Increasing European Moves To Block Access To Websites Accused Of Helping People Infringe Copyrights

from the slippery-slope dept

In their obsessive war on piracy, the copyright industries have tried various approaches. For a while, the "three strikes and out" was popular, until it became clear that it was completely ineffectual. At the moment, the preferred method is to try to force ISPs to block access to sites holding material that infringes on copyright. The UK led the way, and has now made the whole process pretty routine, as a recent post on the TechnoLlama blog explains:

The blocking order follow a now familiar pattern established in 20th Century Fox v BT: lawyers for the film and/or music industry go to court against UK ISPs to try and obtain an injunction that will block access on those to a specific website. The subject websites are not included as co-defendants, and their guilt tends to be assumed, or dealt with separately. The websites are then blocked at the ISP level, meaning that any person who enters "www.thepiratebay.sx" into their browser will receive a notice stating that the site is not available.

The fact that it is easy to circumvent these blocks doesn't seem to worry the industry much: either the only concern is to make it hard for less tech-savvy users to access a site, or maybe a symbolic victory is all that is required. In any case, the approach is beginning to spread in Europe. For example, Switzerland is currently reviewing the operation of copyright in a digital world, and blocking content is likely to be one of the recommendations from the AGUR12 working group -- following the usual heavy-handed hints by the USTR, as TorrentFreak explains:

According to a report obtained by NZZ am Sontagg, AGUR12 have concluded that Swiss Internet service providers should be forced to delete content if hosted on Swiss-based sites. Most controversially their final report, which is now being sent to the Justice Minister, states that ISPs should display warnings when users attempt to access unauthorized content sources while "obviously illegal sites" should be rendered entirely inaccessible.

As usual, that begs the question which sites are "obviously illegal." Meanwhile, in Belgium, the authorities continue their forlorn attempt to shut down The Pirate Bay and its proxies:

The Supreme Court of Belgium has ordered local Internet providers to proactively search for Pirate Bay proxies, and block subscribers' access to these sites. The order is one of the most far-reaching decisions when it comes to website blocking based on copyright infringement grounds. A spokesperson for Belgacom, one of the largest ISP, describes the verdict as disproportionate and unacceptable.

But perhaps the most important news on the Web blocking front concerns Europe's highest court, the Court of Justice of the European Union. The Austrian Supreme Court had sought guidance on whether injunctions could be brought against ISPs whose users were accessing sites that infringed on copyright. As is usually the case, before the Court of Justice hands down its opinion, a kind of pre-opinion is given by the Advocate General (pdf), in this case Pedro Cruz Villalón. Here's his view on the situation:

In his Opinion today, Advocate General Pedro Cruz Villalón takes the view that the internet provider of the user of a website which infringes copyright is also to be regarded as an intermediary whose services are used by a third party -- that is the operator of the website -- to infringe copyright and therefore also as a person against whom an injunction can be granted. That is apparent from the wording, context, spirit and purpose of the provision of EU law.

This bad news that ISPs can be regarded as intermediaries is tempered slightly by the following:

The Advocate General is also of the view that it is incompatible with the weighing of the fundamental rights of the parties to prohibit an internet service provider generally and without ordering specific measures from allowing its customers to access a particular website that infringes copyright.

The Advocate General adds one other qualification:

It is for the national courts, in the particular case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights.

This is not the final ruling of the Court of Justice of the European Union itself, which could take a completely different view of things, but that is unlikely. So we can probably expect to see even more Web sites blocked in Europe at the behest of film and music companies. That's a huge pity. It imposes costs on ISPs that have nothing to do with the infringement, and it distracts copyright companies from the real solution: providing better access to legal offerings at fair prices.

