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Posted on Techdirt - 2 December 2016 @ 1:11pm

Antigua Says It Will Certainly, Absolutely, Definitely Use WTO Permission To Ignore US Copyright And Set Up A Pirate Site, Maybe

from the don't-make-us-do-this dept

One of the longest-running, and most extraordinary, sagas on Techdirt concerns the island of Antigua. Over 13 years ago, the country filed a complaint at the World Trade Organization (WTO) over the US ban on online gambling, which Antigua said violated a trade agreement between the two countries. Long story short, the WTO not only agreed, but said that the Caribbean country could ignore US copyrights, and set up a WTO-authorized pirate site to obtain the $21 million in WTO sanctions that the US was refusing to pay as compensation for blocking Antigua's online gambling sites. In 2013, Antigua was still saying it was definitely going to do this if it couldn't come to some agreement with the US on the matter, and the US was still refusing to settle.

Three years later, Antigua -- officially known as Antigua and Barbuda -- has just told a meeting of the WTO's Dispute Settlement Body (DSB) the following:

Antigua and Barbuda now informs the DSB that, if an appropriate and beneficial settlement is not reached with the US by year-end, the government will be compelled to take action to enforce the suspension of copyright on the sale of US intellectual property, consistent with the award of the DSB.
That's from a copy of Antigua's statement (pdf), obtained by IP Watch. The spokesperson claims the country has suffered serious losses as a result of the US gambling ban:
Over that entire 12-year period, my small country with a Gross Domestic Product of just $1 billion has been deprived of trade revenues which now exceed $250 million.
The statement points out that for the US, $250 million represents just 0.0003% of its annual GDP, and that over the last 12 years, the US has enjoyed a trade surplus of $1 billion with Antigua. Moreover:
While the US continues to act in contradiction of the rulings and recommendations stipulated by DSB concerning my country, it remains the most active user of the institution's Dispute Settlement System.
As a result of the continuing US intransigence, Antigua feels it has no choice but to take the momentous step of absolutely definitely setting up that WTO-authorized piracy site -- just like the last time it said that.

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Posted on Techdirt - 1 December 2016 @ 9:39am

China Files A Million Patents In A Year, As Government Plans To Increase Patentability Of Software

from the those-who-cannot-remember-the-past-are-condemned-to-repeat-it dept

Techdirt has been following for some years China's embrace of patents, loudly applauded by Western companies who believe this will give them more power there. The country has just passed a notable milestone in this area:

China is driving Asian-led growth in innovation worldwide, becoming the first country to file 1 million patent applications in a single year, the World Intellectual Property Organization (WIPO) said on Wednesday.

Chinese innovators filed most of their 2015 applications in electrical engineering, which includes telecoms, followed by computer technology and semiconductors, and measurement instruments, including medical technology, the U.N. agency said.
Reuters gives its story the headline "China top innovator with one million patent requests in year: U.N." But as Techdirt has pointed out again and again and again, more patents do not lead to more innovation, just to more patents. And it seems that is precisely what China wants. A report on Bloomberg notes that China is planning to make it even easier to get patents for both software and business methods:
[Proposed patent examination guidelines] seek to address concerns that some examiners have been too cautious in treating all references to business models or computers as red flags that signal unpatentability. A sentence in the draft explains that claims relating to a business method are not excluded from patentability if they contain sufficient technical features.

Meanwhile, another change clarifies that apparatus claims relating to software can contain both hardware and "program" components. And the draft changed language that some examiners have interpreted as barring nearly all computer program references. The guidelines clarify that inventions relating to "computer programs per se" are not patentable because those are rules and methods for mental activities.
China's move to embrace software patents and business methods comes at a time when both have become less patentable in the US thanks to the Alice decision, which is well on the way to killing software patents in the US. Of course, patent maximalists are drawing exactly the wrong conclusion here:
Critics in the U.S. have long argued that the U.S. Supreme Court's decision in Alice Corp. v. CLS Bank International has made many genuine software-related inventions unpatentable. At the same time, they say an improving environment in China means that patent holders should consider going there to enforce and monetize their IP.
Good luck with that. As the book "Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk" by James Bessen and Michael J. Meurer chronicles, software patents and their associated lawsuits have imposed a huge net cost on the US technology ecosystem. It's mostly patent trolls and lawyers who have benefited from the thicket of intellectual monopolies that has threatened to strangle innovation. The same is likely to happen in China as it foolishly follows the US down the path of allowing patents on everything under the sun.

That may be good news for the West in the long term, as the Chinese tech industry descends into an orgy of patent infringement suits that saps its resources and energy. But in the short term, many of the Western companies that are operating in China are likely to get caught up in this expensive, pointless mess too.

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Posted on Techdirt - 30 November 2016 @ 11:42am

Ahead Of President Trump, The Web's One And Only Backup Wants To Make A Backup Of Itself (In Canada)

from the you-know,-just-in-case dept

The Internet Archive is probably the most important site that most people have never heard of, much less used. It is an amazing thing: not just a huge collection of freely-available digitized materials, but a backup copy of much of today's Web, available through something known as the Wayback Machine. It gets its name from the fact that it lets visitors view snapshots of vast numbers of Web pages as they have changed over the last two decades since the Internet Archive was founded -- some 279 billion pages currently. That feature makes it an indispensable -- and generally unique -- record of pages and information that have since disappeared, sometimes because somebody powerful found them inconvenient.

Given the way the world is going at the moment, that's a problem that is likely to get worse, not better. The founder of the Internet Archive, Brewster Kahle, is worried about that prospect, as he makes clear in a blog post:

On November 9th in America, we woke up to a new administration promising radical change. It was a firm reminder that institutions like ours, built for the long-term, need to design for change.

For us, it means keeping our cultural materials safe, private and perpetually accessible. It means preparing for a Web that may face greater restrictions.

It means serving patrons in a world in which government surveillance is not going away; indeed it looks like it will increase.

