NOTE: On Sept. 14 – 17, activists with the Freedom not Fear movement will stage an international week of action to oppose surveillance measures from Europe to Australia. To support this effort, EFF is examining surveillance trends and spotlighting international grassroots activism launched in response.
David Lyon is a prominent sociologist, author, and director of the Surveillance Studies Center at Queen’s University in Ontario, Canada. His most recent book, co-authored with Zygmunt Bauman, is titled Liquid Surveillance. Lyon spent an hour talking with EFF about contemporary surveillance trends such as biometrics, CCTV cameras and legislative proposals for broadened online spying powers for law enforcement.
EFF: We’re seeing proposals in the UK, Australia and Canada, to grant broader powers to law enforcement agencies to intercept online communications. Do you have any thoughts about what’s driving this push, and why we’re seeing so many similar policies floated at the same time?
David Lyon: It relates to a number of things. It’s partly government fear about what can be done with data, the power of data in an era of digitality and social media – Wikileaks being an obvious case-in-point. It’s a fear of the movement of information and how the movement of information might affect balance of power, or political stability. So that’s one factor: The realization among governments that there is tremendous power in information.
Another issue is crime control, where personal data is obviously paramount for investigations. The problem is that once courts and judges do not have to give permission, the scope for fishing expeditions is expanded. Unfortunately, little or no information is available on how much new data is sought, why or from whom.
Then there will be security concerns in there, and particularly what is called “national security,” which in my view has been inflated to the status of an obsession, really, in many governments around the world. And I think that obsession is driven by a kind of fear, and also creates further fears about what might be done if information is allowed to be moving freely between institutions, and states and so on.
I think there are a number of different aspects to this, and there’s also plenty of evidence that governments want to affirm their power over the flow of information. The consequence is that simultaneously, governments in different parts of the world are seeing the attempt to tighten screws on the Internet as being part of what they believe they should be about. I do think it’s a crucial area for democracy in general, and for anyone who is concerned about the way in which the Internet is developing.
EFF: On the flip side, if they are successful in getting these things through, how does that impact our civil liberties, and what do we stand to lose?
DL: What do we stand to lose? A lot. It’s exceedingly bad news. The kinds of limitations on freedom of speech if these forms of legislation do get through anywhere, they represent a huge curtailing of freedom of speech. Back in the 1980s, one of the leading sociologists in the world, Anthony Giddens, was writing about surveillance. He was arguing, quite before his time, that one of the key ways in which government would try to reinforce its power would be through the control of information. He argued that the likelihood would be that there would be countervailing movements. Free speech movements, as he called them, would grow, as the attempts to harness information for governmental power would increase.
It seems to me that things have come full circle now. Of course we now see the ways in which digital technologies have facilitated a huge growth of information power, but we’re also seeing now essentially what he predicted, the development of those movements relating to civil liberties. And I do think that’s a really important area for us to examine, because the capacity to speak freely about any kinds of matters – personal, religious, political, whatever – the more they’re constrained, the more we have to say that liberties are being constrained, democracy is being threatened. There are serious questions to ask about the sincerity of governments that claim to be democratic. My interest is analytical, in terms of trying to understand what is going on, but in terms of the big picture, I certainly think that we cannot evade the ethical and political questions as we contemplate those egregious forms of legislation.
EFF: CCTV cameras are near-constant presence at this point. How does this security infrastructure affect our privacy and impact our experience of being in public space?
DL: There is a rapidly growing awareness of the ways in which camera surveillance has come to be a taken-for-granted presence. London, England still has a higher density of surveillance cameras than anywhere in the world, but it’s rapidly being caught up by a number of Chinese cities, and Rio de Janeiro is hugely increasing its camera population, especially with the Rio Olympics coming up. This is something that’s increasingly experienced around the world, in very poor countries as well as very rich ones, and it is something that’s becoming part of the global human experience. Many people believe that the presence of cameras is overall making them more secure. But there’s a key conundrum in the world of camera surveillance. It continues to expand … despite the fact that there is no study in the world that has shown conclusively that camera surveillance operates effectively for the purposes, and in the manner, that it is generally advertised and understood to operate.
The only thing that can be claimed for them is that in some circumstances, assuming that everything else is working … it might be useful for forensic purposes after the event. If they are camera systems that have human operators, then it’s frequently the case that those operators are working with forms of categorization of those that they watch that are deeply prejudicial. There’s plenty of evidence that your likelihood of being apprehended because you have been seen in a camera surveillance system is much higher if you are a young black male, especially in an American city like Chicago. The question of disproportionate gaze on certain groups of the population is a really important question, and something that is clearly related to social justice issues.