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Filed Under: access, blocking, censorship, copyright, eu court of justice, eucj, europe, infringement, secondary liability

Data Retention Means You Are On The Record, Like It Or Not

from the it's-not-retention,-it's-surveillance dept

This week the advocate general of the Court of Justice of the EU (CJEU), Yves Bot, publishes an opinion on the extent to which the Data Retention Directive, one of the most controversial security measures introduced by the EU in the past decade, is compatible with human rights law. Although not a binding judgement (this will come later), the CJEU’s opinion is a significant intervention in the ongoing debate over how to balance human rights with states' perceived surveillance needs.

The security-related retention of communications by telecoms firms was on the European agenda well before 9/11, but privacy concerns had led to a limited approach. Telecoms companies in the EU were obliged to delete communications data as soon as all business needs had been met; the data could not be retained for security or criminal investigation purposes. Some states had attempted to adjust this and introduce a retention system in 2000, but this failed - again, largely because of privacy concerns. All this changed, however, after 9/11.

As early as May 2002, a “data retention amendment” had been made to existing EU privacy laws to allow for security-related data retention, and drafts of a provision that would require retention began to circulate. Those proposals attracted so much rights-based criticism that they were apparently abandoned; however, they quickly reappeared in the wake of the London and Madrid bombings, and in 2006, the Data Retention Directive was adopted.

It obliges all member states to introduce national data retention regimes, even where -— as in the UK —- there had already been significant resistance to such regimes when they were previously proposed at a national level. The directive requires telecommunications providers to retain data on the source, destination, time, date, duration and type of all communications by fixed and mobile telephone, fax and internet, and on the location and type of equipment used.

The data is to be retained for between six months and two years, with national law deciding on the duration, and can be accessed by state agencies investigating “serious crime” —- a term that has different definitions across the member states.

Blanket surveillance

The volume and extent of information retained under the directive is stunning; in effect, it has introduced a system of blanket surveillance across the entire EU. Although access to the information is regulated by law, state agencies can nonetheless access an enormous amount of information about our communications patterns and activities. This naturally raises serious human rights concerns, especially about privacy.

Security services insist that data retention is an indispensable tool for investigating serious crimes, such as terrorism and the production and distribution of child pornography. Yet different states make use of the Directive to wildly varying extents: in 2012, for example, Cyprus made 22 requests for access to data, while the UK made 725,467.

The question for the advocate general, the CJEU and the EU more broadly is whether or not the approach taken by the directive privileges perceived security needs over human rights. Data retention unquestionably constitutes a prima facie infringement on privacy; the real issue is whether this infringement is justified because it is necessary, effective, and limited. This question is at the core of all debates about “balance” in the security context: how far are we prepared to allow state power into our individual, family, social and democratic lives in order to “secure” us?

Answering this question requires us to decide on what we think “effectiveness” means in the context of security. If the directive helps to resolve a handful of serious crimes per year, or to prevent one terrorist attack, is it effective? Could a more limited approach -— such as requiring telecoms companies to collect data related to certain investigations but not to retain all data -— achieve the same security objectives while better protecting rights?

These are difficult questions, but they are ones we must resolve if we are to have a balanced security system. The advocate general’s opinion will be an important contribution to the debate, but it will not be the final word. Achieving a balanced approach to security requires critical scrutiny at practical, political, social and legal levels. This is all the more true given that, as the Data Retention Directive illustrates, security measures operate upon and have implications for the rights of all of us, all of the time.

Fiona de Londras is the Project Co-Ordinator of SECILE (Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness), a project that has received funding from the European Union Seventh Framework Programme (FP7/2007-2013) under grant agreement number 313195.

This article was originally published at The Conversation. Read the original article.

Filed Under: data retention, europe, surveillance

European Court Of Justice Hands Down Big Win For Transparency in Europe

from the nice,-but-lots-more-needed dept

After a five-year battle by Access Info Europe, Europe's highest court has made an important ruling that will help boost transparency in the European Union:

the European Court of Justice today rejected arguments by the Council of the European Union that it should be able to keep secret the identities of Member States making proposals in the context of negotiations on future EU legislation.

