Free wi fi = free beer, free speech or stolen beer?

Interesting discovery - an outfit called FON who are aiming to provide access to members ("Foneros") to free but secure wi fi wherever you go. They're backed by some heavyweight names like Esther Dyson and Dan Gilmore. Basically, individuals are encouraged to sign up to FON and buy a FON-equipped router, (for the reduced sum of 25 Euros/USD)which allows other FON users to use their bandwidth, via pre arranged usernames and passwords, wherever they go. FON undertake that the original user will always be left with a "reasonable amount of bandwidth" whatever that means :-) - and it does have the big advantage of meaning you can share a wi fi connection with pals without leaving it unsecured.

The big question, of course, is how legal is it? A while back as an anecdotal exercise I looked at a few UK ISP subscriber contracts and found that few, if any, had any direct prohibition on bandwidth sharing. Yet one imagines they wouldn't be too happy if this sort of wi fi sharing took off globally. The FON people themselves rather cleverly cover their backs with a term in the legal notice:

"In accordance with the Terms and Conditions of Use of FON Services, Foneros who enter the FON Community must have access to the Internet where they are permitted to share bandwidth with others and/or to download FON Software onto your router."

Of course there is no implication that they will check this so the legal risk falls on the users, which is of even less comfort to ISPs one imagine - always better to have a node to sue than a multiplicity of users. (Can we foresee the invention of the tort of inducement of wireless bandwidth theft a la Grokster??)

There's also a few cases lately in US and UK which hold that war-chalking - stealing bandwidth without the consent of the original bandwidth renter - is a crime. Yet this is IMHO not that either, since everyone involved in the FON network has consented to wi fi sharing.

So I conclude it's legal. Stick Skype or similar on your PDA (the new Orange SPV 3G phone will do this nicely, even though it is the size of a brick) and you need never pay a long distance phone bill again. Will this take off? I wonder. My own needs for wireless are most prominent (a) in hotels (b) in airports - and neither is somewhere where FON subscribers are likely to live and have a FON router set up. But then I'm quite hapy to pay my £15 a month for broadband from Telewest - maybe others are more canny/mean.

Click and dick?

The Harlow Star reports that a councillor who was sacked for downloading obscene pictures has failed in his attempts to have the monitoring employed by the council declared illegal. Judge Bradbury said the council was entitled to monitor its computers to avoid breaches of its code of conduct, which includes a prohibition on accessing pornography.

This is of a fair bit of interest legally, as very UK few reported decisions at courts (not EAT) level exist dealing with the legality of electronic employee surveillance, a matter which has been controversial ever since the Lawful Business Regulations and the Information Commissioner's Code on Employee Monitoring came out. But casual readers wil I suspect best remember this case for the councillor's excuse - he wasn't downloading porn, he was just checking out condom sizes as part of his role as the Liberal Democrat group's health spokesman conduting research into the European Union's recommended size for condoms.

Pull the other one, Matthew, it's got bells on it:-)

I am reminded of this delightful song - "Grab your dick and double click.."!

Is dongle still just a silly word?

.. or is two factor authentication the coming saviour for security in online banking?

Alliance and Leicester is set to roll out two-factor authentication to its internet banking customers.Two-factor authentication usually couples a password with some kind of device that generates a second passphrase. The isdea is that this makes it harder for fraudsters to steal both passwords and is therefore more secure than traditional methods of internet banking.

Bruce Schneier disagrees.

"The problem with passwords is that they're too easy to lose control of. People give them to other people. People write them down, and other people read them. ...
Two-factor authentication mitigates this problem. If your password includes a number that changes every minute, or a unique reply to a random challenge, then it's harder for someone else to intercept. You can't write down the ever-changing part. An intercepted password won't be good the next time it's needed. And a two-factor password is harder to guess. Sure, someone can always give his password and token to his secretary, but no solution is foolproof.