The trend is toward trying to find new and better ways of identifying the images that are captured … there’s a lot of faith invested in facial recognition technologies, for example, but again there’s a huge critical literature – technical and social scientific – that’s asking questions about how reliable those recognition technologies could possibly be. There are many, many questions that one needs to ask about camera surveillance.
EFF: Why should we be concerned about the use of biometric identification systems?
DL: The good old fingerprint is still really the biometric of choice … it lends itself to digitization, and it is far cheaper to operate than technologies like iris scanners or facial recognition. But the more spectacular forms of security, like in airports, tend to be the ones that are captured by mass media, body scanners for example. Once again, there are many questions right from enrollment, that is to say, getting that initial data from the body, whatever it is, through to the reliability of the software for comparison and checking. There are strict limits to what can actually be done using biometric technologies, and there are many possibilities for failure.
As with the camera surveillance, there are also frequently negative discriminatory aspects within biometric systems. There are people with very damaged fingers, or fingers that don’t yield the kinds of prints that are very helpful. It’s also the case that certain groups within the population just have different kinds of features for biometric purposes. … An argument was made by Joseph Pugilese, an Australian researcher showing how biometric technologies are developed in the first place. As he put it, systems he researched could be said to be “calibrated to whiteness.” Other studies show that in a sense that biometrics has been developed by white people in North America – and the norm has been established against which other body types, body groups, may present less usable data for biometric systems. So, right in the technology there are at least questions that need to be asked about how reliable this is for the very mixed populations you might find going through an airport.
EFF: You’re about to come out with a book called “Liquid Surveillance.” Why is it useful to think about contemporary surveillance as being fluid instead of fixed?
DL: Obviously we’re in the world of metaphors here, but I think fluidity as opposed to fixity is a really helpful way of looking at things. The book is done jointly – it’s a conversation between me and Zygmunt Bauman, who’s written a lot about liquid modernity. And he’s examining it in terms of the ways in which, once upon a time, surveillance could be thought of as within enclosed spaces. There were specific institutions where you could expect to be under surveillance … for example, you wouldn’t normally anticipate that the interests your employer might have in the speed and productivity in your work could be transferred to another domain, like welfare or policing or national security.
Neoliberalism encourages the marketization of everything, and therefore the consumer-oriented data gathering and processing enables a whole series of other areas to develop. The other obvious feature of neoliberalism is at the same time as saying everything should be freed up for market activities, the development of national security programs are a very important part of a military budget and a military approach. So governments, while they say they are freeing things up for the market, are actually ensuring that the market deals increasingly with military hardware and software. And that includes a whole panoply of surveillance technologies.
You’ll probably recall that after 9/11, what was to become the Department of Homeland Security went first not to the CIA, or the NSA, or any other such organization. They went first to CRM or customer relationship management. Why? Because they believed that the kinds of techniques that were being developed for locating customers for targeted advertising were exactly the kinds of methods that could be adapted for identifying and locating likely terrorists.
EFF: Freedom not Fear is a form of popular resistance to encroaching surveillance in our world. Do you think public opposition and popular resistance can have an effect on this trend?
DL: The short answer is yes. I do think there are important ways in which modes of question and critique and resistance can have a decisive effect on what happens. And just as an ordinary citizen, I applaud the efforts of those who attempt to raise significant and important questions about what’s going on in the world of surveillance. I’ve never been a proponent of paranoia, I’ve never applauded kneejerk responses to forms of surveillance, whether originating in government or corporate areas, because it seems to me that we’ve created a world where surveillance has become kind of necessary to everyday life. The question is, at what point is it being applied inappropriately, or negatively for some groups, or in a way that is prejudicial to human flourishing in some way or another? To take an example from Canada … Open Media launched a very effective campaign against the lawful access provisions. We had the largest Internet petition ever in Canada around this. It seems to me that such activities are worthwhile.
It has proved difficult up till this time to create a critical mass of resistance to surveillance in all its different dimensions – it tends to be much more related to single issues, like the lawful access legislation here in Canada, like the installation of new camera surveillance, like the development of new forms of tracking technology around times of political demonstrations. It tends to be rather specific issues – there’s nothing analogous to the environmental movement, yet. Frankly, I think just from a moral point of view, if something is seriously wrong in our society then we have a responsibility to attempt to assess it appropriately -- no kneejerk responses, no mere paranoia, no mere Big Brother fear – but, we have a responsibility to oppose that which is clearly inappropriate. And surveillance often has negative effects on human flourishing, particularly because through its sorting capacities it tends to reinforce social differences and further disadvantage groups that are already marginalized.
