Australians' Stored Metadata Could Be Used In Any Civil Case, Including Against Copyright Infringement

from the not-what-they-said dept

It was bad enough when the Australian government announced that it was joining the growing club of countries that would be retaining huge swathes of its citizens' metadata. But now people are beginning to realize that once that store of metadata exists it not only can, but probably will, be used for many other purposes that have nothing to do with the avowed aim of fighting terrorism. The first hint that this might happen came from a slip made by the Australian Federal Police Commissioner, reported here by Gizmodo Australia:

When asked if stored metadata could be used to combat piracy, Australian Federal Police Commissioner, Andrew Colvin, replied at a press conference that the stored data of Australians could be used for a whole number of things, including anti-piracy:

“Absolutely. Any interface or connection someone has over the internet, we need to be able to identify the parties to that collection. Illegal downloads, piracy, cyber crimes, cyber security. Our ability to investigate them is pinned to the ability to retrieve metadata,” Colvin told journalists.

Understandably, this caused such a storm that the Australian government tried to backtrack. The country's Attorney-General, George Brandis, was quoted in TechWorld Australia as saying:

"The mandatory metadata retention regime applies only to the most serious crime -- to terrorism, to international and transnational organised crime, to paedophilia, where the use of metadata has been particularly useful as an investigative tool," Brandis told ABC's Q&A program last night.

So that's a return to the original script: metadata is for fighting terrorism and serious crimes. But Brandis then went on to say:

The laws will apply "only to crime and only to the highest levels of crime," the attorney-general said. "Breach of copyright is a civil wrong. Civil wrongs have got nothing to do with this scheme."

The trouble with that argument is that infringing on copyright can also be a criminal offense, as the Australian Federal Police (AFP) site explains:

The AFP is committed to taking action against those believed to be the organisers, major importers and/or wholesalers of infringing products.

The AFP is committed to building partnerships with industry and other law enforcement agencies to combat IP crime and wherever possible ascertain links to organised crime.

Moreover, the recent leak of the TPP IP chapter shows that one of its measures aims to lower the bar for the criminalization of copyright infringement, even when there is no commercial intent:

Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. {For the purposes of this Article, [US propose, CA/MY oppose: such acts of [NZ: willful] copyright or related rights piracy {on a commercial scale} include at least:] [CA/MY propose: In respect of copyright or related rights piracy, acts carried out on a commercial scale include at least:] [CL propose:181] [182]

(a) acts carried out for commercial advantage or financial gain[CA propose:183]; and

(b) significant acts [CA oppose: of copyright or related rights piracy], not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace.} [AU propose:184]

Since it's still a draft, that's a bit of a mess, but the important parts are at the beginning -- "Each Party shall provide for criminal procedures and penalties to be applied" -- and at the end, where Australia wants criminal penalties even if "not carried out for commercial advantage or financial gain", but simply if they have "substantial prejudicial impact on the interests of the copyright or related rights owner in relation to the marketplace". It's not hard to see how uploading a single music file might be claimed to do that, since potentially it could be copied thousands of times. That non-commercial upload would therefore be subject to criminal penalties under TPP, which opens up the possibility of using stored metadata to track down the person responsible.

The transcript of an interesting radio program from the Australian broadcaster ABC reveals another way in which stored metadata might be applied to cases involving alleged copyright infringement:

the Government not using metadata to fight internet piracy is one thing, the rights holders themselves using the metadata trove to expose customer details is an entirely different scenario.

[Australia's Communications Minister Malcolm Turnbull] admitted as much this morning, saying that under legislation, stored metadata would be accessible by third parties via a court order. That could mean that copyright holders could sue ISPs for customer information, forcing them to reveal which user was responsible for a download, opening up the user to claims for damages.

But this route could be used for any civil case, despite claims from the Australian government that data retention is only about serious crimes. A lawyer who works for Marque Lawyers, the law firm acting for the copyright owners of the film Dallas Buyers Club, explained on the program:

Any civil litigation where a question arises about a person's conduct or activities or where they've been and when they've been there, which often can arise in all sorts of civil cases. This kind of information could be extremely useful.

...

It's historically been quite difficult to get information out of telcos because they hold an enormous amount of data and not always in the most easily accessible way and they don't like handing it over. But if they're forced under this new regime into a protocol which establishes a very clear and consistent methodology for storing data for a particular period, then that becomes a much more easily accessible resource and much more difficult to say, "Oh, you know, we can't find it." Yeah, I think, I think it'll be quite popular.

It will doubtless be especially popular among copyright trolls, who will be able to use it to track down people before sending in their "speculative" invoices....

Retaining everyone's metadata in order to tackle terrorism was always a bad idea, given the attendant risks, but it looks like it could turn into a legal and political nightmare once the lawyers start applying to Australian courts for routine access to this highly-private information. That's yet another good reason not to proceed with this ill-advised scheme at all.