These tokens have been around for at least two decades, but it's only recently that they have gotten mass-market attention. AOL is rolling them out. Some banks are issuing them to customers, and even more are talking about doing it. It seems that corporations are finally waking up to the fact that passwords don't provide adequate security, and are hoping that two-factor authentication will fix their problems.

Unfortunately, the nature of attacks has changed over those two decades. Back then, the threats were all passive: eavesdropping and offline password guessing. Today, the threats are more active: phishing and Trojan horses."

So as Schneier says, imagine a customer is duped by a phishing email and website. He types in his password and he plugs in his dongle to generate a one time authentication code. As now, the site harvest both and logs in as him at the real site. How are we any further on? For a short while phishers may switch their attention to the old password-only sites as easier to crack, but that's just a blip till everyone has gone two-factor authenticated. the same problem arises if a Trojan is sitting on your hard disc harvesting everything you type in or send to a log in on a site.

back to the dongle board, folks..

EBay Makes Your Eyes Water

According to the Beeb, a prosecution brought against eBay.co.uk by the General Optical Council, for aiding and abetting in the illegal sale of contact lenses by persons other than registered opticians, under the Opticians Act 1989, has been dropped, after advice that EBay was protected by European law. One can only assume this refers to Art 14 of the EC Electronic Commerce Directive as implemented in the UK by the 2002 Regulations of the same name. Under this law, reg 19 states that:

"Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where -

(a) the service provider -
(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or
(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and

(b) the recipient of the service was not acting under the authority or the control of the service provider.

EBay's involvement came from some 200 individuals selling contact lenses via its site listings, not from any direct commercial activities of its own. What the GOC seem to have accepted then is that, as EBay themselves put it, "as an "information society service provider", [EBay's] duty is simply to remove illegal sale notices from its site when it is made aware of them, rather than to comb through it for them". This interpretation is reinforced by Art 15 of the Electronic Commerce Directive which provides that EC states shall not impose positive obligations of monitoring on information society service providers.

As the Beeb report points out, this leaves the GOC, as a public regulator, in a highly unsatisfactory position. The GOC spokesman said: "We feel that it is an unreasonable burden for a regulator, with limited resources, to have to monitor the millions of listings on auction websites. In effect, we would have to notify the website of each individual instance of an illegal sale in order for it to be de-listed."

But did the GOC cave too soon? First, Art 15 was never transposed into UK law. Arguably this makes no difference as remedies can be obtained in respect of Directives even where not transposed into domestic law, but it is still rather odd.

Secondly, and rather controversially, could it be argued that the EBay sellers of contact lenses were acting "under the authority or the control of" EBay? EBay do contractually allow sellers to sell on its site, and take a cut of the profits for doing so. Is this not "authority"? As I have noted before, they are hardly in the same position as a traditional ISP handling myriads of communications in a hands off way. EBay furthermore do at least present something that looks rather like "control" in that they have various Acceptable Use policies relating to what can and cannot be sold on EBay. Contact lenses are specifically mentioned under the "prohibited" list. EBay do their best to make these warnings look advisory - "eBay is here to help, but you are ultimately responsible for making sure that buying an item or selling your item(s) is allowed on eBay and is not prohibited in the eyes of the law. Follow these steps to find out whether or not your item can be listed on eBay."
- but such words cannot detract from the fact that it seems a reasonable interpretation that eBay's various "prohibited" policies for buyers and sellers are incorporated by reference as part of the terms of the contract with eBay .

If eBay can be characterised as having either "authority or control" then the immunity provided by reg 19 in respect of criminal liability will fail to protect them.

Thirdly, nothing in the ECD or the UK regs stops a litigant seeking an injunction or interdict in relation to hosting liability. Reg 20 states: "Nothing in regulations 17, 18 and 19 shall ...(b) affect the rights of any party to apply to a court for relief to prevent or stop infringement of any rights." This language speaks of civil law rights, but could it be read also as allowing the GOC to take an injunction preventing eBay from selling contact lenses without a trained optician on staff? If so, the regulator's need for swift and single-targeted action can be met. Such an approach would not be out of step with the rest of the EU - in Germany, in two cases, the Supreme Court has allowed injunctions against on line auction sites in respect of illegal content they were hosting.

