Here is the First Amendment in full:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
5. How does the First Amendment protect religious liberty?
It protects religious liberty through the establishment clause and the free exercise clause. The establishment clause — “Congress shall make no law respecting an establishment of religion” — provides for separation between church and state. The free exercise clause — “or the free exercise thereof” — means that individuals can hold whatever beliefs they wish on religion or nonreligion and to freely practice those beliefs.
While this is certainly true, it’s not the whole truth. These two clauses certainly explicitly protect religious freedom; all the other clauses, to some extent, implicitly protect religious freedom.
To further discuss this, I’ve parsed the First Amendment into its separate clauses, which I discuss separately. (Note that parsing the First Amendment is a non-trivial exercise and there is at least one other parsing that I considered – if you disagree with my parsing below, I’m most interested in hearing your version.)
Congress shall make no law respecting an establishment of religion
One of the two clauses explicitly protecting religious freedom.
Congress shall make no law prohibiting the free exercise of religion
One of the two clauses explicitly protecting religious freedom.
Congress shall make no law abridging the freedom of speech
Nowadays, when we talk about freedom of speech, we often think of freedom of political speech, but free speech is required for the practice of most religions. Free speech protects the right to preach, to pray aloud, to recite creeds and simply to state one’s religious beliefs.
Congress shall make no law abridging the freedom of the press
Nowadays, when we talk about the press there is almost an implicit assumption that we are talking about the Fourth Estate, that is newspapers and other journals. The framers of the Bill of Rights certainly saw a free press as a protection against tyranny. For example, George Mason in his Master Draft of the Bill of Rights stated “the Freedom of the Press is one of the great Bulwarks of Liberty”.
However the term “press” has a wider meaning, it encompasses the printing press and also applies to any form of publishing establishment.
A free press is required for the printing of religious texts. Restriction of the press has been used to restrict the freedom of religion, and the framers of the Bill of Rights would certainly have been aware of this. For example:
In 16th century England the Tyndale Bible, the first mass produced English translation of the Bible, was banned. Tyndale was arrested by church authorities, tried for heresy, strangled and burnt at the stake.
In 1668, after writing The Sandy Foundation Shaken (a text espousing his Quaker views) William Penn was charged for publication without a license and imprisoned in the Tower of London.
Congress shall make no law abridging the right of the people peaceably to assemble
Nowadays, when we think about the right to assemble, we normally think of political assembly and in particular the right to protest. But we shouldn’t forget that the practice of most religions involves peaceful assembly. Religious persecution has often been carried out by breaking up religious meetings, prosecuting those involved in said meeting, or banning such meetings. For example:
In 1662 John Browne was arrested was arrested on orders of Peter Stuyvesant, Director-General of the colony of New Netherland (now New York) for allowing a Quaker meeting in his house.
In England the Conventicle Act of 1664 forbade religious assemblies of more than five people outside the Church of England.
In 1670 William Penn was arrested, accused of preaching before a gathering in the street. Penn had deliberately provoked the authorities in this way to test the validity of the then new law against assembly.
Congress shall make no law abridging the right to petition the Government for a redress of grievances
What’s this about then? It seems almost unrelated to the other clauses.
In December 1657 by a group of citizens from the town of Flushing (now part of Queens, New York) petitioned Peter Stuyvesant, protesting against his persecution of Quakers. None of the 30 signatories of the petition were Quakers themselves. This petition became known as the
Flushing Remonstrance. Stuyvesant arrested those who presented the document to him, and forced the signatories to recant. Edward Hart, the town clerk, and Tobias Feake, sheriff of Flushing, refused to recant, and spent over a month in prison.
Nowadays we tend to think about the right to petition as a means of achieving political aims and as a means of protecting public participation in government, however petitions have historically been used to protest against religious persecution.
Every single clause of the First Amendment protects religious liberty. Removal of any of these clauses would open the door to a form of religious persecution.
The Statute of Anne, the first copyright law, entered into force 300 years ago today, on the 10th April 1710. It established a copyright term of 14 years, which could be renewed for another 14 years if author was still alive when the first term expired (books already in print were granted a copyright term of 21 years).
The Copyright Act 1814 extended the copyright length to 28 years, and if the author was still alive when the term expired, the right of publication could be extended for the rest of the author’s life.