The Council of the European Union had fought to defend its policy of releasing legislative drafting documents with the names of Member States tabling amendments blacked out.

Access Info Europe won access to the document it requested before the General Court in March 2011 but the Council appealed, joined by the Czech Republic, France, Greece, Spain and the UK.

The Council of the European Union is one of three bodies that jointly run the European Union, along with the European Parliament and European Commission. Some countries wanted their names blacked out from official Council of the European Union documents because it would have revealed which of them had blocked or tried to water down proposals they were hostile to. Now that it will be possible to name and shame Member States that act in this way, they will probably be less willing to be seen objecting to important and popular measures.

As Access Info Europe explains:

This ruling means that members of the public at the national level will find it easier to know what is going on in Brussels, and will make it easier for national parliaments to follow and scrutinise the EU legislative process, and in particular the positions taken by delegations of Member States.

Helen Darbishire, Executive Director of Access Info Europe, is quoted as saying:

"We call on the Council to respect this ruling and to go a step further by henceforth proactively publishing documents containing legislative drafting positions of Member States on the Council's public register as soon as they are created, as this will allow the public to follow the decision making process."

Given the Council's dogged resistance to even minimal transparency, that's unlikely to happen, but at least things have started moving in the right direction.

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Filed Under: eu, eu council, eu court of justice, europe, transparency

Intel Officials Says French And Spain Intelligence Agencies Did All The Dirty Work In Gathering Data On Millions Of Calls

from the so-many-twists,-from-so-many-twisted-entities dept

All that noise being made by French and Spanish officials over the NSA's collection of millions of phone records is turning out to be just that: noise. The Wall Street Journal reports that, while the NSA did end up with millions of foreign phone records, it didn't do the actual collection.

U.S. officials said the Snowden-provided documents had been misinterpreted and actually show phone records that were collected by French and Spanish intelligence agencies, and then shared with the NSA, according to officials briefed on those discussions.

U.S. intelligence officials studied the document published by Le Monde and have determined that it wasn't assembled by the NSA. Rather, the document appears to be a slide that was assembled based on NSA data received from French intelligence, a U.S. official said.

Rather than being a domestic collection, like the Section 215 program, the records gathered by Spanish and French intelligence agencies apparently only touched calls originating outside of these two nations.

Based on an analysis of the document, the U.S. concluded that the phone records the French had collected were actually from outside of France, and then were shared with the U.S. The data don't show that the French spied on their own people inside France.

U.S. intelligence officials haven't seen the documents cited by El Mundo but the data appear to come from similar information the NSA obtained from Spanish intelligence agencies documenting their collection efforts abroad, officials said.

While this all seems very above-board, both for the NSA and the foreign intelligence agencies, there's still a good chance that this isn't the entire picture. The NSA is still very leery of exposing methods and sources and, despite trying to defuse the current outrage, it will probably still hold some cards close to its chest. Officials are even admitting this sudden burst of clarity still leaves things uncovered.

U.S. officials said the European collection programs were part of long-standing intelligence sharing arrangements between the U.S. and its closest allies. Officials said the figures may not reflect the entirety of the phone records collected by France and Spain.

So, while European officials may be playing this off as a horrible intrusion, the latest statements seem to indicate it isn't. There may still be a layer of intrusion as of yet uncovered and both countries are still presumably doing their own domestic spying. If so, there are undoubtedly more outrages to come, only in this case, the public, rather than officials, will be making the most noise. The NSA's many cozy relationships around the world are now backfiring, even when it's not directly to blame. Making friends with foreign intelligence agencies while alienating foreign officials is a hell of a way to fight terrorism.