This case is significant for more than just the illegal sale of contact lenses. It is the first UK case, and one of the first EU cases, to decide in any shape or form whether eBay's habitual claim of immunity as a "neutral intermediary" will be unquestioningly accepted. As reported on this blog earlier, an action is also pending from Tiffany the diamond sellers in relation to rampant trademark infringement on eBay. If the GOC case is accepted in practice as any kind of precedent (it is not in strict law, being simply the abandonment of the case), it will be hard for any case on civil or criminal hosting liability to stand up against eBay.

Yet in a civil case such as a trademark infringement action, eBay can be held liable not just if it has actual notice, but also if it has constructive knowledge of the infringement. So in the upcoming TM case, I expect to see evidence that eBay must reasonably have known that its listings were full of counterfeit Tiffany goods, even if it was not compelled to actually monitor its site to see just how many counterfeit listings it had - simply from the NTD requests it received on an ongoing basis. The very advice eBay gives about prohibited listings could be seen as evidence that eBay knew quite well these sort of goods were habitually sold on its site. If that were to be proven - and it would not be hard, one feels - a defense of take down only on actual notice would be irrelevant.

Anyone know what lawyers advised the GOC?

EFF attack Yahoo!/AOL email postage stamp

EFF are co ordinating mass opposition to Yahoo!/AOL's email postage stamp scheme, as blogged by me a few days ago. And bloody right too.

"A pay-to-send system won't help the fight against spam - in fact, this plan assumes that spam will continue and that mass mailers will be willing to pay to have their emails bypass spam filters. And non-paying spammers will not reduce the amount of mail they throw at your filters simply because others pay to evade them.
Perversely, the new two-tiered system AOL proposes would actually reward AOL financially for failing to maintain its email service. The chief advantage of paying to send CertifiedEmail is that it can bypass AOL's spam filters. Non-paying customers are being asked to trust that after paid mail goes into effect, AOL will properly maintain its spam filters so only unwanted mail gets thrown away.

But the economic incentives point the other way: The moment AOL switches to a two-tiered Internet where giant emailers pay for preferential service, AOL will face a simple business choice: spend money to keep regular spam filters up-to-date, or make money by neglecting their spam filters and pushing more senders to pay for guaranteed delivery. Poor delivery of mail turns from being a problem that AOL has every incentive to fix to something that could actually make them money if the company ignores it. "

A Torrent of Lawsuits

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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..

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.

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.

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.

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? "

Airline security

After three flights in 20 hours, I can't resist. (Via BRuce Schneier.)

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!

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 .

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 :-)

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!

More visual aids

Worth noting for teachers looking for cool visuals for powerpoints: the Sony rootkit debacle as graphic.

RFID cartoon

Via Bruce Schneier's blog: no comment :-)

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.

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.

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".

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..

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.

Scotland goes digital?

The Scottish Executive have announced a consultation on the Electronic Communications (Scotland) Act 2006. The purpose of this consultation is to seek views/comments on the proposals to amend appropriate legislation to allow for electronic communications to be accepted in the same way as "in writing" or "by hand" submissions.
Starting: Friday, January 27, 2006 Deadline: Friday, March 24, 2006

This should pave the way , one hopes for fully electronic conveyancing (following the existing ARTL project), electronic application for legal aid (also already being piloted), and , perhaps electronic voting? No more current details - queries to christine.gresswell@scotland.gsi.gov.uk .

Wikipedia falls beneath the courts..

Just as the Yahoo! v FRance litigation disappears thankfully beneath the waves of the technical process of the US appeal court procedures, a new transatlantic dissensus storm cloud appears.

Wikipedia Germany is down today (19/1/06) because of a court order of some sort, posts James Enck on EuroTelcoblog today. he reports that the legal dispute relates to a deceased German hacker whose real name is used on the Wikipedia site - his family have apparently sued to have the site shut down on the grounds that this violates their privacy.

