, The Great Unwashed Public said "We aren't gonna pay extra for steenking email!" and he said "Gee, that wasn't such a good idea after all huh?". OK the new scheme is a bit different. Yahoo! and AOL say it will act to give email that is stamped "preference", rather than acting, as Gates first envisaged it, as a spam whitelist. This still won't make the public like it so it's being sold as a way of prioritising business email. Do you want your email de prioritised? I sure as hell don't..
Also there's this: "AOL and Yahoo will still accept e-mail from senders who have not paid, but the paid messages will be given special treatment. On AOL, for example, they will go straight to users' main mailboxes, and will not have to pass the gantlet of spam filters that could divert them to a junk-mail folder or strip them of images and Web links."
So if you're a spammer with a bit of start up cash all you have to do is pay the stamp and you evade all filters. OK, 99.99% of spammers won't do that but it still irks me, as the whole point of spam is that it is unsolicited. Spam filters should apply if it's SPAM no matter how much blood money has been paid! OK, the NY Times report adds "The senders must promise to contact only people who have agreed to receive their messages, or risk being blocked entirely." - but like, all spammers have been totally truthful up till now? Riiight!
Theer's also the point that Yahoo! and AOL simply keep the "postage stamp" money. When economic modes of stopping spam were first proposed a year or two back, the general foundational idea was that the "spam tax" money would not be kept by ISPs but raked back by the givernment or at least some independent body to be spent on functions of use to the whole Internet - like developing better spam filters. This way it becomes just another revenue stream for Yahoo!/AOL. Back to the NY Times article. ""From AOL's perspective, this is an opportunity to earn a significant amount of money from the sale of stamps," he said. "But it's bad for the industry and bad for consumers. A lot of e-mailers won't be able to afford it."
Meanwhile back at The Register, the old idea of strict liability for data breaches has reared its head again in the wake of the theft of a laptop from a mortgage lender containing 550,000 people's full credit information. In the US, the the Gramm Leach Bliley Act (GLBA), 15 USC 6801, demands that holders of financial data take reasonable care as to it. In the end however, the mortgage lender was found to have behaved reasonably: " it was not foreseeable that the laptop containing this information, being kept in this home office, might be the subject of a burglary. The court even deemed the location to be a "relatively safe" neighborhood in suburban Washington DC. This is despite the fact that last year alone there were a large number of laptop thefts across the United States."
Finally just a marker of what might be a significant case in the beginning of the end for EBay's carefully kept position of "intermediary neutrality". Tiffany, the diamond folks, are suing EBay for essentially aiding and abetting the passing off of Tiffany fakes via their site. It's hard to see how EBay, unlike old fashioned ISPs, can maintain that they can only stay in business if not held liable for third party content, when their entire business model is based on taking a cut from other parties' third party content. The fact that EBay maintains pages of guidance on not selling goods such as counterfeits on its site merely demonstrates that (a) they know the problem exists but (b) they aren't going to spend any (OK, many) resources on solving it, even though they have the benefit of access to far more data than either the businesses whose trademarks are infringed or the police. Watch this one run..
and a clip I've meant to blog for some time - Yahoo! and AOL have reinvented the email postage stamp, only a year after Bill Gates did, we all laughed at him, The Great Unwashed Public said "We aren't gonna pay extra for steenking email!" and he said "Gee, that wasn't such a good idea after all huh?". OK the new scheme is a bit different. Yahoo! and AOL say it will act to give email that is stamped "preference", rather than acting, as Gates first envisaged it, as a spam whitelist. This still won't make the public like it so it's being sold as a way of prioritising business email. Do you want your email de prioritised? I sure as hell don't..
Also there's this: "AOL and Yahoo will still accept e-mail from senders who have not paid, but the paid messages will be given special treatment. On AOL, for example, they will go straight to users' main mailboxes, and will not have to pass the gantlet of spam filters that could divert them to a junk-mail folder or strip them of images and Web links."
So if you're a spammer with a bit of start up cash all you have to do is pay the stamp and you evade all filters. OK, 99.99% of spammers won't do that but it still irks me, as the whole point of spam is that it is unsolicited. Spam filters should apply if it's SPAM no matter how much blood money has been paid! OK, the NY Times report adds "The senders must promise to contact only people who have agreed to receive their messages, or risk being blocked entirely." - but like, all spammers have been totally truthful up till now? Riiight!
Theer's also the point that Yahoo! and AOL simply keep the "postage stamp" money. When economic modes of stopping spam were first proposed a year or two back, the general foundational idea was that the "spam tax" money would not be kept by ISPs but raked back by the givernment or at least some independent body to be spent on functions of use to the whole Internet - like developing better spam filters. This way it becomes just another revenue stream for Yahoo!/AOL. Back to the NY Times article. ""From AOL's perspective, this is an opportunity to earn a significant amount of money from the sale of stamps," he said. "But it's bad for the industry and bad for consumers. A lot of e-mailers won't be able to afford it."
Meanwhile back at The Register, the old idea of strict liability for data breaches has reared its head again in the wake of the theft of a laptop from a mortgage lender containing 550,000 people's full credit information. In the US, the the Gramm Leach Bliley Act (GLBA), 15 USC 6801, demands that holders of financial data take reasonable care as to it. In the end however, the mortgage lender was found to have behaved reasonably: " it was not foreseeable that the laptop containing this information, being kept in this home office, might be the subject of a burglary. The court even deemed the location to be a "relatively safe" neighborhood in suburban Washington DC. This is despite the fact that last year alone there were a large number of laptop thefts across the United States."
Finally just a marker of what might be a significant case in the beginning of the end for EBay's carefully kept position of "intermediary neutrality". Tiffany, the diamond folks, are suing EBay for essentially aiding and abetting the passing off of Tiffany fakes via their site. It's hard to see how EBay, unlike old fashioned ISPs, can maintain that they can only stay in business if not held liable for third party content, when their entire business model is based on taking a cut from other parties' third party content. The fact that EBay maintains pages of guidance on not selling goods such as counterfeits on its site merely demonstrates that (a) they know the problem exists but (b) they aren't going to spend any (OK, many) resources on solving it, even though they have the benefit of access to far more data than either the businesses whose trademarks are infringed or the police. Watch this one run..
Oyster cards, privacy and security
Not that I'm claiming I started it or anything but there has been something of a flurry in the press lately about the Transport for London Oyster Card and how easily it can be used to track down an individual's movements. No one did come back last time to tell me how an Oyster card worked, (well except Ian Brown ) but from the Register and Independent on Sunday articles, it seems you need nothing beyond the actual card in your hand to access journey information at a kiosk, but slightly more security operates when you try to get the info on-line from your own PC:
"The IoS claims that Oyster journey data can be extracted at a ticket machine using the card, or online by keying the serial number of the card. As far as The Register is aware, however, internet access is slightly more secure than this, requiring a username and password or the serial number, and mother's maiden name or similar, from the application form. These are not, however, insuperable hurdles for the suspicious spouse or close friend, and access to the individual's email account would probably be enough for a snooper to change passwords and gain access to the account itself."
As the Register point out, the current basic level of security helps no one. Either close down access altogether - why do you need to access details of your OWN journeys? you KNOW where you've been!! - or add some decent security like a password for ticket machine access.
And as they also add, the problem will more pressing if/when , as planned for a year or so, the Oyster Card scheme is extended to become a smart card wallet, used in DigiCash like ways to pay for small purchases like milk and papers.
"The IoS claims that Oyster journey data can be extracted at a ticket machine using the card, or online by keying the serial number of the card. As far as The Register is aware, however, internet access is slightly more secure than this, requiring a username and password or the serial number, and mother's maiden name or similar, from the application form. These are not, however, insuperable hurdles for the suspicious spouse or close friend, and access to the individual's email account would probably be enough for a snooper to change passwords and gain access to the account itself."
As the Register point out, the current basic level of security helps no one. Either close down access altogether - why do you need to access details of your OWN journeys? you KNOW where you've been!! - or add some decent security like a password for ticket machine access.
And as they also add, the problem will more pressing if/when , as planned for a year or so, the Oyster Card scheme is extended to become a smart card wallet, used in DigiCash like ways to pay for small purchases like milk and papers.
Who Do You Trust, Reloaded?
Interesting response from my coder guru pal, Pete Fenelon: I don't agree with every word but I thought it was worth reproducing in full..
Overview: code signing and secure OSes won't work - but that's not where
the effort should be going; it should be going into creating a
well-policed interface between private systems and the network - and
making the owners of those systems liable.
PF: I admit that I'm something of an oddball in my views here, but I
belive that what goes on behind your net connection is your own business; what comes out of it is very much not your business. Same as I can have a rocket-powered car in my garage, but I'm toast if I try to take it on the road. ;)
LE: Bill argues that being asked to trust the people who supply "trusted" software - people like Sony - is akin to owning a car where you can't look under the bonnet.
PF: And what's wrong with this? -- most people who buy cars these days don.t know diddly about what goes on under the bonnet, and entrust repairs to qualified professionals (or at least people who they think are qualified professionals). Most home computers are "administered" by "our Kevin who's dead good with computers, he gets high scores on all them games he gets discs of". "Our Kevin" often isn't mindful of the consequences (or even existence of) malware, and would click "OK" like a Pavlovian dog if it meant playing a warez version of Halo 3.
