Fight for your right to privacy

Media companies want to take advantage of laws designed to counter terrorism. Bill Thompson thinks they have to be stopped.

The music industry wants more help pursuing pirates

Before sitting down to write this morning I sent e-mails to my students at City University, the other members of the editorial team at the Working for an MP website, my editor at openDemocracy.net and my girlfriend.

And in the last 12 hours I've made four phone calls on my mobile, two to pick up voicemail, one to a conference company in Caterham and one to my mum. I haven't used my fixed-line phone.

You might as well know this, as the people providing my e-mail and phone service already have it all logged, and the mobile phone provider I use even knows roughly where I was (at the cinema, at home) when I made the calls.

If proposals for retention of communications data, which have just been approved by the European Union's parliamentary committee on civil liberties, are passed by the Parliament on December 13 and then approved by the Council of Ministers, soon the police will know too - if they can persuade a judge that I'm engaged in serious crime and worth investigating, anyway.

Data analysis

After a great deal of argument over whether it is reasonable for the law to require net service providers and phone companies to store details of e-mails sent, web pages visited and calls made, it seems as if the Data Retention Directive will make it into law early next year.

And once national laws are updated to reflect the new European legislation, the police will have powers which the UK government believes are vital to combat terrorism.

There are lots of issues about data retention, and there has been some debate over whether the provisions breach the Human Rights Act, though since national security considerations override the act anyway this is probably not enough to derail it.

There are also grounds to doubt how effective the new laws will be in practice, as they assume a level of technical ignorance on the part of those planning or carrying out serious crimes that may once have been reasonable but is increasingly unlikely.

The record and movie industries need to realise that they are not special, they are not privileged and they do not have public support for the heavy-handed way they are dealing with the issues which increased access to digital content creates. Sony sued over controversial CDs

As we move into the digital age it isn't just ageing technology writers like me who understand that using a secure shell to log in to a non-EU server might be a good idea. The bad guys know this too, and since they have a lot to lose by getting it wrong their incentive to take protective measures is a lot greater than mine.

For example my broadband provider, ntl, doesn't know who I sent e-mails to because I don't use their servers.

I pay for web hosting from a company that also offers e-mail, so all my sent mail goes through them. They are based in the UK, but as soon as the directive comes into effect I think I may find a non-European firm to use instead.

Sadly, US protection of freedom of speech doesn't extend to communications data and the FBI has lots of ways of getting its hands on my e-mail, so I won't be going there, but I'm sure that an enterprising Swiss company will soon be offering the same sort of data confidentiality as they already offer for financial matters.

So my e-mail will be off the grid unless the UK government wants to follow China and Cuba and make it illegal to use a non-British net service provider, but I suspect even Charles Clarke would balk at that.

Whatever my disagreements with the proposals or doubts about their effectiveness, I can at least appreciate the grounds for proposing them.

Those planning to carry out bombings may use unsecured e-mails, and their phone records may be useful in finding contacts. At least the current proposals require judicial oversight and make the government pay the costs of complying with the rules.

Net losses

However the media industry, in the form of the newly-launched '"Creative and Media Business Alliance", want to use this data to hunt down people who they think may be involved in the far less serious offence of sharing copyright material over the internet.

They have the gall to believe that their business is as important as the protection of our lives from acts of indiscriminate terror, and want the stored data to be available to the police when investigating any criminal offence, not just the serious ones it currently covers.

Natasha Bedingfield CDs used Sony's controversial anti-copy system

The CMBA has written to every member of the European Parliament saying that limiting the proposal to "serious" offences would hamper enforcement activities for other forms of criminal offence.

That, of course, is the point of the restriction, since we should only be asked to give up our freedom to go about our lives unobserved if the state can show a significant - "serious" - reason for this.

One CMBA members is Sony BMG, which has a lot of experience of how an ill-considered attempt to protect its copyright material can backfire.

The sales of some Sony BMG records have slumped since it was revealed that the discs used insecure software and the music maker is facing lawsuits over its anti-piracy software in the US.

Yet the CMBA seems to think that the public will happily accept that its lawyers should get full access to e-mail logs and phone records if it can persuade a judge that its members are suffering economic damage through file sharing.

The record and movie industries need to realise that they are not special, they are not privileged and they do not have public support for the heavy-handed way they are dealing with the issues which increased access to digital content creates.

If they cannot come up with a business model which allows them to make profits without criminalising their customers, trampling over our civil liberties or installing malware on our computers then they do not deserve to stay in business, and new ways for artists to reach the public will have to emerge.

For Sony, Disney and EMI - all members of the CMBA - to argue that legislation intended to protect us from bombs should also be there to protect us from BitTorrent is offensive and unacceptable. We must hope that MEPs have enough sense to reject it.

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Bill Thompson is a regular commentator on the BBC World Service programme Go Digital