The Copyright Act 1842 extended the copyright term to the life of the author plus 7 years, or 42 years from the first date of publication, whichever was longer. Posthumously published works were provided with a 42 year copyright term.
The Copyright Act 1911 extended the term of copyright to life and fifty years (with certain exceptions).
The Copyright, Designs and Patents Act 1988 extended the copyright term to seventy years from the death of the author for literary, dramatic, musical or artistic works. If the author is unknown, copyright expires seventy years after the work is first made available to the public. If the work is computer-generated, copyright expires fifty years after the work is made.
In most countries around the world, copyright length is life of the author plus 50 years or life of the author plus 70 years
The first major criminal trial to be held without a jury in Britain for more than 350 years (the Heathrow Airport Robbery Trial) concluded yesterday. Until this case, and since the abolition of the Court of Star Chamber in 1641, all serious criminal offences on indictment were tried by jury. Trial by jury traces its roots back to Article 39 of the Magna Carta signed by King John in 1215.
Trials on indictment without a jury were made possible by The Criminal Justice Act 2003. A judge may now order a jury-less trial in the specific cases of complex fraud and jury tampering.
There has been much discussion about the ramifications of the removal of the right to trial by jury in criminal trials. I think that the right to trial by jury of ones peers is an important right, and I think it was wrong to remove that right.
But, in the context of our situation where we have had our right to trial by jury removed, I want to talk about something else – the form of those jury-less trials.
The jury should be replaced, not eliminated
In a jury trial, broadly speaking, the judge rules on matters of law and is responsible for sentencing; the jury decides matters of fact (by evaluating the evidence). What’s more the jury consists of individuals with varying opinions and backgrounds – the debate that occurs between jurors in the jury room is an essential part of establishing a verdict. A judge sitting on their own has nobody to challenge their assumptions.
When a case is tried by a single judge, both the form of the trial and the dynamic of the courtroom is radically changed.
Part 7 (Trials on indictment without a jury) of The Criminal Justice Act 2003 addresses the problems of complex and lengthy trials and the problems of jury tampering. These are problems resulting from having citizen jurors, not problems resulting from a having a jury per se.
Rather than solving the problems by complete removal of the jury, I believe that the less drastic measure of replacing the citizen jury by an appointed jury should be adopted. In particular:
- The jury should be replaced, not combined with the role of judge. That is there should be a judge who acts as judge in the case, and a separate judge who sits unrobed in the jury box and acts as proxy for the jury. Being unrobed is important, since it is a constant reminder to the court that the judge is acting as jury, not as judge and jury.
- Having said (2), and mentioned the importance of debate within the jury, I think that if the jury is replaced, then it should actually be replaced by at least two judges who sit unrobed in the jury box.
- The sitting judge should treat the appointed jury of judges just like a citizen jury.
- Having three judges for a trial is undoubtedly expensive, but the expense serves as a disincentive to removing a citizen jury.
In its press release of 4 January 2010, the UK Joint Committee on Human Rights (JCHR) welcomed “short submissions of up to 1500 words from interested parties by Monday, 18th January.”
The committee identified the nine priority areas for scrutiny in 2010, based on the significance of the human rights issues involved and the likelihood of legislation being passed before the end of the parliamentary session. These were:
- Illegal file-sharing
- DNA and fingerprints
- Domestic violence
- Stop and search
- Enforceable entitlements for parents and pupils
- Mandatory sex and relationships education
- Reporting of Family Court proceedings
- Entitlement to personal care at home
- Asylum support and destitution
I found out about the press release on the 14th of January and hastily put together some comments on (2) DNA and fingerprints and (4) Stop and Search. I would also have liked to comment on item (1) Illegal file-sharing, but did not do so because of lack of time.
Because of the lack of notice given by the JCHR my response is rushed, and I’m not particularly pleased with the quality of my arguments. But I figure it is better to give a rushed response than no response at all.
My response follows:
JCHR legislative scrutiny priorities for 2010 – comments from Martin Budden
This document, dated 18th January 2010, is my submission to the The Joint Committee on Human Rights legislative scrutiny priorities for 2010, as is welcomed in their press release at: http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/jchrpn06_040110.cfm
I am commenting as an individual. My name and address is:
Please remove my address in any published form of this document.