Bill: "I have a very nice car, and I try to take good care of it. It runs on petrol, but I want the freedom to fill it up with diesel and destroy the
engine. It's my engine, after all.
PF: Well, in many cases it's probably the finance or leasing companys engine, but hey...
Bill: The same goes for my computer. I want the freedom to write, compile and run my own code, take risks with dodgy software I've downloaded from the
net and even break the law and risk prosecution by playing unlicensed music or running cracked software. "
PF: It might well be "his computer", in the same way that it's "his
car", but his car has to be MOTed regularly to ensure that it still complies with the law, and he has to take out insurance against any damage he might cause to others. When people call the Internet the "information superhighway" they seem to forget that the real highway isn.t a free-for-all -- there are people out there watching what you do, there are laws by which and your vehicle must abide if you wish to drive on it, and you must be licensed to even venture onto it. The penalties
are (or at least should be) draconian. The analogy is simple; we don't have "car cops" in Britain who stop you fitting an eight litre engine and slick tyres to your Morris Minor, we have "traffic cops" who get peeved if they see it on the road. Similarly, we shouldn.t have "computer cops" who stop you installing Frigware Linux R00tK1T 3D1T10N, we should have "network traffic cops" who pull the plug if your machine starts behaving dangerously.
PF: Right now, lives aren't at stake on the Internet (although no doubt some fool will eventually connect up some safety-critical equipment to an
unprotected public network and someone will get hurt), but the economic well-being of others is. What we need isn't a technical solution; it's a financial/legal one. We need:
PF: liability for damage caused by anything coming from a network
endpoint for which a particular legal entity (individual, corporation) is responsible.
PF: Regulation of apparatus that can connect - and I don't mean the old BABT red/green triangles, I mean mandating *approved* firewall/gateways between the public network and any equipment connected to it. Found without a firewall/working and up to date AV system? (and your ISP will be probing, otherwise it'll be fined and
potentially ostracised at LINX or similar.... or at least would be in my universe?) Exactly the same as having no catalytic converter, no headlights and bald tyres -- your connection "goes dark" and you're fined. Simple as that.
PF: Unfortunately I don;t believe that licensing of individuals as fit to use computers can take place - for a start there's the problem of proving who's in control of a machine at any point.
PF: I also don't believe that licensing of applications can meaningfully be done. True 'trusted computing' costs, and costs in the eight figure sort of region for a typical project. And, frankly, how far does trust go? You can't trust any mainstream commercial or open-source desktop operating systems, not with the level of flaws found in them (and for an amusing aside, google "Reflections On Trusting Trust"). True Trusted Computing platforms are expensive, inflexible, and don't offer the kind
of experience that modern end users expect -- it'd be like stepping back around 20 years for most PC owners. A trusted system according to the Orange Book or Common Criteria would not be something most people would buy, and it'd move computers back from being a part of the home to being an expensive office tool. Maybe no bad thing ;)
LE: What this apparently appealing metaphor obscures is two things. One "trusted computing" in the strict sense is about hardware not software. I'll come back to this. Trusted computing means that the (metaphorical) box your computer comes in has to be a "black box" unopenable by the user - otherwise the user can do all the stupid things users do right now like open emails from strangers, accept downloads with payloads of virus executables , and click on URLs that take them to phishing websites.
PF: Exactly. But extending your thoughts even further, it's a systems view and a human view that we need, not a software one. If I do something that trashes my computer, it's my risk and my loss. If I do something that trashes my computer, turns it into a zombie host for running a botnet from, and makes it part of a denial of service attack, it's different. I've messed someone else's system up and that's contributory negligence... or criminal damage ;)
LE: This means you do indeed have to trust the people who supply you with trusted computing hardware, and I agree with Bill that there should be
serious legal obligations with decent compliance mechanisms placed on those who do sell "trusted computing" so they do not sell us, as we Glaswegians say, a pig in a a poke (or a root kit in a DRM).
LE: But the Internet is not going to be any more secure if we sell people trusted computing hardware and let them, as Bill, wants to, tinker and
fiddle. It would be like selling my mum a Ferrari and suggesting that if she's bored one Sunday she tunes the engine up a bit. She would destroy a very expensive engine and she would also endanger people on the road if she took the car out and it ran out of control as a result of her unskilled modifications while she was driving.
PF: Agreed.
LE: Security of hardware sold to consumers, and consequentially the security of the entire Internet (see posts on bots , zombies etc, passim) is simply no longer compatible with open tinkering.
LE: Once upon a time anyone who bought a car was allowed to simply take delivery and drive it. Then when the density of cars increased, we reaised we needed driving tests for public safety. Maybe people like Bill who are well equipped to safely tinker with/fine tune their computers (unlike my Mum) , should have to pass a test too before they're allowed to drive away a non-black-box computer?
PF: Unenforceable. You don.t stop people owning computers, you just make it very, very hard, risky, and expensive to connect anything dubious to the public internet.
LE: Radical in the libertarian world of computer culture ; but not very odd at all when you look at the rest of the everyday attitude to owning potentially dangerous objects.
PF: "Libertarianism" on the public internet is a consensual illusion
passed down from idealistic old-timers of the 1970s and 1980s who enjoyed unrestricted ARPAnet/Internet access as a perk of their jobs or studies and the network was largely run by and for enthusiasts as a piece of research. It's been a fiction ever since individuals have been paying for their access; you are always "playing with someone else's ball" and that someone else is much bigger than you. AUPs are going to get more and more restrictive, either because ISPs are covering their asses or because governments are leaning on them, and the onsequences for breaching those AUPs must become commensurately more painful.
LE: What about the software that trusted computing hardware is willing to accept and excute? the so called "signed" software? Here I completely agree with Bill that the defining of what is acceptable software cannot safely be left to the dictat of the software/hardware vendors. Microsoft eg (just AS an example!) has absolutely no incentive to let me, a consumer, run open source software on the trusted platform they've just sold me. Without needing to imply any malice at all, simple competitive strategy would dictate they should allow access to Microsoft software products and nothing else, if they can get away with it. So as Bill says:
PF: This "ecosystem" doesn't work; Gates tried to build a "trusted
computing" platform with XBox. I forget how many weeks it took to crack it wide open. DVD regioning tried to enforce a controlled system in hardware. Ditto. There are more and cleverer people out there fighting for "freedom" than there are people able to deny them. So move the problem - take it out of the technical domain and into the legal one.
LE: [actually Bill] "The second thing we need is diversity when it comes to code signing. If my computer is set to run only signed software or read only signed
documents, then who can sign what becomes far more than a matter of technology, it becomes a political issue.
LE: [still actually Bill] We must not settle for a closed platform which allows the hardware vendor or the operating system supplier to decide, so it is time for governments to intervene and to ensure that we have an open marketplace for code signing.
PF: A closed platform won't work (see above). And signing authorities? This just permits the development of 800lb monopoly gorillas like Verisign. Far simpler to move the burden - the place to police is the network interface. I don't care what naughty crap people run on their computers; what I do care about is that someone running dangerous software can't swerve across the information superhighway and unintentionally deny my service.
LE: [still Bill!] The simplest way to do this is to give the process a statutory backing and then issue licences, just like we do for many professional and financial services. "
PF: Software licensing on this scale can't and won't happen. Especially
not while you can buy hooky software from market stalls and/or China ;)
PF: A regulatory framework needs to be put in place and that regulatory framework needs to be centred around policing traffic through network
endpoints, not what's hanging off them. Does it matter what a non-connected computer runs? Of course not.
LE: It's the last para I can't see happening, for the simple reason that a lot of hardware and software comes from the US and the US is not prone
to extending governement regulation of industry. The UK can impose local regulation on hardware, at least in theory, by stopping it at ports: it simply can't impose licensing control on software downloaded from the States. How can you download that "dodgy software" you have your eye on, if the country it originates from hasn't bought in to a licensing scheme model? Do you simply accept any software with no license - then bangs goes security.
PF: All good points.
LE: A better candidate for a certification authority for signing or
licensing software as safe might be the existing international standard setting authorities. If an ISO standard, available on-line and revised on application by new entrants into the software market, said what programmes my black box should (or could) accept and execute and which it definitely shouldn't, both I and my technophobe mother might feel a lot safer on the Net.
PF: A wise old engineer who used to work in telecoms once said to me
"What's the difference between Jurassic Park and the ISO?" I said I didn't know. "One of them's a theme park filled with dinosaurs - and the other.s a movie". By the time the ISO has defined a model for software certification and verification the problem will have morphed out of recognition. The ISO is essentially completely reactive when it comes to comms and computers; their one attempt to define networking standards was a complete failure in the face of the open-source TCP/IP protocol stack and since then they.ve essentially been regarded as a laughing stock by the Internet community. ISO, ECMA, and similar bodies simply don't have the leverage.
PF: Your technophobe mother doesn't want a true "Trusted Computer"; I doubt she.d be willing to take on the cost of buying one. Your technophobe mother wants a computer that does the right job for her, and that's difficult to unintentionally or maliciously modify.
And LE adds - couldn't agree more! Thanks Pete.
Overview: code signing and secure OSes won't work - but that's not where
the effort should be going; it should be going into creating a
well-policed interface between private systems and the network - and
making the owners of those systems liable.