Throughout history, libraries have fought against terrible violations of privacy -- where people have been rounded up simply for what they read. At the Internet Archive, we are fighting to protect our readers' privacy in the digital world.
Ever the visionary, Kahle has come up with a bold plan to minimize possible damage from the incoming US administration, and any new laws harming the Internet that it might introduce:
So this year, we have set a new goal: to create a copy of Internet Archive's digital collections in another country. We are building the Internet Archive of Canada because, to quote our friends at LOCKSS, "lots of copies keep stuff safe." This project will cost millions.
Creating a backup of the Web's backup in this way would have been a great idea under any circumstances -- it's rather foolish to depend upon a single site to preserve humanity's collective digital memory. But it becomes even more prudent given the "radical change" that may be coming. And locating outside the US jurisdiction, in Canada, is a wise move.

As Kahle says, the project will cost millions, and he's asking for donations to help him realize his plan. As anyone who has used the Internet Archive knows, he deserves our support for what he has already achieved and made freely available through this invaluable resource. But supporting the next stage of his great project with a donation takes on an additional importance: it is not just a nice thing to do, it's a wonderful way to help the Web become more resilient to whatever 2017 may start throwing at it.

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Posted on Techdirt - 30 November 2016 @ 3:24am

Russia Draws On Chinese Expertise And Technology To Clamp Down On Internet Users Even More

from the this-could-be-the-start-of-something-big-but-not-so-beautiful dept

There seems to be some kind of unspoken competition between Russia and China to see who can clamp down on the Internet the most. Techdirt readers might like to offer their own views in the comments as to who is winning that unlovely race. But the days of repressive rivalry are drawing to a close; according to this article in the Guardian, Russia has decided that it would be much simpler to borrow some of China's ideas:

Russia has been working on incorporating elements of China's Great Firewall into the "Red Web", the country's system of internet filtering and control, after unprecedented cyber collaboration between the countries.
Just as important as the ideas is the actual technology:
The Russians apparently see no other option than to invite Chinese heavyweights into the heart of its IT strategy. "China remains our only serious 'ally', including in the IT sector," said a source in the Russian information technology industry, adding that despite hopes that Russian manufacturers would fill the void created by sanctions "we are in fact actively switching to Chinese".
That Russian source is clearly trying to suggest that this new partnership is all the fault of the West for imposing those silly economic sanctions, and that this could have been avoided if everybody had stayed friends. But the coziness between Russia and China has been coming for a while, as their geopolitical ambitions align increasingly, so the collaboration over surveillance and censorship technologies would probably have happened anyway. The interesting question is how the new alliance might blossom if the future Trump administration starts to reduce its engagement with the international scene to concentrate on domestic matters. The new Sino-Russian digital partnership could be just the start of something much bigger, but probably not more beautiful.

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Posted on Techdirt - 29 November 2016 @ 1:12pm

Cameroonian Government Calls Social Media A 'New Form Of Terrorism'

from the dangerous-as-a-missile dept

As Techdirt readers know, there's a bit of a debate going on currently about the influence that social media exerts on politics and society. If you are still a little undecided as to where you stand on this vexed subject, Cavaye Djibril, Speaker of the National Assembly in Cameroon, has a few thoughts on the subject (pdf):

I would like at this juncture to deplore what is developing into a new form of terrorism -- the social malaise now affecting the cyberspace, that is, the insidious effects of the social media.

The social media, which was initially perceived as a medium for online communication and information sharing, is now being used for misinformation, and even intoxication and manipulation of consciences thereby instilling fear in the general public. In fact, it has become as dangerous as a missile.
A fascinating post on Global Voices explains that Djibril's diatribe is part of a much larger government attack on social media. Television, radio and newspaper outlets controlled by the government have all piled in. Here's what the Cameroon Tribune wrote:
A careful analysis of the situation tells of a phenomenon that is proving to be dangerous for society if no measures are taken to scale it down. This is important especially as elections are approaching. People with political ambitions may dive into it and use it to fight their opponents.
Well, that's certainly true, but here's why the Cameroonian government really hates social media:
The immediate cause of the government's outrage was the deadly train derailment in Eseka, some 74 miles west of Cameroon’s capital, Yaounde, which resulted in the death of at least 80 people and injured over 600 on October 21, 2016. While social media users were nimble in sharing information about the disaster in real time, government officials and government-owned traditional media were slow to respond to, and inform the public about, the accident. In fact, pictures and videos of the tragedy were already being posted on Facebook, Twitter and other social media platforms when the government and Camrail (a subsidiary of the French conglomerate Bolloré that manages the railway system in Cameroon) were still denying that an accident occurred.
But it didn't stop there. As the Global Voices post notes, when government officials finally admitted that there had been an accident, social media continued to challenge the government version, which tried to play down the number of dead, and to lay the blame on allegedly-defective Chinese-made carriages. However, what really seems to have riled the Cameroon government is the following:
Most significantly, many Cameroonians criticized President Paul Biya on social media for what they perceived as his lukewarm attitude towards the tragedy -- not only did the president send a message of condolence to the victims from Switzerland (incidentally via social media), he did not return home immediately after the accident.
The flood of criticism and mockery that social media users directed towards the country's President seem to have been the last straw. As well as coordinated attacks by officials and government-controlled media, there are now rumors that the authorities are drafting a social media bill to stifle these kinds of posts.

The Cameroonian saga confirms just how powerful social media can be in holding those in power to account, and exposes the risk that thin-skinned rulers might take offense and abuse their powers to strike back. Luckily, this kind of thing could never happen in the US.

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Posted on Techdirt - 29 November 2016 @ 3:25am

Senior Brazilian Court Says 'Right To Be Forgotten' Cannot Be Imposed On Search Engines

from the memorable-ruling dept

Brazil's Superior Court of Justice (STJ), the highest court for non-constitutional questions of federal law, has ruled that the "right to be forgotten" -- strictly speaking, the right to be delisted from search results -- cannot be imposed upon Google or other search engines. As a post on Global Voices explains:

According to judiciary rapporteur Nancy Andrighi, the ruling stated that forcing search engines to adjudicate removal requests and remove certain links from search results would give too much responsibility to search engines, effectively making them into digital censors.
We don't know the details of the case, which was held "under secrecy of justice" according to the article. But the Global Voices post points out that there's another important "right to be forgotten" decision coming up in Brazil, this time from the country's top court:
Brazil's Supreme Court -- which is a higher court than the STJ -- will soon hear a different case on the right to be forgotten involving TV Globo, Brazil's largest TV network. The case is brought by relatives of Aida Cury, an 18-year-old girl who was brutally raped and assassinated in 1958, in a case that was never resolved. In 2008 TV Globo broadcasted a story on the case. The relatives sued the network, arguing that the story 'unearthed a painful time for the family' and their lawyers invoked the thesis of the "right to be forgotten".
If Brazil's Supreme Court joins the STJ in refusing to acknowledge a "right to be forgotten" here, this would place the country at odds with South Korea, which has decided to follow the EU in introducing this new right. If nothing else, that discrepancy would demonstrate that it is not a foregone conclusion that other jurisdictions will adopt this particular European innovation.