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Filed Under: australia, copyright, data retention, george brandis, metadata, piracy

Australian AG Insists New Anti-Terror Law Only Allows What It Allows; Refuses To Say What It Allows

from the democracy-in-action dept

Yesterday we told you about just one of the troubling aspects of a proposed "anti-terror" law in Australia, in that under a single warrant, ASIO, the intelligence gathering organization, could effectively monitor the entire internet. During some Parliamentary discussions on this, Senator Scott Ludlam tried to add an amendment limiting the number of computers that could be monitored under a single warrant. Brandis' "contribution" to the debate on this was to accuse Ludlam of being a "liar" for claiming that the law would allow the tapping of the entire internet under a single warrant and then... refusing any further explanation. The exchange is really quite incredible. Ludlam says he'd be happy if, in fact, his understanding of their previous conversation was in error, and thus wished for clarification. Brandis responds:

What ASIO would be empowered to do is that which is authorized by the warrant, which is, in turn, governed by the terms of the Act.

Holy tautology Batman! Ludlam appears reasonably sarcastically frustrated in return:

Thank you for your opaque and utterly unhelpful response.

He asks further specific questions about what the law would cover and Brandis repeats: "I don't have anything to add to my previous answer." It's basically a giant "fuck you" to anyone wanting to make sure that the law isn't overly broad and doesn't allow spying on the entire internet. Remember, Brandis claims that was a lie, but refuses to clarify beyond the "utterly unhelpful" statement he made. Unfortunately, despite all of that insanity, the bill still passed, without Ludlam's amendment, meaning that this is likely to be the law in Australia soon. And, of course, there are other troubling aspects to the law beyond just being able to monitor everything on a single warrant. As many people have pointed out, there's a free-speech destroying provision that would allow for 10 years of jail time for whistleblowers and anyone (including journalists) who repeat what the whistleblowers revealed.

Anyone — including journalists, whistleblowers, bloggers and others — who "recklessly" discloses "information ... [that] relates to a special intelligence operation" faces up to 10 years' jail.

In short, Australia is guaranteeing that not only will they not have their own Edward Snowden but they won't have their own Glenn Greenwald, either. Combine that with the massive new powers to spy on everyone with a single warrant, and Australia just massively expanded the surveillance state, and put a gag order on anyone who wants to expose its abuses.

Filed Under: anti-terror, australia, george brandis, journalism, privacy, scott ludlam, warrants, whistleblowing

Proposed Terror Law Would Allow Australia's Entire Internet To Be Monitored With Just One Warrant

from the terrorists-have-already-won dept

Recently, Techdirt has been following the Australian government's moves to bring in intrusive new surveillance powers. The "justification" for all this is, of course, "terrorism", which has become the lazy politician's excuse for everything, and has already led to episodes of ridiculous over-reaction in Australia. So it hardly comes as a surprise that the worsening situation in the Middle East has brought forth even more of the same, in the form of the "Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014" (pdf). An accompanying Explanatory Memorandum (pdf) gives a good summary of its rationale:

1. Australia faces a serious and ongoing terrorist threat. The escalating terrorist situation in Iraq and Syria poses an increasing threat to the security of all Australians both here and overseas. Existing legislation does not adequately address the domestic security threats posed by the return of Australians who have participated in foreign conflicts or undertaken training with extremist groups overseas ('foreign fighters').

2. This Bill provides a suite of measures which are specifically designed to strengthen and improve Australia’s counter-terrorism legislative framework to respond to the foreign fighter threat. It will provide additional powers for security agencies to deal with the threat of terrorism within Australia and that posed by Australians who participate in terrorist activities overseas. It will further counter terrorism through improving border security measures and by cancelling welfare payments for persons involved in terrorism.

The Bill is a huge collection of amendments to dozens of existing laws, including those that regulate police search powers. Here's CNET's description of a major change in this field:

The Bill introduces the concept of a "delayed notification search warrant" -- often referred to in the United States as a 'no-knock warrant' -- which would allow Australian Federal Police to search premises without prior warning and "without having to produce the warrant at the time of entry and search".

The Explanatory Memorandum details an important new capability relating to computers:

As computers and electronic devices are becoming increasingly interconnected, files physically held on one computer are often accessible from another computer. Accordingly, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere. This provision would enable the tracing of a suspect's internet activity and viewing of material accessed by the suspect through the use of that equipment.

That seems rather broad; an article in the Sydney Morning Herald reveals just how broad:

On Wednesday afternoon, [Australian Attorney-General] Senator Brandis confirmed that under the legislation, ASIO [Australia's spy agency] would be able to use just one warrant to access numerous devices on a network.

The warrant would be issued by the director-general of ASIO or his deputy.

"There is no arbitrary or artificial limit on the number of devices," Senator Brandis told the senate.