Filed Under: allies, europe, france, nsa, nsa surveillance, spain

NSA Officials Livid That White House Is Pretending It Didn't Know About Spying On Foreign Leaders

from the the-wheels-of-the-bus-are-that-way dept

Earlier this month, we noted that anonymous NSA officials had been whining about not getting strong enough support from the White House. In particular, they seemed upset that President Obama wasn't front and center in the press defending their actions and that he hadn't stopped by at Ft. Meade to give them a pep talk. We found the whole thing pretty silly. The President had made remarks in support of the NSA and there were a bunch of other things on his plate at the time that seemed more pressing politically. And, also, if you need a pep talk from the President to be happy in your job, you're probably in the wrong job.

However, such talk is getting much louder now that the President has apparently told people he had no idea the NSA was spying on foreign leaders. The NSA itself confirmed that Keith Alexander had never spoken to President Obama about spying on Angela Merkel, though it's possible that the President knew about it from other sources. And, of course, now Senator Dianne Feinstein is insisting she never knew about spying on foreign leaders either. To be honest, both claims seem ridiculous -- and it seems like this kind of weak response is further pissing off NSA officials. We already noted how NSA people were freaking out about Feinstein's statements (though, some believe this is just for show), but the grumbling over the President's statements is getting much louder as NSA officials recognize that it appears the President is positioning the NSA as a rogue agency, rather than one carrying out his orders.

Professional staff members at the National Security Agency and other U.S. intelligence agencies are angry, these officials say, believing the president has cast them adrift as he tries to distance himself from the disclosures by former NSA contractor Edward Snowden that have strained ties with close allies.

In particular, they say the claims that the President didn't know about spying on foreign leaders is hogwash.

Precisely how the surveillance is conducted is unclear. But if a foreign leader is targeted for eavesdropping, the relevant U.S. ambassador and the National Security Council staffer at the White House who deals with the country are given regular reports, said two former senior intelligence officials, who spoke on condition of anonymity in discussing classified information.

Obama may not have been specifically briefed on NSA operations targeting a foreign leader's cellphone or email communications, one of the officials said. "But certainly the National Security Council and senior people across the intelligence community knew exactly what was going on, and to suggest otherwise is ridiculous."

If U.S. spying on key foreign leaders was news to the White House, current and former officials said, then White House officials have not been reading their briefing books.

The ramifications here may be serious, as the intelligence community apparently views this as President Obama completely throwing them under the bus:

Some U.S. intelligence officials said they were being blamed by the White House for conducting surveillance that was authorized under the law and utilized at the White House.

"People are furious," said a senior intelligence official who would not be identified discussing classified information. "This is officially the White House cutting off the intelligence community."

What that actually means in the long run is less certain. It's still entirely possible that this is all for show. In fact, the White House has already said Feinstein's claim that the US would stop spying on foreign leaders is simply not true.

That said, if this means more and more NSA employees are disgruntled, I would imagine there are plenty of reporters ready and willing to help them blow the whistle on more things happening within the intelligence community. I'm guessing they already know what Glenn Greenwald's email is, for example...

Filed Under: barack obama, dianne feinstein, europe, nsa, nsa surveillance, white house

More Leaks: NSA Collecting Millions Of Phone Records From Italy And Spain

from the next-up:-NSA-building-out-telco-infrastructure-in-developing-nations dept

The NSA has a majority of Europe under its surveillance. The latest revelations detail the agency grabbed the data on 60 million Spanish phone calls during roughly the same 30-day period it grabbed data on 70 million French calls. Add to that 46 million calls from Italy and you've got something that resembles the NSA's domestic surveillance (via the Section 215 bulk records collections) deployed abroad, according to Paul Hamilos' writeup for The Guardian.

An NSA graphic, entitled "Spain – last 30 days", reportedly shows the daily flow of phone calls within Spain, and that on one day alone – 11 December 2012 – the NSA monitored more than 3.5m phone calls. It appears that the content of the calls was not monitored but the serial and phone numbers of the handsets used, the locations, sim cards and the duration of the calls were. Emails and other social media were also monitored.