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Posted on Techdirt - 23 November 2016 @ 10:47am

TPP Dead, TTIP Dying, But The EU And Canada Seem Determined To Ram Through CETA Deal Without Proper Scrutiny

from the cost-benefit-analysis,-what's-that? dept

The death of TPP has now been confirmed by Donald Trump himself in a short video posted to YouTube. As Mike wrote recently, the other huge trade deal, TTIP, is now in limbo, probably dying, and there are rumors that even the low-profile Trade in Services Agreement (TISA) has been put on ice pending instructions from the new President. Doubtless attempts will be made to revivify them, and if those fail, there will certainly be further so-called "trade" deals -- which actually go way beyond trade -- that seek to bring in all the bad things that Techdirt has been warning about for years.

But alongside TPP, TTIP and TISA, there is one deal that is teetering on the brink of success. CETA is a smaller-scale agreement between the EU and Canada, but it's more important than it looks. It allows US companies with subsidiaries in Canada to use the agreement's corporate sovereignty provisions to sue the EU -- and there are 42,000 such companies according to one analysis (pdf). As a result, CETA has been called "TTIP by the backdoor," since it would provide a handy way for US companies to put pressure on EU nations even if TTIP suffers the same fate as TPP.

Perhaps because CETA looks increasingly like the last hope for the establishment to push through an old-style trade deal, there is now an unseemly haste on both sides of the Atlantic to ram it through the ratification process as quickly as possible, with as little scrutiny as possible. That's most clearly seen in the EU, where the normal procedures for approval have been thrown out of the window, as this post explains:

CETA will only officially arrive at the European Parliament on November 21. From then MEPs have six months to analyse, write opinions, debate and vote. But a coup of sorts has ensured none of the usual procedures count this time. The centre-left and centre right groups, that together make up the huge majority known to many of us as the "grand coalition" in the European Parliament have plotted to ensure CETA will speed so quickly through this institution that if you blink, you may miss it. They want a vote as early as December, making it impossible for the Parliament to assess CETA in any concrete terms.
To make matters worse, several committees who have oversight on certain aspects covered in CETA have requested their own opinions, and as it stands all have been denied. The environment and employment committees, who complained that the speedy timetable made it impossible to adequately assess CETA, were refused opinions for seemingly no reason but to silence any critique.
Things aren't much better in Canada, as Michael Geist explains:
Last week, Steve Verheul, the lead Canadian CETA negotiator, appeared before another House of Commons committee and was asked if the department has done any analysis on the financial impact of the extended patent protection [for pharmaceutical drugs]. Remarkably, Verheul said that it has not, arguing that it is difficult to come up with a projection.
Essentially, the Canadian government has absolutely no idea how much this concession to the EU is likely to cost the people of Canada. Nor does it really have much intention of trying to calculate it, because it plans to implement CETA regardless. As in the EU, then, the Canadian public is expected to sit back and meekly allow their government to sign up to a deal with open-ended risks, thanks to corporate sovereignty, but without any proper scrutiny of the costs and alleged benefits.

And yet the politicians involved in this arrogant and anti-democratic behavior are surprised when demagogues like Donald Trump win elections.

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Posted on Techdirt - 21 November 2016 @ 3:24am

Russia Orders LinkedIn's Service To Be Blocked, Supposedly For Failing To Store Personal Data Locally

from the think-globally,-act-locally dept

Techdirt has written plenty of stories about Vladimir Putin's increasingly harsh clampdown on Internet freedom. But, like China, Russia is still coming up with new ways to tighten its control. One is the legal requirement that the personal data of Russian citizens must be stored on Russian soil. Now, a US company has fallen afoul of that 2015 law:

Russia's communications regulator [Roskomnadzor] ordered public access to LinkedIn's website to be blocked today (17 November) to comply with a court ruling that found the social networking firm guilty of violating data storage laws.
According to the EurActiv story, the ban is being put in place immediately:
LinkedIn's site will be blocked within 24 hours, the Interfax news agency cited Roskomnadzor spokesman Vadim Ampelonsky as saying. One internet service provider, Rostelcom, said it had already blocked access to the site.
What's curious is that LinkedIn is not the only US company to have flouted Russia's data localization law: both Google and Facebook have also ignored it. A post on NBC News suggests the following is the reason for that discrepancy:
A spokesman for the [Roskomnadzor] watchdog had earlier said that LinkedIn was punished for alleged leaks of user data, Russian media reported.

Information about 120 million LinkedIn user accounts was stolen in 2012, the attack reportedly blamed on Russian hackers.
Irrespective of the messy details of the LinkedIn case, requirements that personal data must be stored locally are likely to become an increasingly hot topic. Already, the EU is unwilling to finalize the Trade in Services Agreement (TISA) in part because of US demands that it should include unrestrained data flows -- something that could be illegal under EU privacy laws if applied to personal information.

With the person who will soon run the CIA keen on expanded government spying powers, it is almost certain that the current Privacy Shield framework, which allows the personal data of EU citizens to be sent to the US, will be struck down by the Court of Justice of the European Union. If that happens, the only way companies like Google, Facebook -- and LinkedIn -- would be able to operate in the EU would be to store their data on the continent. If they fail to comply, they won't be blocked, as in Russia, but they could be hit with a fine of up to 4% of their global turnover.

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Posted on Techdirt Wireless - 15 November 2016 @ 11:20pm

Argentina Orders Telecoms To Create A Permanent Database Of All Mobile Phone Users

from the is-that-a-tracking-device-in-your-pocket,-or-are-you-just-glad-to-see-me? dept

The Argentine government has announced the creation of a new national register of everyone using mobile phones in the country (original in Spanish). An article on says that discussions between the government and telecom companies have been underway for some months, and last week the scheme was finally unveiled. According to the Joint Resolution No. 6 of the Ministries of Security and Communications (original in Spanish), the mobile phone companies will be responsible for developing, operating and managing the system "at their own cost." In practice, this is likely to mean that the extra expenses will be passed on to customers. The personal data must be stored in a "safe, audited and permanent" manner, and yes, the records will be available to the authorities.