This means that the entire Australian internet could be monitored by just one warrant if ASIO wanted to do so, according to experts and digital rights advocates including the Australian Lawyers Alliance, journalist union the Media Entertainment and Arts Alliance and Electronic Frontiers Australia.

Whether or not new powers are needed to address the problem of "foreign fighters" returning home, clearly that ability to monitor the entire Australian Internet with just one warrant is completely disproportionate, an assault on citizens' privacy, and ripe for abuse by the authorities. It underlines once again that abrogating basic freedoms in order to "fight terrorism" simply means the terrorists have already won.

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Filed Under: asio, australia, george brandis, laws, surveillance, terror, warrants

Australian Movie Studio Says Piracy Is Equivalent Of Pedophilia & Terrorism

from the fascinating dept

We've already mentioned how a number of comments have been submitted concerning Australian Attorney General George Brandis' Hollywood wishlist proposal for copyright reform in Australia. There are a number of interesting comments worth reading. I was pleasantly surprised to see the normally copyright-maximalist BSA come out against the proposal, saying that it will create a real risk of "over-enforcement, punishment of lawful conduct and blocking of lawful content including critically important free speech rights." Dr. Rebecca Giblin, who has studied these issues and other attempts to put in place similar filters (and how they've failed), has also put forth a very interesting comment.

The most bizarre comment, however, has to come from Village Roadshow. Village Roadshow is the Australian movie studio that the US State Department admitted was used as the token "Australian" movie studio in the MPAA's big lawsuit against iiNet. iiNet is the Australian ISP that the MPAA (with Village Roadshow appearing as "the local face") sued for not waving a magic wand and stopping piracy. iiNet won its case at basically every stage of the game, and that big legal win is really at the heart of these new regulatory proposals. Apparently, Village Roadshow's CEO still hasn't gotten over the loss in the legal case.

I read a lot of public comments to government requests. Comments from individuals may vary in style and quality, but generally speaking, comments from large businesses and professional organizations take on a certain very professional tone. You can see that in basically every comment listed in this particular comment period. Except for Village Roadshow's. The tone is both exceptionally informal and... almost frantic. The use of hyperbole is quite incredible. It claims without these reforms the entire industry will die, and says that infringement is on par with terrorism and pedophilia. Just the intro itself basically highlights the style and tone:

Piracy, if not addressed, will shut down the Australian feature film production industry entirely. It will rip out the heart of the cinema and TV industries, creating massive unemployment and slashing the profitability of taxpaying companies.

The problem is urgent. Village Roadshow estimates the theatrical business is down 12% as a result of piracy. Rupert Murdoch interviewed in Australia said: “between 15 and 20 percent of Fox’s revenue is being eaten up by illegal downloads”!

The problem is urgent as piracy is spreading like a highly infectious disease and as bad habits become entrenched, they become harder to eradicate. Also of course high speed broadband is just around the corner.

The dangers posed by piracy are so great, the goal should be total eradication or zero tolerance. Just as there is no place on the internet for terrorism or paedophilia, there should be no place for theft that will impact the livelihoods of the 900,000 people whose security is protected by legitimate copyright.

And this is from the company whose CEO is refusing to take part in a public Q&A about the issue because he claims that any such event will be "filled with crazies."

The filing also quotes Steve Jobs from Walter Isaacson's book:

“From the earliest days at Apple, I realised that we thrived when we created intellectual property. If people copied or stole our software we’d be out of business. If we weren’t protected there’d be no incentive for us to make new software or product designs. If protection of intellectual property begins to dissipate, creative companies will disappear or never get started. But there’s a simpler reason. It’s wrong to steal. It hurts other people. And it hurts your own character.”

Of course, there's that other famous Steve Jobs quote that is a bit more accurate:

"Picasso had a saying -- 'good artists copy; great artists steal' -- and we've always been shameless about stealing great ideas."

And, at least for that quote, we've actually got video of him saying it rather than having it paraphrased through a third party.

Village Roadshow's filing actually claims that Brandis' proposal does not go far enough in making ISPs liable and forcing them to magically make piracy disappear:

Vitally, in Village’s view, the question of “reasonable steps” presupposes the clear establishment of ISP’s being potentially liable for infringement on their services. It is crucial that this first step be properly legislated – and then ISP’s will approach the consultation process with a legal incentive to co-operate. As the Discussion Paper states “Extending the authorisation liability is essential ….”. Village is concerned that the proposed amendment to Section 101 of the Copyright Act suggested in the Discussion Paper does not clearly achieve this, and supports clear drafting to achieve that objective.

The underlines are in the original. Village Roadshow says that it would love to be able to bombard ISPs with notices in a graduated response (i.e., three strikes type) system, but that it will refuse to do so if it actually has to pay for each notice (apparently Village Roadshow not only wants ISPs to be the copyright cops, but it wants them to do so for free).