The case is a lovely example of how notice and take down - in this case backed by court order - can remove vast amounts of useful content from public site even before merits have been decided.

Except that you can still read the exact same content in both German and English, on US Wikipedia, which is also available in German translation. A court order would have to be sought from the US to close them down too and US freedom of speech law is highly unlikely to allow this.


As Enck says, "National litigation [is] rendered nonsensical by a supranational web."

EDIT: Oops, apparently:-)

Blawgs hit London press!

The Law Society Gazette, major organ of UK solicitors, has finally editorialised on blawgs, including this esteemed site. I guess, we really are in the 21st century, Matilda.. (Even if they didn't give MY URL!)

Being Annoying on the Internet to Be a Crime?

The blogoverse has lately been full of the shocking news that President Bush has passed into law a provision, tucked into the Violence Against Women and Department of Justice Reauthorization Act of 2005, which in essence, makes it illegal to annoy someone on the Internet, if you do so without disclosing your true identity.

Since many blogger's (and blog-reader's) days are spent mainly achieving this very aim, and often under a pseudonym or under cloak of anonymity, the unrest such a law has incited among the lieges becomes understandable. Some blog sites, such as Blogspot, leave it open to users to use either their true name or a pseudonym (or no name at all) when commenting; others, such as Live Journal, actively encourage uses to conmment only sub pseudonym (although it should be noted that comments made anonymously, can also, on various blog sites, be banned). In the US, anonymity for political (though not other) purposes has a degree of constitutional protection ( McIntyre v. Ohio Election Commission ) and so the fredom of speech mavens are up in arms.

More recent reports have suggested however that (a) this is in fact not a new law at all, but merely an amendment of existing US law relating to "annoying" ie nuisance telephone calls, and (b) that even the amended law continues as before to exclude "interactive computer devices" though it does include calls made at least partially via the Internet. It seems possible therefore that the new law merely extends the old nuisance phone calling prohibition to calls made via IM and VOIP, and is not intended to extend to email, Internet web and Usenet posts at all. The point is also well made that incidental annoyance caused by irate posters, is not at all the same as criminally intending to cause annoyance.

What interests me, though, is that in the UK, as usual, we have on the whole collectively patted ourselves on the back and said "Mad Americans, it culdn't happen here." But in fact, it already has.

The (UK wide) Communications Act 2003, s 127 ("Improper use of public electronic communications network") holds that:

(1) A person is guilty of an offence if he-
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
and
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another [emphasis added], he-

(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.

So it would appear that, say , the persistently "annoying" commentor on Blogger - a spammer, for example, or perhaps just a particularly brusque or longwinded repeat correspondent - could hypothetically be charged under s 127. Subsection (2)(c) does not appear to require that the "message" be false; nor (as with the US law) is there even the need for anonymity.

And yet no one here makes a fuss about the non-constitutionality of it all. Such a criminal provision has existed since at least 1984 under our old Telecommunications Act, to deal with, surprise, nuisance/crank/malicious phone calls. It was quietly extended to the Internet in the 2003 Act (wherein the definition of a "public telecommunications network" can be found) and even more quietly, has anecdotally been used by the police on occasion since to charge Denial of Service, in the absence of clear guidance as to whether s 3 of the Computer Misuse Act 1990 would cover that crime. (see Blogscript, elsewhere).

Should repeat emails or web posts be criminal simply because they are annoying, inconvenient or anxiety-provoking but not false, malicious or libellous? If they contain threats, they will in any case be chargeable as assault; if they are falseand relate to a living person, they wil often be pursuable as libels. With phone calls it is clear that repeated nuisance calls have a deleterious psychological effect on the victim. But web posts can be ignored, software exists to ban named posters from commenting on many sites, and email can be similarly filtered. Unusual though it is, in a world where we usually try to draft convergence-neutral laws, freedom of speech does seem to demand a different balance for net communications than it does with conventional telephone calls. Perhaps the 2003 Act, s 127 should be reviewed?