The justification for the national register is to combat theft: according to a report in La Nación, 5000 mobile phones are stolen every day (original in Spanish.) To put that in context, another article in La Nación (original in Spanish) says that there are around 60 million mobile numbers in use, which seems rather high given that Argentina's total population is 42 million. Clearly, some people have two or more phones.

Even one is a problem, for reasons that Edward Snowden and Andrew "bunnie" Huang pointed out earlier this year: a mobile phone is "the perfect tracking device." The new register may indeed help tackle the theft of mobile phones in Argentina. But it will also create a powerful and dangerous new resource that the authorities will surely be unable to resist dipping into for other purposes.

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Posted on Techdirt - 14 November 2016 @ 11:31pm

China Finds Something Else To Regulate, Brings In Its First Law For The Film Industry

from the excellent-Chinese-culture-and-socialist-core-values dept

Techdirt has been covering China's relentless clampdown on every aspect of the online world for some time, culminating in the new "cybersecurity" law that's just been passed. But if you think the Chinese authorities are now done, you'd be wrong. They are branching out into an entirely new field -- cinema -- with a law that the official Xinhua News Agency calls "the first of its kind in China":

The top legislature on Monday adopted a film industry law, promising harsh punishment for firms that fabricate box office earnings, data or information.
That makes it sound like it is mostly about regulating the commercial activities of China's cinema industry. And it's true that there are some measures designed to prevent fraud, apparently something of a problem in the country:
Film distributors and theaters will have all their illegal earnings confiscated and be fined up to 500,000 yuan (about 73,800 U.S. dollars) if they falsify ticket sales data, according to the law adopted at the National People's Congress (NPC) Standing Committee bimonthly session after a third reading.

If their illegal earnings exceed 500,000 yuan, the fine will be up to five times their illegitimate earnings.

They may also be hit with an operating suspension or have their business certificates revoked in serious cases, according to the new law.
But the meat of the legislation is probably to be found in the following aspects:
The law specified that actors, directors and other staff should be "excellent in both moral integrity and film art," maintain self-disciplined and build a positive public image.


The [government] media watchdog is also establishing a "professional ethics committee," aiming to guide organizations and people in the radio, film and media circles to practice "core socialist values."
And it's not just the actors who must be on their best behavior under the new law:
China will support the making of films championing excellent Chinese culture and socialist core values.

Chinese groups can cooperate with overseas counterparts in film shooting, excluding overseas organizations and individuals that engage in "activities damaging China's national dignity, honor and interests, or harming social stability or hurting national feelings," the law said.
Since China is now the world's second-largest film market according to Xinhua, there will probably be plenty of Western companies that will be interested in co-productions. But the new rules mean that the Chinese government's interest in a film's storyline is now quite explicit, and that anything that "hurts national feelings" is a definite no-no. That probably means more discreet compromises of the kind recently seen in the film Doctor Strange, where a Tibetan Ancient One mysteriously turned into a Celtic Ancient One.

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Posted on Techdirt - 10 November 2016 @ 10:55am

Even Fans Admit Chances Of TPP Being Ratified By US Soon -- Or Ever -- Have Just Slumped

from the stumped-by-Trump dept

In the wake of the unexpected win of Donald Trump, people in many fields are starting to re-examine their assumptions about what might happen in the next few years. One of the areas impacted by Trump's success is trade in general, and trade deals in particular. For perhaps the first time, the 2016 election campaign put trade deals front and center. They may even have contributed to Hillary Clinton's downfall, since many found her sudden conversion to the anti-TPP movement unconvincing, to say the least.

Given Trump's vocal antipathy to TPP, even its strongest supporters are recognizing that it is now in trouble. Here, for example, is John Key, Prime Minister of New Zealand, and one of the cheerleaders for the deal:

[TPP] would have been nice to have, but we're not going to have it in the short term.
The leader of the main opposition party in New Zealand agreed:
[TPP] seems to be dead in the water now.
The Radio New Zealand report that these comments are taken from had further confirmation of TPP's demise from a source with privileged access to the man himself:
A close Trump supporter, Senator Jeff Sessions, told reporters at Mr Trump's victory party last night the proposed deal was now "dead".
Of course, "dead" is not an absolute term in politics. TPP may be dead in the short term -- something underlined by US Senate Majority Leader Mitch McConnell and the Senate's soon-to-be-top Democrat -- but that doesn't necessarily mean completely dead forever. New Zealand's Key had some thoughts on what might happen next:
Does that mean there will never be an attempt to re-negotiate it? No, because President Trump will get the same advice from the State Department, from the Pentagon, from the Treasury that President Obama got, which is that you need to have influence and you need to have presence in Asia and to do that free trade locking you in there is the way to do it.
Re-negotiating TPP is going to be painful for all the other participants, who doubtless thought and hoped it was all done and dusted. It will be particularly awkward for Japan, because this just happened:
Japan's House of Representatives voted to ratify the Trans-Pacific Partnership trade agreement and passed a related bill Thursday, despite diminishing prospects for the ratification of the pact by the United States following Donald Trump's victory in the presidential election.
That might stand as a warning to other TPP nations that are on the brink of ratifying the deal. Given the huge uncertainty surrounding its fate, holding off would be a very sensible move at this point -- something that Key himself needs to remember before he pushes through New Zealand's TPP Amendment Bill.

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Posted on Techdirt - 10 November 2016 @ 3:24am

WhatsApp And Its End-to-end Encryption Get Love From An Unusual Quarter: International Diplomats

from the pass-it-on dept

Encryption remains a hot issue, with politicians repeatedly claiming that it allows bad people to hide bad things, although there isn't much evidence this is really a problem. More recently, WhatsApp has become a favorite target since it introduced end-to-end encryption that allegedly not even the company can decrypt. David Cameron vaguely threatened to block it, and Brazil actually tried. Against that background, the following story from the Guardian offers a welcome contrast of government officials using -- and loving -- WhatsApp, not least for its end-to-end encryption:

The rise of WhatsApp diplomacy is transforming the negotiating chamber. There are countless groups of allies and virtual huddles, exchanges over policy statements and fine print, and fair amounts of banter and even emojis (Vladimir Putin is referred to by widespread use of a grey alien avatar).