The entire comment filing comes off as ill-thought-out ranting, or last minute answers to a take home exam of a procrastinating junior high school student. Perhaps my favorite example of this is in response to the question "How can the impact of any measures to address online copyright infringement best be measured?" and Village Roadshow starts off its response:

Powerfully this will be measured by the results.

Powerfully, this comment is not.

Filed Under: australia, comments, copyright, george brandis, graham burke
Companies: village roadshow

Australian Movie Studio Boss Skips Out On Public Q&A, Claiming It Will Be Filled With 'Crazies'

from the respecting-the-public dept

Last month we wrote about a new copyright reform proposal in Australia, which is basically Hollywood's wishlist. It was put together by George Brandis, who completely flat out ignored the proposals of the Australian Law Reform Commission (ALRC), despite it going through a long and detailed process to come up with quite reasonable reforms. Instead, Brandis buddied up with Hollywood insiders representing US interests, and totally ignored consumer groups.

In response to the proposal, Communications Minister Malcolm Turnbull (who has, apparently, been pushing for more reasonable rules to dilute Brandis' extreme proposals) said that a public hearing would be held in September to discuss the proposal, getting a variety of stakeholders in the room together, including consumer rights groups. The major Australian studio, Village Roadshow (the "token" Australian studio in the failed Hollywood-driven effort to sue ISP iiNet a few years back), has apparently decided to opt out of attending the session. While the company's CEO Graham Burke originally said he couldn't make it because he'd be overseas, he actually told Turnbull that he was skipping it because he didn't want to deal with "crazies," by which he apparently means the public who are concerned about their rights being trampled:

“My company is not prepared to participate in the forum. As expressed to you previously these Q and A style formats are judged by the noise on the night and given the proposed venue I believe this will be weighted by the crazies,” Burke told the Minister.

[....]

“What is at stake here is the very future of Australian film production itself and it is too crucially important to Australia’s economy and the fabric of our society to put at risk with what will be a miniscule group whose hidden agenda is theft of movies,” Burke told the Minister.

Nice to see what they really think of the public and concerns about how the new rules might trample free speech, an open internet or the nature of innovation. It's a pretty weak argument, showing real desperation when someone insists that the concerns being raised by public interest groups and ISPs about significant legal changes that will have a major impact on the internet as a whole, are just "a miniscule group whose hidden agenda is theft of movies." No one's "agenda" is "theft of movies." People are legitimately concerned about the consequences of putting liability on ISPs over actions of their users. The near certain response is to lead to massive censorship, blocking of free speech, and much greater expenses for consumers -- none of which will have any real impact on infringement of movies.

It seems quite telling, actually, that Burke apparently recognizes that he has no good responses to these concerns, and can only respond through insults and ad hominems.

Filed Under: australia, copyright, copyright reform, george brandis, graham burke, malcolm turnbull, public comment
Companies: village roadshow

Australian Officials Pushing For Data Retention Had No Idea What A VPN Is

from the government-follies dept

If you haven't yet, you really should watch the video we pointed to recently of Australian Attorney General George Brandis trying to explain his internet data retention plan when it's clear he has no idea how the internet works. It's the one where he's asked if it will track the web pages you visit, and Brandis vehemently insists that it will not, but that it will track the web addresses you visit. Some people have said that perhaps he meant it won't record the actual content on the pages, but just the URL (which might matter if it's dynamic pages), but later in the conversation, he also implies (almost clearly incorrectly) that he means it will just track the top level domains, not the full URLs. Here's a reminder snippet:

Brandis: Well, what we'll be able... what the security agencies want to know... to be retained... is the... is the electronic address of the website that the web user is visiting.

Host: So it does tell you the website.

Brandis: Well... well... it tells you the address of the website.

Host: That's the website, isn't it? It tells you what website you've been to.

Brandis: Well, when... when you visit a website you... you know, people browse from one thing to the next and... and... that browsing history won't be retained or... or... or... there won't be any capacity to access that.

Host: Excuse my confusion here, but if you are retaining the web address, you are retaining the website, aren't you?

Brandis: Well... the... every website has an electronic address, right?

Host: And that's recorded.

Brandis: And... um... whether there's a connection... when a connection is made between one computer terminal and a web address, that fact and the time of the connection, and the duration of the connection, is what we mean by metadata, in that context.

Host: But... that is... telling you... where... I've been on the web.

Brandis: Well, it... it... it... it... it... it... it records what web... what at... what electronic web address has been accessed.

Host: I don't see the difference between that and what website I've visited.

Brandis: Well, when you go to a website, commonly, you will go from one web page to another, from one link to another to another, within that website. That's not what we're interested in.

Host: Okay. So the overarching... if I go to... SkyNews website, it'll tell that, but not necessarily the links within that that I go to?