The digital citizen bites back

Governments are keen on encouraging digital uptake by citizens, because they see the potential both to get votes, reduce voter apathy, and to reduce costs by expanding e-government. But what gives with one hand takes with another. The Register reports that Craig Murray, the former UK ambassador to Uzbekistan has effectively avoided the Official Secrets act by publishing classified documents the government attempted to suppress on his blog. Murray now claims these appeared in over 4,000 blogs within 72 hours. And that the government are unlikely to prosecute him under the OSA - as would of course still be possible - since no jury would be likely to convict.

Both official secrets and contempt of court have long been regarded as dead in the water since the advent of the Internet and at least since the Spycatcher debacle. It will be interesting to see what action, if any, the government do take.

Sony and the Root KIts Play Out

Details of the Sony US settlement re their offending DRM-enabled "root kit" CDs are helpfully reported at Out-Law.com. Inter alia, customers who bought the protected CDs will be entitled to $7.50 each and one album download from a list of 200 titles, or three album downloads from the list if they waive the cash offer.

Sony BMG also undertakes to take "commercially reasonable steps" to destroy the information that it collected from users – the "spyware" aspect of the fracas - namely, album details and IP addresses – within 10 days of collection, except as otherwise required by law or court order. And they undertake to make sure that in any future CD production, no software is installed before the user accepts the EULA -a major step towards transparency which will hopefully now be accepted as an industry must-do.

Road to Nowhere??

Via Bytes in Brief

"On December 26th, it was announced that Britain would become the first
country in the world where the movements of all vehicles on the roads are
recorded. A new national surveillance system will hold the records for at
least two years. Using a network of cameras that can automatically read
every passing number plate, the plan is to build a huge database of
vehicle movements so that the police and security services can analyze any
journey a driver has made over several years. By next March a central
database installed alongside the Police National Computer in Hendon, north
London, will store the details of 35 million number-plate "reads" per day.
These will include time, date and precise location, with camera sites
monitored by global positioning satellites. Already there are plans to
extend the database by increasing the storage period to five years and by
linking thousands of additional cameras so that details of up to 100
million number plates can be fed each day into the central databank. Civil
libertarians are concerned that the movements of millions of law-abiding
people will soon be routinely recorded and kept on a central computer
database for years. "

The British public, unlike privacy advocate groups, has always supported ubiquitous surveillance, at least in the form of CCTV, where the alternative appeared to be the risk of exposure to crime. Will the killer combo of ID cards and full fledged Big Brother style surveillance of all vehicles, with no incentives in sight but speeding tickets, turn the tide of opinion?

If you do care about privacy, this certainly makes worrying over tosh like RFID in the retail chain look like a minor affair. Although if you combine car tracking for the socially included, with ID cards and RFID-cash tracking for the rest, the prospects of future employment for data miners (not minors) look bright indeed.. Minority Report, which I watched again over Xmas, looks nearer and nearer to truth. How far are we from the Dept of Pre-Crime now?

Cybercrime enters 2006, pt 3!

Several very interesting recent developments in UK cybercrime case law:

War-chalking or wireless bandwidth theft: The Register report that a man was last week fined £500 after a British jury found him guilty of using a neighborhood wireless broadband connection without permission. Gregory Straszkiewicz, 24, was also sentenced to a 12 months conditional discharge after he was convicted of dishonestly obtaining an communications service and related offences at London's Islewoth Crown Court last Wednesday (20 July). Beeb also reported it.

The case - brought under the Communications Act 2003 s 125 - is the first "war driving" prosecution in the UK, according the police. The Act - which is UK wide - introduced a new offence of dishonestly obtaining an electronic communications service with the intent to avoid a charge applicable to that service. Mr Straszkiewicz is reported to have been caught by police outside a residential building surfing the internet using a laptop. Some commentators have suggested that this might extend the criminal law to surfers who accidentally jump onto another party's net connection (easy to do if a host is using an unsecured connection with no encryption, as many still do). IMHO the mens rea requirement makes this seem unlikely however.