PF: I admit that I'm something of an oddball in my views here, but I
belive that what goes on behind your net connection is your own business; what comes out of it is very much not your business. Same as I can have a rocket-powered car in my garage, but I'm toast if I try to take it on the road. ;)
LE: Bill argues that being asked to trust the people who supply "trusted" software - people like Sony - is akin to owning a car where you can't look under the bonnet.
PF: And what's wrong with this? -- most people who buy cars these days don.t know diddly about what goes on under the bonnet, and entrust repairs to qualified professionals (or at least people who they think are qualified professionals). Most home computers are "administered" by "our Kevin who's dead good with computers, he gets high scores on all them games he gets discs of". "Our Kevin" often isn't mindful of the consequences (or even existence of) malware, and would click "OK" like a Pavlovian dog if it meant playing a warez version of Halo 3.
Bill: "I have a very nice car, and I try to take good care of it. It runs on petrol, but I want the freedom to fill it up with diesel and destroy the
engine. It's my engine, after all.
PF: Well, in many cases it's probably the finance or leasing companys engine, but hey...
Bill: The same goes for my computer. I want the freedom to write, compile and run my own code, take risks with dodgy software I've downloaded from the
net and even break the law and risk prosecution by playing unlicensed music or running cracked software. "
PF: It might well be "his computer", in the same way that it's "his
car", but his car has to be MOTed regularly to ensure that it still complies with the law, and he has to take out insurance against any damage he might cause to others. When people call the Internet the "information superhighway" they seem to forget that the real highway isn.t a free-for-all -- there are people out there watching what you do, there are laws by which and your vehicle must abide if you wish to drive on it, and you must be licensed to even venture onto it. The penalties
are (or at least should be) draconian. The analogy is simple; we don't have "car cops" in Britain who stop you fitting an eight litre engine and slick tyres to your Morris Minor, we have "traffic cops" who get peeved if they see it on the road. Similarly, we shouldn.t have "computer cops" who stop you installing Frigware Linux R00tK1T 3D1T10N, we should have "network traffic cops" who pull the plug if your machine starts behaving dangerously.
PF: Right now, lives aren't at stake on the Internet (although no doubt some fool will eventually connect up some safety-critical equipment to an
unprotected public network and someone will get hurt), but the economic well-being of others is. What we need isn't a technical solution; it's a financial/legal one. We need:
PF: liability for damage caused by anything coming from a network
endpoint for which a particular legal entity (individual, corporation) is responsible.
PF: Regulation of apparatus that can connect - and I don't mean the old BABT red/green triangles, I mean mandating *approved* firewall/gateways between the public network and any equipment connected to it. Found without a firewall/working and up to date AV system? (and your ISP will be probing, otherwise it'll be fined and
potentially ostracised at LINX or similar.... or at least would be in my universe?) Exactly the same as having no catalytic converter, no headlights and bald tyres -- your connection "goes dark" and you're fined. Simple as that.
PF: Unfortunately I don;t believe that licensing of individuals as fit to use computers can take place - for a start there's the problem of proving who's in control of a machine at any point.
PF: I also don't believe that licensing of applications can meaningfully be done. True 'trusted computing' costs, and costs in the eight figure sort of region for a typical project. And, frankly, how far does trust go? You can't trust any mainstream commercial or open-source desktop operating systems, not with the level of flaws found in them (and for an amusing aside, google "Reflections On Trusting Trust"). True Trusted Computing platforms are expensive, inflexible, and don't offer the kind
of experience that modern end users expect -- it'd be like stepping back around 20 years for most PC owners. A trusted system according to the Orange Book or Common Criteria would not be something most people would buy, and it'd move computers back from being a part of the home to being an expensive office tool. Maybe no bad thing ;)
LE: What this apparently appealing metaphor obscures is two things. One "trusted computing" in the strict sense is about hardware not software. I'll come back to this. Trusted computing means that the (metaphorical) box your computer comes in has to be a "black box" unopenable by the user - otherwise the user can do all the stupid things users do right now like open emails from strangers, accept downloads with payloads of virus executables , and click on URLs that take them to phishing websites.
PF: Exactly. But extending your thoughts even further, it's a systems view and a human view that we need, not a software one. If I do something that trashes my computer, it's my risk and my loss. If I do something that trashes my computer, turns it into a zombie host for running a botnet from, and makes it part of a denial of service attack, it's different. I've messed someone else's system up and that's contributory negligence... or criminal damage ;)
LE: This means you do indeed have to trust the people who supply you with trusted computing hardware, and I agree with Bill that there should be
serious legal obligations with decent compliance mechanisms placed on those who do sell "trusted computing" so they do not sell us, as we Glaswegians say, a pig in a a poke (or a root kit in a DRM).
LE: But the Internet is not going to be any more secure if we sell people trusted computing hardware and let them, as Bill, wants to, tinker and
fiddle. It would be like selling my mum a Ferrari and suggesting that if she's bored one Sunday she tunes the engine up a bit. She would destroy a very expensive engine and she would also endanger people on the road if she took the car out and it ran out of control as a result of her unskilled modifications while she was driving.
PF: Agreed.
LE: Security of hardware sold to consumers, and consequentially the security of the entire Internet (see posts on bots , zombies etc, passim) is simply no longer compatible with open tinkering.
LE: Once upon a time anyone who bought a car was allowed to simply take delivery and drive it. Then when the density of cars increased, we reaised we needed driving tests for public safety. Maybe people like Bill who are well equipped to safely tinker with/fine tune their computers (unlike my Mum) , should have to pass a test too before they're allowed to drive away a non-black-box computer?
PF: Unenforceable. You don.t stop people owning computers, you just make it very, very hard, risky, and expensive to connect anything dubious to the public internet.
LE: Radical in the libertarian world of computer culture ; but not very odd at all when you look at the rest of the everyday attitude to owning potentially dangerous objects.
PF: "Libertarianism" on the public internet is a consensual illusion
passed down from idealistic old-timers of the 1970s and 1980s who enjoyed unrestricted ARPAnet/Internet access as a perk of their jobs or studies and the network was largely run by and for enthusiasts as a piece of research. It's been a fiction ever since individuals have been paying for their access; you are always "playing with someone else's ball" and that someone else is much bigger than you. AUPs are going to get more and more restrictive, either because ISPs are covering their asses or because governments are leaning on them, and the onsequences for breaching those AUPs must become commensurately more painful.
LE: What about the software that trusted computing hardware is willing to accept and excute? the so called "signed" software? Here I completely agree with Bill that the defining of what is acceptable software cannot safely be left to the dictat of the software/hardware vendors. Microsoft eg (just AS an example!) has absolutely no incentive to let me, a consumer, run open source software on the trusted platform they've just sold me. Without needing to imply any malice at all, simple competitive strategy would dictate they should allow access to Microsoft software products and nothing else, if they can get away with it. So as Bill says:
PF: This "ecosystem" doesn't work; Gates tried to build a "trusted
computing" platform with XBox. I forget how many weeks it took to crack it wide open. DVD regioning tried to enforce a controlled system in hardware. Ditto. There are more and cleverer people out there fighting for "freedom" than there are people able to deny them. So move the problem - take it out of the technical domain and into the legal one.
LE: [actually Bill] "The second thing we need is diversity when it comes to code signing. If my computer is set to run only signed software or read only signed
documents, then who can sign what becomes far more than a matter of technology, it becomes a political issue.
LE: [still actually Bill] We must not settle for a closed platform which allows the hardware vendor or the operating system supplier to decide, so it is time for governments to intervene and to ensure that we have an open marketplace for code signing.
PF: A closed platform won't work (see above). And signing authorities? This just permits the development of 800lb monopoly gorillas like Verisign. Far simpler to move the burden - the place to police is the network interface. I don't care what naughty crap people run on their computers; what I do care about is that someone running dangerous software can't swerve across the information superhighway and unintentionally deny my service.
LE: [still Bill!] The simplest way to do this is to give the process a statutory backing and then issue licences, just like we do for many professional and financial services. "
PF: Software licensing on this scale can't and won't happen. Especially
not while you can buy hooky software from market stalls and/or China ;)
PF: A regulatory framework needs to be put in place and that regulatory framework needs to be centred around policing traffic through network
endpoints, not what's hanging off them. Does it matter what a non-connected computer runs? Of course not.
LE: It's the last para I can't see happening, for the simple reason that a lot of hardware and software comes from the US and the US is not prone
to extending governement regulation of industry. The UK can impose local regulation on hardware, at least in theory, by stopping it at ports: it simply can't impose licensing control on software downloaded from the States. How can you download that "dodgy software" you have your eye on, if the country it originates from hasn't bought in to a licensing scheme model? Do you simply accept any software with no license - then bangs goes security.
PF: All good points.
LE: A better candidate for a certification authority for signing or
licensing software as safe might be the existing international standard setting authorities. If an ISO standard, available on-line and revised on application by new entrants into the software market, said what programmes my black box should (or could) accept and execute and which it definitely shouldn't, both I and my technophobe mother might feel a lot safer on the Net.
PF: A wise old engineer who used to work in telecoms once said to me
"What's the difference between Jurassic Park and the ISO?" I said I didn't know. "One of them's a theme park filled with dinosaurs - and the other.s a movie". By the time the ISO has defined a model for software certification and verification the problem will have morphed out of recognition. The ISO is essentially completely reactive when it comes to comms and computers; their one attempt to define networking standards was a complete failure in the face of the open-source TCP/IP protocol stack and since then they.ve essentially been regarded as a laughing stock by the Internet community. ISO, ECMA, and similar bodies simply don't have the leverage.