Brandis: Yes.

While it's a bit of a third hand story, Reason recently did an interview with Australian Senator David Leyonhjelm (who is against data retention, and describes himself as libertarian). Towards the end of the interview, he discusses data retention and tells a very troubling story about how those pushing for data retention had no idea what a VPN is. The story involves a much more knowledgeable government official -- which Gizmodo Australia suspects is Communications Minister Malcolm Turnbull -- demonstrating a VPN and leaving them all dumbfounded:

The other one that's causing a fair bit of grief is a metadata retention plan, the equivalent of what your NSA does. We don't have metadata retention at the moment and the agencies have been saying, "Oh, well we should have it. You can't use it if you haven't got it," sort of thing. But I spoke to one of the ministers last week about this because he does know what "metadata" means—he knows quite a lot about the Internet and how it works—He said to me people who are asking for this data, people who are thinking this is a good idea, actually have no idea what they're asking for. They don't know what they're going to do with it. They don't know what the implications of requiring it are. They haven't really thought this through.

He gave them a demonstration on a VPN [virtual private network] and said, "By my IP address, tell me what you can find out about me now." And they had no idea there was such a thing as a VPN. It indicates to me that these people are not well-informed enough to make these kinds of decisions. As it stands, it may be that the government may only require the Internet companies to store the IP address of the originating Internet use, so they'll know what computer you're from and what IP you're working from, which is not a lot different from keeping a record of the phone you're calling from. So if that's the case, it's probably not going to pose too much alarm. He's a minister and he knows what he's talking about. But he's surrounded by people who don't know what they're talking about who think that they need something more. We don't know yet where this will end up. It does have the potential to be very dangerous.

Now, the story does not make it entirely clear about who he's talking about. It could be read to be Brandis or his staff that didn't know about VPNs. Or, much more troubling, it could be read to be the intelligence community -- though I find that hard to believe. Either way, however, it does suggest a sort of blind adherence to the "collect it all" philosophy of intelligence gathering, without any real understanding of the issues or consequences.

Filed Under: australia, data retention, david leyonhjelm, george brandis, malcolm turnbull, metadata, vpn

The Copyright Folly: Making A Living As A Creator Has Always Been Difficult, Stronger Copyright Doesn't Fix It

from the a-trick-by-the-industries dept

Dan Hunter and Nicolas Suzor (two Australian academics) have a great article for The Conversation, which officially is looking at the latest copyright reform proposals in Australia, but makes a much bigger point: Making a living as a content creator has always been massively difficult, and it's foolish to think that stronger copyright will change that. Unfortunately, in a campaign driven by the legacy gatekeepers (who often do benefit from stronger copyrights), many artists (especially independent ones) have been misled into thinking that the internet is the problem and stronger copyright laws will fix things. What's left out is that it's always been difficult, and the internet has actually made it easier to build a successful independent career. That doesn't mean it's easy and many will still fail, but it's not the problem of the internet and copyright laws being too weak.

First, a reminder that it's always been difficult for artists to make a living -- even when it came to famous and "major label" musicians, approximately 90% of them flamed out and didn't turn music into a career. Only the very top of the top in the old system were able to make a living as musicians.

Artists and their representatives are right, of course: it is unfair that artists and creators can’t make a living from their art. Society probably would be a better place if creators could spend all day writing great novels and great songs, and not have to support themselves in other ways.

But it’s always been like this: Beethoven taught piano to the children of nobility, Bach earned his keep as an organist and choirmaster, not as a composer. The old joke about barkeeps and waitstaff being mostly underemployed actors and authors is a cliche because it has always been true.

But does stronger copyright solve this? The evidence certainly suggests no:

Since the 1990s the copyright system has been made more and more onerous – but most artists haven’t been getting any richer. Each one of these reforms has failed, and the new proposal is almost certainly going to be a bust. The government could impose the death penalty for copyright infringement and it still would not create a future where the bulk of people who want to be independent artists can reliably make a good living from their work

Instead, stronger copyright seems to help the traditional gatekeepers, but doesn't filter down to the actual creators:

Copyright helps large producers and distributors in film, television and publishing industries. An individual artist is still more likely to win the lottery than make the big time. Those artists who do win the lottery win big – and those who don’t have to take other jobs.

But the internet -- despite all the blame being placed on it -- has enabled many more creators and artists to make money and build careers. That doesn't mean that every artist can be successful because of the internet, because that's just not true. It's still a very, very difficult world in which to make a living. But that's because of the nature of the market for creative works, not the internet or the state of copyright laws. But if you look and see how many artists are making a living today because of the internet, who never would have gotten anywhere under the old system, you realize how much more opportunity there is today.

The internet has allowed a brand-new group of creators to emerge, like remix artist Pogo, off-beat current affairs show Juice Rap News, and the creators of video game channels on YouTube.

