John Podesta, president of the Centre for American Progress
and Casey Dunning, a senior policy analyst for the Sustainable Security
and Peacebuilding Initiative at American Progress write in yesterday's Guardian that we can end poverty but the methods may surprise you. (Thanks to Ian Brown for the link via the excellent FIPR alerts list)
If I understand Mr Posesta and Ms Dunning correctly, India's biometric ID scheme proves that:
Social safety nets + biometric technology = no more poor
people
Amazing.
Why could we not see it before?
The answer is magic technology.
But wait a minute, wasn't magic technology the solution to:
Terrorism
Security
Organised crime
Drug dealers
Child abusers
Immigration
Border control
Benefit fraud
The NHS
Education
Intelligence
Policing
Democratic elections
Miracle cures for everything...
And as for India's biometric ID scheme, Mr Podesta's and Ms Dunning's implied claim regarding its seamless precision targeted cure of Indian poverty is unlikely to be able to withstand any evidence based scrutiny.
Mr Posdesta currently serves on the United Nations High Level Panel of Eminent
Persons on the Post-2015 Development Agenda. He is former White House
chief of staff to President Bill Clinton.
I think it's time to give up the superficiality, the unbalanced 'balance', the rhetoric, the absurdities, the sensationalism, the straw men, the cynical emotiveness, the appeals to supposed authority, the sarcasm, innuendo, denegration, the manipulation of prejudices & fears, the false and selective statistics, the poisonous demonising of the poor, disabled & otherwise disadvantaged, the reality distortion lens of conventional news media and politics and spend the very little time I get away from battling bureaucrats these days on something more positively nourishing for the little grey cells.
With chapter authors like Duncan Campbell, Caspar Bowden, Peter Sommer and Richard Clayton it couldn't be anything but essential reading. For an 8 minute video summary from Messrs Clayton, Sommer and Campbell check out the video at the ORG website (copy below).
The Digital Surveillance report concludes that the desire on the part of certain elements of the government to build an infrastructure of mass surveillance is indefensible. ORG argue with some justification the whole area of digital surveillance requires a fundamental evidence-based review with any emergent systems being subject to the checks and balances of the rule of law. That seems a pretty reasonable position to me.
"Just because information is useful to law enforcement does not mean that the
state, or law enforcement agencies, or public bodies should be able to order its
collection or have access to it. Our privacy rights are essential to ensure that
we do not give away the power to collect and use information too cheaply.
The Government’s current proposals, in the form of the Communications Data
Bill, is a manifestation of the temptation to grab data where it exists, and of a
failure to consider alternatives to blanket collection and retention of data.
Communications surveillance is a useful exercise. But we ask only that it be
placed under the rule of law to ensure the effective and accountable use of
what are significant powers.
Combined, the articles in this report add up to a call for more targeted, more
transparent and more accountable surveillance laws. The authors offer a
number of useful recommendations for how to achieve this.
Angela Patrick examines the case for judicial oversight in Chapter 2. She notes
that oversight is extremely important where surveillance or data access is kept
secret from the person investigated.
Caspar Bowden recommends a policy of ‘data preservation’ rather than
blanket data retention. He suggests this could include quick response and
emergency processes, and means to intelligently and accountably identify
targets. He recommends a unified Surveillance Commissioner capable of
carrying out a strong, independent audit with “multi-skilled investigators
including human rights and computer experts.”
Joss Wright recommends such audits be supported by stringent penalties for
misuse of either powers or data, and for greater transparency.
Simone Halink
recommends building user notification into surveillance law, which would require “individuals to be notified by default of a decision authorising the
request for their communications data by law enforcement.“ Delays would be
appropriate in exceptional circumstances.
Rachel Robinson of Liberty recommends lifting the ban on the use of intercept
evidence in court.
Sam Smith of Privacy International recommends investing
in law enforcement’s capacity to use and analyse the data already available to
them.
Peter Sommer recommends a more overarching review, potentially through a
Royal Commission, to properly study surveillance in the digital age.
There is no shortage of ideas that could help inform policy makers’ thinking
on surveillance in the digital age. There are other useful resources too. In
particular the Draft International Principles on Communications Surveillance and Human Rights, which was put together by a number of civil society groups,
provides a “framework against which we can evaluate whether current or
proposed surveillance laws and practices are consistent with human rights”.
This includes principles such as user notification, transparency and safeguards
against illegitimate access. As Simone Halink points out in her contribution
to chapter five, the government’s current proposals fall short when assessed
against such principles.
In providing context and recommendations, the articles in this report offer a
basis for a conversation about proportionate surveillance laws in the digital
age. They are designed to help inform the ongoing policy debate sparked off by
the Government’s draft Communications Data Bill and the subsequent inquiry
by the Joint Committee."