This research comes out of a gigantic nine-year, federally-sponsored, world-wide project called ENCODE (Encyclopedia Of DNA Elements), which was designed to learn more about “junk” DNA. These research findings should have broad ramifications for federal and state DNA collection programs.
EFF has filed briefs in Haskell and several other caseschallenging DNA collection from arrestees, arguing this kind of warrantless seizure and search violates the Fourth Amendment. The U.S. Supreme Court has held that, subject to only a few exceptions that don’t apply here, warrantless searches “are per se unreasonable under the Fourth Amendment.” (p. 338) The Fourth Amendment is designed to protect against laws that give “police officers unbridled discretion to rummage at will among a person’s private effects,” because searches that aren’t tied to finding evidence of the crime at issue “create a serious and recurring threat to the privacy interest of countless individuals.” (p. 345) It doesn’t matter if there is a possibility that the search will reveal something incriminating or useful in solving past or future crimes, the cops still can’t search through our private things without a warrant. (p. 344.)
These concerns apply with equal force to government DNA collection programs, which allow the government to obtain sensitive and private information on a person without showing that the data collected is tied to a specific crime. Thanks to changes in the laws to allow DNA collection from arrestees, federal and state DNA databanks have expanded exponentially over the last several years. The FBI’s federal CODIS DNA database now contains over 11.4 million DNA profiles, and nearly 2 million of those came from California.
The plaintiffs’ stories in Haskell v. Harris show that almost anyone can be affected by warrantless DNA collection. Several were political activists and were arrested during demonstrations. They were told that if they refused to provide a DNA sample, they would be charged with a separate misdemeanor and their bail would be increased. None of the plaintiffs was ever convicted of any charges, and in fact, after their DNA samples were taken, police dropped or dismissed the charges against each of them. For one of the plaintiffs, no charges were ever filed. This is typical in California, where a third of the 300,000 people arrested for felonies each year are never convicted, and many arrestees are never even charged.
DNA collection also leads to intangible harms to privacy and civil liberties that are no less protected by the Fourth Amendment. As the plaintiffs in Haskell told the court, when the government searches through our private effects—including our DNA—without cause to believe that we’ve done anything wrong, it makes us feel we’ve been violated, and we’re less likely to engage in society. This is especially true if the government retains the material it collects from us and subjects it to repeated searches.
The government argues that collecting DNA serves an important interest because it makes it easier to identify perpetrators of past and future crimes. Yet this type of utilitarian argument, based solely on law enforcement investigatory purposes and not on individualized suspicion, should have no weight under the Fourth Amendment. If it did, it could apply with equal force to support a program that collects DNA from everyone—which would, in effect, eviscerate the purpose of the Fourth Amendment.
The ENCODE project results reinforce the point that DNA contains important information about who we are, who we will be and our relationships with other people. That data should not be in the hands of the government without probable cause to believe it is linked to a crime.
As we’ve argued to the Ninth Circuit in Haskell and in other cases, the time to roll back governmental DNA collection is now.
1. When law enforcement collects DNA it takes a swab of genetic material from the inner cheek. This DNA sample contains a person’s entire genetic data. From that sample, a lab extracts data from 13 genetic markers to create a DNA “profile.” The FBI (and the state, if it’s a state arrest) retains both the sample and the profile indefinitely. The profile is entered into CODIS and searched every week.
NOTE: On Sept. 14 – 17, activists with the Freedom Not Fear movement will stage an international week of action to oppose various forms of surveillance. EFF is spending this week examining surveillance trends and spotlighting movements that have sprung up in opposition. You can follow our series here.
Far from being confined to London or Brussels, surveillance is an international trend. As CCTV cameras proliferate, legislative proposals for expanded online spying powers crop up, and mandatory data retention continues steamrolling ahead while jeopardizing individuals’ private information, the chorus against such trends is getting louder – and originating from all over the world.
In Sydney, Australia, privacy campaigners are gearing up for a rally to be held in conjunction with Freedom Not Fear events in Brussels and Luxembourg. On Sept. 15 at noon in Sydney’s Hyde Park, a coalition of activists will host a Freedom Not Fear rally and BBQ. Organizers include Pirate Party Australia, Support Assange and WikiLeaks Coalition, Electronic Frontiers Australia, the NSW Fire Brigades Employees Union and Privacy.io.
“We think it is important to show our opposition to censorship and the rising surveillance state,” said Simon Frew, Deputy President of Pirate Party Australia, and one of the organizers. “We encourage everyone who is concerned about the erosion of our civil liberties to come along and show their support for a free society. Since the beginning of the War on Terror, there has been a continual erosion of our rights and it is time to say enough.”