This follows fast on the heels of the first US prosecution for war-driving - it seesm this once hypothetical crime is now here to stay?

Denial of service (DDOS): in my soon to be published article Edwards L “Dawn of the Death of Distributed Denial of Service: How To Kill Zombies” forthcoming(2006) Cardozo Arts and Entertainment Journal, I expressed doubts, contrary to the rather more optimistic approach of both the police and APIC (the All Parliamentary Internet Group), that the Computer Misuse Act 1990, s 3, did indeed criminalise denial of service per se.

Section 3 of the CMA prohibits unauthorised modification of computer data - and was originally intended to criminalise the spreading of comoputer viruses (having been drafted long before DoS became common). DoS basically involves sending so many page or access requests to a computer server that it falls over. It has long been uncertain if this would constitute an "unauthorised modification" under s 3 - if sending one email is a legitimate act, impliedly authorised by the website or server, and not a "modification", is sending 5 million? I think not, although the policy implications are obviously unfortunate.

A UK court has now agreed with me. The judge, District Judge Kenneth Grant , in a November 2005 case at Wimbledon Magistrate's Court , involving a teenager who could not be named for legal reasons, but who had allegedly sent five million emails to a former employer to cause a DoS attack, ruled:

"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]."

As Peter Sommer, a senior research fellow in the London School of Economics' Information Systems department, put it "When you send an e-mail to an e-mail server, you are not modifying that server, because the purpose of the e-mail server is to sit around waiting to receive e-mails aimed at that domain,".

It is not clear from available evidence if the teenager was ever charged with an offense under s 1 of the CMA wich prohibits unauthorised access to a computer or data. It has been hypothesised that a distributed DoS attack, which involves enslaving a large network of unknowing "bot" computers via hacking or virus infestation to send the emails that form the DoS attack, might be susceptible to a s 1 charge. But if the emails the teenager sent contained no malicious material, and he did not use any means of unauthorised access to send email to the victim's server, or utilise a bot network, then s 1 would also not be relevant.

It is likely we will now see legislative change on both "vanilla" DoS and Distributed DoS. A Private Member's Bill already introduced will be read again in 2006. The Scottish courts are also soon likely to have a chance to rule on DoS when the case of a man in Elgin comes to court.

And finally

DRM as virus? the "root of all evil" case.

Sony had some extremely bad press near the end of 2005 when it transpired that Digital Rights Management (or technical protection measures or TPM) software they had placed on some music CDs to prevent them being ripped or played via iTunes, had had the unfortunate additional effects of acting as spyware and rendering user machines vulnerable to virus attacks by third parties. The DRM software was invisible to the user when the CD was loaded, and the EULA laid down that users accepted the DRM as a condition of purchase.

Sony are now under threat of prosecution from various state attorneys in the US and in other countries. They have already made a financial settlement which is likely to protect them from criminal prosecution in the US but Naked Law are now speculating as to whether s 3 of the CMA (that old warhorse again :-)could be used to prosecute Sony in the UK. The matter is likely to be academic, as there is no evidemce any consumer in the UK has suffered from the DRMed CDs, but the interesting question is whether s 3, which makes it an offence to intentionally modify the contents of a computer without the consent of the user, would apply. Users must accept the EULA to play the CD, but the EFF have claimed in the past in relation to similar Sony DRM-protected CDs that "the [DRM] software is installed prior to display of the relevant EULA, and is not removed even if a user does not accept the terms of the EULA". There is as well as the question of how far a user can consent to a criminal act the full consequences of which he is largely or wholly ignorant.

Intersting times..

The Future of the Borderless Net?

various commentators have pointed me towards the rather fabulous latest issue of LegalAffairs - which features inter alia Julian Dibbell on the taxation of virtual property, a novel topic if ever there was one in these our days of endles novelty,and an excellent summary of where we are in relation to the "repatriation" of the once "borderless" Net by Wu and Goldsmith, the latter one of earliest cynics, sorry, pragmatists from the days when "the law of cyberspace" libertarian wave was at its height.