I am commenting on two of the nine priority areas identified by the JCHR, namely: DNA and fingerprints, and Stop and Search
(2) DNA and fingerprints
The JCHR is scrutinizing the Government’s proposed DNA retention framework contained within The Crime and Security Bill to see if the new the new framework remedies the incompatibility with the right to respect for private life as described in Article 8 of the ECHR.
I would like to suggest that the JCHR examines if the proposed DNA retention framework is compatible with Article 5, the right to liberty and security of person.
Article 5 states that a person may only be arrested or detained if there is a reasonable suspicion of having committed an offence.
A cold hit DNA match is often used to arrest or detain a person. So the question poses itself: “Is a cold hit DNA match grounds for reasonable suspicion?”. The answer to that depends on the frequency of false DNA matches, which in turn depends on the DNA false positive probability and the number of people on the DNA database.
Let us look at the numbers. The quoted false positive rate for the SGM Plus DNA profiles used in the national DNA database is 1 in one billion*. The national DNA database currently contains the profiles of about 5 million people, so for any given search against the national DNA database the the chance of a false positive is about 1 in 200. For the sake of example, let us assume the police check 200 crime scenes a week against the DNA database – this would result in one false match a week. If there is one false match a week, can a cold hit DNA match be grounds for reasonable suspicion? The JCHR needs to answer this question.
To draw an analogy: the chances of winning the lottery are only one in 14 million, yet someone wins almost every week. If a person is required to have their DNA profile loaded on the national DNA database then they are effectively being forced into entering a lottery where the ‘prize’ is at best wrongful suspicion, but at worst could be wrongful detention, wrongful arrest or even wrongful conviction. And this lottery takes place much more often than once a week. While society can accept that convicted criminals should be forced to enter such a lottery, I do not think subjecting citizens who have not been convicted of a crime to this possibility of injustice is compatible with the right to liberty and security of person as specified in Article 5 of the ECHR.
Note that the figures given above are simplified for the sake of example, but the underlying question is valid – does the inclusion of unconvicted people in the national DNA database raise the false positive rate sufficiently to mean that a cold hit DNA match for one of those unconvicted people is no longer grounds for ‘reasonable suspicion’? If so, then an arrest or detention based solely on a cold hit DNA match would violate Article 5 of the ECHR. If so, then it is clear that the profiles of all unconvicted individuals should be removed from the national DNA database.
I do not claim to have the answer to that question. But I do assert is that that question must be answered. To do so the JCHR needs to take expert statistical and scientific advice. Scientific advice is needed to get a better estimate of the DNA false positive match probability. Statistical advice is needed to estimate how frequently false positive matches occur and whether that frequency means that people are detained or arrested without ‘reasonable suspicion’.
* – the 1 in a billion false positive rate is a somewhat arbitrary value. It is based on calculation, not actual sampling. It makes assumptions about the distribution of STRs (short tandem repeats) and does not take into account that sometimes partial profiles are used, not does it take into account the possibility of laboratory contamination.
I would also like to suggest that the JCHR examines if the proposed DNA retention framework is compatible with Article 14, the right to freedom from discrimination.
The national DNA database contains disproportionate representation of certain groups, especially black and ethnic minority young people. Given there is a chance of a false positive DNA match and that such a match could result in detention, arrest, or even conviction, the disproportionate representation of certain groups in the database means that members of those groups will have a disproportionate number of false matches and therefore a disproportionate number of erroneous detentions, arrests and convictions. Therefore the inclusion of the DNA profiles of unconvicted individuals in the database is discriminatory and in violation of Article 14 of the ECHR.
(4) Stop and search
The JCHR is scrutinizing the reduction in reporting requirements on stop and search forms contained within The Crime and Security Bill to see if the new the new framework remedies the incompatibility with the right to respect for private life as described in Article 8 of the ECHR.
I would like to suggest that the JCHR examines if reduction in reporting is compatible with Article 14, the right to freedom from discrimination.
Stop and search is already being used disproportionately against ethnic minorities, so the current reporting requirements are not sufficient to prevent discrimination.
What’s more a reduction in ‘red tape’ will mean that more searches will occur (since there is less administrative disincentive to stop and search, and since the police will have more time to stop and search). Since more searches will occur, and the searches are currently discriminatory, more discrimination will occur.
So any reduction in ‘red tape’ without increased oversight to reduce ethnic discrimination will result in more discrimination, and so is incompatible with Article 14 of the ECHR.