I've been thinking about patent trolls or as they like to think of themselves, patent assertion entities, and the energy they have expended in creating a market for buying and selling patents without actually getting involved in the messy business of physically producing anything relating to these patents.
In many ways it was one predictable emergent outcome arising from the broken patent system, the nature of capital markets and the success of a relatively small number of chemical, pharmaceutical, technology and entertainment industry executives in shaping the international intellectual property agenda. The latter story is told brilliantly by Peter Drahos and John Braitwaite in their book Information Feudalism: Who Owns the knowledge Economy, so I won't repeat it here.
What's now of concern in relation to patent trolls is that large numbers of patents are in the hands of commercial entities focused on treating them like structured investment vehicles - financial instruments beautifully dissected by Johns Bird and Fortune when the finance markets collapsed in 2008. Basically lots of bad debts like the so-called sub-prime mortgages were packaged together and labelled as high grade investments; actors in the financial markets competed and gambled casino style on these to extract large profits. The merry frenzy of buying and selling continued until the markets decided to recognise the reality that all the gambling was based on junk and collapsed.
Unfortunately since the patent system is broken - completely in the US - it is polluted with vast numbers of bad patents. Not just bad as in stupid patents on certain kinds of sandwiches or rounded corners on rectangles but bad as in laying claim to the real estate of the knowledge economy. Commercial control of of basic science - chemistry, physics, biology - biotechnology - the genome - business methods, mathematics, economics and more is been dished out through the patent system; and should be (but largely is not) considered a profoundly serious political issue for an aspiring information society. Yet in the thick of the invisible fire sale of the building blocks of science and nature, real inventors who don't have the financial clout to protect themselves from more well heeled exploiters of the system get swallowed up and/or squashed.
Large companies like IBM and Texas Instruments are well versed in monetizing their patent portfolios and using them for competitive advantage or defending their markets - you want to sue us for patent infringement, well I'm sure we can find several goodies in our own big patents box that you will infringe... But at least the IBMs and TIs of the world engage in value added enterprises. The patent battles in the mobile/tablet arena are simply farcical but probably the most prominent recent example of this kind of business practice.
Patent trolls, however, just monetize bundles of patents. They don't add anything to the system in spite of the WSJ letter writer's claim that they "bring new efficiencies to capital markets and innovation". If anything they just increase the incentives for patent offices to issue even more patents regardless of quality. The concept of patent trolls as white knights that bring "big companies" to book doesn't pass the laugh test. They are not in the business to monitor the business ethics of big companies; they're in it to make money.
I don't have the empirical data to determine what proportion of current patents are legitimate and defensible if they were required to be subject to appropriate forensic scrutiny. Likewise I don't know the relative proportions of finance market SIVs that were (and are) fraudulent junk and were (and are) legitimate investments. Did/do the finance markets and the patent system contain equivalent or even comparable proportions of junk?
It would be interesting to know but regardless of this the "patent assertion entities" are now and will likely continue to monetize the living daylights out of their patent portfolio investment instruments. I doubt that politicians of any hew will have any effect on such markets even if they can summon up the stomach to try.
Is it at all possible, though, that the market may eventually call time on the patent trolls' naked emperor, in the same way that it did with sub prime mortgages? It would be fascinating to see the "patent assertion entities'" market collapsing because of the realization that it contained large numbers of effectively indefensible patents. If that were to happen there is a remote possibility that the backlash might create political incentives to renovate the patent system itself. I won't be holding my breath though. It's easier to explain why something is a bad debt than a bad patent.
Update: Michael Risch, a very smart associate professor at Villanova University School of Law, has been giving the question of treating patent portfolios as finance instruments some serious thought. A full draft of his paper, The Securitization of Patents, is available at SSRN.
Hasbrouck focused on the suspicionless surveillance dragnet that now surrounds multiple modes of travel and the massive government coerced transfer of personal data to the travel industry; to which the US government has open unrestricted access. (His slides for the talk are available in full at http://hasbrouck.org/articles/Hasbrouck-Cato-2APR2013.pdf). He provided multiple examples of permanent and growing files retained by the US government of personal travel throughout the US, Europe and Canada by air, train, bus, private car and even Shank's mare. He accused US companies doing business in Europe of "almost totally" ignoring data protection law and EU data protection authorities of completely failing to enforce the law. On what to do about all this he argued:
" We don't get rights by appealing for them...
We retain rights by exercising them.