PF: Your technophobe mother doesn't want a true "Trusted Computer"; I doubt she.d be willing to take on the cost of buying one. Your technophobe mother wants a computer that does the right job for her, and that's difficult to unintentionally or maliciously modify.
And LE adds - couldn't agree more! Thanks Pete.
Tuesday, February 21, 2006
Who Do You Trust?
Bill Thompson of the BBC Going Digital has written a very sensible column on how trusted computing, rather than being a smokescreen for All that Is Evil (or Microsofty) might actually be the way forward to defend computers against spyware, adware and virus-ridden CDs of the infamous Sony "root kit" type.
However the tone changes in the second para:
"Unless we are careful the tools which could make us a lot safer and give us more power over what we do with the hardware we own and the software we license - few programs are actually "sold", not even free software - will instead be used to take control away from us.
At the moment the companies behind trusted computing do not trust their customers at all.
They want to use digital rights management to control what we can do with content we have purchased, they want to make sure we don't install programs or new hardware that they haven't approved, and they want to be able to monitor our use of the expensive computers we own."
Bill argues that being asked to trust the people who supply "trusted" software - people like Sony - is akin to owning a car where you can't look under the bonnet.
"I have a very nice car, and I try to take good care of it. It runs on petrol, but I want the freedom to fill it up with diesel and destroy the engine. It's my engine, after all.
The same goes for my computer. I want the freedom to write, compile and run my own code, take risks with dodgy software I've downloaded from the net and even break the law and risk prosecution by playing unlicensed music or running cracked software. "
What this apparently appealing metaphor obscures is two things. One "trusted computing" in the strict sense is about hardware not software. I'll come back to this. Trusted computing means that the (metaphorical) box your computer comes in has to be a "black box" unopenable by the user - otherwise the user can do all the stupid things users do right now like open emails from strangers, accept downloads with payloads of virus executables , and click on URLs that take them to phishing websites.
This means you do indeed have to trust the people who supply you with trusted computing hardware, and I agree with Bill that there should be serious legal obligations with decent compliance mechanisms placed on those who do sell "trusted computing" so they do not sell us, as we Glaswegians say, a pig in a a poke (or a root kit in a DRM).
But the Internet is not going to be any more secure if we sell people trusted computing hardware and let them, as Bill, wants to, tinker and fiddle. It would be like selling my mum a Ferrari and suggesting that if she's bored one Sunday she tunes the engine up a bit. She would destroy a very expensive engine and she would also endanger people on the road if she took the car out and it ran out of control as a result of her unskilled modifications while she was driving.
Security of hardware sold to consumers, and consequentially the security of the entire Internet (see posts on bots , zombies etc, passim) is simply no longer compatible with open tinkering. Once upon a time anyone who bought a car was allowed to simply take delivery and drive it. Then when the density of cars increased, we reaised we needed driving tests for public safety. Maybe people like Bill who are well equipped to safely tinker with/fine tune their computers (unlike my Mum) , should have to pass a test too before they're allowed to drive away a non-black-box computer? Radical in the libertarian world of computer culture ; but not very odd at all when you look at the rest of the everyday attitude to owning potentially dangerous objects.
What about the software that trusted computing hardware is willing to accept and excute? the so called "signed" software? Here I completely agree with Bill that the defining of what is acceptable software cannot safely be left to the dictat of the software/hardware vendors. Microsoft eg (just AS an example!) has absolutely no incentive to let me, a consumer, run open source software on the trusted platform they've just sold me. Without needing to imply any malice at all, simple competitive strategy would dictate they should allow access to Microsoft software products and nothing else, if they can get away with it. So as Bill says:
"The second thing we need is diversity when it comes to code signing. If my computer is set to run only signed software or read only signed documents, then who can sign what becomes far more than a matter of technology, it becomes a political issue.
We must not settle for a closed platform which allows the hardware vendor or the operating system supplier to decide, so it is time for governments to intervene and to ensure that we have an open marketplace for code signing.
The simplest way to do this is to give the process a statutory backing and then issue licences, just like we do for many professional and financial services. "
It's the last para I can't see happening, for the simple reason that a lot of hardware and software comes from the US and the US is not prone to extending governement regulation of industry. The UK can impose local regulation on hardware, at least in theory, by stopping it at ports: it simply can't impose licensing control on software downloaded from the States. How can you download that "dodgy software" you have your eye on if the country it originates from hasn't bought in to a licensing scheme model? Do you simply accept any software with no license - the bangs goes security.
Plus the national model of licensing financial and profesional services has already proven to be a nightmare of possible restrictive practices which the EU , the most harmonised region of nations in the world, is only slowly getting over. How tempting would it be for a faltering French software industry (say) to refuse to sign off on US or even Chinese software products?
A better candidate for a certification authority for signing or licensing software as safe might be the existing international standard setting authorities. If an ISO standard, available on-line and revised on application by new entrants into the software market, said what programmes my black box should (or could) accept and execute and which it definitely shouldn't, both I and my technophobe mother might feel a lot safer on the Net.
However the tone changes in the second para:
"Unless we are careful the tools which could make us a lot safer and give us more power over what we do with the hardware we own and the software we license - few programs are actually "sold", not even free software - will instead be used to take control away from us.
At the moment the companies behind trusted computing do not trust their customers at all.
They want to use digital rights management to control what we can do with content we have purchased, they want to make sure we don't install programs or new hardware that they haven't approved, and they want to be able to monitor our use of the expensive computers we own."
Bill argues that being asked to trust the people who supply "trusted" software - people like Sony - is akin to owning a car where you can't look under the bonnet.
"I have a very nice car, and I try to take good care of it. It runs on petrol, but I want the freedom to fill it up with diesel and destroy the engine. It's my engine, after all.
The same goes for my computer. I want the freedom to write, compile and run my own code, take risks with dodgy software I've downloaded from the net and even break the law and risk prosecution by playing unlicensed music or running cracked software. "
What this apparently appealing metaphor obscures is two things. One "trusted computing" in the strict sense is about hardware not software. I'll come back to this. Trusted computing means that the (metaphorical) box your computer comes in has to be a "black box" unopenable by the user - otherwise the user can do all the stupid things users do right now like open emails from strangers, accept downloads with payloads of virus executables , and click on URLs that take them to phishing websites.
This means you do indeed have to trust the people who supply you with trusted computing hardware, and I agree with Bill that there should be serious legal obligations with decent compliance mechanisms placed on those who do sell "trusted computing" so they do not sell us, as we Glaswegians say, a pig in a a poke (or a root kit in a DRM).
But the Internet is not going to be any more secure if we sell people trusted computing hardware and let them, as Bill, wants to, tinker and fiddle. It would be like selling my mum a Ferrari and suggesting that if she's bored one Sunday she tunes the engine up a bit. She would destroy a very expensive engine and she would also endanger people on the road if she took the car out and it ran out of control as a result of her unskilled modifications while she was driving.
Security of hardware sold to consumers, and consequentially the security of the entire Internet (see posts on bots , zombies etc, passim) is simply no longer compatible with open tinkering. Once upon a time anyone who bought a car was allowed to simply take delivery and drive it. Then when the density of cars increased, we reaised we needed driving tests for public safety. Maybe people like Bill who are well equipped to safely tinker with/fine tune their computers (unlike my Mum) , should have to pass a test too before they're allowed to drive away a non-black-box computer? Radical in the libertarian world of computer culture ; but not very odd at all when you look at the rest of the everyday attitude to owning potentially dangerous objects.
What about the software that trusted computing hardware is willing to accept and excute? the so called "signed" software? Here I completely agree with Bill that the defining of what is acceptable software cannot safely be left to the dictat of the software/hardware vendors. Microsoft eg (just AS an example!) has absolutely no incentive to let me, a consumer, run open source software on the trusted platform they've just sold me. Without needing to imply any malice at all, simple competitive strategy would dictate they should allow access to Microsoft software products and nothing else, if they can get away with it. So as Bill says:
"The second thing we need is diversity when it comes to code signing. If my computer is set to run only signed software or read only signed documents, then who can sign what becomes far more than a matter of technology, it becomes a political issue.
We must not settle for a closed platform which allows the hardware vendor or the operating system supplier to decide, so it is time for governments to intervene and to ensure that we have an open marketplace for code signing.
The simplest way to do this is to give the process a statutory backing and then issue licences, just like we do for many professional and financial services. "
It's the last para I can't see happening, for the simple reason that a lot of hardware and software comes from the US and the US is not prone to extending governement regulation of industry. The UK can impose local regulation on hardware, at least in theory, by stopping it at ports: it simply can't impose licensing control on software downloaded from the States. How can you download that "dodgy software" you have your eye on if the country it originates from hasn't bought in to a licensing scheme model? Do you simply accept any software with no license - the bangs goes security.
Plus the national model of licensing financial and profesional services has already proven to be a nightmare of possible restrictive practices which the EU , the most harmonised region of nations in the world, is only slowly getting over. How tempting would it be for a faltering French software industry (say) to refuse to sign off on US or even Chinese software products?