As part of the event, activists from the Cryptoparty grassroots movement will touch on privacy in the digital age, and will be on hand to assist people with tools to secure their digital communications.
There will be speakers and workshops on a wide range of topics including censorship, surveillance, governmental transparency, encryption and whistleblowing. There will also be live music, and an open discussion for activists to discuss how the National Security Inquiry proposals will impact their work – not to mention affect the privacy rights of all Australians.
As EFF has pointed out before, Australians have plenty to worry about with regard to privacy, between the recent passage of the Cybercrime Legislation Amendment Bill 2011 and the National Security Inquiry Proposal. Nevertheless, public opposition is alive and well, and this Freedom Not Fear rally is only the beginning of a long battle ahead.
NOTE: On Sept. 14 – 17, activists with the Freedom not Fear movement will stage an international week of action to oppose various forms of surveillance. EFF is spending this week examining surveillance trends and spotlighting movements that have sprung up in opposition.You can follow our series here.
In June of 2012, a grand total of eight violent crimes were recorded in the sleepy town of Royston (pop. 14,570), a Hertfordshire, England community best known for having a volunteer brass band and an historic cave dating back to medieval times. Ranked as a low-crime area by UK Crime Stats, Royston has nevertheless landed at the center of a raging controversy about the extraordinary security measures in place. All around the small town, closed-circuit television (CCTV) cameras are trained on the streets, programmed to automatically record the plate numbers of each and every automobile passing through.
The cameras are part of the UK’s Automatic Number Plate Recognition (ANPR) network, a system constructed by the Association of Chief Police Officers. The vehicle registration numbers are stored in a database, and automatically checked against a “hot list” displaying vehicles of interest. But regardless of whether there’s a match with a suspicious automobile, photographs of the plate numbers are stored for two years, while photographs of the vehicles and their occupants are kept for 90 days. Police refer to the camera system as a “ring of steel.”
Freedom Not Fear, an international week of action that’s being staged in Brussels Sept. 14 through 17, will feature a number of meetings and events drawing attention to growing and ubiquitous CCTV surveillance. Organizers from No-CCTV, a group that’s challenging the Royston ring of steel, and others hope to use Freedom Not Fear to raise awareness about the growing deployment of surveillance technology, launch creative responses, and identify solutions for reversing the trend.
Screen Shot from “We Watch” website, a project focused on surveillance in London.
UK activists from No-CCTV, Privacy International and Big Brother Watch teamed up earlier this year to register a formal complaint with the UK Information Commissioner, decrying the privacy problems inherent in the Royston program. They’ve lodged similar complaints about ubiquitous CCTVs on public transit, and mounted a challenge against another “ring of steel” that was being constructed in the UK city of Birmingham. “The system has the potential to be a mass surveillance tool,” privacy advocates warned. “If the police are not interested in motorists who are not on hotlists then it begs the question: Why do they gather this information?” They also voiced concern that the ring of steel is just part of a trend. “For Royston,” activists warned, “read any town in the UK.”
Face-off against Facewatch
On Sept. 15, Freedom Not Fear activists will hold a meeting to discuss coordinating international responses to surveillance cameras, particularly in the face of new developments in surveillance technology.
Law enforcement in the UK recently unveiled the use of an app called Facewatch to track down low-level offenders. It utilizes footage showing people’s faces, captured via surveillance cameras, to create a database of suspects. The database is then made publicly available to anyone who downloads the app with a mobile phone. In a bizarre and highly problematic use of crowdsourcing, members of the general public are asked to sift through the collection of photographs and send identifying information about anyone they may recognize to the police. “Scotland Yard says it has loaded its ‘Facewatch’ app with nearly 5,000 pictures of suspects wanted either in connection with low-level crime or the summer riots which hit the capital last year,” notes a report in the Associated Press.
Organizers of anti-CCTV events at Freedom Not Fear say mounting a response to the privacy-invasive Facewatch program ranks high on the agenda.
“We are concerned about the growing use of CCTV cameras to produce wanted posters, and together with other campaigners at Freedom Not Fear in Brussels, we will discuss the Facewatch system in the UK - and hopefully produce a statement/decision from an International Surveillance Working Group,” says Charles Farrier from No-CCTV UK.
Creative responses to CCTV
While No-CCTV has lodged a number of formal complaints responding to massive CCTV deployment projects initiated by law enforcement, other forms of anti-surveillance camera activism take a more creative approach. On Sept. 15, for example, a group of activists plan to lead a “camspotting” excursion through Brussels.
“Camspotting is something like ‘a citygame with a twist,’” says Wim Vanderbussche of Datapanik.org, an organization based in Belgium. “It’s basically about participants spotting as many cameras as possible and putting them on a map.”