More specifically, there's an untold number of European officials receiving more intense scrutiny from the agency (Merkel and 35 others, according to the numbers being thrown around), with German Chancellor Angela Merkel being the most notable, or at least, the most publicly outraged (although, as Glenn Greenwald points out, largely silent when news broke that the NSA was spying on German citizens). Whether Obama did or didn't know about this surveillance of Merkel, which went on for more than a decade, is hardly worth determining. If he did, it's the acceptable lying face of international diplomacy. But if he truly didn't, it just shows how completely secretive the NSA has been. The NSA constantly points to "rigorous oversight" when defending its actions, but there's no one person or group in the government that seems to have been fully apprised of its activities.

Spain has reacted to this news much like France did and has summoned the US Ambassador for an explanation and (presumably) a bit of yelling. Despite the fact that nations spy on other nations all the time, the public outcry surrounding these leaks has prompted a unified European front demanding answers and changes from the US. This may not all be a diversion, however. While nations are completely expected to spy on other state agencies and officials (like Merkel, etc.), the collection of data on millions of private phone calls isn't.

The outcry has also helpfully diverted attention away from these nations' own domestic surveillance programs. France apparently has domestic surveillance that rivals the NSA's, but that's being buried by the pushback against the NSA's bulk collections. According to a commentary piece in eldiaro.es, Spain has its own domestic surveillance program that is roughly aligned with the bulk records collections in the US. And, unsurprisingly, there's very little oversight governing these activities, as is explained here by Hamilos.

Under Spanish law a judge must give permission before a phone can be tapped, and is then required to permanently supervise the execution of that legal order. According to Boye, there are around one million phone lines currently being monitored in Spain, and given the number of judges, he says that works out at an average 600 wiretaps supposedly being supervised by each judge. That's a lot of work. As he suggests, it is impossible that this monitoring is really receiving any proper judicial oversight.

While it may seem odd for the NSA to be viewed a scapegoat, there's plenty of evidence out there that the countries making the most noise about US spying are deploying plenty of intrusive domestic surveillance of their own.

As we discussed last week, the UK's GCHQ has been covering up its activities for years in order to avoid being "held back" by the country's laws. The GCHQ has also enjoyed a mutually advantageous relationship with the NSA over the years, receiving "tens of millions of dollars" to fund surveillance programs that feed directly or indirectly into the US agency's intel.

In recent weeks, UK Prime Minister David Cameron has gone on record to condemn The Guardian's decision (and to urge the opening of an investigation) to publish leaked documents and claimed that its decision to do so has harmed the security of the nation. Despite these bursts of pro-spying rhetoric, Cameron has now added his signature to a EU memorandum expressing concern about the NSA's foreign spying. Somewhere between hypocrisy and desperation lies Cameron, a man who vigorously defends his nation's domestic spying apparatus (and by extension, the NSA's activities) but feels compelled by forces beyond his control to present a unified front with Europe's more powerful nations.

To those outside the diplomatic bubble, the statement might seem anodyne, but it is already being interpreted as a slap in the face to Washington because it talks of the US-EU partnership being "based on respect and trust, including as concerns the work and co-operation of secret services".

The line in the memorandum warning that "a lack of trust could prejudice" counter-terrorism operations is particularly wounding for Cameron, seeing as Downing Street is desperate to claim that Edward Snowden's leaked documents – not the behaviour of the NSA or GCHQ – have been a gift to terrorists and criminals.

UK intelligence agencies have definitely benefited from the NSA's actions, actions which are now being decried all over Europe. Cameron may be in a bad position at the moment (but he's also on the way out the door...), but his signature delivered out of obligation will have little effect on the cozy relationship between the US and UK intelligence agencies. Neither country's intelligence agencies are willing to give up this two-way flow of information. If anything, the NSA will be receiving information it can't get elsewhere, even with the programs it's deployed all over Europe. The laws governing the GCHQ have given the agency a very exploitable phrase (on par with the NSA's interpretation of the word "relevant") which gives the agency the legal authority to pursue other nation's officials even more extensively than the NSA can, as the Guardian's Nick Hopkins points out.