Martin Budden, 18th January, 2010
When I first heard about the Google Book Scanning Program, I thought: They can’t do that, it breaks copyright law. I now know this position is too simplistic.
So why did I change my opinion? Well, I bought an ebook reader. And quite a few of the books that were free were about copyright and copyright law. I read them. To my surprise I found it a fascinating subject. These books included Free Culture by Lawrence Lessig, The Public Domain: Enclosing the Commons of the Mind by James Boyle and CONTENT: Selected Essays on Technology, Creativity, Copyright and the Future of the Future by Cory Doctorow.
As technology advances the law needs to change to keep up. And, perhaps surprisingly, the law has been remarkably good at adapting itself to the advent of new technology. I’ll qualify that: when new broad laws or judgements are made they tend to understand the essence of the new technology and these laws or judgements tend to be remarkably robust, some are even almost prescient (the judgement that software should be protected by copyright law, not patent law, for example). However when new specific laws or judgements are made to address a particular problem the result tends not to be so good.
The pioneers of technology often find themselves in a grey area of the law, or even on the wrong side of the law. Lessig’s and Boyle’s books are full of examples:
- In the early days of aviation it was illegal to fly over private property, since the owner’s property rights extended indefinitely upward.
- When radio started broadcasting recorded music the artists complained that their “creative property” was not being respected and that they should be paid. This claim was rejected (when a radio plays a recording it only has to pay the composer, not the artist)
- Cable TV. When companies first started wiring communities with cable television in 1948, most refused to pay broadcasters for the content that they echoed to their customers. Even when the cable companies started selling access to television broadcasts, they refused to pay for what they sold.
- VCR. When Sony produced the VCR the film studios claimed that, because the device had a record button, Sony was benefiting from the copyright infringement of its customers. Then MPAA president Jack Valenti warned, “When there are 20, 30, 40 million of these VCRs in the land, we will be invaded by millions of ‘tapeworms,’ eating away at the very heart and essence of the most precious asset the copyright owner has, his copyright. One does not have to be trained in sophisticated marketing and creative judgment, to understand the devastation on the after-theater marketplace caused by the hundreds of millions of tapings that will adversely impact on the future of the creative community in this country. It is simply a question of basic economics and plain common sense.”
Progress often requires technology pioneers to test the law. If Sony had just acquiesced and said “OK, VCRs are illegal, we won’t do those” it would have been to the detriment of everybody: the general public and the movie and television industries.
As technology evolves, the law adjusts. In the case of copyright sometimes this means more rights for creators, sometimes less. As Lawrence Lessig says in Free Culture:
In each case throughout our history, a new technology changed the way content was distributed. In each case, throughout our history, that change meant that someone got a “free ride” on someone else’s work. In none of these cases did either the courts or Congress eliminate all free riding. In none of these cases did the courts or Congress insist that the law should assure that the copyright holder get all the value that his copyright created. In every case, the copyright owners complained of “piracy.” In every case, Congress acted to recognize some of the legitimacy in the behavior of the “pirates.” In each case, Congress allowed some new technology to benefit from content made before. It balanced the interests at stake. In our tradition, as the Supreme Court has stated, copyright “has never accorded the copyright owner complete control over all possible uses of his work.” Instead, the particular uses that the law regulates have been defined by balancing the good that comes from granting an exclusive right against the burdens such an exclusive right creates.
The Google Book Scanning Program is just another case where the law must balance the interests at stake. It is certainly in the public interest that our cultural heritage is digitised and made searchable. It’s also in the interests of authors. It’s in the public and authors interest that out of print works are made available.
It’s not, however, in anyone’s interest that Google has a monopoly. But the way to avoid a monopoly is not to stop Google digitising books, but to get more people to do so. Amazon. Microsoft (which only recently stopped its digitization project). Government funded Legal Deposit Libraries (such as the British Library). The EU free access library Europeana.
It seems that after initial knee-jerk reactions people are coming to their senses. In July, Viviane Reding, EU Commissioner for Telecoms and Media, stated:
We should create a modern set of European rules that encourage the digitisation of books. More than 90% of books in Europe’s national libraries are no longer commercially available, because they are either out of print or orphan works (which means that nobody can be identified to give permission to use the work digitally). The creation of a Europe-wide public registry for such works could stimulate private investment in digitisation, while ensuring that authors get fair remuneration also in the digital world… Let us be very clear: if we do not reform our European copyright rules on orphan works and libraries swiftly, digitisation and the development of attractive content offers will not take place in Europe, but on the other side of the Atlantic . Only a modern set of consumer-friendly rules will enable Europe’s content to play a strong part in the digitisation efforts that has already started all around the globe.