A better candidate for a certification authority for signing or licensing software as safe might be the existing international standard setting authorities. If an ISO standard, available on-line and revised on application by new entrants into the software market, said what programmes my black box should (or could) accept and execute and which it definitely shouldn't, both I and my technophobe mother might feel a lot safer on the Net.
Monday, February 13, 2006
Big game Season
Still on jetlag content here .. From Boing BOing,
Cheney shoots 78-year old lawyer with shotgun
The best bit is the Reader Comment from someone called Om:
"The important questions raised by this hunting accident are:
1) *Are* lawyers in season right now?
2) Was the lawyer at least a 4-point?
3) Was Cheney within his permit limit?
4) Was the Cheney aide misquoted about the lawyer's hunting suit having a target on the back, or that he'd bought it at Target a while back?
5) Will Disney adapt this into a cartoon about a baby lawyer having to adjust to living in the wild without his parent?
6) Is this what you should expect if you don't contribute enough to a political reelection fund in the future? "
Cheney shoots 78-year old lawyer with shotgun
The best bit is the Reader Comment from someone called Om:
"The important questions raised by this hunting accident are:
1) *Are* lawyers in season right now?
2) Was the lawyer at least a 4-point?
3) Was Cheney within his permit limit?
4) Was the Cheney aide misquoted about the lawyer's hunting suit having a target on the back, or that he'd bought it at Target a while back?
5) Will Disney adapt this into a cartoon about a baby lawyer having to adjust to living in the wild without his parent?
6) Is this what you should expect if you don't contribute enough to a political reelection fund in the future? "
Saturday, February 11, 2006
Wednesday, February 01, 2006
The Flickr of Tiny Web beacons?
My concerns about Flickr as a possible exercise in setting web beacons across many sites, have been examined more closely by Adam Fields on his blog. Neither Adam and I can find any conclusive evidence in the Flickr privacy policy that either says Flickr IS doing this , nor that they have barred themselves FROM doing this. One way to safeguard yourself, should you be feeling particularly conspiratorial, would be to tweak your browser to refuse to accept any third party cookies (says my occasional tech-guru correspondent, Mike Scott, who notes that even IE v 6 on only bars third party cookies by default when they come from a source without a compact privacy policy. (Which is a bit different from barring all thrid party cookies by default.)
Mobile, Ubiquitous and Continuing Paranoia
Rupert White of the Law Society Gazette points out that an even easier way to stalk someone rather than "borrowing" their mobile phone (see last entry)is to "borrow" their London Oyster card (should they be a Londoner, of course :-) This gives a full printout of everywhere the card carrier has been for the last n months. The Oyster card can be replaced in the stalkee's jacket, with them none the wiser.
The intersting question about this is what if any crime has been committed? My instinct is that this is (yet again) unauthorised access under s 1 of the CMA 1990.
"1.—(1) A person is guilty of an offence if—
(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;
(b) the access he intends to secure is unauthorised; and
(c) he knows at the time when he causes the computer to perform the function that that is the case."
The big issue, of course, is is an Oyster card a "computer"? The 1990 Act, deliberately, has no definition. Ian Lloyd, an expert on computer crime, suggested in his IT Law textbook a while back that given the ubiquity of smart-chip enabled white goods these days, a dishwasher or a smart fridge might be considered a "computer". I myself think it is not stretching the definition to call a smart-chipped Oyster card a computer.
If not, though, where are we? The Law Commissions tied themselves in knots a few years back over whether an offence of "theft of information" other than in well recognised categories like trade secrets, existed. (This was , in fact, one of the reasons the CMA was enacted in the first place.) Data protection law forbids the unfair processing of personal data, which in this case would include processing (or viewing) without consent. "Processing" includes "use" and display. Data subjects whose rights are violated have rights to sue the processor. But I am not convinced there is a criminal offence here. And, of course, there's always the murky waters of simple fraud - especially in Scotland where the offence of fraud can be charged at common law, not under statute. But again, I am not convinced this is actually a case of fraud as the victim is simply stolen from, not lied to or in any way deluded. The English law of fraud is currently being amended to more comprehensively cover "phishing" - where personal data is stolen by deception. But this does not quite fall under that head either. Interesting problem..
Rupert also points out that the Information Commissioner has expressed worries about the transparency and security of data collection via Oyster cards before - but this is more in relation to what London Transport might do with the information than the accessibility of the card itself as a key to access to personal information by strangers. (But I too have pointed out to my students that the public register entry with the ICO for Transport for London represents no barrier whatsoever to aggressive data mining.)
I am not a Londoner so I am not sure just how easy it is to extract data from an Oyster card. Do you need to give a password or other ID to extract the details of stations passed through, or do you just stick it in a smartcard reader? The Oyster web site merely tells you that details of the last 8 weeks' journeys can be extracted. Help appreciated!
The intersting question about this is what if any crime has been committed? My instinct is that this is (yet again) unauthorised access under s 1 of the CMA 1990.
"1.—(1) A person is guilty of an offence if—
(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;
(b) the access he intends to secure is unauthorised; and
(c) he knows at the time when he causes the computer to perform the function that that is the case."
The big issue, of course, is is an Oyster card a "computer"? The 1990 Act, deliberately, has no definition. Ian Lloyd, an expert on computer crime, suggested in his IT Law textbook a while back that given the ubiquity of smart-chip enabled white goods these days, a dishwasher or a smart fridge might be considered a "computer". I myself think it is not stretching the definition to call a smart-chipped Oyster card a computer.
If not, though, where are we? The Law Commissions tied themselves in knots a few years back over whether an offence of "theft of information" other than in well recognised categories like trade secrets, existed. (This was , in fact, one of the reasons the CMA was enacted in the first place.) Data protection law forbids the unfair processing of personal data, which in this case would include processing (or viewing) without consent. "Processing" includes "use" and display. Data subjects whose rights are violated have rights to sue the processor. But I am not convinced there is a criminal offence here. And, of course, there's always the murky waters of simple fraud - especially in Scotland where the offence of fraud can be charged at common law, not under statute. But again, I am not convinced this is actually a case of fraud as the victim is simply stolen from, not lied to or in any way deluded. The English law of fraud is currently being amended to more comprehensively cover "phishing" - where personal data is stolen by deception. But this does not quite fall under that head either. Interesting problem..
Rupert also points out that the Information Commissioner has expressed worries about the transparency and security of data collection via Oyster cards before - but this is more in relation to what London Transport might do with the information than the accessibility of the card itself as a key to access to personal information by strangers. (But I too have pointed out to my students that the public register entry with the ICO for Transport for London represents no barrier whatsoever to aggressive data mining.)
I am not a Londoner so I am not sure just how easy it is to extract data from an Oyster card. Do you need to give a password or other ID to extract the details of stations passed through, or do you just stick it in a smartcard reader? The Oyster web site merely tells you that details of the last 8 weeks' journeys can be extracted. Help appreciated!
Monday, January 30, 2006
Mobile and Ubiquitous Paranoia
I was teaching my class about interception and surveillance last week and reminded them that you don't need to be government or Echelon or a spook to spy on someone these days: their never-without-it mobile phone is a portable locational bug aiting to happen. And lo and behold, in Saturday's Guardian is a convenient explanation on how you can use a mobile to stalk your chosen prey (EDIT: And here;'s a previous piece that's even better):
"Here is how it works. You register on the site, pay a few quid, type in the phone number of the person you want to track, and then the system sends them a text message. All you need to do is surreptitiously get access to your target’s mobile phone, without their knowledge, for just five minutes: long enough to receive that text message, reply with the word LOCATE, and delete two text messages that arrive immediately, warning them they are being tracked. You can stalk them for a couple of days, find out if they really are where they say they are, work out who they are with, perhaps find out if they’re having an affair, then delete them off the system. They will never be any the wiser."
Thanks To Ray Corrigan at http://b2fxxx.blogspot.com/2006/01/mobile-phone-stalking-made-easy.html .
"Here is how it works. You register on the site, pay a few quid, type in the phone number of the person you want to track, and then the system sends them a text message. All you need to do is surreptitiously get access to your target’s mobile phone, without their knowledge, for just five minutes: long enough to receive that text message, reply with the word LOCATE, and delete two text messages that arrive immediately, warning them they are being tracked. You can stalk them for a couple of days, find out if they really are where they say they are, work out who they are with, perhaps find out if they’re having an affair, then delete them off the system. They will never be any the wiser."
Thanks To Ray Corrigan at http://b2fxxx.blogspot.com/2006/01/mobile-phone-stalking-made-easy.html .
Google Stories get Better and Better
Boing Boing link to a report on the implications of search engines - including Google - automatically recording IP address of searchers.
"Up until now, I’ve only discussed the implications of having an IP address. The situation gets much much worse when you start using it. Because every bit of network traffic you use is marked with your IP address, it can be used to link all of those disparate transactions together. Despite these possible correlations, not one of the major search engines considers your IP address to be personally identifiable information. "
Of course in Europe we have DP law and an IP address would be personally identifying data and therefore protected by the Data Protection Principles, including limitation of data collection by purpose and time of retention, right? Wrong. A recent survey by the Information Comissioner's office in the UK found huge disparities across Europe as to whether an IP address would ALWAYS or even sometimes be treated as personal data.
Plus of course the new data retention rules that are coming in will mandate data retention of certain items for telcos and ISPs. Will these rules apply to search engines? I guess we have to wait for the detail of national implementations of the Data Retention Directive.