When the Intelligence Services Act was passed in 1994 it included a line – inserted at the last minute – that Britain's spy agencies could legitimately seek intelligence that would support the "economic wellbeing" of the country. This provision is one of the most opaque in the legislation and could be interpreted to justify espionage on just about any head of state or company chief executive, though this would require ministerial approval.

If "ministerial approval" equates roughly with the approval process of the FISA court, then there's effectively no limit to who the GCHQ can pursue. Earlier reporting suggests this is the case.

So, while Europe is being hit with details of foreign spying, European leaders are keeping the focus on the NSA while their own domestic surveillance programs continue unabated. As more details surface, this convenient facade is likely to crumble. If the US is working with the GCHQ to spy on citizens of the UK, there's no doubt it has set up data-sharing surveillance programs in other countries as well.

Filed Under: europe, nsa, nsa surveillance, spain

European Commission: ACTA Is Dead, Long Live ACTA?

from the hidden-in-plain-sight dept

The first six months of 2012 saw Europeans taking to the streets in order to kill off ACTA in the European Union. Against all the odds, they succeeded in that aim, as the European Parliament voted to reject ACTA on 4 July last year. That defeat has certainly been burned into the memories of Karel de Gucht, the EU Commissioner responsible for negotiating first ACTA and now TAFTA/TTIP. When he was asked whether the latter might see ACTA sneak in by the backdoor, here's what he replied:

"ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.

If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door".

So you might think that ACTA is definitively dead and buried in the EU. But then along comes a new free trade agreement, this time between the EU and Singapore, which has the following section, Article 11.44, paragraph 2 (pdf):

In determining the amount of damages for infringement of intellectual property rights, a Party's judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

Those with good memories may recall that something similar was to be found in ACTA, and that it was one of the problematic areas that led the European Parliament to reject the treaty. In fact, it's not similar, it's word-for-word identical with Article 9, paragraph 1 of ACTA (pdf). And it's not the only section that's been cut-and-pasted from ACTA: several other paragraphs are also direct copies.

This raises an interesting question. At the moment, the EU-Singapore FTA has only been "initialled": that means it must still be approved by the European Commission, the Council of Ministers representing the member nations, and the European Parliament. So will the EU's MEPs reject the new trade agreement because it represents ACTA by the backdoor -- or at least a part of it? That seems unlikely.

But if the European Parliament does pass the EU-Singapore FTA, de Gucht might then argue that the same sections from ACTA can now be pasted into TAFTA/TTIP, since they are no longer problematic. And if he does so, perhaps he will be tempted to include a few more sections from ACTA, on the grounds that he is doing nothing "by the backdoor", but doing it in the full view of everyone....

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Filed Under: acta, europe, european commission, european parliament, karel de gucht, singapore, trade agreements

Misleading Figures Used To Puff Up Importance Of Intellectual Monopolies In Europe

from the lies,-damned-lies,-and-statistics dept

We've noted before attempts to inflate the importance of copyright, patents and trademarks by including a bunch of other sectors that are only tangentially related to them when it comes to totting up their economic impact. For example, last year Mike wrote about a joint Department of Commerce/US Patent and Trademark Office "study" that included 2.5 million grocery store jobs in its definition of "IP-intensive" industries.

Now the Europeans are getting in on the act. The European Patent Office and the Office for Harmonization in the Internal Market, responsible for trademarks and designs in Europe, have come out with a very similar study, which uses exactly the same technique as the earlier USPTO/Department of Commerce work, as James Love explains:

On September 30, 2013, the European Patent Office (EPO) and the Office for Harmonization in the Internal Market (OHIM) published their own knock off version [of the US study], titled "Intellectual Property Rights intensive industries: contribution to economic performance and employment in Europe", which claimed that 39 percent of total economic activity in the EU is "generated by IPR-intensive industries."