"You can form small groups of like-minded allies, take photos of annotated documents, ask people what they think without the whole room knowing," a senior western diplomat said.

The tool is useful for communicating with allies who might not be sitting close to them, diplomats say, as well as for agreeing negotiating tactics during difficult sessions and for organising break-out huddles in a way that avoids offending those left out.
The article goes on to describe some real-life situations in which WhatsApp chats offered a vital channel during diplomatic negotiations. It also notes some of the ways the app is being used, for example to make discreet requests like "please speak at the plenary in support of x" or "let's meet outside to discuss this," and the rather more dramatic "please interrupt this person."

This isn't the first hint that WhatsApp is becoming an important tool for international diplomacy. Back in May of this year, a Guardian news item about an internal report into the problems within the UK's Foreign Office included the following information:

The report also finds that rather than make use of specially-tailored encryption, many British diplomats reportedly use WhatsApp to discuss sensitive topics such as the bloody conflicts in Syria and Ukraine.
The author of the report, Tom Fletcher, a former British ambassador to Lebanon, is also quoted in the latest WhatsApp story, where he says:
The smartphone is now as essential a part of the modern diplomat's armoury as courage, patience and a strong stomach. But it is also a threat to the diplomat -- heaven forbid that leaders should start WhatsApping each other direct, without needing to go through their diplomatic envoys.
That's one potential problem with the new WhatsApp diplomacy. Another is that diplomats may start to depend on the app, and take its security for granted. But as Techdirt reported back in April, WhatsApp's end-to-end encryption is not quite as secure as people might think. Moreover, if the program became the de facto tool for communicating among diplomats, a great deal of important information would be passing through it that many governments would dearly love to know. If that happens, the pressure on WhatsApp to provide backdoors to allow the authorities to eavesdrop on those conversations will become even greater. It would be relatively easy to do that: the app is not open source, so there's no way to check. Let's hope that diplomats are beginning to understand why that would be such a bad idea, and will add their voice opposing any such short-sighted moves.

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Posted on Techdirt - 3 November 2016 @ 11:24pm

How A Feeble Joke At A Party Derailed Japan's Ratification Of TPP At The Last Moment

from the did-you-hear-the-one-about-the-Japanese-farm-minister? dept

Since both US presidential candidates have said that they are against TPP -- whether they mean it, is another matter -- the Pacific trade deal has rather dropped off the political radar. But the US is not the only country that needs to ratify the deal: most of the other 11 countries participating need to do the same if it is to come into force. Because of the size of its economy, the critical one is Japan. But something rather strange has just happened: where it looked certain that country would ratify TPP this week, it has now been postponed. A story in The Japan Times explains the sequence of events that led up to this surprising twist:

While attending an Oct. 18 party organized by Tsutomu Sato, chairman of the Lower House Committee on Rules and Administration, [Japan's farm minister] Yamamoto had blurted out, "It’s up to Mr. Sato to decide whether to forcibly pass the [TPP] bill."

Yamamoto's undemocratic suggestion that the TPP bill could be steamrolled through the Diet [Japan's bicameral legislature] immediately ignited the ire of opposition lawmakers, recalling an earlier blunder by a different LDP lawmaker who said in September that he wanted to realize the "forcible" passage of the bill.
As a result of Yamamoto's ill-advised comment, the special committee tasked with TPP deliberations did not adopt the relevant bill. That, in its turn, meant the bill could not be sent to to the ruling coalition-controlled Lower House plenary session on Friday for a last-minute approval before the US election. Here's why the Japanese government was so keen to make that deadline:
Tokyo was desperate to pass the bill through the Lower House plenary session before [US] Election Day. Such a decisive legislative step, the government hoped, would send a powerful message that Japan has no intention of accepting a request for renegotiations from the U.S. side.
Given the government majority, it seems likely that the TPP bill will finally pass at some point in the near future. But the fact that a rather unfunny joke was able to throw a spanner in the works even at this late stage shows that when it comes to trade deals, things aren't over until they are over, as the recent CETA saga also indicates.

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Posted on Techdirt - 3 November 2016 @ 11:46am

Chinese Police Dub Censorship Circumvention Tools As 'Terrorist Software'

from the nice-social-score-you-have-there;-be-a-shame-if-anything-happened-to-it dept

The Great Firewall of China is pretty well-known these days, as is the fact that it is by no means impenetrable. The Chinese authorities aren't exactly happy about that, and we have seen a variety of attempts to stop its citizens from using tools to circumvent the national firewall. These have included Chinese ISPs trying to spot and block the use of VPNs; deploying China's Great Cannon to take out anti-censorship sites using massive DDoS attacks; forcing developers of circumvention tools to shut down their repositories; and pressuring Content Delivery Networks to remove all illegal circumvention, proxy and VPN services hosted on their servers.

Despite years of clampdown, anti-censorship tools are still being used widely in China -- one estimate is that 1-3% of China's Internet users do so, which would equate to millions of people. However, Global Voices has a report of police action in the Chinese region of Xinjiang, whose indigenous population is Turkic-speaking and Muslim, that may be the harbinger of even tougher measures against circumvention tools. It concerns a leaked police report, which contains the following passage:

A netizen in Changji (online account number: XXXXX IP: XXXXX) is suspected of downloading a violent and terrorist circumvention software at 12:42:21 on October 13. The software can run on mobile for sending different types of documents. Once installed, the software can be operated on the mobile management tool set for searching documents, games, backing up photos and sending text messages. This software has been classified by Public Security Bureau as second class violent and terrorist software.
What's worrying here is that the unnamed circumvention tool is classed as "violent and terrorist software," albeit only of the second class. As Global Voices points out:
Judging by the "function" described in the case report, the circumvention tool is merely giving its user access to overseas search engines and cloud storage. While the document specifically says that the circumvention tool has been classified by the public security bureau as a type of "second class violent and terrorist software", there is no public information describing how it was classified as such, or what other products share this classification. This leaves Internet users with no way to know if their software or other tools are legal or not.
Labelling something as "terrorist" is an easy way to justify making it illegal, and to try to head off any criticism of doing so. The Global Voices article notes that this move may be a purely local one, reflecting the continuing state of unrest in Xinjiang. But if it proves a useful way of framing things, it could easily be rolled out across the country.