Meanwhile the media are beginning to report not only people who prefer to be unGoogleable but ways of anonymising your Google searches, so they cannot subsequently be subpoenaed by governments. The Revenge of the Digerati??
Finally, deep into the further reaches of conspiracy theories re privacy and web-bugging we have this interesting comment from the resposnses to the IP article above.
"I don’t have any ads on the site, I do have embedded Flickr pictures. So, here’s a question - is Flickr just a cover for a huge web bug operation used to track visits to sites that have embedded Flickr pictures, or is that being overly paranoid? "
Flickr is a site where users can post photos they've taken and embed them in their web pages - they can then be viewed, uploaded etc by the public (or not as you choose).
In theory it seems plausible that every Flickr image could inded be a web beacon, meaning Flickr could correlate sign up IDs with IP addresses and web sites, as well as patterns of known associates (people who look at your pictures tend to be people who know you).
Anyone like to comment? I must go have a look at the Flickr privacy policy :-)
"Up until now, I’ve only discussed the implications of having an IP address. The situation gets much much worse when you start using it. Because every bit of network traffic you use is marked with your IP address, it can be used to link all of those disparate transactions together. Despite these possible correlations, not one of the major search engines considers your IP address to be personally identifiable information. "
Of course in Europe we have DP law and an IP address would be personally identifying data and therefore protected by the Data Protection Principles, including limitation of data collection by purpose and time of retention, right? Wrong. A recent survey by the Information Comissioner's office in the UK found huge disparities across Europe as to whether an IP address would ALWAYS or even sometimes be treated as personal data.
Plus of course the new data retention rules that are coming in will mandate data retention of certain items for telcos and ISPs. Will these rules apply to search engines? I guess we have to wait for the detail of national implementations of the Data Retention Directive.
Meanwhile the media are beginning to report not only people who prefer to be unGoogleable but ways of anonymising your Google searches, so they cannot subsequently be subpoenaed by governments. The Revenge of the Digerati??
Finally, deep into the further reaches of conspiracy theories re privacy and web-bugging we have this interesting comment from the resposnses to the IP article above.
"I don’t have any ads on the site, I do have embedded Flickr pictures. So, here’s a question - is Flickr just a cover for a huge web bug operation used to track visits to sites that have embedded Flickr pictures, or is that being overly paranoid? "
Flickr is a site where users can post photos they've taken and embed them in their web pages - they can then be viewed, uploaded etc by the public (or not as you choose).
In theory it seems plausible that every Flickr image could inded be a web beacon, meaning Flickr could correlate sign up IDs with IP addresses and web sites, as well as patterns of known associates (people who look at your pictures tend to be people who know you).
Anyone like to comment? I must go have a look at the Flickr privacy policy :-)
Yet more cool visual aids
Google Tibet Prison Camp
And wow. Apparently you can avoid Google China censorship simply by putting the search terms in with Capital Letters. Wow, how hi tech!
And wow. Apparently you can avoid Google China censorship simply by putting the search terms in with Capital Letters. Wow, how hi tech!
Sunday, January 29, 2006
More visual aids
Worth noting for teachers looking for cool visuals for powerpoints: the Sony rootkit debacle as graphic.
Friday, January 27, 2006
First British File Swappers Found Liable
Worth recording for pure historical interest - from the Beeb:
"High Court judges ordered two men to pay the British Phonographic Industry between £1,500 and £5,000 for making thousands of songs available online.
One of the men said he did not know he was acting illegally, the other said there was no evidence against him."
The first defendant has to pay £5000 plus at least £13,500 in cotss: the second £1,500 plus costs.
Did the first guy actually have a lawyer? Even in a file sharing case, it is fairly well settled that ignorance of the law is no defense.
"High Court judges ordered two men to pay the British Phonographic Industry between £1,500 and £5,000 for making thousands of songs available online.
One of the men said he did not know he was acting illegally, the other said there was no evidence against him."
The first defendant has to pay £5000 plus at least £13,500 in cotss: the second £1,500 plus costs.
Did the first guy actually have a lawyer? Even in a file sharing case, it is fairly well settled that ignorance of the law is no defense.
Google Print gets a Clear Field?
A US district court has ruled in Field v Google that Google's cache
feature, which allows users to access copies of web pages made when they
were viewed or "spidered" by Google robots, does not breach copyright in
those web pages. The matter had never been decided in the US courts
before. The case was brought by author and lawyer Blake Field who had taken
exception to Google's caching of about 50 stories posted by Field on his website. He
brought an action for copyright infringement, arguing that the Google cache
feature allowed web users to access copies of his copyrighted material
without his authorisation. The court disagreed.
The court had three bases for its decision. First, if anyone was
breaching copyright when the cached copy was accessed, it was not Google but
whoever made that cached page request. Google was merely "passive in this
process". Secondly, it was shown that Field knew how to disable the caching
feature, using the "do not archive" metatag or the robots.txt code which,
when inserted in a website's HTML code, tells Google spiders not to make
copies of that page. Field could have used that facility, but chose not to.
As such, he was personally barred from claiming copyright infringment
against Google.
Finally, and most crucially, the use Google made of the material was fair
use, said the Court. The four tests usually applied to determine if a use
is "fair use" are:
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrigh
Applying the usual USA jurisprudence, he found that Google's use was fair
because, crucially, it was both transformative and socially valuable.
"Because Google serves different and socially important purposes in offering
access to copyrighted works through 'Cached' links and does not merely
supersede the objectives of the original creations, the Court concludes that
Google's alleged copying and distribution of Field's web pages containing
copyrighted works was transformative."
This means the court accepted that making copies in cache s part of the creation of a
database for a search engine, was something very different from, say, making
copies so as to sell pirate copies to the author's potential audience.
Google were not using their cache copies for any commercial purposes which
interfered with the revenues the author would make from them or could
reasonably be anticipated to make. Nor could Google's "socially important"
purpose, to create a comprehensive freely available search database,
including historic records of altered pages, be accomplished without using
caches of the whole page rather than extracts; so the fact that the whole
rather than parts were copied was not fatal to the claim of fair use.
Finally, the court found Google did gain the benefit of the "safe harbor"
defence under the Digital Millennium Copyright Act , s 512 (b) , which which
provides a defence to service providers for the "intermediate and temporary
storage of material on a system or network controlled or operated by or for
the service provider" whereb the storage is carried out by an "automatic
technical process". There had been doubt in the past as to whether this was
intended to cover "long term" cache storage of the sort Google use - around
14 to 20 days storage. The court found this was indeed temporary, since a similar period of 14 days cache had been found legitimate in Ellison v Robertson 357 F.3d 1072, 1081 (9th Cir. 2004).
As OUT-Law note, this ruling
could hardly be more helpful to Google in its ongoing Google Print dispute.
The Google Print project , just like ordinary Google caching, involves the
automated making of full copies of pages of books, scanned in as electronic text, with the intent of making a search index from them which can then deliver limited sections of the books scanned. When book publishers complained this infringed their rights to control the making of copies, Google responded that the publishers had the ability to opt out of scanning. However under pressure, Google reversed their practice on this and asked publishers to explicitly "opt in" to Google Print, rather than leaving the onus on them to "opt out". This of course makes the project of
potentially much lower social value, as well as leaving out "orphan works"
whose copyright holders are unknown.
A court, albeit a District Court only, now seem to have validated Google's
original "opt-out" approach. Not only that, but it has clarified that
scanning in full text as opposed to merely extracts of texts, can be
acceptable fair use. Finally, they have apparently rebutted the damning
argument that Google Print cannot be fair use because it disrupts future
revenues, in the form of as yet uncommenced efforts by publishers to provide
or license similar revenue-generating book-scanning search engines.
Although I am in favour of Google Print as a project (what academic isn't?),
this all seems just a tad too good to be true. For example, in relation to the fair use criteria, Google can hardly claim with a straight face to make no commercial revenue out of providing either cached page links or Google Print in its full glory. Their revenue comes from AdWords , and these sell because so many million people
use Google to search - something providing Google Print can only enhance. This point was raised by Field, but brushed aside : "The fact that Google is a commercial operation is of only minor relevance in the fair use analysis."
Field's works also had little or no commercial value per se. The court
found: "There is no evidence of any market for Field's works. Field makes
the works available to the public for free in their entirety, and admits that he has
never received any compensation from selling or licensing them."
The situation was, therefore, rather different from, say, Oxford University
Press complaining about the scanning and distribution of parts of their
money-making textbooks or encyclopaedias. The court also found that:
"there is no evidence before the Court of any market for licensing search
engines the right to allow access to Web pages through "Cached" links, or
evidence that one is likely to develop."
But this is probably by now not at all true of large scale book scanning operations -it is obvious that the major publishers, stung by the Google and subsequent Yahoo! etc activity, are getting their asses in gear on this one, and that a future search-and-pay-per-view licensed market by each publisher, or consortia of publishers, can well be imagined.
Finally, the application of the DMCA caching safe harbor decision to Google
is right in technical detail, but in terms of purpose, is deeply suspect.