The only way is to say no to illegal orders and demands, take the rap and fight it. Unless people stand up and say no this is not going to move forward. "
Ginger McCall was there to talk about digital strip search machines at airports and EPIC's partial success in challenging the TSA on them. She believes the TSA's public comment process provides a unique opportunity to influence TSA policy on the scanners and that it's really important that ordinary people as well as experts with deep understanding and empirical data participate. She also spoke eloquently about the government and TSA attempts to control the language of the debate on the machines. Over the years "full body scanners" became "body scanners" and now "advanced imaging technology" which they define as "screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened". So much more sanitised that latter terminology don't you think?
Both Hasbrouck and McCall agreed that conditions imposed on the exercise of a right - in this case to travel freely without undue interference from the government or its agencies, public, semi-private and private - must be subject to scrutiny and oversight. In particular, such conditions must be proven to be actually effective in achieving whatever public interest objective is being pursued but also be shown to be the least restrictive approach to achieving that objective. Not only has mass surveillance of travellers not proven effective but it is not clear what the objective of that surveillance is. Additionally, by definition, mass surveillance can never be the least restrictive approach.
In response to a question from the audience Hasbrouk insisted the only mechanism for interference with an individual citizen's right to travel should be a legitimate court issued injunction.
The video runs for 1 hour 18 minutes but the two talks take about 45 minutes, time that won't be wasted engaging with Hasbrouck's passion and McCall's clear analysis.
The Home Secretary has predictably lost her appeal against the the Special Immigration Appeals Commission (SIAC) decision blocking Abu Qatada's (aka Omar Othman) deportation to Jordan. The Court of Appeal's ruling today, Othman v Secretary of State for the Home Department, [2013] EWCA Civ 277 is available online.
The key to understanding the decision is to separate the notion that Abu Qatada might be a really nasty bad guy who wishes us ill will and harm from the issue before the court i.e. did SIAC err in law in concluding there is a risk that Qatada will not get a fair trial in Jordan due to a "real risk" that evidence obtained by torture would be used in such a trial. SIAC said -
"78.
The Secretary of State has not satisfied us that, on a retrial, there is
no real risk that the impugned statements of Abu Hawsher and
Al-Hamasher would be admitted probatively against the appellant."
They also stated -
"87.
We remain convinced that the government of Jordan can and will fulfil
its assurances about the treatment of the appellant on return...Like the
Strasbourg Court, we remain satisfied that those assurances provide, in
their practical application, a sufficient guarantee that the appellant
will be protected against the risk of ill-treatment by or at the behest
of Jordanian state agents."
SIAC, like the UK government and the European Court of Human Rights, did not believe Qatada would be tortured in Jordan. However, SIAC did decide that his trial in Jordan, should he be deported, may be tainted by evidence obtained by torture.
The Court of Appeal note right up front that Abu Qatada is considered dangerous but that the key question is the risk that evidence obtained by torture would be used in his trial in Jordan:
1.
Omar Othman is regarded by the United
Kingdom government as an exceptionally
high risk terrorist. For a number of years, the Secretary of State for the Home
Department has been seeking to deport him from the United Kingdom to Jordan under
section 5(1) of the Immigration Act 1971 (“the 1971 Act”) as a person whose
deportation is deemed to be conducive to the public good. He has already been tried
and convicted in his absence
in Jordan for offences of
the utmost seriousness. If
returned to Jordan, he will face a retrial. The issue that lies at the heart of the present
(and earlier) proceedings is the proper assessment of the risk that the evidence against
him at the retrial would include statements
that have been obtained by torture and, if
so, what effect this has on the lawfulness of his deportation."
The burden on the Home Secretary's lawyers before the Appeal Court was to prove that SIAC had made errors in law in concluding that there is a real risk that a trial of Abu Qatada in Jordan would include evidence obtained by torture. Essentially they could not prove that SIAC made such errors, so the Court denied the appeal.
"Overall conclusion
56.
Mr Othman is considered to be a dangerous
and controversial person. That is why
this case has attracted so much media attention. It is
entirely understandable that
there is a general feeling that his deportation
to Jordan to face trial is long overdue. But the principles that we have to apply do not distinguish between extremely
dangerous persons and others who may not constitute any danger in the United
Kingdom and whom the Secretary of State wishes to deport to face trial in another
country. The fact that Mr Othman is considered to be a dangerous terrorist is not
relevant to the issues that are raised on this
appeal. It would be
equally irrelevant if
we were deciding the question whether there was a real risk
that he would be tortured
if he were returned to Jordan.
57.
Strasbourg recognises that it is only in a
very rare case that a state should be
prevented by the ECHR from deporting persons
to face trial in the courts of another
country. The fact that
there is a risk that the deported
person will not have a fair trial
is not enough. There must be
a real risk that he or she will suffer a flagrant denial of
justice. Strasbourg has rightly
set the bar very high. The unfairness must be of a very
high order. What is required
is a real risk of a breach of
the principles of a fair trial
guaranteed by article 6 which is “so fundamental as to amount to a nullification, or
destruction of the very essence, of the right guaranteed
by that article”.