The Global Voices article points out that there's another way the Chinese authorities might start to make the use of VPNs and other circumvention tools more risky: by making it a part of the "citizen score" system that is currently being developed to spot "pre-crime".

A person with no overseas business using circumvention tool to communicate with people outside the country can be viewed as suspicious. And in the case of Xinjiang, where the authorities see 90% of the violent and terrorist crimes are related to getting access to censored information, detecting the downloading and usage of circumvention tool is part of the pre-crime crackdown.
That approach would have the advantage that those doing business abroad using VPNs would be largely unaffected -- important for the Chinese economy. But those who are using them purely as circumvention tools to access "forbidden" material beyond the Great Firewall might find that their citizen score drops as a result. Even if circumvention tools aren't classed as terrorist software and banned outright, increasing the social cost of being seen to employ them might be just as effective.

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Posted on Techdirt - 2 November 2016 @ 3:32am

Chinese Innovation: Nude Photo Loan Platform Adds Uber-Style Debt Collectors Feature

from the uberizing-everything-everywhere dept

Back in June, Western media picked up on a sordid tale involving the Chinese company Jiedaibao, a platform which facilitates loans between individual lenders and borrowers. Because of the private nature of the deals, loan sharks came up with a new twist on securing collateral for the money they lend out at exorbitant rates, described here by

They often ask female students to pose naked with their ID and use these photos as collateral in their practice. If a student defaults on the loan, the loaners will threaten to show the nude photos to her family and friends.

In exchange, the students who agree to send nude photos can have a higher loan amount, ranging from 2 to five times as much. However, the loan interest rate can be as high as 30 percent a week.
Being able to borrow even more money at these ruinous interest rates just means the women get into deeper trouble even faster. When criticized for allowing this sexual and economic exploitation, Jiedaibao initially said:
The usury and nude collateral practices are part of a private trade deal between users. As a result, the company cannot interfere, and assert that users have to shoulder these risks by themselves. However, if these scenarios get worse, they urge users to contact the police.
Perhaps realizing that this didn't really sound too good, the company later tweaked its response slightly, as the Guardian reported:
A spokesman for Jiedaibao condemned the "naked loans" and said the company would work with the police on any investigation of such practices. "This kind of naked loan is actually taking advantage of the online platform to operate an illegal usurious offline business," they said.
Despite that (feeble) condemnation, and the outrage this modern-day usury provoked in China, the abuse seems to have continued. Last month, published another article on the topic, where it noted that some women have been been coerced into prostitution in an attempt to pay off the money they owe to unscrupulous lenders. According to a more recent story in the South China Morning Post (SCMP), Jiedaibao's size -- it has more than 128 million users with a cumulative turnover of about $12 billion -- and lack control over the private deals made using its platform have led to the development of a serious problem:
Without proper credit risk assessments, many of the loans have soured, raising demand for debt collectors. Online chat groups have sprung up offering advice on recovering the money. Tips include repeated calls to debtors, calling debtors' relatives and paying "beggars" to protest near a debtor's home.
To address this issue, Jiedaibao has come up with a rather remarkable new feature for its platform:
Users of its app can apply to recover debts owed through the platform by uploading their ID card number and a photo.

After a "verification" process of about a week, successful applicants gain access to overdue borrowers' phone numbers, addresses and even ID numbers, with commissions of up to 40 per cent of the original loan for recovering the outstanding amounts.
Some may applaud Jiedaibao's idea of creating an Uber-like crowd of private debt collectors, but the scope for abuse is clear. And those suddenly finding themselves on the receiving end of these amateur debt collectors are unlikely to be so enthusiastic about Jiedaibao's innovative approach.

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Posted on Techdirt - 28 October 2016 @ 7:39pm

Would You Be Tempted By This 'Grand Bargain' On Privacy?

from the behold-the-information-fiduciaries dept

Digital privacy and the control of personal data have emerged as two of the main online battlegrounds in recent years, as the flood of Techdirt posts on the subject attests. One of the central questions is how we can use global online services like Facebook and Google without surrendering control of the information we provide them. The US and the EU take contrasting approaches here, both of which have attracted plenty of supporters and detractors.

But what about alternatives: might there be another way to tackle this crucial subject that is effective and reasonably fair to all? Jack M. Balkin and Jonathan Zittrain, respectively professors at the law schools of Yale and Harvard, believe there is. Together, they've written an article that appears in The Atlantic, entitled "A Grand Bargain to Make Tech Companies Trustworthy," while Balkin has published a more rigorous 52-page version for UC Davis Law Review (pdf). Their starting point is the fact that many of the problems encountered with digital privacy have already been solved in the analog world:

Doctors, lawyers, and accountants ... have to keep our secrets and they can't use the information they collect about us against our interests. Because doctors, lawyers, and accountants know so much about us, and because we have to depend on them, the law requires them to act in good faith -- on pain of loss of their license to practice, and a lawsuit by their clients. The law even protects them to various degrees from being compelled to release the private information they have learned.
These are examples of "fiduciaries", "a person or business with an obligation to act in a trustworthy manner in the interest of another." The idea of Balkin and Zittrain is to create a new class of "information fiduciaries" who are similarly permitted to work with our personal data, on the condition that they do not use it against our interests. For example:
Google Maps shouldn't recommend a drive past an IHOP as the "best route" on your way to a meeting from an airport simply because IHOP gave it $20. And if Mark Zuckerberg supports the Democrat in a particular election, Facebook shouldn't be able to use its data analysis to remind its Democratic users that it's election day -- while neglecting to remind, or actively discouraging, people it thinks will vote for Republicans.
That sounds an interesting approach, but the tricky part, of course, is drawing up what exactly the responsibilities of these new information fiduciaries should be -- and what they should get in return. Balkin and Zittrain propose something they dub a "grand bargain". Here's what the online services gathering our data would promise:
They would agree to a set of fair information practices, including security and privacy guarantees, and disclosure of breaches. They would promise not to leverage personal data to unfairly discriminate against or abuse the trust of end users. And they would not sell or distribute consumer information except to those who agreed to similar rules. In return, the federal government would preempt a wide range of state and local laws.
And here's something else that those signing up to this code would get by way of recompense:
Congress could respond with a "Digital Millennium Privacy Act" that offers a parallel trade-off to that of the DMCA: accept the federal government's rules of fair dealing and gain a safe harbor from uncertain legal liability, or stand pat with the status quo.
In other words, alongside the DMCA, a new DMPA. So what do Techdirt readers think: is that a bargain you'd accept?