As part of the exercise, activists will go out into the streets of Brussels, snap photographs of every CCTV camera they find, write down the location, and collectively plot them on an interactive map. Datapanik and the Flemish League of Human Rights started a project of plotting all visible surveillance cameras in various locations in Belgium, and hope to build upon this effort.
On June 8, anti-CCTV activists staged an international “1984 Action Day” – timed to coincide with the publication anniversary of George Orwell’s classic novel – to call attention to the surveillance cameras gazing from every direction at ordinary citizens going about their daily business. The day marked the launch of a website called We Watch, developed by German designer Julia Lowczycka, that educates the public about surveillance in London via a flash graphical interface called Maupa's World.
In Birmingham (UK), campaigners ventured out on a wet and windy day to ask shoppers if they wanted to buy photographs of themselves -- which had already been taken without their permission by CCTV cameras as they walked through the city center. The shoppers who stopped to find out more were shown a portfolio of CCTV images, and asked to consider whether they thought it was acceptable that they are constantly filmed as they go about their daily business.
In Berlin, around 40 campaigners took a surveillance walk around the city, and a group called Out of Control Berlin screened short films documenting the growing CCTV phenomenon.
Another fun activity scheduled during Freedom Not Fear will involve creating head masks out of brown paper bags to guard against CCTV, a lighthearted and creative effort to help people assert their “right to be left alone.”
"The paper basket workshop sounds funny, and it is, but there is a serious background," says Michael Ebeling, part of the German Working Group On Data Retention Hanover. "Human beings need place and time free from any surveillance to develop to individual personalities, to grow as autonomous and discrete thinking characters. Therefore surveillance is like poison for ... society as long as we believe in democracy and humanity. Surveillance-free public spaces need to be preserved, CCTV-infiltrated ones to be recaptured. That is our right as free citizens!"
Is CCTV Effective?
A report released by Big Brother Watch in February of 2012 details how local law enforcement agencies spent $515 million on CCTV in four years. The report found that there are at least 51,600 CCTV cameras controlled by 428 local authorities in Britain, and a 2002 study pegged the total number of CCTV cameras in the UK at around 4.2 million. In London, it’s estimated that on average, more than 300 different cameras might record an individual throughout the course of a single day.
Despite the intensive resources devoted to CCTV, there is a body of evidence demonstrating that the surveillance measure actually does little to deter crime.
“Many people believe that the presence of cameras is overall making them more secure. But there’s a key conundrum in the world of camera surveillance,” notes sociologist David Lyon, who directs the Surveillance Studies Center at the University of Queens in Ontario, Canada. “It continues to expand … despite the fact that there is no study in the world that has shown conclusively that camera surveillance operates effectively for the purposes, and in the manner, that it is generally advertised and understood to operate.”
UK resident Cory Doctorow, writing in an editorial in The Guardian, also seized on this point. “Although study after study has concluded that CCTVs don't deter most crime (a famous San Francisco study showed that, at best, street crime shifted a few metres down the pavement when the CCTV went up), we've been told for years that we must all submit to being photographed all the time because it would keep the people around us from beating us, robbing us, burning our buildings and burglarising our homes,” he writes.
But EFF alongside activists from Big Brother Watch, No-CCTV, Privacy International, Datapanik.org, The Flemish League for Human Rights, Arbeitskreis Vorratsdatenspeicherung" (a Hanover chapter of the German Working Group on Data Retention) and others aren’t buying into the argument that privacy should continue to be sacrificed for a false sense of security. And during Freedom Not Fear, it’s the crowd that will be focused on the camera.
“So long as we have enough people in this country willing to fight for their rights, we'll be called a democracy.” - ACLU Founder Roger Baldwin
In a recent blog post, Sandra Fulton of the American Civil Liberties Union's (ACLU) Washington Legislative Office, described the Trans-Pacific Partnership agreement (TPP) as the "biggest threat to free speech and intellectual property that you’ve never heard of." In her post, she reminds readers that the USTR is not only pushing for TPP and its proposed changes to intellectual property law, it is doing its best to avoid Congressional oversight. For instance, the USTR has recently rebuffed a request from the staff director on the Senate Finance Committee's International Trade Subcommittee to review documents pertaining to the negotiations. Senator Ron Wyden, Chairman of the Subcommittee, wrote:
[M]y office is responsible for conducting oversight over the USTR and trade negotiations. To do that, I asked that my staff obtain the proper security credentials to view the information that USTR keeps confidential and secret. This is material that fully describes what the USTR is seeking in the TPP talks on behalf of the American people and on behalf of Congress. More than two months after receiving the proper security credentials, my staff is still barred from viewing the details of the proposals that USTR is advancing.