Like the USPTO study, the numbers are intended to mislead rather than inform debate on intellectual property. The following is a quick rundown of some of the employment numbers in the report, for various IP categories.

Designs
For "design intensive industries," the largest employer group, by far, is "Wholesale of clothing and footwear," which is just one of several "wholesale" categories designed as "Design intensive industries."

Patents
For "patent intensive industries," the list of top industries is mostly made up of various manufacturing sectors. "Research and experimental development on biotechnology" is listed as having just 47 thousand EU jobs, out of more than 22 million "patent intensive" jobs in the study.

Copyright
For the copyright industry, the study claims there are over 7,049,405 jobs in the EU. But where are they? Book publishing is listed at 317,150, Sound recording and music publishing activities at 37,750, and Publishing of journals and periodicals just 13,300... Libraries and archives, on the other hand, are listed as a "copyright intensive industry" with 397.800 jobs -- 5.6 percent of all copyright intensive jobs.

The following 11 industries make up more than 55% of all jobs that are considered copyright intensive, even though copyright is only an incidental factor for most of their activities:

Advertising agencies 388.500 (5.1%)
Library and archives activities 397.800 (5.6%)
Media representation 797.900 (11.3%)
Other amusement and recreation activities 220.950 (3.1%)
Other information service activities n.e.c. 994.600 (14.1%)
Performing arts support activities 266.950 (3.8%)
Performing arts 85.800 (1.2%)
Public relations and communication activities 162.800 (2.3%)
Publishing of directories and mailing lists 231.500 (3%)
Translation and interpretation activities 152.000 (2.2%)
Web portals 191.300 (2.7%)

The European Commission lost no time touting the new study:

Internal Market and Services Commissioner Michel Barnier said: "I am convinced that intellectual property rights play a hugely important role in stimulating innovation and creativity, and I welcome the publication of this study which confirms that the promotion of IPR is a matter of growth and jobs. It will help us to further underpin our evidence-based policy making.

Of course, it does nothing of the sort, because the "evidence" cited here is so misleading as to be worthless. What Barnier really means is that he will continue to push the dogma that intellectual monopolies like patents and copyright are needed to stimulate innovation and creativity, and that he will ignore real evidence to the contrary, falling back instead on easily-debunked work like the present document from the EPO and OHIM.

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Filed Under: copyright, economics, europe, intellectual property, patents, trademark

Europe's Largest Internet Exchange Decides To Open US Office, Risks Making Itself Subject To NSA Demands

from the and-that's-a-good-idea-because? dept

The Internet may be a series of tubes, but those tubes have to be joined together. That takes place at Internet exchanges (IXs), where different ISPs can pass on and receive data. One of the largest and most important such IXs is AMS-IX, which is based in the capital of the Netherlands, Amsterdam. Techdirt reader Dirk Poot points out that AMS-IX has just made the following move:

the Board of the AMS-IX Association proposed the set up of a US-based legal entity for possible expansion to the United States. In an extraordinary General Meeting (GM) held on 27 September 2013, AMS-IX members approved the set up of a US-based legal entity by a majority of votes.

Recently, an opportunity arose with the Open-IX initiative for AMS-IX to expand and build exchanges in the US. Representatives from US-based content providers and telecom operators -- many of them current AMS-IX members or customers -- as well as other Internet industry parties, such as datacenters, founded this initiative. It aims to encourage the development of neutral and distributed Internet exchanges and reduce IP interconnection complexity and cost in the US. In the US this is more complicated and prices are higher than in Europe, where the neutral and distributed Internet exchange model is more common.

It's understandable that US content providers and telecom operators would want to reduce their costs in this way. But as an email written by Erik Bais to AMS-IX members points out, there is a huge risk here for AMS-IX:

Having an US entity within the (AMS-IX org. structure) association / [AMS-IX B.V. company] will directly bring the [AMS-IX B.V. company] and indirectly the association under the influence of the infamous Patriot Act and FISAA.