The internet makes it easier than ever before to be a creator and to build an audience for your works.

Some of these creators are being paid for their efforts – and some aren’t in it for the money. It’s not an exaggeration to say that we’re living in a Golden Age of Creativity, even if creators who won under the old media model are suffering.

As they note, it's still tough to be an independent artist, but there's much more opportunity than in the past:

Becoming a successful independent artist is still a worse bet than the lottery. But for the much larger group of artists working in arts industries and the even larger group of creatives working in other industries, wages and job satisfaction are actually substantially higher than the national average.

And thus, proposals like the one in Australia by Attorney General George Brandis get the equation entirely backwards. They attempt to make the internet worse, by imposing onerous restrictions and liabilities on the internet providers, thereby setting up barriers to the tools that are helping artists.

At the same time, the current proposal will impose costs on communications providers like ISPs, search engines and cloud computing providers, as well as the everyday consumer.

Compliance costs and liability risks will drive some providers offshore. They will also increase the cost of internet access for everyone.

[....]

Harming the communications infrastructure is a bet against the future – and against those newly emerging creators who don’t follow the model of the past.

It's unfortunate that so many have twisted the fact that it's always been hard to make a living as a creator into an attack on the tool that has provided the most help to many of those artists... and as an excuse to ratchet up laws in a way that will make the internet worse.

Filed Under: australia, copyright, george brandis, internet, making a living

Australia's Attorney General Says Metadata Collection Won't Track Your Web Surfing, Just The Web Addresses You Visit (Huh?)

from the say-what-now? dept

Australian Attorney General George Brandis seems to be working extra hard to demonstrate just how completely clueless he really is. On both copyright and surveillance, it's pretty clear that he doesn't even remotely understand the details, but is willing to go all in to support some misleading claims that someone told him. On the surveillance front, he recently claimed (incorrectly) that data retention rules are a must (and that whistleblowers should be thrown in prison). The data retention rules are getting some attention because it's pretty clear that Brandis is advocating for a massive expansion in data retention and collection for many different purposes (i.e., expanding it to cover "crime-fighting in general" as opposed to just terrorism/national security).

However, it's pretty clear that he has no idea what this all means. He gave an absolute train-wreck of a TV interview on SkyNews, trying to defend the policy, in which he claims that the metadata rules won't track your web surfing habits, but just what websites you visit -- as if that's a different thing. You can see the video here. It's quite incredible. First he claims that the telcos "already collect this data" for billing purposes, but they want to change the law because now flat rate plans mean telcos might not track this data. But then he jumps to internet metadata (which, uh, has never required tracking for billing purposes) and things get ridiculous quickly.

SkyNews host: Well, the Prime Minister today said "it's not what you're doing on the internet, it's the sites you're visiting." So will it be the sites you're visiting?

George Brandis: Well, well, it... it wouldn't extend, for example, to web surfing. So, what people are viewing on the internet is not going to be caught.

Host: So it's not the sites you're visiting.

Brandis: Well... um... what people are viewing on the internet when they web surf is not going to be caught. What will be caught is the... is the... is the, um... the web address they communicate to.

Host: Okay, so it's only the... I'm sorry... the web address? If I go to an internet site, that will be recorded and available?

Brandis: The web address... um... is... is part of the metadata.

Host: The website.

Brandis: Well, the web address. The electronic address of the website.

Host: Okay. If I go to the SkyNews website, the Australian website, a more questionable website, that will be... is that what we're talking about here?

Brandis: Well, I... b... m... m.... m... the... what you're viewing on the internet is not what we're interested in. And that's not what we're...

Host: You'll be able to see whether I've been to that website or that website or that website.

Brandis: Well, what we'll be able... what the security agencies want to know... to be retained... is the... is the electronic address of the website that the web user is visiting.

Host: So it does tell you the website.

Brandis: Well... well... it tells you the address of the website.

Host: That's the website, isn't it? It tells you what website you've been to.

Brandis: Well, when... when you visit a website you... you know, people browse from one thing to the next and... and... that browsing history won't be retained or... or... or... there won't be any capacity to access that.

Host: Excuse my confusion here, but if you are retaining the web address, you are retaining the website, aren't you?

Brandis: Well... the... every website has an electronic address, right?

Host: And that's recorded.

Brandis: And... um... whether there's a connection... when a connection is made between one computer terminal and a web address, that fact and the time of the connection, and the duration of the connection, is what we mean by metadata, in that context.

Host: But... that is... telling you... where... I've been on the web.

Brandis: Well, it... it... it... it... it... it... it records what web... what at... what electronic web address has been accessed.

Host: I don't see the difference between that and what website I've visited.

Brandis: Well, when you go to a website, commonly, you will go from one web page to another, from one link to another to another, within that website. That's not what we're interested in.