We decided to speak to Sandra Fulton and Gabe Rottman of the ACLU to learn more about the role the ACLU is playing in the fight for an open and transparent TPP negotiation process.
EFF: How does TPP relate to the ACLU's agenda on digital freedoms?
ACLU: The TPP relates to the ACLU’s agenda of protecting free speech and privacy online, open government principles and ultimately protecting the Internet as the most open and innovative platform the world has seen. While strong regulations are necessary to protect IP and promote innovation online, these must be crafted carefully and in a fully transparent fashion. We are concerned that an overly broad policy to crackdown on copyright infringement would allow for the takedown of non-infringing content as well, in violation of the First Amendment, which was the same concern presented by SOPA and PIPA. We also have strong concerns over any provision that would create legal incentives for ISPs to step up surveillance of Internet communications in search of suspected copyright infringement, which would potentially endanger the privacy of users. We also believe that whole site takedowns pose serious due process concerns.
EFF: No one in the public has had access to the official TPP text. So what do you expect from the US government in regard to the TPP negotiation process moving forward?
ACLU: First of all, we do not believe domestic IP law can or should be changed through international agreements. While the administration insists TPP will not change substantive US law, we are concerned that this will not be the case. Signing the agreement could make it unnecessarily more difficult for Congress to update copyright laws while staying compliant with new international obligations.
If negotiations of an international treaty that could affect domestic enforcement of IP law are to continue they must proceed in an open and fully transparent fashion. All negotiations must take place in a way where all interested parties, including those representing civil society, are able to participate.
EFF: International treaties do impact citizens’ freedoms. How can citizens engage in the process? How can ACLU help?
ACLU: We are very concerned with the President circumventing constitutional checks and balances by wrongly asserting fast track authority in order to negotiate the agreement without Congressional oversight.
We applaud the ACLU for joining EFF and other civil society organizations in this battle against the lack of transparency in TPP negotiations and the agreement's restrictive IP provisions.
Join EFF and more than 25,000 people in sending a message to Congress members to demand an end to these secret backdoor negotiations:
Copyright's robot wars have burst onto the scene of streaming video sites, silencing live feeds with bogus infringement accusations and no human oversight. Two examples from just the past week show the danger that lies ahead if copyright enforcement is left to bots alone, and sit alongside last month's Mars lander takedown as embarrassing results of the unchecked and lopsided “algorithmic copyright cops" that are becoming increasingly common online.
On Sunday, the live Ustream feed of the annual Hugo science-fiction award ceremonies was cut off in mid-stream after airing clips from nominated TV programs, including Doctor Who and Community. These clips were provided by the studios behind the programs, and would have been a clear fair use even without that explicit permission. But still, the stream went down and didn't come back.
Then on Tuesday, just after the speeches at the Democratic National Convention had concluded, YouTube showed a copyright error message on the stream, rendering the prominently embedded video temporarily unplayable. According to a YouTube spokesman, the message was the result of an "incorrect error message on the page," and did not interfere with the live-stream during the speech. Nevertheless, this highlights the potential danger of bots: at one of the most prominent political events of the presidential campaign season, an error occurred with all the hallmarks of a copyright takedown. We have asked YouTube for more information on why the error text had copyright messaging.
In the case of the Hugos, this wasn't a bot running off the rails. In fact, the system was working exactly as expected. Vobile, the third-party copyright filtering system used by Ustream, identified a matching clip from its database, and—lacking the context that any human oversight could have provided about fair use and licenses—decided the stream’s fate in a microsecond: termination. And because these bots generally operate outside of the Digital Millennium Copyright Act (DMCA), there is little accountability or opportunity for the uploader to remedy the situation.1
Most copyright takedowns on the web are handled under the "notice-and-takedown" procedure set out by the DMCA, which provides a legal "safe harbor" from liability for service providers that comply. While the DMCA is far from perfect, and is itself subject to abuse, it still requires a human to swear under penalty of perjury that there is infringement, and allows for the material to return after a counter-notice.
But the automated copyright filters in use by Ustream, YouTube, and others, go beyond the requirements of the DMCA and thus operate outside of it. As a result, users are left without the standard appeals process, and have only the recourse provided by the video platform. YouTube has an appeals system built into its Content ID system, but it has its own host of problems. For Ustream's part, it realized the error during the program but was, by its own admission, unable to lift the block in time to restart the stream. Ustream has since apologized and promised to “ensure fair use of copyright as permitted by the law.”