58.
Torture is universally abhorred as an evil.
A state cannot expel a person to another
state where there is a real risk that he
will be tried on the basis of evidence which
there is a real possibility may have been
obtained by torture. That principle is
accepted by the Secretary of State and is not
in doubt. That is the principle which
SIAC had to apply in the present case in the
light of all the evidence that it heard and
read. This included evidence as to what had happened and what there was a real risk
would happen if Mr Othman faced a retrial on the very serious charges
that he faces.
SIAC found that there was a real risk
that evidence obtained by torture would be
admitted at the retrial and that, as a consequence, there was a real risk that he would
be subject to a flagrant denial of justice.
59.
In order to succeed in this appeal, the Secretary of State has to show that SIAC erred
in law. It is not sufficient to persuade
us that we would have reached a different
conclusion on the facts and Mr Eadie rightly
recognised the difficulty of such an
exercise. The Secretary of State accepts that
SIAC directed itself properly as to the
general legal test to apply. Her case that
SIAC nevertheless erred
in law is based on
a detailed examination of a careful and comprehensive judgment. As we have stated
at paras 5 and 6 above, criticisms of this kind of a decision by a
specialist tribunal are
particularly difficult to sustain. For the reasons that we have given, we are satisfied
that SIAC did not commit any legal errors.
60.
This appeal must therefore be dismissed."
I suspect the declaration that the "fact that Mr Othman is considered to be a dangerous terrorist is not
relevant to the issues that are raised on this
appeal" will have some people scratching their heads in wonder and the Home Secretary, the usual mass media suspects and the angry mob decrying 'out of touch' judges.
Yet the Secretary of State herself, if the submissions of her lawyers before the Court of Appeal are to be believed, accepts in law that a "state cannot expel a person to another
state where there is a real risk that he
will be tried on the basis of evidence which
there is a real possibility may have been
obtained by torture." That fundamental principle is blind to whether the person involved is considered dangerous or indeed any other idiosyncratic personality traits and for the time being at least it means that Abu Qatada will remain in the UK.
Cheat note for the occasional reader who enjoys legalese chomping - if you're short on time, try skimming paragraphs 1, 14, 17-18, 23-29, 33-34, 46 and 55-60 of the Court of Appeal's ruling to get a reasonably rounded understanding of the thinking of the Master of the Rolls, Lord Dyson and his compatriots Lord Justices Richards and Elias.
Update: Conor Gearty, a professor of human rights at the London School of Economics, has an excellent piece in Thursday's Guardian on the case, Abu Qatada: the law won.
Following years of unfettered and illegal behaviour by certain elements of the press, Lord Leveson concluded large news publishers should be regulated. His target was powerful oligopolistic news companies, not small websites and internet users slipped into the 3 party deal last weekend.
You can't control the worst excesses of the tabloid press by dangling the sword of regulatory Damocles over the heads of the nation's individual content creators. It merely creates a chilling effect on speech at a time when the internet has putting an affordable printing press in the hands of the masses.
As an academic blogger since 2001 I'd ask you to tread carefully with your dangerous blogs bill and focus on Leveson's specific recommendations not the intoxicating notion of controlling the internet.
I have little confidence that the Cameron, Clegg or Milliband or the thin paper you could slip between them on their plans to implement Leveson would have a great deal of influence on the unethical behaviour of parts of the press. Murdoch shut down the News of the World and re-opened the equivalent Sunday edition of the Sun once the dust had settled. Thus he re-acquainted his coffers with the funds millions of people are prepared to throw at him for access to the stories, ill-gotten or otherwise, those publications provide. As long as there is a mass market and that market doesn't care about the source of the stories, the incentive for bad press behaviour will remain.
To pluck internet regulation from the garbage can of issues surrounding Leveon's review of the press, however, is only likely to lead to unintended pain for bloggers, SMEs, social networkers and other internet users who had nothing whatsoever to do with phone hacking.
I'm naive enough to believe we live in an age where we can facilitate the production of freedom enhancing
technological architectures, laws, social, physical and economic
environments. Privacy enhancing technologies and carefully crafted regulations are good for privacy and freedom of the press and by extension conducive to a healthy society.
I'm also seriously concerned that we're not just compromising that opportunity to evolve towards a healthier society but doing precisely the opposite; partly through apathy and lack of engagement with politicians of zeal, occasionally well meaning, invariably charged with self-interest, almost always without understanding when it comes to modern technologies. The political classes are dangerously clueless about technology and those who do understand it really have to get our act together to educate them. Answers on a postcard or electronic equivalent please on how we can develop several orders of magnitude improvement on our performance to date.