The caching safe harbor of the DMCA (just like its equivalent in the EU, the
EC E Commerce Directive (ECD) Art 13) was intended to protect the common practice
of making highly temporary local copies of multiply-accessed web pages, to
reduce transmission times to local users making page requests, and to reduce
overall Internet congestion. The Google cache services at least one very
different purpose: to make copies of web pages available to users for some time even when the page has moved or been removed (perhaps deliberately to avoid search). Furthermore, since Google spiders periodically return to un-protected pages to refresh the cache, the cache storage of an unaltered page can be seen as permanent, or at least as not "temporary", since it may effectively persist for a much longer period than the 14-20 day cycle cited in court. ( I note with some amusement that in my first post on Google Print months ago I was alreay quizzical about whether Google could take advantage of the caching safe harbors.)
The court seem, indeed, to have gone further in their first finding, by
deeming Google "passive" in the process of making and transmitting a copy to
the user who makes a page request from a Google cache page link. To this
author, that sounds a lot like a finding that Google is not even actively
caching under s 512(b) but merely a "mere conduit" (as we Europeans call
it - see EC ECD, Art 12) - or as stated under s 512(a) of the DMCA, someone
who only provides "transmission, routing, provision of connections or
storage through a system or network controlled or operated by the service
provider." If Google, albeit by automated technologies, initiate the making of cached copies for their own purposes, not for the needs of end users,
they are not, in my view, being passive "mere conduits" and it is misleading
of the court, for whatever well meant purposes, to make that analogy.
In any case, when we come to Google Print, the intentional and active nature of the
copying, even by automated means, becomes even more obvious. Furthermore,
scanned copies of books will be available indefinitely one assumes: so it would be
unreasonable for the caching safe harbor to apply (nor would the hosting safe harbor in either DMCA or ECD be appropriate, since while the content is supplied by a third party, the copying - and potential copyright infringement - is undertaken by Google).
So to sum up: good news for Google on fair use, and very good news indeed on
"opt out" as opposed to "opt in". Watch this space, as I keep saying. Your
humble blogger will be chairing a debate on Google Print at href="http://www2006.org/">WWW 2006 in sunny Edinburgh - I am looking
forward to it.
feature, which allows users to access copies of web pages made when they
were viewed or "spidered" by Google robots, does not breach copyright in
those web pages. The matter had never been decided in the US courts
before. The case was brought by author and lawyer Blake Field who had taken
exception to Google's caching of about 50 stories posted by Field on his website. He
brought an action for copyright infringement, arguing that the Google cache
feature allowed web users to access copies of his copyrighted material
without his authorisation. The court disagreed.
The court had three bases for its decision. First, if anyone was
breaching copyright when the cached copy was accessed, it was not Google but
whoever made that cached page request. Google was merely "passive in this
process". Secondly, it was shown that Field knew how to disable the caching
feature, using the "do not archive" metatag or the robots.txt code which,
when inserted in a website's HTML code, tells Google spiders not to make
copies of that page. Field could have used that facility, but chose not to.
As such, he was personally barred from claiming copyright infringment
against Google.
Finally, and most crucially, the use Google made of the material was fair
use, said the Court. The four tests usually applied to determine if a use
is "fair use" are:
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrigh
Applying the usual USA jurisprudence, he found that Google's use was fair
because, crucially, it was both transformative and socially valuable.
"Because Google serves different and socially important purposes in offering
access to copyrighted works through 'Cached' links and does not merely
supersede the objectives of the original creations, the Court concludes that
Google's alleged copying and distribution of Field's web pages containing
copyrighted works was transformative."
This means the court accepted that making copies in cache s part of the creation of a
database for a search engine, was something very different from, say, making
copies so as to sell pirate copies to the author's potential audience.
Google were not using their cache copies for any commercial purposes which
interfered with the revenues the author would make from them or could
reasonably be anticipated to make. Nor could Google's "socially important"
purpose, to create a comprehensive freely available search database,
including historic records of altered pages, be accomplished without using
caches of the whole page rather than extracts; so the fact that the whole
rather than parts were copied was not fatal to the claim of fair use.
Finally, the court found Google did gain the benefit of the "safe harbor"
defence under the Digital Millennium Copyright Act , s 512 (b) , which which
provides a defence to service providers for the "intermediate and temporary
storage of material on a system or network controlled or operated by or for
the service provider" whereb the storage is carried out by an "automatic
technical process". There had been doubt in the past as to whether this was
intended to cover "long term" cache storage of the sort Google use - around
14 to 20 days storage. The court found this was indeed temporary, since a similar period of 14 days cache had been found legitimate in Ellison v Robertson 357 F.3d 1072, 1081 (9th Cir. 2004).
As OUT-Law note, this ruling
could hardly be more helpful to Google in its ongoing Google Print dispute.
The Google Print project , just like ordinary Google caching, involves the
automated making of full copies of pages of books, scanned in as electronic text, with the intent of making a search index from them which can then deliver limited sections of the books scanned. When book publishers complained this infringed their rights to control the making of copies, Google responded that the publishers had the ability to opt out of scanning. However under pressure, Google reversed their practice on this and asked publishers to explicitly "opt in" to Google Print, rather than leaving the onus on them to "opt out". This of course makes the project of
potentially much lower social value, as well as leaving out "orphan works"
whose copyright holders are unknown.
A court, albeit a District Court only, now seem to have validated Google's
original "opt-out" approach. Not only that, but it has clarified that
scanning in full text as opposed to merely extracts of texts, can be
acceptable fair use. Finally, they have apparently rebutted the damning
argument that Google Print cannot be fair use because it disrupts future
revenues, in the form of as yet uncommenced efforts by publishers to provide
or license similar revenue-generating book-scanning search engines.
Although I am in favour of Google Print as a project (what academic isn't?),
this all seems just a tad too good to be true. For example, in relation to the fair use criteria, Google can hardly claim with a straight face to make no commercial revenue out of providing either cached page links or Google Print in its full glory. Their revenue comes from AdWords , and these sell because so many million people
use Google to search - something providing Google Print can only enhance. This point was raised by Field, but brushed aside : "The fact that Google is a commercial operation is of only minor relevance in the fair use analysis."
Field's works also had little or no commercial value per se. The court
found: "There is no evidence of any market for Field's works. Field makes
the works available to the public for free in their entirety, and admits that he has
never received any compensation from selling or licensing them."
The situation was, therefore, rather different from, say, Oxford University
Press complaining about the scanning and distribution of parts of their
money-making textbooks or encyclopaedias. The court also found that:
"there is no evidence before the Court of any market for licensing search
engines the right to allow access to Web pages through "Cached" links, or
evidence that one is likely to develop."
But this is probably by now not at all true of large scale book scanning operations -it is obvious that the major publishers, stung by the Google and subsequent Yahoo! etc activity, are getting their asses in gear on this one, and that a future search-and-pay-per-view licensed market by each publisher, or consortia of publishers, can well be imagined.
Finally, the application of the DMCA caching safe harbor decision to Google
is right in technical detail, but in terms of purpose, is deeply suspect.
The caching safe harbor of the DMCA (just like its equivalent in the EU, the
EC E Commerce Directive (ECD) Art 13) was intended to protect the common practice
of making highly temporary local copies of multiply-accessed web pages, to
reduce transmission times to local users making page requests, and to reduce
overall Internet congestion. The Google cache services at least one very
different purpose: to make copies of web pages available to users for some time even when the page has moved or been removed (perhaps deliberately to avoid search). Furthermore, since Google spiders periodically return to un-protected pages to refresh the cache, the cache storage of an unaltered page can be seen as permanent, or at least as not "temporary", since it may effectively persist for a much longer period than the 14-20 day cycle cited in court. ( I note with some amusement that in my first post on Google Print months ago I was alreay quizzical about whether Google could take advantage of the caching safe harbors.)
The court seem, indeed, to have gone further in their first finding, by
deeming Google "passive" in the process of making and transmitting a copy to
the user who makes a page request from a Google cache page link. To this
author, that sounds a lot like a finding that Google is not even actively
caching under s 512(b) but merely a "mere conduit" (as we Europeans call
it - see EC ECD, Art 12) - or as stated under s 512(a) of the DMCA, someone
who only provides "transmission, routing, provision of connections or
storage through a system or network controlled or operated by the service
provider." If Google, albeit by automated technologies, initiate the making of cached copies for their own purposes, not for the needs of end users,
they are not, in my view, being passive "mere conduits" and it is misleading
of the court, for whatever well meant purposes, to make that analogy.
In any case, when we come to Google Print, the intentional and active nature of the
copying, even by automated means, becomes even more obvious. Furthermore,
scanned copies of books will be available indefinitely one assumes: so it would be
unreasonable for the caching safe harbor to apply (nor would the hosting safe harbor in either DMCA or ECD be appropriate, since while the content is supplied by a third party, the copying - and potential copyright infringement - is undertaken by Google).
So to sum up: good news for Google on fair use, and very good news indeed on
"opt out" as opposed to "opt in". Watch this space, as I keep saying. Your
humble blogger will be chairing a debate on Google Print at href="http://www2006.org/">WWW 2006 in sunny Edinburgh - I am looking
forward to it.
Thursday, January 26, 2006
Google China more addendum
Boing-Boing helpfully gives us a link to empirical work comparing just what page results have been censored from Google China. Always good to have facts not just agitprop and press releases.
