Our open letter to the House of Commons on the importance of respecting the democratic process as UK surveillance laws are being revised

Dear Readers,

As many of you are aware, following vairous media outlets` coverage, today we have sent an open letter to all members of the House of Commons on the importance of respecting the democratic process as UK surveillance laws are being revised.

You can find a copy of the full letter below.

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An open letter to all members of the House of Commons,

Dear Parliamentarian,

Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised

Actions Taken Under the Previous Government

During the past two years, the United Kingdom’s surveillance laws and policies have come under scrutiny as the increasingly expansive and intrusive powers of the state have been revealed and questioned in the media. Such introspection is healthy for any democracy. However, despite a need for transparency in all areas of lawmaking, and in particular in areas of controversy, the previous Government repeatedly resisted calls for an open and transparent assessment and critique of UK surveillance powers. Instead, in response to legal challenges, it extended the powers of the state in the guise of draft Codes of Practice and “clarifying amendments.” As we welcome a new Government we expect another round of revisions to UK surveillance laws, with the likelihood that the Queen’s Speech will signal a revival of the Communications Data Bill. At this time we call on the new Government, and the members of the House, to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by Parliament, and open to consultation from the public and all relevant stakeholders.

Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), a number of leading academics in the field – including many of the signatories to this letter – called for full and proper parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled as to what powers it truly contained. Our concern emanated from the Home Secretary’s attempt to characterise the Bill, which substantially expanded investigatory powers, as merely a re-affirmation of the pre-existing data retention regime.[1]

Since that letter was written, it has become apparent that the introduction of the DRIP Bill was not the only time an expansion of surveillance powers was presented in a way seemingly designed to stifle robust democratic consideration. In February 2015, the Home Office published the draft Equipment Interference Code of Practice.[2] The draft Code was the first time the intelligence services openly sought specific authorisation to hack computers both within and outside the UK. Hacking is a much more intrusive form of surveillance than any previously authorised by Parliament. It also threatens the security of all internet services as the tools intelligence services use to hack can create or maintain security vulnerabilities that may be used by criminals to commit criminal acts and other governments to invade our privacy. The Government, though, sought to authorise its hacking, not through primary legislation and full Parliamentary consideration, but via a Code of Practice.

The previous Government also introduced an amendment via the Serious Crimes Act 2015, described in the explanatory notes to the Bill as a ‘clarifying amendment’.[3] The amendment effectively exempts the police and intelligence services from criminal liability for hacking. This has had an immediate impact on the ongoing litigation of several organisations who are suing the Government based in part on the law amended, the Computer Misuse Act 1990.[4]

The Way Ahead

The new Conservative Government has announced its intention to propose new surveillance powers through a resurrection of the Communications Data Bill. This will require internet and mobile phone companies to keep records of customers’ browsing activity, social media use, emails, voice calls, online gaming and text messages for a year, and to make that information available to the government and security services. We also anticipate this Parliament will see a review of the Regulation of Investigatory Powers Act 2000, which currently regulates much of the Government’s surveillance powers. The Independent Reviewer of Terrorism Legislation, David Anderson QC, has conducted an independent review of the operation and regulation of investigatory powers, with specific reference to the interception of communications and communications data. The report of that review has been submitted to the Prime Minister, but has yet to be made public: when it is made public, parliamentary scrutiny of the report and any recommendations made following it will be essential.

As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality, of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came to before the courts one issue examined would be the nature of any “exacting review” undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.

This letter has been prepared and signed by 38 academic researchers. We are comprised of people from both sides of this issue - those who believe that increased powers are a reasonable response to an emerging threat, and those who think them an unjustified extension of state interference. Our common goal is to see the Rule of Law applied and Parliamentary oversight reasserted. We are calling on all members of the House of Commons, new and returning, and of all political persuasions to support us in this by ensuring Parliamentary scrutiny is applied to all developments in UK surveillance laws and powers as proposed by the current Government.  