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Posted on Techdirt - 28 October 2016 @ 3:55pm

EU-Canada Trade Deal Dodges Belgian Veto For Now, But Faces Multiple Legal Challenges

from the just-buying-some-time dept

A few days ago we described how the Belgian region of Wallonia was holding up the official signing of the EU-Canada trade deal, CETA, in part because of the corporate sovereignty chapter it contains. Not surprisingly, given the high-profile embarrassment this caused -- Canada's prime minister, Justin Trudeau, was forced to cancel his planned trip to Europe at the last minute -- the Walloon politicians have been under intense pressure to change their minds in return for some concessions. This they have now done, and a document has been published spelling out the nature of the deal they have obtained (currently only available in French and Dutch). The Council of Canadians suggests that the EU has not solved the problem, just bought some time:

The proposed compromise would give any region of Belgium the right to walk out during any part of the ratification process [which is still required, even after CETA has been signed]. Four Belgian Parliaments (the Walloon region, the French community, the German community, and the Francophone community commission of the Brussels Capital region) have made it clear that they will never ratify the Investment Court System (ICS) -- the provision that allows foreign investors to sue governments -- in its current form.
Wallonia's minister-president, Paul Magnette, came away with something else, too:
Magnette had also raised objections to the proposed court system for settling disputes between foreign investors and governments.

One concession he won means Belgium would be able to go to the European court of justice to determine whether the new investor-state special tribunals are compatible with EU law.
That's potentially big. Back in 2015, lawyers from the environmental group ClientEarth carried out an analysis of the corporate sovereignty approach -- both the older investor-state dispute settlement (ISDS) and the re-branded ICS -- and found that:
ISDS mechanisms would set up an arbitration system outside of, but binding on, the EU judicial system. Such mechanisms would introduce an additional judicial relief within the EU legal order that is independent of the EU courts. It would, in effect, be a system that would enable foreign investors to sideline the EU courts and resort to claims that are not available to domestic investors.

EU law, and settled case-law of the European Court of Justice (ECJ), suggest that such a system of external judicial control may be incompatible with the EU legal order because it would (1) undermine the autonomy of the EU legal order and the powers of the EU courts in particular and (2) negatively affect the completion of the internal market, and more specifically the EU competition rules.
Of course, some will dismiss that as simply the biased opinion of an activist organization. It's harder to ignore the views of 100 law professors from across Europe, who agree with ClientEarth, or the warning of the UN rights expert, Alfred de Zayas, not to sign the "flawed" CETA treaty, as he calls it. And "biased" certainly won't be something anyone could ever say about an ISDS ruling from the Court of Justice of the European Union (CJEU), the EU's highest court, which will be definitive once it is handed down. It will also apply to any trade deal that includes corporate sovereignty, such as TAFTA/TTIP, which is why Magnette's last-minute haggling turns out to be so important. One hint of how the CJEU might view matters is provided by the following:
ClientEarth recently launched a lawsuit against the Commission, because it refused to disclose official analysis of whether ISDS and ICS are legal. The Commission said sharing the legal reflections would undermine its negotiating position in trade agreements.
It's hard to see how an analysis that found ISDS and ICS were legal would weaken the EU's negotiating position. And it would surely be in the European Commission's interest to convince everyone that corporate sovereignty is, indeed, legal by releasing analyses supporting that view. So the fact the EU refuses to release them would naturally suggest that there is a problem somewhere, which presumably the CJEU will reveal when it comes to examine the issue.

Although the most important, the referral to the CJEU is not the only legal challenge that CETA is facing. There's one in Canada, too:

Canada's longest-serving member of the Queen’s privy Council, the Honourable Paul Hellyer, P.C., along with two co-plaintiffs, Ann Emmett and George Crowell, both prominent members of the Committee on Monetary and Economic Reform ("COMER"), launched a constitutional challenge against the much-maligned Canada-Europe Trade Agreement ("CETA"), at the Federal Court of Canada today.
Here's what they hope to obtain:
In addition to seeking several declarations, to clarify the Constitutional authority of the Executive branch of government to do this, the Plaintiff's also seek interim injunctions to prevent the federal government from signing, ratifying and implementing the CETA.
Finally, it's worth noting that there is also a constitutional challenge to CETA in Germany. On that front, the following happened a couple of weeks ago:
In its judgment pronounced today, the Second Senate of the Federal Constitutional Court rejected several applications for a preliminary injunction directed against the approval by the German representative in the Council of the European Union of the signing, the concluding and the provisional application of the Comprehensive Economic and Trade Agreement (CETA), which the Council of the European Union is expected to decide upon on 18 October 2016.
However, that's not as bad as it might seem at first sight. First, Germany's constitutional court imposed some quite stringent constraints on the German government. The most important of these is that the official signing of CETA will not cause the entire text to be applied provisionally, as the European Commission had originally hoped. Instead, some parts must wait until all 28 member states ratify the deal through votes in their national parliaments. That's going to take quite a while -- perhaps years -- and there's no guarantee that every country will ultimately ratify CETA. The corporate sovereignty provisions are one of the elements that will not come into force until after full ratification, something also agreed with Magnette. This means it's quite likely that the CJEU will hand down its verdict on the legality or otherwise of ICS before that, possibly killing it forever.

The other important point about the German constitutional court's decision is that it only rejected a request for a preliminary injunction, which it deemed unnecessary. The German court's full consideration of whether CETA is constitutional or not continues. The European Commission may have postponed the Wallonian problem but there are plenty of others on both sides of the Atlantic that could still stop CETA, and definitively.