On the 7th of September EU Commissioners Reding and McCreevy issued a joint statement: It is time for Europe to turn over a new e-leaf on digital books and copyright. In it they said:
…we also need to take a hard look at the copyright system we have today in Europe. Is the present framework still fit for the digital age? Will the current set of rules give consumers across Europe access to digitised books? Will it guarantee fair remuneration for authors? Will it ensure a level playing field for digitisation across Europe, or is there still too much fragmentation following national borders? What could be the contribution of Europeana, Europe’s digital library, when it comes to working on a European response to digitisation efforts in other continents? Is Europe’s copyright framework modern enough when it comes to digitising orphan works and out-of print works? These books represent the vast majority of European libraries’ collections (around 90%) . In our view, these books must be recovered and given a new lease of life.
Once again the law is adjusting itself to technology.
I’m a technologist. I love technology. But now I’m starting to love the law as well. I certainly understand why some people have a passion for the law.
On 16 June the Government published The Digital Britain Report, its strategic vision for ensuring that the UK is at the leading edge of the global digital economy. This report received a lot of coverage in the press because it:
- included proposals to throttle the internet speed of those caught illegally file sharing and allow Ofcom to force ISPs to collect data about those sharing files.
- recommended that every household have access to a connection of 2Mbps or more by 2012.
- proposed that households and businesses will have to pay a £6-a-year tax per landline telephone to extend internet access across the country.
I want to talk about something else: the report also contained proposals about the use of orphan works.
So what are orphan works? An orphan work is a work that is in copyright and where, even after an extensive search, the copyright owner cannot be identified or found.
Orphan works form a large part of our culture and heritage that is virtually inaccessible. These works include books, photographs, movies and television programmes.
These works cannot be used without risk of civil and even criminal prosecution. They cannot even legally be digitized so that they can be searched. The quantity of orphan works is vast: the British Library estimates that 40% of its archive consists of orphan works and the BBC estimates that about one million hours of orphaned programmes are contained in its archives. All this material is effectively lost to humanity. The consequence for film is much more dire: old film deteriorates and will be lost forever unless it is preserved and restored. But no one is going to pay to restore film that cannot be shown.
The problems surrounding orphan works include:
- Some works are physically deteriorating and may be lost entirely before they can be preserved or restored
- Some works are effectively inaccessible to the public. They are only available to those who can access copyright libraries.
- Some works are effectively inaccessible to anyone. They are not indexed, searchable or discoverable so their content cannot be found even by a dedicated searcher such as a historian, filmmaker or publisher with a keen interest in their content.
- Orphan works do not generate income for their copyright holders
- Orphan works cannot be republished, even by someone willing to pay the copyright holder, since the copyright holder cannot be found
You may recall the Mitchell & Kenyon Collection of films that was screened on the BBC a few years ago. The films were rediscovered in the 1990s, after languishing for many decades in the basement of a shop in Blackburn. The films were expensively restored by the BFI (British Film Institute). These films give a fascinating view of Edwardian England and form the largest collection of early non-fiction films in the world. These films date from about 1900 and are out of copyright – this means they can be restored, copied and shown to the public.
Suppose someone found a collection of old films about the Second World War, or the Korean War, or perhaps showing some interesting aspect of our industrial heritage in the 1950s. Could the BFI legally restore and distribute them? Could the BBC show them as part of an educational or cultural programme? The answer is no, not without obtaining permission from the copyright owner(s). But how can the copyright owner(s) be found?
Suppose you found an old photo of your parents’ wedding, taken by a professional photographer. Could you have it professionally retouched? The answer is no, not without obtaining permission from the copyright owner.
When a copyright owner cannot be found projects which might benefit our national heritage are abandoned. Scholars cannot make use of letters, images, books and manuscripts. Publishers cannot republish old works that have been forgotten. Museums are frustrated in the creation of exhibitions, books and websites. Archives cannot make rare footage available to wider audiences. Documentary filmmakers must exclude important source material from their films.
