For The London Free Press – November 30, 2009

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TRAVEL: The practical reality is we have no control over these computer searches, so it’s wise to be prepared

Last summer, directives were issued by the U.S. Department of Homeland Security for searches of computers and other electronic devices at U.S. border points.

The stated goal was to combat crime and terrorism while still protecting personal privacy and civil liberties.

The directives allow border agents to search, detain, copy or examine any electronic device capable of storing electronic information for any reason.

As Homeland Security Secretary Janet Napolitano said at the time, “The new directives . . . strike the balance between respecting the civil liberties and privacy of all travellers while ensuring (Department of Homeland Security) can take the lawful actions necessary to secure our borders.”

Where “sensitive” information in involved, including solicitor-client privilege and medical records, border guards are directed to consult with agency counsel or the local U.S. Attorney’s office. But any information outside of this narrow privileged category may be searched.

Whether such searches truly accomplish the goal is questionable. As information freely flows across borders via the Internet, physical searches of computers will be of little use. And laws such as copyright are so fact-dependent, and even pose challenges to courts trying to sort out what is allowable, that it’s not a decision a border agent should make.

The practical reality is that we have no control over these border searches. So the Canadian Bar Association (CBA) has published a list of suggestions for lawyers crossing the border with laptops or electronic devices.

While the association published its work for the legal community, the suggestions are valuable for anyone entering the U.S. with an electronic device containing sensitive or confidential information.

The full text can be found at www.cba.org/CBA/PracticeLink/ TAYP/laptopborderupdate.aspx, but here are some of the most helpful tips:

- Travel with a “bare” computer that contains only the most essential information. Ensure that all work with data is done via a secure virtual private network (VPN). Consider using SaaS (software as a service) programs based on the Internet, rather than your computer’s hard drive.

- Turn off your computer early: At least five minutes before you get to U.S. Customs, make sure your computer is turned off so unencrypted information in your computer’s RAM has adequate time to void itself.

- Back up your data: Self-explanatory.

- Store data on small devices: Smaller devices can be carried more inconspicuously.

- Protect your phone and PDA: Phones now carry a considerable amount of information and needed to be kept as “clean” as possible in case they’re confiscated.

- ‘Clean’ your laptop once it’s returned: This will ensure that no programs or spyware have been installed on your computer.

In summary, the prudent approach for taking a computer into the U.S. is to ensure it contains no confidential, sensitive or privileged information.

Don’t rely on encryption, because the border agent may simply ask for your password.

The better approach is to leave all information on a Canadian server and access it remotely once in the U.S.

The Amabile Boys and Men’s Choirs Christmas concert is on Dec 19.   The flyer is below for anyone interested in attending.  These choirs are truly world class – having won national competitions, and performed internationally.  My son is in the Young Men’s Choir.

Us Canadians have become more aware over the last few years of the American phenomenon known as Black Friday.  A result of the internet I guess.   To some extent we are puzzled by it.  The only thing we have to compare that to is Boxing Day sales – and we like to think that we are far more civilized, polite and happy about our early morning Boxing Day lineups.   

I have noticed this year that some Canadian retailers seem to be following the Black Friday trend a bit – perhaps to capitalize on Canadian awareness of the US sales. 

On my porch yesterday, for example, was a Canadian Tire flyer pronouncing in large print that this Friday and Saturday is “Our biggest & best sale of the year!”   The only thing missing is a  Black Friday or Boxing Day sale label.

England has turned into one of the least privacy friendly governments.   It is a poster child for being overly invasive – with the usual unsupported claims that is is necessary to fight crime – and the position that governments and police forces can be trusted to be discrete and do the right thing.  But of course, when the official culture is one of invasiveness – the ‘right thing’ is a moving target.

Case in point: Boing Boing reports that a UK inquiry claims the police routinely arrest people they haveo intent of charging solely to get their DNA into their database.

For the London Free Press – November 23. 2009

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INFRINGEMENT: It addresses concerns of creators and publishers of movies and music

The “three-strikes law” is a controversial proposal to address download infringement concerns of creators and publishers of movies and music.

The concept is that if someone alleges an Internet user is downloading copyrighted material, they can advise their Internet Service Provider (ISP). The ISP then tells the customer to cease this illegal activity. If this happens three times, the ISP must turn off the customer’s Internet access.

France recently approved such a plan, but not without a struggle. An initial version was ruled unconstitutional by the French courts. An amended version was approved this fall which calls on a judge, not a government actor, to sign off on account suspensions.

France is now viewed by supporters as a pioneer against piracy, leading the way by implementing this legislation.

The same proposal in Britain met with public backlash. Public consensus is these measures are too drastic and draconian. The measures will generate a bureaucratic nightmare while having little impact on the overall prevalence of file-sharing.

Other critics argue the increasing prominence of the Internet in everyday life makes suspending that privilege a limit on individual freedom of expression.

Even holders of copyrighted material are split on the subject. Artists, such as the music group Radiohead, argue that any effort to criminalize file-sharing is in vain. They believe artists would be better to embrace the potential of file sharing to share their work with a larger audience. This will allow them the opportunity to generate revenues through concerts and merchandising, and even the sale of their music.

Other artists are of an opposite view, believing that file-sharing restricts the ability of young artists to make a living, lessening the likelihood of success for emerging artists.

The three-strikes law is misguided, even if you believe such activity should be controlled.

Whether someone has violated copyright is often not a black-or-white issue. Copyright law is complex, and knowing in any given instance whether an infringement happened isn’t easy.