Discussing the French Yahoo! case, they highlight the often overlooked point that the French court principally decided to place Yahoo! US under their jurisidiction, not out of a sense of obstinate and blind assertion of sovereignty, but because they had discovered that Yahoo! pages referred to French users were coming, not from the US site where Yahoo! were claiming the protection of the US First Amendment, but from a Stockholm mirror site. Wu and Goldsmith go on to reject the aphorism that "information wants to be free" in favour of the declarator that information wants to be organised and categorised, and point out that "geography turns out to be one of the most important ways to organize information on this medium that was supposed to destroy geography". Fascinating stuff.

Cybercrime: more good news :-)

Another catch up. The Sydney Morning herald reported on Dec 7 2005 that details of a zero-day vulnerability in Microsoft's Excel spreadsheet program have been put up for sale on eBay, with the seller offering a starting price of 1 US cent. At the time of the article, the bidding had reached $US60 ($A79). Interestingly, the hacker had already reported the flaw to Microsoft but after receiving no response, put it up for sale on EBay. Ethical hacking goes guerilla??

Talking of buying insecurity, it's well known that less ethical persons are now trading bot networks for sums almost though not quite as low as the above. Any serious future concerted EU security policy may have to look at ways of monitoring and clamping down on such sales, pubic and private, as clearly the serious crime intersts who are now using bot networks for spamming, phishing etc are no longer the teen hackers of yore , but simply businessmen who will buy bot networks to make a profit, just like they now buy drugs.

The year of the digital citizen-consumer, continued..

Yet more turn of the year past- and future-gazing , emphasising the idea that consumers are now as likely to be participatory citizens and producers of digital products, as passive recipients of services. Blogging, podcasting, and vlogging - video blogging - all get approving nods - as does the new Center for Citizen Media.

"Crucially, what 2005 proved was that far from these techno tools being purely dumb funnels for the same paid-for content from mainstream media, they had the chance to become powerful tools for political expression and reportage.

The consumer was turning into the citizen with a meaningful role to play. Media started to look more participatory and inclusive.

The Boxing Day tsunami of 2004 starkly showed the potential of these tools. Most of the memories of that day have been graphically captured, replayed and played again, making the event much more immediate and personal.

Later in the year, the 7 July London bombings and the hurricanes in the US forced home the fact that citizens had a much larger role in the production of news than ever before. "

This slightly more cynical commentator wonders if there may be downsides for the on line empowered consumer. What about consumer protection law? it tends to assume a disparity of power between creators/retailers/publishers and consumers. Will there be the same force behind arguments for strong consumer protection laws on line in the WEU when consumers are seen as active not passive?

One hard question here is what might happen, in various jurisdcitions, if an EBay buyer claimed consumer protection in a contract gone badly wrong. Would such a person still be characterised as "consumer" if they were sometimes or mostly an EBay seller? Hmmm.

Cybercrime: happy 2006, pt 1..

Interesting quote from Bruce Schneier:

The (US) Treasury Department says that cyber crime has now outgrown illegal drug sales in annual proceeds, netting an estimated $105 billion in 2004, the report said.

I wonder how they measure it? Assuming it's only based on cybercrime activity they actually detect, the actual figure must surely be much much larger. (The original newspaper report admits that "It is difficult to gauge the true number of security failures because many companies are unaware they've been hacked, the paper said.")