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Posted on Techdirt - 27 October 2016 @ 9:31am

Why Wikipedia Is Worried About Global 'Right To Be Forgotten' Delistings

from the book-of-laughter-and-forgetting dept

As Techdirt reported last year, the problematic "right to be forgotten" -- strictly speaking, a right to be delisted from search results -- took a really dangerous turn when the French data protection regulator told Google that its orders to delist results should apply globally, not just in France, a view it confirmed twice. The latest development in this saga is the submission of a petition to the French Supreme Court against the global reach of delisting, made by the Wikimedia Foundation, the organization behind Wikipedia. As its blog post on the move explains:

Although the [French data protection authority] CNIL's case is directed towards Google, the gradual disappearance of Wikimedia pages from Google search results around the world ultimately impacts the public's ability to find the invaluable knowledge contained within the Wikimedia projects. Search engines have played an important role in the quest for knowledge -- roughly half of Wikipedia visits originate from search engines.

The CNIL's most recent order, if upheld, threatens the capacity to write and share important information about history, public figures, and more. It undermines the public's ability to find relevant and neutral information on the internet, and would make it exceedingly difficult for projects like Wikimedia's to provide information that is important for society.
The fact that half of Wikipedia's visits come from online searches emphasizes the point that delisting a page from search results effectively removes it from the Internet. The Wikimedia post goes on to make all the obvious -- and completely valid -- arguments why global delisting is such a bad idea. It also mentions the following:
As part of our efforts to bring more transparency to these requests, when we receive notice that a Wikipedia article was removed from a search engine due to a "right to be forgotten" delisting request, we publish the notice in a public index for the Wikimedia community's reference.
The page not only includes interesting statistics about delisting notices, but also helpfully provides copies of the notices themselves. From these we can see the Wikipedia articles that are no longer listed in search engines, which allows us to guess the names of those who don't want information about them to be readily available, and inevitably encourages us to speculate why that might be.

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Posted on Techdirt - 27 October 2016 @ 3:07am

Alibaba's Boss Says Chinese Government Should Use Big Data Techniques On Its 'Citizen Scores' Surveillance Store

from the and-here's-a-cloud-computing-platform-I-prepared-earlier dept

A year ago, Techdirt wrote about China's disturbing plan to create "citizen scores" that would rate everyone in the country on the basis of everything they do and say online. Although not much has been heard in the West about the scheme since then, that doesn't mean that the plan has been dropped. As the Washington Post reports:

A high-level policy document released in September listed the sanctions that could be imposed on any person or company deemed to have fallen short. The overriding principle: "If trust is broken in one place, restrictions are imposed everywhere."

A whole range of privileges would be denied, while people and companies breaking social trust would also be subject to expanded daily supervision and random inspections.

The ambition is to collect every scrap of information available online about China's companies and citizens in a single place -- and then assign each of them a score based on their political, commercial, social and legal "credit."
The article notes that it is not clear how the Chinese authorities intend to carry out this massive task. Although that might raise the hope that it will prove too hard to implement, one person who doesn't seem to share that view is Jack Ma, the founder and chairman of the Chinese Internet giant Alibaba. In a televised speech broadcast last week to 1.5 million security officials across China, Ma called for the government to apply big data's analytical techniques in fighting crime. Bloomberg Technology quoted him as saying:
Bad guys in a movie are identifiable at first glance, but how can the ones in real life be found? In the age of big data, we need to remember that our legal and security system with millions of members will also face change.
He gave a concrete example of how big data techniques could be used in this context (original in Chinese). He said that there was nothing suspicious about somebody buying a pressure cooker or a clock, nor anything suspicious about someone buying ball bearings. But if somebody buys all of them together, you have a suspicious pattern. His suggestion that data mining techniques applied to everyday purchases might help the authorities to spot these patterns and to stop criminals before they act -- a familiar enough idea -- indicates that he is thinking of China's plans to track every transaction from every shop as part of its "citizen scores" project.

Once that data is gathered, it would indeed be possible to start applying big data techniques as a matter of course in order to spot correlations -- something already being used on Internet data by the NSA and GCHQ. But Ma's suggestion is to go even further, and to analyze every digital breadcrumb people drop for possible significance when combined with more data points, whether their own or of others.

It's a chilling vision of total surveillance subject to constant, open-ended analysis, but it is certainly not a theoretical one. Ma's Alibaba group of companies includes Alibaba Cloud, which proudly proclaims its capabilities as follows:

China's largest and most trusted cloud services provider and the world's fourth largest website hosting provider.

Alibaba Cloud offers users the same cloud infrastructure that provides uninterrupted service to Alipay, an online payment service that can process a record-breaking 140,000 payments per second, and products that have broken records in anti-DDoS protection and database sorting.
That's just the sort of scale nationwide big data operations would require. As Bloomberg Technology points out, Ma's idea of applying some of that database sorting to catch the bad people is as much about money as morality:
Ma's speech also highlights the delicate relationship between Chinese web companies and the government. The ruling party has designated internet industry leaders as key targets for outreach, with President Xi Jinping saying in May last year that technology leaders should "demonstrate positive energy in purifying cyberspace."

Ma has said his policy for dealing with the government is to fall in love but not marry. His company has courted state clients, including the provincial governments of Zhejiang and Guizhou, for its cloud services.
Judging by his remarks to security officials, Ma seems happy to help with the cyber-purification -- especially if it might bring him some very lucrative government business for Alibaba Cloud along the way.

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Posted on Techdirt - 25 October 2016 @ 11:23pm

Kuwait Backtracks On Mandatory DNA Database Of All Citizens And Visitors

from the this-is-why-it's-always-worth-protesting dept

A few weeks ago, we reported on a move by some public-spirited lawyers in Kuwait to challenge an extraordinary new law that would require everyone in the country -- citizens and visitors like -- to provide their DNA for a huge new database. It seemed like a quixotic move, since the Kuwaiti authorities were unlikely to be intimidated by a bunch of lawyers. And yet Kuwait has indeed backed down, as reported by New Scientist:

Kuwait plans to scale down, and may ultimately revoke, a law forcing all its citizens and visitors to provide samples of their DNA.
As well as the legal moves, a request from the country's ruler, the Emir of Kuwait, that the law should be revised in a way that would "safeguard people's privacy" seems to have led to a massive scaling-back of the plans:
The Kuwait parliament has now agreed to change the law so that only suspected criminals will need to give their DNA.
Although taking DNA from "suspected" -- not convicted -- criminals is still problematic, overall, this is welcome news, especially for visitors to the country, who presumably won't now have their DNA sampled. It's also a reminder that public outcry, especially on a global scale, can occasionally succeed in getting really bad laws revoked, which is why it is always worth trying.

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