To implement these policies on a mass basis, in a similar manner to handing out parking tickets, ignores this complexity. And the penalty is more than paying a few dollars in parking fines.

The proposal is also open to abuse as sanctions imposed at the request of an alleged victim can be taken advantage of.

There are numerous examples of questionable takedown notices under the existing U.S. DMCA rules. In fact, the Electronic Frontier Foundation has created a Takedown Hall of Shame, which lists “bogus copyright and trademark complaints” which “have threatened all kinds of creative expression on the Internet.”

This points up another problem with the concept: violations need only be alleged, not proven. An individual may be accused and given a strike by their ISP with no proof of misconduct. Guilty till proven innocent is not something we should condone.

The issue of digital piracy will continue to be a contentious topic. The three strikes proposal is not a palatable solution.

The municipality of Middlesex Centre (which borders the west/north sides of London) will start construction in a few months for a new “Community Wellness and Recreation Centre”.  It will feature 2 NHL sized ice pads, a gym, walking track, fitness centre, library, and multipurpose rooms.  It is a $24,000,000 investment, with $16,200,000 of that coming from the Building Canada Fund stimulus program.

So if a rural municipality with about 16,000 residents can do that – why can’t the City of London get its act together and build a much needed Performing Arts Centre?   And why can’t we tap into some of that stimulus money to do it?

That’s the title of my Slaw post for today.  It reads as follows:

Advances in technology and reduction in costs are moving us towards a day when everything can be connected – including things like appliances, light switches, and even humans.  That connectivity will be for both reporting status and for control.

Jim Carroll has an interesting post on this topic called Reinventing the future with transformative technology! that’s worth a read. 

I also heard a presentation on a similar topic a couple of weeks ago at the Canadian IT Law Association conference by Ron Dembo of Zerofootprint  .  He talked about energy monitoring in homes and commercial buildings, and sharing that information as an incentive to reduce energy consumption.

This pervasive connectivity will no doubt affect us in ways we can’t now imagine – and will force us to rethink many things.  And it will lead to some interesting legal issues as well – such as how privacy fits in – and who “owns” all that information.

For the London Free Press – November 16, 2009

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BLOGGING: Proposed U.S. guidelines would hold bloggers to ethical standards

The U.S. Federal Trade Commission recently proposed new guidelines pertaining to transparency in blogging.

Under the guidelines, bloggers who make an endorsement would have to disclose any material connections they share with the seller of the product or service.

This would mean that any freebie a blogger receives would have to be fully disclosed to readers. And anytime a product is mentioned, any connection with the manufacturer would also have to be disclosed.

If the guidelines are adopted adopted, it would be the first time bloggers were brought under commission guidelines and the first time the FTC could go go after bloggers for “false claims” or “failure to disclose conflicts of interest.”

Bloggers are currently not held to any ethical guidelines, as compared to the ethical standards of journalists. Bloggers would be required to disclose affiliations with sponsors and marketers and any free giveaways they receive. The proposed penalty for violating the rules: a fine of as much as $11,000.

The Internet Advertising Bureau (IAB) has been one of the strongest and most vocal critics of the guidelines.

In an open letter to the FTC, the IAB claims — and rightly so — that the guidelines unfairly regulate online media without doing the same for offline media.

IAB president and chief executive Randall Rothenberg is outraged by the guidelines and insists that, despite the FTC’s argument that the guidelines are for “education”, they simply provide a means for the FTC to pursue bloggers.

Rothenberg’s criticism centres on the unfair treatment of online social media:

“The (guidelines) do allow you to pursue bloggers. They do hold individuals more liable than larger corporations. They do explicitly say online social media have less protection than offline corporate media,” he says.

“They do obstruct online companies’ opportunities to drive cultural conversation more than offline companies’. They do threaten with prosecution book publishers, movie producers, and other companies that supply products to individual social media conversationalists.”

As Rothenberg notes, the bigger problem is that offline media are not held to the same restrictions. This unfair treatment of one medium and not another is alleged to violate the U.S. Constitution’s First Amendment.

Free speech and freedom of the press have been long entrenched in U.S. society as protectors of traditional media. It makes little sense to stifle online media, which has the potential to reach millions of people worldwide.

Despite these legal challenges, problems also arise because the guidelines may be impossible to follow.

And perhaps the most ludicrous issue is prosecution: the Internet is full of bloggers whose numbers change radically from day to day. How the FTC plans to enforce its proposed guidelines is unclear.

And blogging seems to have some inherent self-regulation, making one wonder why these guidelines are needed at all.

If a blogger continually prom-otes a product, it will quickly become clear if the product’s manufacturer is behind the promotion, resulting in loss of credibility.

This is another example of why new ways of doing things should always be evaluated with an eye toward how similar, existing ways are already treated.

International negotiations continue on the Anti-Counterfeiting Trade Agreement.  The latest round of talks just ended.  It is a proposed treaty among a few countries to help stem the flow of counterfeit goods at borders.  Sounds reasonable - but there is a growing concern that the treaty would go far beyond that. 

It seems to support the US entertainment industry agenda that is being pushed by the US government – the same agenda that has garnered huge opposition on the Canadian copyright reform front.  It may even include support for the ill-advised three strikes law (I’ll have more to say about that in an upcoming Free Press column).   And if that’s not bad enough in substance, it is being negotiated out of the public eye.

For more details on the topic, search for “ACTA” on Michael Geist’s blog.  Michael includes his own thoughts, his presentation from a recent conference, and links to comments by others.