First spammer fined in UK

Well, lordy lordy, someone in the UK has finally actually managed to successfully sue a spammer. (This story reported December 27th 2005 - catch up time again, folks.) The miracle of Xmas is clearly with us. Before you cheer too much however, notice the damages - the grand sum of £270. And that isn't just, as the Beeb story suggests, because the claim was done as a small claim - it's because the damages are limited by the actual damage that can be proved to have been done, which is extremely low for most individuals. Even if the criminal law gets involved, the maximum fine under the anti spam provisions of the Privacy and Electronic Communications Regulations falls within Data Protection legislation - - and that, barring solemn procedure (very unusual indeed) is £3,000. Compare to the million dollar punitive damages you can get in the US under the Can Spam Act, or even the 6 figure sums that ICSTIS, the UK premium phone line regulator, can impose when operators breach their rules. DP legislation sanctions are a joke and need reformed desperately. US type class action rules for civil suits would help too. (And hey, I won't even start on how 90% of spam comes from outside the EU and is effectively without control by EU citizens anyway..)

Happy humbug!

The consumer as producer, and RSS

Happy New Year! and welcome to some new(ish) interesting stories which have slipped by Blogscript in our, er, seasonal hiatus :-)

The ever faithful Beeb report the emergence of Spy Media, an agency which plans to provide a market place for the sale and exchange of blog posts as well as pictures snapped by ordinary citizens armed with digicams, phonecams and webcams. The idea of a press agwency to market the increasingly valuable snaps taken by the public, and which will allow amateurs as well as professional photographers to hawk their pix to the media for solid dosh, is not new: Scoopt may well have been the first into the market. Pictures taken by the public increasingly shape the public global image of events from the second they happen : the BBC eg received 50 pictures from the public within an hour of the London bombings on July 7 2005.

But Spy Media plan to do more. They plan to "educate people. They are going to demand that material [marketed via Spymedia] not be sent through RSS where people utilise them without permission."

In other words, Spy Media plan to start policing the very common current practice of A N Other providing an RSS feed so that in-demand on-line content from other platforms or websites can be "syndicated" for free to readers all over the blogverse (and without the annoying local platform pop ups and ads). Such RSS syndication without permission is clearly a breach of copyright. But it is also very much a tool whereby the work of unknown creators goes from cult unknown to commercial success: as happened, eg, with the on line gaming cartoon, P v P (which now restricts its content from being RSSed). As with P2P services, it may be worth considering if closing down such RSS feeds may not be more damaging than nurturing to creator revenues. In terms of the syndication of "ordinary" blog posts (as opposed to, say, cartoons or comics or prfesional quality photos)there must be also strong argument of implied license to copy - the aim of most bloggers is, after all, as wide an audience as they can get, rather than monetary rewards.

RSS as a format makes loss of control by creators if not inevitable then extremely hard to police**. But it also is an amzing tool for participatory democracy and brand building for individual creators without corporate advertising budgets. Much of sf writer and EFF official Cory Doctorow's brand recognition as an author, eg, has been built on his wodely syndicated via RSS co-authored blog Boing Boing. It may be better to look at alternative means of revenue collection than to persuade creators into a cease and desist campaign on unauthorised syndicators. One is drawn again to Fisher's vision of a world of compulsory licensing of on line content (music, pictures, and images. perhaps?) along with some kind of entertainment levy.

** Aha. Enquiries among local techie friends (many thanks to Andrew Ducker, Simon Bisson, Mike Scot) reveal that when you are attempting to restrict syndication of images, (eg the P V P on line comic), you can set the site up so that when a request for the image comes in, it checks to see if you're looking at it on the site itself , or on a different one, and "can then send an image saying "Yaah, boo, sucks to you" to people trying to read it from offsite, and the actual image to people looking at it on your site."

(You still can't stop someone creating an RSS feed on their own site saying "Look, there's a new PVP comic over there" - an alert feed. But that's OK, it seems to me. Potential readers are driven to the site of origin, where the creators have chosen to make their work public in the first place, and get the benefits of such. Where's the problem with that?)

But if you're trying to protect syndication of text it's a whole other story. There's almost nothing anyone can do to stop someone scraping an open-to-the-public website's HTML and building a feed from it. "The thing is, once you have content in an open format like HTML, anyone can do anything with it. Blocking screen-scraping spiders is not a trivial exercise if they don't want to be blocked."