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What role is left for privacy & data protection laws in a surveillance society?

According to the USA's Secretary of Homeland Security, the answer would appear to be "none", as reported by legal academic Michael Geist in the Guardian. This answer may be unsurprising coming from such a source, and from a place that doesn't have data protection laws of the kind implemented in Europe. However, the creeping into common use of various kinds of surveillance technologies is as applicable in the UK as in the USA, and so the "reality check" given by the Homeland Security Secretary is of relevance.

Geist was reporting from the International Data Protection and Privacy Commissioner's conference, this year held in Canada. A major part of the conference appears to have been the consideration of the various measures that might be taken to ensure that personal data and privacy are protected adequately. These measures include Privacy Impact Assessments, a concept that I mentioned as part of a summary of the UK Information Commissioner's Office 2006 report on the surveillance society (nice link there!) Of these measures, Geist says:

While the effectiveness of these measures has improved in recent years, there remained a pervasive sense that these responses are inadequate.

So are data protection and privacy law dead? I personally don't think so, and evidence would seem to suggest that having a good reputation in this area is good business sense. In other words, the consumer cares and businesses have a lot to gain from following sound data protection policies. Looking at the bigger picture, the ICO's 2006 report suggests that society as a whole suffers from an uncontrolled surveillance society.

The challenges for data protection & privacy enforcement authorities are mounting. The need for joined-up thinking from these authorities is increasing too.

FON time again

Following my post yesterday about BT's FON scheme, Evan Brown of the Internet Cases (US) IT law blog has been in touch to point out that FON is already live and kicking in the USA and that, like here, FON raises a few legal issues that potential users should consider before signing up. Back in February 2006 Evan wrote about the liabilities for an individual (under US law) that might arise from using FON. His post ends:

FON's FAQ page states unambiguously that users would not be responsible for "illicit" activities of others conducted through a shared Internet connection. Perhaps that's true, but a wise consumer should question whether the answer is as clear as FON would like it to be

European Patent Office online training on intellectual property

Browsing the European Patent Office website for something else, I found the organisations' e-learning portal. This contains a great selection of training materials you can watch (you guessed it) online and for free.

The "growing businesses with IP" section contains material relevant to all businesses. For businesses looking to capitalise on their IP portfolios, listening to the talks in the "patents: realising and securing value" section will be time well spent.

ICO lacks teeth to tackle Bluetooth spam

According to Out-law.com, the Information Commissioner's Office (ICO) has said that direct marketing messages sent by Bluetooth are outside its remit. From the Out-law.com report, the reason appears to be a technical one, based upon the wording of the Privacy & Electronic Communications Regulations 2003.

The Regulations apply to certain kinds of "communications" (e.g. see our guide to marketing by email). "Communications" is defined by the Regulations as meaning:

"any information exchanged or conveyed between a finite number of parties by means of a public electronic communications service..." (Follow the link to the definition of public electronic communications service)

As a matter of interpretation, the ICO's view cannot be faulted. Bluetooth is a device-to-device method of direct communication, just like old-fashioned walkie talkies. In contrast, email, fax, and telephone are all delivered via wider communications networks which certainly fall within the public electronic communications services.

That the ICO is technically correct isn't going to satisfy those who receive annoying marketing messages via their mobile phones or other Bluetooth-equipped devices. Practically, they could just switch-off Bluetooth except when actively needed, but as more and more devices come with Bluetooth functionality included, this isn't exactly a long term solution.

If Bluetooth marketing really is a nuisance, the ICO will have to lobby for legislation addressing its use. From the ICO's perspective, Bluetooth spam is a problem that it really could solve. Unlike direct marketing emails, which is difficult to tackle because most spam emails are sent from jurisdictions with no email marketing laws, the sender of a Bluetooth communication must be in close proximity to the recipient. This means that catching senders of Bluetooth spam could be relatively easy, in the same way that the police recently (and controversially) caught someone making unauthorised use of a private wifi network.

IMPACT Guide To The Changes To UK Trade Mark Practice

As mentioned in our earlier post as of 1 October 2007, there are important changes to the UK trade mark examination practice and these changes may affect you.

What is the change?

Previously, following receipt of a UK trade mark application, the UK Intellectual Property Office (IPO) conducted a search of prior marks affecting the UK. The IPO would then raise objections to a trade mark application if it felt that any prior marks identified were of concern due to their similarity and/or likelihood of confusion with the pending application. Following formal objections raised by the IPO, trade mark applicants could only continue with their application if they were able to overcome the objections.