Digital Britain Report and Orphan Works
To its credit the Digital Britain Report looks at the problems associated with orphan works.
The Executive Summary, paragraph 47 states:
we will also make some changes to the legislative framework around copyright licensing, to tackle problems such as those surrounding the use of so-called orphan works and thus help digital markets in those works to develop.
paragraphs 43 and onward in Chapter 4, Creative Industries in the Digital World state:
43. …In order to pave the way for a more effective framework to deal with orphan works, the Government proposes to introduce legislation to enable commercial schemes for dealing with orphan works to be set up on a regulated basis.
…However, the expectation is that anybody wishing to use orphan works will be expected to secure an appropriate permission from the Government first…
Where the Digital Britain Report falls down
The report fails to understand a fundamental point: there is the public interest case for making orphan works more easily accessible and there is the copyright holder’s interest in being reunited with their works, and those two interests are rarely in conflict.
We are currently in the lose-lose situation where works are inaccessible to the public, and where copyright holders are not getting credit or payment for their works. We need to find solutions that work in the public and copyright holders’ interests. Works need to be un-orphaned.
There are two main solutions being proposed, I’ll call these ask permission and ask forgiveness.
This is the approach currently favoured by Britain and the EU. It means anyone proposing to use an orphaned work must as a Government approved body for permission to use the work (after doing a due diligence search for the author).
The trouble with this approach is that it simply does not address the problem. It doesn’t help identify copyright owners. It doesn’t allow mass digitization for indexing purposes. It prejudices the legitimate rights of the copyright holder. It doesn’t address the fact that there are vast quantities of orphaned works.
The latter point is particularly damning. This approach has been adopted in Canada. Since 1990 the Copyright Board of Canada has granted permission for the use of 237 works, these include “the reproduction of Châtelaine magazine covers in a promotional calendar”, “the reproduction of two nursery rhymes in an educational textbook” and “the reproduction of six images of aliens (source unknown)”. This is hardly unlocking the lost works of Canadian culture. (See http://www.cb-cda.gc.ca/unlocatable-introuvables/licences-e.html )
This is the approach being pursued in the US. There, provided a user makes a documented, good faith, diligent but unsuccessful search for the copyright holder, the user is free to use the work. (Of course the terms ‘diligent’ etc need to be defined, but that is a matter of legal detail.) The user is indemnified against prosecution. If the copyright holder resurfaces then they are entitled to a reasonable compensation for use of their work (again the precise legal meaning of ‘reasonable compensation’ needs to be defined – the US report goes into this in some detail).
Everyone wins. Our cultural heritage is unlocked, and copyright holders can get compensation for their works.
We need a digital archive of our culture that is available to historians, researchers and people who are simply curious. We need a means of republishing orphan works. We need to unlock our lost culture. Let’s not enact legislation that prevents all that.
EU Digital Libraries High Level Expert Group – Copyright Subgroup’s Final Report on Digital Preservation, Orphan Works, and Out-of-Print Works
United States Copyright Report on Orphan Works
Copyright Policy: Orphan Works Reform, Lawrence Lessig’s proposal
Much of the discussion around the release of the Lockerbie bomber has focused on the questions of “Should he have been released?” and “Why was he released?” – Was there a case for compassionate release? Should we ever release prisoners on compassionate grounds? Did Gordon Brown put pressure on the Scottish Government? Was there some kind of deal with Libya?
I’d like to talk about something else: who made the decision to release Abdelbaset al-Megrahi?
The decision to release al-Megrahi was made by Kenny MacAskill, the Scottish Cabinet Secretary for Justice and an elected Member of the Scottish Parliament. A politician. And there’s the rub: as long as a politician is the final decision maker over the liberty or detention of an individual, that decision is politicised. The decision maker is subject to political pressure, and even if they act with absolute integrity, they are subject to political backlash and accusations of political bias.
It is just plain wrong that a politician can decide to release or further detain a prisoner. Such decisions should be made by the judiciary (or in the case of parole, by the parole board).
The decision about whether to release al-Megrahi should have been made by a judge, or a panel of judges.
Much of the discussion around the UK government’s Consultation on Legislation to Address Illicit P2P File-Sharing has been about whether the penalty of internet disconnection is too severe, or about what is or is not legal, or about what should be legal.