Signatories

Andrew Murray (contact signatory)	Paul Bernal (contact signatory)
Professor of Law London School of Economics a.murray@lse.ac.uk	Lecturer in Information Technology, Intellectual Property and Media Law University of East Anglia Paul.Bernal@uea.ac.uk
Anne Barron Associate Professor of Law London School of Economics	Subhajit Basu Associate Professor of Law University of Leeds
Sally Broughton Micova Deputy Director LSE Media Policy Project, Department of Media and Communications London School of Economics	Abbe E.L. Brown Senior Lecturer School of Law University of Aberdeen
Ian Brown Professor of Information Security and Privacy Oxford Internet Institute	Ray Corrigan Senior Lecturer in Maths, Computing and Technology Open University
Angela Daly Postdoctoral Research Fellow Swinburne Institute for Social Research Swinburne University of Technology	Richard Danbury Postdoctoral Research Fellow Faculty of Law University of Cambridge
Catherine Easton Lecturer in Law Lancaster University School of Law	Lilian Edwards Professor of E-Governance Strathclyde University
Andres Guadamuz Senior Lecturer in Intellectual Property Law University of Sussex	Edina Harbinja Lecturer in Law University of Hertfordshire
Julia Hörnle Professor in Internet Law Queen Mary University of London	Argyro P Karanasiou Senior Lecturer in Law Centre for Intellectual Property, Policy & Management (CIPPM) Bournemouth University
Theodore Konstadinides Senior Lecturer in Law University of Surrey	Douwe Korff Emeritus Professor of International Law London Metropolitan University Associate of the Oxford Martin School, University of Oxford
Mark Leiser Postgraduate Researcher Strathclyde University	Orla Lynskey Assistant Professor of Law London School of Economics
David Mead Professor of UK Human Rights Law UEA Law School University of East Anglia	Robin Mansell Professor, Department of Media and Communication London School of Economics
Chris Marsden Professor of Law University of Sussex	Steve Peers Professor of Law University of Essex
Gavin Phillipson Professor, Law School University of Durham	Julia Powles Researcher Faculty of Law University of Cambridge
Andrew Puddephatt Executive Director Global Partners Digital	Judith Rauhofer Lecturer in IT Law University of Edinburgh
Chris Reed Professor of Electronic Commerce Law Queen Mary University of London	Felipe Romero-Moreno Lecturer in Law University of Hertfordshire
Burkhard Schafer Professor of Computational Legal Theory University of Edinburgh	Joseph Savirimuthu Senior Lecturer in Law University of Liverpool
Andrew Scott Associate Professor of Law London School of Economics	Peter Sommer Visiting Professor Cyber Security Centre, De Montfort University
Gavin Sutter Senior Lecturer in Media Law Queen Mary University of London	Judith Townend Director of the Centre for Law and Information Policy Institute of Advanced Legal Studies University of London
Asma Vranaki Post-Doctoral Researcher in Cloud Computing Queen Mary University of London	Lorna Woods Professor of Law University of Essex

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[1] http://bit.ly/1jNzlUz

[2] http://bit.ly/1yiXUZD

[3] http://bit.ly/1LfVFz3

[4] http://bit.ly/1S4RCdJ    

Latest case relating to keywords and sponsored links in the US.

My attention has been caught by the newly filed lawsuit in the US of Rosetta Stone Ltd v Rocket Languages Ltd. The Claimant (or Plaintiff to use the correct US terminology) alleges that the Defendants have infringed her trademark on the grounds that the Defendants (which are competitors of the Plaintiff) use the mark 'Rosetta Stone' as keywords for sponsored links on search engine technologies (e.g. Yahoo and Google).

The Claimant also alleges that the Defendants have damaged the mark itself by various advertisements as “Rosetta Spanish A Scam?” or “Read These Reviews Before Buying Rosetta Spanish!” The Claimant makes a few more allegations and they have been very adequately covered by Evan Brown in his post of the 16th July 2008. I do not propose to rehash these here.

As always the US is miles ahead of us and has taken a very decisive stance against the infringement of trademarks in the context of sponsored links and keywords. I would not be surprised if this case was again decided in the favour of the Claimant and it would be the right decision on the basis of the pleadings filed so far.

However, it brings the question of where the law on keywords and sponsored links is heading to in the UK. The relatively recent ruling of the High Court in the case of Wilson v Yahoo has confirmed that there is no trademark infringement even in cases where a keyword identical to a the trademark of a third party is used by an advertiser in relation to identical goods or services as long as such use does not affect the interest of the owner of the trademark, bearing in mind the function of the trademark (ie. guarantee of origin). This has led to a relaxation of the policy of search engine providers as Google and to the commercialisation of keywords which are identical to brands or trademarks in the UK. Of course, this is completely unsatisfactory and i think serious thought should be given to the evolution of the law on keywords and sponsored links in the UK. CyberPanda is anxiously awaiting the decision of the ECJ on 3 recent french cases (Google v Louis Vuiton Malletier etc) raising this very same issue.