Host: Okay. So the overarching... if I go to... SkyNews website, it'll tell that, but not necessarily the links within that that I go to?

Brandis: Yes.

I wouldn't normally include stuttering and false starts in a transcript, but in this case it seems somewhat necessary to show the level at which Brandis was clearly uncomfortable with the subject matter. The conversation then goes on to metadata for social media, and Brandis takes the easy out here saying that the rules are still being discussed. However, he does admit that metadata will be used for criminal investigations.

We've long argued that metadata is incredibly revealing, and anyone who claims it's "just metadata" has no clue what they're talking about. But here, Brandis takes that cluelessness to a new level. It's pretty clear that he is totally and completely ignorant of what he's discussing. At times it suggests he thinks that the web address doesn't reveal what you've been reading, and I thought maybe he thought that there's a real distinction between the web address and what you see on the page (which would be ridiculous). But at the end, he seems to imply that ISPs will only be asked to record the top level domain of pages you visit... which is... equally unlikely and almost certainly false. Everywhere else he says the "web address" which would be a lot more than the top level domain.

Either way, it seems abundantly clear that he doesn't understand the details, yet is pushing for legislation to make things happen when he is either completely ignorant of what it means, or he knows exactly what it means and knows that people would revolt over it, so he's trying to mislead everyone.

No matter what the truth is, he has no business setting up these rules.

Filed Under: australia, data retention, george brandis, metadata, surveillance, web surfing

Australian Government Proposes New Copyright Law: Basically Hollywood's Wishlist

from the australia's-sopa dept

We've been covering the discussion around copyright reform down in Australia for a while, and it's continuing to get worse and worse. As you may recall, after a long and detailed process, involving careful input from a variety of stakeholders on all sides of the equation, the Australian Law Reform Commission (ALRC) came out with a set of proposals that were actually pretty good, including things like introducing fair use to Australia.

Of course, rather than pay attention to this detailed and thoughtful process, the current Attorney General, George Brandis, decided to only listen to Hollywood. This created quite a telling discussion when Senator Scott Ludlam asked Brandis if he had consulted any consumer rights groups or other copyright experts concerning his copyright plans, and Brandis refused to answer, instead getting angry and insisting that Hollywood's interest is the public interest. Brandis also claimed -- totally incorrectly -- that Australia has no laws against online piracy and is "the worst offender of any country in the world when it comes to online piracy." That's simply bogus, and appears to just be a Hollywood talking point.

Given all that, it was fully expected that Brandis would basically obey Hollywood's orders -- especially given that the main discussions he'd been having came with the "Australian Screen Association," which is a rebranded version of AFACT, which a Wikileaks State Department cable revealed was 100% controlled by Hollywood interests in the US.

And, indeed, Brandis has delivered his gift proposal to (or, should we say from?) Hollywood. It involves three main proposals, but the big one is overturning the important iiNet decision that highlighted that ISPs are protected from liability for users infringing, because they're not the proactive party. In other words, under that ruling, ISPs can't be forced to be copyright cops. Brandis' plan would wipe that out, requiring ISPs to spy on user activity and try to block any "bad stuff" from happening, or they would face liability:

The Government believes that even where an ISP does not have a direct power to prevent a person from doing a particular infringing act, there may still be reasonable steps that can be taken by the ISP to discourage or reduce online copyright infringement.

Extending authorisation liability is essential to ensuring the existence of an effective legal framework that encourages industry cooperation and functions as originally intended, and is consistent with Australia's international obligations.

"Extending authorization liability" sounds so polite. But what it really means is "making ISPs into copyright cops" and encouraging them to spy on and block all sorts of activity, legal or not, to avoid liability from massive copyright infringement lawsuits (like the one against iiNet). Also note the famous "consistent with international obligations" line. We've been saying for nearly a decade now, whenever anyone brings up "international obligations," you know they're being intellectually dishonest.

The second part of the proposal is basically Australia's version of SOPA. It would allow for website blocking of "infringing overseas sites." And it would be like the original SOPA, with a "private right of action," allowing entire websites to be blocked on the say so of the copyright holder. A court would have to approve it, but it would likely be an incredibly one-sided hearing, as it's unlikely foreign websites will travel to Australia.

A similar provision in Australian law could enable rights holders to take action to block access to a website offering infringing material without the need to establish that a particular ISP has authorised an infringement.

The final piece of the plan appears to be an attempt to buy off internet companies that are likely to oppose this plan, in that it extends safe harbor protections to more of them. Basically, this is a cynical ploy to try to split the obvious opposition of this plan. Without this, it would clearly be both internet companies and internet access providers (ISPs) opposing. But here the idea is that if they barely extend a few safe harbor protections to more internet companies, maybe those guys won't oppose this effort as strongly.