I’d like to talk about something else: what happens when someone is accused of doing something illegal. What happens is that we go through the criminal justice system. People who break the law are sentenced by a judge after due legal process. The sentence passed takes into account previous convictions, so repeat offenders are properly dealt with.
The “creative industries” think the law is too slow and want to be able to directly punish people, bypassing the legal process.
The government is proposing that, in the interests of expediency, Ofcom or a government minister can act as judge and jury. There is nothing special about the crime of illegal file sharing that means extrajudicial powers of punishment should be granted either to Ofcom or to ministers.
Once a minister has this power, who’s to say their judgement won’t be biased by, say, the fact that the accused has a blog that is critical of the government.
Mandelson seems to want to create a Judge Dredd for the internet. And the most frightening thing is that, with the current cabinet, he would be Judge Dredd.
Here is my response to the Department of Business Innovations and Skills Consultation on Legislation to Address Illicit P2P File-Sharing. My response concentrated on the proposal that Ofcom, an administrative body, should be able to bypass the judicial process. There are many other problems with the proposed legislation – I choose not to address these since there are plenty of people addressing these in their responses. In particular we can rely on the ISPs acting in their own self interest to respond to a certain class of problems.
Dear Mr Klym,
This email is a response to the consultation document “Consultation on legislation to address illicit peer-to-peer (P2P) file sharing”. From now on I will refer to this document as “the consultation document”.
I am responding as an individual. My name and address is:
I strongly disagree with the proposal to give “Ofcom power to impose other obligations” as outlined in paragraph 4.23.
There are number of reasons this power should not be granted.
i) The consultation document itself recognises that this power is contentious. Paragraph 4.23 states “this element of the proposal is new and will be contentious”. Indeed it is so contentious that the consultation document recommends, in paragraph 4.27, that this power is “subject to annulment by resolution of either House of Parliament” to “ensure that the power cannot be used frivolously”.
ii) The power has been rejected elsewhere. In France (see paragraph 3.19), the French Constitutional Council “ruled that the decision to suspend internet connections of digital pirates should be made by the courts as opposed to an administrative body”.
Furthermore the European Parliament has passed an amendment to the Telecoms Package that states that judicial ruling is required to impose restrictions on end-users (see paragraph 3.20). What’s more the European Parliament stated that this was in “accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information”. So if the government passed a bill that allowed Ofcom power to impose other obligations it would do so in the knowledge that the bill was in contradiction to European law, and that any challenge to that bill taken to the European Court of Human Rights would be likely to succeed.
iii) Industry itself has stated that taking legal action is “having a clear effect”. See page 18 of “IFPI:07 Digital music report” at http://www.ifpi.org/content/library/digital-music-report-2007.pdf (a document cited in the consultation):
“Surveys on levels of illegal file-sharing across different countries show that legal actions are having a clear effect. Studies also show that fear of legal action is an important factor driving consumers away from unauthorised P2P. In the US lawsuits were the most cited reason among internet households for changing from unauthorised P2P to legal downloading”
iv) I’ve save the most important reason for last: the consultation document is proposing to give extrajudicial punishment powers to Ofcom. This shows an unwarranted lack of faith in the judicial system. What’s more, even if the judicial system were deficient, the correct response would be to fix the deficiencies in the judicial system, not to bypass it.
Let’s look at the proposal in a little more detail:
“It is entirely possible that the obligations on notification and collection of anonymised information on repeat infringers that may lead to legal actions taken by rights holders that we set out here will not, by themselves, deter some infringers.”
In other words someone who breaks the law, and is punished by due process of law, may continue to re-offend. Well, this is true of any criminal offence, and the legal system has means to deal with it: a judge takes previous convictions into account when passing sentence. In the context of peer to peer file sharing this means, in the case of re-offenders, that a judge should be able to order ISPs to impose technical measures such as blocking, bandwidth shaping and filtering. It does not mean that the Ofcom should be able to bypass the judicial process and directly require ISPs to impose these technical measures.
Here is my response to the Home Office consultation Keeping the right people on the DNA database. There are a number of problems with the Home Office’s proposals, my response focuses on quite a narrow area – I have seen other responses that highlight many of the other problems.
Dear Sir or Madam,
this email contains my comments to the paper “Keeping the right people on the DNA database” at: http://www.homeoffice.gov.uk/documents/cons-2009-dna-database (from now on referred to as “the paper”).