Specifically:

For the AMS-IX US entity (under US Law) they will receive the official request for the information [passing through AMS-IX], which they are required to send through to their holding company (which is AMS-IX B.V.) as the information or connection isn't on US soil, but in Amsterdam.

1. Denying such request means that they US Entity will most likely be in contempt of court, bringing the US entity and its management in a situation where they can't deny the request of the US Government and the AMS-IX Management. It is a very difficult split between 1 party whom doesn't want to provide the information (Let's assume the AMS-IX B.V. doesn't want to provide the information) and the US Government who has the right to request and all the paperwork and laws at hand to request it.

2. Information in this case could mean: Information about, but also information from (data).

In other words, by opening an office in the US, AMS-IX might be forced by US laws to give the NSA direct access to the huge flows of data at its European Internet exchange.

AMS-IX has this to say about the way its US office would be set up:

The chosen structure will need to protect AMS-IX's current operation and the AMS-IX Association's customers and members from commercial, legal, financial and technical risks and, more specifically, from interception activities by US government agencies.

There are two issues here. One is whether such a legal structure that protects AMS-IX's European operation from the NSA's demands exists or not. And even if it does, there is the question of trust. Once there is the possibility of the NSA demanding access to the AMS-IX traffic, there will always be the fear that it is being granted, even if AMS-IX denies it. After all, if access were granted to the NSA, AMS-IX would be forbidden from talking about that fact, and so it would be impossible to tell what the true situation was.

As a result, it's hard to see how anyone in Europe can really trust AMS-IX again if it goes ahead with this proposed move to open a US office, which means it could lose a lot of its current and future business. That seems a heavy price for a European organization to pay for something that will largely benefit US companies.

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Filed Under: ams-ix, europe, internet exchange, ix, jurisdiction, nsa, nsa surveillance, us

Latest Snowden Leaks Show GCHQ Gleefully Hacking Belgian Telco

from the this-pleases-the-spies dept

Another day, another report on a leaked Snowden document, this time showing how the UK's GCHQ, using technology from the NSA, gleefully hacked into Belgian telco giant Belgacom's system.

According to the slides in the GCHQ presentation, the attack was directed at several Belgacom employees and involved the planting of a highly developed attack technology referred to as a "Quantum Insert" ("QI"). It appears to be a method with which the person being targeted, without their knowledge, is redirected to websites that then plant malware on their computers that can then manipulate them. Some of the employees whose computers were infiltrated had "good access" to important parts of Belgacom's infrastructure, and this seemed to please the British spies, according to the slides.

The documents also suggest that GCHQ continued to probe the areas of infrastructure to which the targeted employees had access. The undated presentation states that they were on the verge of accessing the Belgians' central roaming router. The router is used to process international traffic. According to the presentation, the British wanted to use this access for complex attacks ("Man in the Middle" attacks) on smartphone users. The head of GCHQ's Network Analysis Centre (NAC) described Operation Socialist in the presentation as a "success."

Once again, despite various denials, it appears that the NSA/GCHQ have been hacking into companies, rather than directly targeting individuals or terrorist organizations. This leads to questions about the possibility of economic espionage, but also about using these hacked systems for further attacks. As the report notes, this could be especially concerning, given that Belgacom serves the EU Parliament, the EU Council and the EU Commission -- all of whom have been named as "targets" of the NSA (and, by extension, GCHQ, even as the UK is a member of the EU).

As I've said in the past, I'm a lot less disturbed by intelligence gathering on foreign politicians -- that's just standard every day expected espionage activity. However, hacking into companies to do that espionage begins to cross some very questionable lines that could lead to massive economic harm, as well as the ability to mask the surveillance by government agencies as somehow being the fault of those companies.

Filed Under: economic espionage, europe, gchq, hacking, nsa, surveillance
Companies: belgacom