Denial of Service: I Told You So, part 22
As heavily predicted by various commentators, including, ahem, moi, Denial of Service (DoS) attack in the UK is set to become a new offence within the year. Parts of the Private Members Bill on Computer Misuse put forward last year by MP Tom Harris will be included in a new general crime bill. The Government has included updates – with new offences and stiffer penalties – in the Police and Justice Bill, introduced January 25 2006. This will amend the now rather outdated Computer Misuse Act 1990. the matter was brought to a head when a court cleared a teenager last November who had sent five million emails to his former employer, on the grounds that no offence had been committed under the Act.
Section 34 of the Bill expands on the 1990 Act's existing provisions to cover someone who does an unauthorised act in relation to a computer with "the requisite intent and the requisite knowledge." Previously, s 3 of the 1990 Act prohibited only on unauthorised modification of computer programs or data. (Section 1 of the Act deals with unauthorised access ie hacking.)
The requisite intent referred to is an intent to do the act in question, and by so doing:
-to impair the operation of any computer,
-to prevent or hinder access to any program or data held in any computer, or
-to impair the operation of any program or data held in any computer.
This is not so different from the existing law (see emboldened parts). The section on intent is identical to that in the existing 1990 Act, s 3. Crucially, the argument that an unsecured website impliedly authorised everyone in the world to make page requests from it, or send emails to it - even where those requests are for 5 milion pages in an hour leading to the server falling over - still seems potentially open.
As was said by the judge in the November teenager case: "In this case, the individual emails caused to be sent each caused a modification which was in each case an 'authorised' modification. Although they were sent in bulk resulting in the overwhelming of the server, the effect on the server is not a modification addressed by [the Act]."
The new law has changed the word "modification" to "act" (which is not defined except to say it includes a series of acts) but not touched the word "unauthorised". To make matters worse, s 34(4) states that "For the purposes of subsection (1)(b) above, the requisite knowledge is knowledge that the act in question is unauthorised". How hard is to claim after the November case that you reasonably thought making page requests or sending emails was an authorised act?
Quid iuris? One way round this of course would be a clear statement on any potential target website that persons are explicitly not authorised to send multiple emails to the site with the intent of causing system degradation - but this carries with it the usual problems of adequate notice for incorporation, nor is it a very appealing thing to have on your website front page. If the government are finally (after 3 PM Bills) going to the effort of making new law on DoS, I am surprised they have not chosen to clarify the meaning of "unauthorised" by statute. The intent requirement alone will not create a water-tight crime of DoS if the actus reus is not satisfied.
Less ballyhooed but also of interest is the new section 3A added by the 2006 Bill which is extracted below:
“3A Making, supplying or obtaining articles for use in offence under
section 1 or 3(1) A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article—
(a) knowing that it is designed or adapted for use in the course of
or in connection with an offence under section 1 or 3; or
(b) intending it to be used to commit, or to assist in the commission
of, an offence under section 1 or 3."
This probably criminalises the making and selling of virus and DDOS toolkits, something I have wondered about in the past. What if you write a virus-making toolkit to learn about viruses and virus-spreaders so you can be a better security expert? (a) may still catch you. I would have felt happier if the new offense was restricted to the (b) branch, or if the "or" was an "and".
Section 34 of the Bill expands on the 1990 Act's existing provisions to cover someone who does an unauthorised act in relation to a computer with "the requisite intent and the requisite knowledge." Previously, s 3 of the 1990 Act prohibited only on unauthorised modification of computer programs or data. (Section 1 of the Act deals with unauthorised access ie hacking.)
The requisite intent referred to is an intent to do the act in question, and by so doing:
-to impair the operation of any computer,
-to prevent or hinder access to any program or data held in any computer, or
-to impair the operation of any program or data held in any computer.
This is not so different from the existing law (see emboldened parts). The section on intent is identical to that in the existing 1990 Act, s 3. Crucially, the argument that an unsecured website impliedly authorised everyone in the world to make page requests from it, or send emails to it - even where those requests are for 5 milion pages in an hour leading to the server falling over - still seems potentially open.
As was said by the judge in the November teenager case: "In this case, the individual emails caused to be sent each caused a modification which was in each case an 'authorised' modification. Although they were sent in bulk resulting in the overwhelming of the server, the effect on the server is not a modification addressed by [the Act]."
The new law has changed the word "modification" to "act" (which is not defined except to say it includes a series of acts) but not touched the word "unauthorised". To make matters worse, s 34(4) states that "For the purposes of subsection (1)(b) above, the requisite knowledge is knowledge that the act in question is unauthorised". How hard is to claim after the November case that you reasonably thought making page requests or sending emails was an authorised act?
Quid iuris? One way round this of course would be a clear statement on any potential target website that persons are explicitly not authorised to send multiple emails to the site with the intent of causing system degradation - but this carries with it the usual problems of adequate notice for incorporation, nor is it a very appealing thing to have on your website front page. If the government are finally (after 3 PM Bills) going to the effort of making new law on DoS, I am surprised they have not chosen to clarify the meaning of "unauthorised" by statute. The intent requirement alone will not create a water-tight crime of DoS if the actus reus is not satisfied.
Less ballyhooed but also of interest is the new section 3A added by the 2006 Bill which is extracted below:
“3A Making, supplying or obtaining articles for use in offence under
section 1 or 3(1) A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article—
(a) knowing that it is designed or adapted for use in the course of
or in connection with an offence under section 1 or 3; or
(b) intending it to be used to commit, or to assist in the commission
of, an offence under section 1 or 3."
This probably criminalises the making and selling of virus and DDOS toolkits, something I have wondered about in the past. What if you write a virus-making toolkit to learn about viruses and virus-spreaders so you can be a better security expert? (a) may still catch you. I would have felt happier if the new offense was restricted to the (b) branch, or if the "or" was an "and".
Wednesday, January 25, 2006
Google China addendum
My correspondent pete@fenelon.com adds rather sensible: "Something that nobody's yet pointed out about Google China self-censoring is that it's fairly pointless for it to return 'banned' search results anyway, as the 'Great Wall' firewall will block anything containing dangerous subversive content like "democracy" or "Taiwan" anyway.
What use is a search engine where most of the results you click on are
blocked by something else? ;)
Pragmatic move by Google, I'd say. No point searching for content you
can't look at in full."
Another interesting (and perhaps overly provocative, but I like that :-) point made on the Cyberprof mailing list was, why is it ok for the US to export its principles such as freedom of speech to China, but not for China to export its principle of the supremacy of the communist state's security over such freedom to a US company? they're all just values after all..
What use is a search engine where most of the results you click on are
blocked by something else? ;)
Pragmatic move by Google, I'd say. No point searching for content you
can't look at in full."
Another interesting (and perhaps overly provocative, but I like that :-) point made on the Cyberprof mailing list was, why is it ok for the US to export its principles such as freedom of speech to China, but not for China to export its principle of the supremacy of the communist state's security over such freedom to a US company? they're all just values after all..
It's Like Watching Little Anakin Grow Into Darth Vader
Best title evah!!! as Silicon Valley.com comments on Google's controversial roll out of a state-agreed censored Google feed to China.
Not had much time to absorb this, but certain obvious arguments can be made : that a censored service, where blocked sites are at least indicated, is better than continual tussles with the government which might lead to either the total blocking of the site to most PRC residents who can't get access via foreign proxy sites etc, and/or the compulsory imposition of invisible upstream filtering; that Google has a considerable number of employees in China and has to protect them from possible Govrnment backlash; that Google is only doing publicly, and with certain safeguards what the likes of Yahoo! and MSN are already doing covertly.
At heart, even if this is the current best-case scenario for China, what this crisis clarifies is the unsatisfactoriness of a world where Internet search is controlled by a private company; as many many have observed this bodes ill to be as unsatisfactory as a world where 90% of operating systems are controlled by Big Bill. The capitalist solution is, presumably, a better competing search engine (though would they not have as mch trouble in China as Google, and without the market power to negotiate on details?)The regulatory solution is to apply human rights law directly to certain private actors such as Google and Microsoft. But how pie in the sky is that, folks?
AS Silicon Valley note, Google put PR credit in the bank with recently refusing the US government subpoena of personal data. Cynically one might hazard that that was intended to counteract a backlash as a result of decision. Knowing some senior Google people personally, I don't actually think that myself - but it will be interesting to see what happenes to the share price.
Not had much time to absorb this, but certain obvious arguments can be made : that a censored service, where blocked sites are at least indicated, is better than continual tussles with the government which might lead to either the total blocking of the site to most PRC residents who can't get access via foreign proxy sites etc, and/or the compulsory imposition of invisible upstream filtering; that Google has a considerable number of employees in China and has to protect them from possible Govrnment backlash; that Google is only doing publicly, and with certain safeguards what the likes of Yahoo! and MSN are already doing covertly.
At heart, even if this is the current best-case scenario for China, what this crisis clarifies is the unsatisfactoriness of a world where Internet search is controlled by a private company; as many many have observed this bodes ill to be as unsatisfactory as a world where 90% of operating systems are controlled by Big Bill. The capitalist solution is, presumably, a better competing search engine (though would they not have as mch trouble in China as Google, and without the market power to negotiate on details?)The regulatory solution is to apply human rights law directly to certain private actors such as Google and Microsoft. But how pie in the sky is that, folks?
AS Silicon Valley note, Google put PR credit in the bank with recently refusing the US government subpoena of personal data. Cynically one might hazard that that was intended to counteract a backlash as a result of decision. Knowing some senior Google people personally, I don't actually think that myself - but it will be interesting to see what happenes to the share price.
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