BT offers wireless FON to customers

It's been reported in the Guardian and other parts of the press that BT is launching "FON", a wireless network sharing scheme. The innovative idea will see BT wireless customers offered the chance to use a national wireless network formed from the wireless connections of those same customers. This is a grand sounding idea in principle, although it could have certain implications:

• P2P copyright infringement claims. Claims to date have relied heavily on the IP (internet protocol) address assigned to internet connections of users by their internet service providers. With BT customers allowing strangers to use their internet connections, will this lead to customers being sued for sharing copyright materials when in fact it was users of the FON network using their wireless point? Of course, a well-advised defendant in this situation could at expense get enough information from BT to demonstrate that the infringing material was shared through the FON connection, but that's still an unnecessary legal action waiting to happen.
• Conflict with internet usage limits. Like other ISPs, BT imposes usage limits on its customers. With the sharing scheme, customers will be seeing their internet connection used by strangers, increasing the overall internet usage from that connection. BT had better have systems in place to ensure that, for a particular home internet connection, it can differentiate between internet usage by the customer and usage by other FON members. If it does not, BT could end up imposing sanctions on innocent customers for the actions of third parties.
• Environment & electricity bills. Wireless routers require electricity. If, to give other BT customers  the benefits of their wireless, FON members leave their wireless routers switched on for longer hours than usual (which will be the case if there is a requirement for routers to be on between certain times) those members will see their electricity bills go up. Taken as a whole, the FON scheme could see demands on the national grid increase.

Is having to tackle these issues a price worth paying for what could turn into a national wireless network? It seems to me that traveling business users are going to find such a network appealing, but the fact that the scheme is limited to BT customers is going to exclude a lot of internet users (with home wireless connections) from the benefits.

Second Life lawyers: different world, same committee meetings

Whilst not personally a participant in virtual online worlds, these places are used by many people for entertainment, socialising and even business. To take Second Life as an example, the Second Life homepage yesterday afternoon showed that over 43,000 people were in that world at the time (admittedly, not a huge percentage of Second Life's 6 million members). Going forwards, some predict that these virtual worlds will replace website browsers as the means by which we access and use the internet at some point. I therefore keep a distant eye on developments with these virtual worlds.

It's fairly well known that Second Life counts a number of lawyers and even law firms amongst its members. Yesterday, I briefly had a look to see how they were getting on and found the website of the Second Life Bar Association. The Association has had 2 meetings so far and publishes a transcript of its meetings on its website. The transcript for their most recent meeting, on 15 September 2007, makes for interesting reading; interesting because the Association's meetings contain a lot of the same sort of content as any real-world meeting of people interested in a particular subject matter. There's chat about the meeting room, a social event (within Second Life, obviously!) and the sort of discussion of passing motions, membership rules and voting rules that would make a politics undergrad proud. There's certainly one UK lawyer involved, namely David Naylor of Field Fisher Waterhouse - Second Life name Solomon Cortes.

Commendably, the Association goes on to discuss how members could provide an event talking to  companies (on Second Life) about what they should do if approached within the world by totalitarian governments who request that they hand over information on individuals.

The activities of the Second Life Bar Association, and of lawyers in other established virtual worlds (e.g. City of Heroes) certainly appears to be beneficial. If events such as that proposed by the Second Life Bar Association help make people aware of legal issues, that can only be a good thing.

All change for trade mark application examinations

There are major changes in the way trade mark applications are examined as from today. After this date the Trade Mark Registry at the UK Intellectual Property Office will no longer refuse to register a new trade mark because of an earlier conflicting trade mark, unless the owner of that earlier mark successfully opposes the new mark. This changes means that it is more important than ever for brand owners to having watching services in place for their trade marks.

The Registry will still search against prior marks as part of the examination process, and will bring the existence of relevant prior marks to the attention of the applicant. It is then up to the applicant to decide if he/she wishes to continue with the application.

If the application is to progress the Registry will then automatically contact the UK owners of all potentially conflicting marks (EU owners will have to opt in to the system). On publication of the application in the Trade Marks Journal, the owners of any earlier marks or rights can oppose the application if they believe it infringes their pre-existing rights. If that application is successful, the applicant risks being found liable for the opposition costs and their application may fail.

IMPACT comment
It is now important that owners of trade mark portfolios monitor new trade mark applications to make sure that there are no new marks being registered that could infringe or weaken their own marks. If you need further advice in relation to trade mark watching give Katy Spurrier a call on 0845 058 0755.