Following fair use principles is a laudable goal, but hard to accomplish with a bot. To be sure, a human can review video and readily determine most cases of fair use. Indeed, the DMCA process requires the reviewer to consider fair use. No reasonable human reviewer watching the Hugo Awards stream and seeing demonstrative clips of nominated shows would think to cut off the feed.
However, there is no copyright enforcement bot that is programed to assess fair use. The algorithms look for matches of audio or video, and are designed to resist circumvention attempts by finding inexact matches. While no bot will work well, programmers should at least follow the advice we gave in 2010:
insisting that the audio and video tracks both come from the same copyrighted work and that the entire (or almost entire) video is drawn from the same copyrighted work. Unless these conditions are met, "block" should not be an option available to copyright owners.
If the rules require that any other match leads to human intervention, this will protect against most fair use takedowns. The Mars Curiosity problem may be trickier, because the news video matched exactly the original NASA video, but can be avoided if content owners are careful to only claim original content.
1. Even within the DMCA, Warner Brothers has claimed that its own automated enforcement scheme absolves it from its responsibility to send only "good faith" takedown notices—an interpretation we reject.
On September 5th, the Congressional Research Service (CRS), a non-partisan governmental body that provides policy and legal analysis for all members and committees of US Congress, published a 55-page analysis of the Trans-Pacific Partnership Agreement [PDF]. While the CRS does not clarify if it had access to the complete current TPP text, they examine the Trans-Pacific Partnership agreement (TPP) within the broader context of multilateral and bilateral trade relations and international market access.
What we particularly noticed about this report was how the CRS compared the TPP to the Anti-Counterfeiting Trade Agreement (ACTA), other free trade agreements (FTAs) the US has signed with other nations that carry provisions increasing the enforcement of intellectual property rights abroad, as well as Congressional issues that arise in the US through the negotiation and passage of this trade agreement. Unfortunately, the CRS does not make its publications directly available to the public,1 but luckily we were able to obtain it from other organizations that publish these reports as a public service. Overall, there are two aspects of the report that are most relevant to us: the Congressional process and its transparency, and the intellectual property rules being negotiated in the TPP.
Fast Track Authority
International trade agreements negotiated under the Trade Promotion Authority (TPA)—also known as the fast track authority—are reviewed by Congress under limited debate, on an accelerated time frame and are subject to a yes or no vote by Congress without any amendments. This expedited consideration is conditioned on the President observing certain statutory obligations in negotiating trade agreements, including the notification and consultation of Congress. The purpose of the TPA is to preserve the constitutional role of Congress to regulate foreign commerce in consideration of implementing legislation for trade agreements that require changes in domestic law, while also bolstering the negotiating credibility of the executive branch by assuring that a trade agreement, once signed, will not be changed during the legislative process.
The CRS starts the report by making an important point in regard to this TPP implementation process, saying:
The present negotiations are not being conducted under the auspices of formal trade promotion authority (TPA)—the latest TPA expired on July 1, 2007—although the Administration informally is following the procedures of the former TPA. If TPP implementing legislation is brought to Congress, TPA may need to be considered if the legislation is not to be subject to potentially debilitating amendments or rejection. Finally, Congress may seek to weigh in on the addition of new members to the negotiations, before or after the negotiations conclude.
Although it has expired, the Obama Administration has proceeded to negotiate the proposed TPP as if the TPA were in effect. The fact that the Obama is negotiating TPP without a renewed TPA has raised questions from public interest organizations, academics, and members of Congress in regard to the future constitutionality and implementation of TPP into US law. They have also commented on the credibility of the negotiations and positions pushed forward by the Office of the US Trade Representative (USTR), since there is no assurance that Congress cannot amend any US commitments.
Under the U.S. Constitution, Congress writes the laws and sets our trade policy. Yet, over the last few decades, presidents have increasingly grabbed that power through a mechanism known as Fast Track. This undemocratic procedure has facilitated controversial commercial pacts like NAFTA and the WTO, which restrict nations’ trade and non-trade policies.