The paper makes recommendations about how to comply with the ECtHR ruling in the S and Marper case. There are a number of recommendations that I agree with, but there are also a number of recommendations that I believe that will not ensure compliance with the above ruling. This means the UK government could be put in the embarrassing position of having its recommendations overturned by a future ECtHR ruling.
Recommendations that I agree with:
a) Samples taken from suspects on arrest are destroyed once a profile has been created. (Samples from crime scenes retained indefinitely).
b) Adults convicted of a recordable offence will have their profiles retained indefinitely.
c) Profiles from individuals volunteering to have their DNA taken, for example for elimination purposes, will not be stored on the database.
There are serious problems, however, with the recommendations pertaining to samples taken from people who are arrested but not convicted of offences. These problems lie in four main areas:
i) the lack of discrimination between people who are arrested but not charged and those who are arrested and acquitted. Also the lack of discrimination between those who are arrested and convicted, and those who are cautioned, warned or reprimanded.
ii) the assumption that the hazard rate of arrest for someone previously arrested can be estimated from the conviction rate of people previously convicted.
iii) that the paper recommends different retention periods for “serious” and “non serious” offences, despite stating in several places that this is not a good idea.
iv) that protection of the public includes protection from wrongful arrest and wrongful conviction.
I will deal with these in turn:
i) Lack of discrimination. One of the main findings of the ECtHR was that the indiscriminate nature of the powers of retention of DNA profiles fails to strike a fair balance between the competing public and private interests and that the State has overstepped any acceptable margin of appreciation in this regard. Therefore, since the paper states that the government is committed to complying with the ruling, any recommendations must increase the level of discrimination applied.
It is impossible to see how any recommendations that fail to discriminate between the guilty and the innocent would comply with the ECtHR ruling. The paper makes the same recommendations for those arrested, tried and acquitted (who must be presumed innocent) and those arrested and not tried (who therefore may or may not be guilty). What’s more the same recommendations apply whether or not the person was charged and whether or not the person was cautioned, warned or reprimanded.
Essentially the recommendations lack discrimination and amount to a presumption that an arrested person is guilty. The profiles of arrested people are treated the same whether or not that person is guilty of the offence.
My view is that DNA profiles should only be kept if the suspect is charged with a crime. If they are subsequently acquitted then the DNA profile should be removed.
ii) Assumption about the hazard rate of arrest. Paragraph 6.10 (page 15) states “For this to be valid, we would have to believe that the risk of offending following an arrest which did not lead to conviction is similar to the risk of re offending following conviction”. Section 6.11 states “This is obviously a controversial assertion”. That is correct. It is certainly too controversial to be the basis of any recommendations, especially given that there is little evidence (the paper quotes one study that “suggests” this). This means that there is no real evidence based reason for the proposed retention periods. Further research is required here.
iii) Paper’s self-contradiction. The paper states in a number of places that retention period should not depend on the seriousness of the offence. Page 32: “[if] a policy of selective deletion is decided upon, based on the seriousness of the offence leading to the initial offence, it will lose most of its potential in downstream detection”. The conclusions of Annex C (page37) states: “Selective deletion by offence seriousness or youth of arrestee would remove most of the detective value of retention for the arrestee NFA [no further action] group”. Paragraph 2.8 of Annex D (page 90) states: “the evidence does not support giving minor crimes a different retention period”.
Yet despite all this, the paper recommends a different retention period for “serious” and “not serious” offences. Why?
iv) The protection of the public from wrongful arrest and wrongful conviction. It is part of the public interest that members of the public are not wrongfully arrested or convicted. Having an innocent person’s DNA retained means that there is a potential for a mismatch of that person’s DNA profile with the DNA found at a crime scene. This can result in wrongful arrest, and also wastes police time, since they need then to deal with the mismatch. In the worst case this could lead to wrongful conviction. It is not in the interests of the police or the individual to have innocent people’s DNA profiles in the database. Now clearly it is impossible to ascertain the innocence of all arrestees, but a less acquisitive stance is beneficial. As I have heard it said: “When you are looking for a needle in a haystack, it’s not a good idea to make the haystack bigger”.
There is real (albeit) small risk that people are wrongfully arrested because of DNA evidence, yet the paper makes no mention of this risk, nor any measures to mitigate it.