Either way, this is pretty much what was expected. It's an evidence-free proposal based on the fear mongering claims of Hollywood, and an attempt to turn ISPs into Hollywood's personal copyright cops, spying on your usage and doing anything to block infringement, even if that also wipes out plenty of legitimate speech as well.

Thankfully, Senator Ludlam (who exposed Brandis' unwillingness to even answer whether he met with consumer rights groups) has already spoken out about this proposal:

Such a move would unleash a wave of lawsuits as giant film and TV studios re-open legal action to try and get Australian ISPs to act as ‘copyright police' in penalising their customers for online copyright infringement.

The paper also discusses a range of other options for tackling the issue, including forcing ISPs to block websites, sending users warning notices, and even limiting the broadband connections of those who are only suspected of pirating content online.

What the discussion paper doesn't contain is any attempt to address the real reason why Australians pirate films and TV shows online - the ongoing refusal of giant corporations to make their content available in an affordable and timely fashion.

Just getting access to watch HBO's popular Game of Thrones show can cost Australians up to $50 a month - and the show is only available week by week from one source: pay TV giant Foxtel, which is co-owned by Telstra and Rupert Murdoch's News Corp.

The Greens believe the Abbott Government is trying to protect an outdated dinosaur of a business model where a small group of mega-corporations control all access to the content Australians want to access. This isn't a surprise, given the hundreds of thousands of dollars film and TV studios have recently donated to the Coalition.

Filed Under: australia, blocking, copyright, george brandis, injunctions, intermediary liability, safe harbors, scott ludlam

Australian ISP iiNet Says It Will Fight Against Data Retention Rules

from the if-only-other-ISPs-were-so-customer-focused dept

Last week, we wrote about some vague plans announced by Australia's Attorney General George Brandis to require data retention rules for ISPs. "Data retention" is a euphemism for mass surveillance. It requires ISPs to hold onto a ton of data and allow the government to snoop through it. Australian ISP iiNet -- a company whose willingness to stand up for its customers against Hollywood extremism we've discussed before -- has come out with a blog post in which it promises to fight back against any such data retention rules.

Unlike the typically buzzword heavy responses you normally see from overly compliant ISPs regarding government surveillance, iiNet continues its reputation of being a straightshooter and explaining what's really going on and how the company is working to protect its users.

Law enforcement agencies (like ASIO and Federal and State Police) are proposing private companies, like iiNet, should keep ongoing and very detailed records of customers’ telephone and online activity. We’re not talking targeted surveillance of individuals suspected of a crime, we’re talking about the wholesale collection and storage of data on your online, digital and telephone activity. These records are euphemistically labelled ‘metadata’ – and could include the unfiltered records of your browsing, updates, movements and phone calls, which can be readily matched to the identities in your customer account.

We don’t think this ‘police state’ approach is a good idea, so we’re fighting moves by the Australian Government to introduce legislation that would force us to collect and store your personal information.

iiNet goes even further in explaining and demonstrating graphically just how much "metadata" reveals about you. For example they show a single tweet -- and then all the "metadata" associated with that tweet to show just how much more information is often revealed in the metadata: From there, iiNet directly takes on the foolish folks who insist they have "nothing to hide."

The data collected can be incredibly sensitive – it can reveal who your friends are, where you go and what websites you visit. Indeed, it may even tell more than the content of a phone call or an email. Recent research from Stanford University showed that when analysed this data may create a revealing profile of a person’s life including medical conditions, political and religious views, friends and associations.

Police say “If you have nothing to hide, then you shouldn’t be worried”. Personally I think that if you follow that dubious logic, we’d all be walking around naked. It’s not about being worried, or wanting to ‘hide’ anything. It’s about the right to decide what you keep private and what you allow to be shared. YOU should be the one to make that call, and that decision should stick until a warrant or something similar is issued to law enforcement agencies to seize your information.

Not convinced? Then we suggest you check out the startling website based on information collected on German politician Malte Spitz by Deutsche Telekom over just six months. Zeit Online combined this geo-location data with information relating to his life as a politician, such as Twitter feeds, blog entries and websites, all of which is all freely available on the Internet. It’s really worth a look and illustrates just how informative and personally invasive metadata can be – it is truly scary stuff.

Experts in the US have some equally frightening things to say about metadata. According to NSA General Counsel Stewart Baker, “…metadata absolutely tells you everything about somebody’s life.” General Michael Hayden, former director of the NSA and the CIA, called Baker’s comment “absolutely correct,” and frighteningly asserted, “We kill people based on metadata.”

Brandis, in the past, has seemed totally impervious to people who have a different opinion than he does (even if they have the evidence on their side), so it's unclear how much good this will do. Still, it's good to see an ISP that is loudly and clearly standing up against data retention, and not hiding behind misleading language, but clearly stating what's happening and why it's bad.

Filed Under: australia, consumers, data retention, george brandis, privacy
Companies: iinet