Intellectual Property Rights (IPR)
CRS also recognizes that the current USTR proposals for intellectual property rules within the TPP framework go beyond current international standards, and explain that this trend is not new. They have been present in FTAs negotiated under the TPA that was in effect during the 2002-2007 period:
IPR negotiating objectives in the last U.S. trade promotion authority (P.L. 107-210) in effect between 2002 and 2007 included, among others: (1) the application of existing IPR protection to digital media; and (2) negotiation of trade agreements in terms of IPR that “reflect a standard of protection similar to that found in U.S. law.” This phrase opened the door to the negotiation of provisions that go beyond the level of protection provided in the WTO Trade Related Aspects of Intellectual Property (TRIPS) Agreement, most recently with the TPP negotiations. For example, the United States has sought to have its partner countries sign the World Intellectual Property Organization’s (WIPO) Performances and Phonograms Treaty, an agreement to which Brunei, Malaysia, New Zealand, and Vietnam are not parties. For its part, New Zealand reportedly floated a discussion document that favors a “TRIPS-aligned” position, one that would be consistent with, but not go beyond, international standards already found in the TRIPS Agreement. In contrast, U.S. business groups have favored the TRIPS-plus provisions found in the KORUS FTA as a baseline for future negotiations. (p. 28) (emphasis ours)
This is in line with previous EFF analyses of the leaked USTR proposal for the IPR TPP chapter. Such proposals go beyond US laws, such as the DMCA, beyond multilateral agreements such as TRIPS, and even beyond the provisions in ACTA.
Specifically, when comparing TPP and ACTA, the CRS had this to say:
Although both ACTA and the U.S. proposal, which largely track the IPR provisions in the U.S.-Korea FTA, provide stricter criminal enforcement measures than the World Trade Organization (WTO) Trade-Related Intellectual Property Agreement (TRIPS), ACTA provides greater flexibility than what is reportedly contained in the U.S. text regarding a country’s enforcement of IPR. For example, in ACTA, financial gain is necessary to be considered commercial scale for [copyright infringement] prosecution, and willfulness is required for importation of trademark infringing goods. (p.29)
This actually opens up to the risk of countries looking back to ACTA as the alternative for TPP. In fact, New Zealand and Australia have done so in counter-proposals to US proposals on IPR and other rules under negotiation over the TPP.
We hope other countries, even those not currently negotiating TPP, join our call to stop the TPP and its IP chapter, and help us defeat it as many successfully did with ACTA in Europe. The US' investment of time, attention, and money on TPP—paired with the deliberate lack of transparency—shows a distrust in existing multilateral negotiating forums. These include the World Intellectual Property Organization (WIPO), where a positive agenda is being pushed forward with the Development Agenda, and the World Trade Organization (WTO), where developing countries like Brazil and others were able to balance US power. Congress can delegate fast track authority to the President to negotiate such agreements that carry such restrictive IP policies. However, it is always intended to allow Congress to keep close watch on the President, and we all know that Congress has not had any access to the current USTR proposals for TPP. The TPP negotiation opens the door to a dangerous trend in the US, where the executive branch has more power to lead the nation without the proper checks-and-balances of the democratic legislative process.
Join EFF and more than 25,000 people in sending a message to Congress members to demand an end to these secret backdoor negotiations:
1. American taxpayers spend over $112 million a year to fund the Congressional Research Service, a "think tank" that provides reports to members of Congress on a variety of topics relevant to current political events. Yet, these reports are not made available to the public in a way that they can be easily obtained. https://opencrs.com/
Location privacy generally, and cell site tracking specifically, have been two hot issues this year, particularly since the Supreme Court's January ruling in United States v. Jones that installing a GPS device on a car without a search warrant violated the Fourth Amendment. After Jones, we were optimistic that both courts and legislatures would begin to take location privacy seriously and demand warrants before granting law enforcement access to a map of our every movements over an extended period of time. But it hasn't turned out that way. In August, the Sixth Circuit Court of Appeals issued a very bad decision (PDF), ruling law enforcement did not need a search warrant to track a cell phone in real time.
So this week EFF and a number of other civil liberties organizations joined together in an amicus brief to ask the Sixth Circuit to reconsider its decision. The Sixth Circuit heard argument in the case just a few days before the Supreme Court issued its opinion in Jones. Without the benefit of an in-depth discussion of the impact of that critical decision, the Sixth Circuit's opinion naturally failed to appreciate the changing legal landscape in gutting privacy protections for millions of people.
Privacyadvocates, including EFF, recognized this as a dangerous and troubling result. In our amicus brief filed Tuesday, we note that cell phone tracking is even more intrusive than the GPS tracking involved in Jones. A GPS device affixed to a car really follows the car, which is a proxy for someone's location only some of the time. But most people carry their phones in their pockets or purses wherever they go, including their homes. Cell phone tracking thus enables true, round the clock 24/7 tracking of an individual in a way a physical GPS installed on a car is unable to do.
We hope the Sixth Circuit will reconsider its earlier decision, particularly as more courts begin to weigh on in the issue. The Fifth Circuit Court of Appeals will hold oral argument on the issue of warrantless cell site tracking on October 2 in a case where we filed an amicus brief. We'll be there in court to personally argue in favor of a warrant requirement, and we'll definitely be telling the court to not follow the Sixth Circuit's misguided opinion.