Cybercrime and Patents in Europe

Hairy1 writes: "The Council of Europe has been working on a Cyber Crime Treaty for some time. The final version is now available, and makes interesting reading." The submitter points out that treaty signers will be obligated to create legislation, as the UK already has, to force people to disclose passwords and encryption keys to the authorities. The U.S. may well sign this treaty - we've participated in the drafting process. On a slightly different note, people are up in arms because the European Patent Office has decided, apparently on its own, that software programs are patentable. Update: 11/09 15:23 GMT by M : A reader sent in this interesting bibliography of the treaty's history.

Comments

Patents

[iBod]

The Register has a piece on the patents issue here...
Eurolinux goes ballistic over Euro patent 'coup'

Amusing.

[MrFredBloggs]

The EU recently released a report encouraging business & individuals to encrypt data, as the Americans, and sympathetic governments (UK) can read it via Echelon. Now they are saying that once you`ve encrypted it, you have to give the passwords to...uh, the UK government!

RIP in UK

[Martin Spamer]

This site details RIP (the Regulation of Investigatory Powers Act (2000)), which has nothing to do with reglation, but with allows unwarrented searches of computer data, without the data holders knowledge or permission.

Software isn't patentable...

[cperciva]

but a software implementation of an invention does not render the invention unpatentable either.

All this latest directive does is clarify that an implementation in software has no effect on an invention's patentability: If you could get an patent on a method for doing something by using LEGO bricks, you could likewise get a patent on a method for doing the same thing using software.

What's the big deal?

Re:Software isn't patentable...

[Captn Pepe]

If you could get an patent on a method for doing something by using LEGO bricks, you could likewise get a patent on a method for doing the same thing using software.

What's the big deal?

This is more or less how software patents are supposed to work over here in the U.S., too. However, because the PTO has pathetically little software expertise, the result is that you can patent pretty much any stupid idea that is obvious to everyone else if your patent description ends with "...on a computer!"

The other big problem with this is that the patent system is explicitly not supposed to cover algorithms or mathematical formulae, because these are deemed fundamental properties of nature. However, patenting software is a surprisingly easy backdoor to patenting algorithms. E.g. RSA Data Security and the RSA patent which held back public key cryptography by a decade or more, and would have been worse if RSA had succeeded in convincing the PTO that their patent actually covers all forms of PK crypto.

EU protecting privacy?

[titurel]

On November 13 the EU Parliment will vote on the the proposal for a European Parliament and Council directive concerning the processing of personal data and the protection of privacy in the electronic communications sector
Read the report here . If passed it would make it illegal to idenitfy users on the internet without their permission. Keep your fingers crossed.

Not all things that come out of the EU are bad. Belive it or not :)

DOJ Wrote it!

[BuckMulligan]

The US didn't help write the treaty. The US DOJ wrote the damn legislation. This is what is called "policy laundering" in Washington. If you can't pass the surveillance powers you want in the US, just shop the same provisions around in a treaty in other countries.

What to do for us EU citizens?

[4im]

So, what can we (EU citizens) actively do?

I've already signed the EuroLinux Petition

Maybe a membership with FSF Europe?

What else? Find politicians that'll listen?

Forced to disclose Passwords???

[A Commentor]

... treaty signers will be obligated to create legislation, as the UK already has, to force people to disclose passwords and encryption keys to the authorities. The U.S. may well sign this treaty - we've participated in the drafting process.

You would think that a law like this would violate everyone's '5th Amendment Rights':

nor shall be compelled in any criminal case to be a witness against himself... full text.

Being force to disclose passwords to authorities, IMHO, would be equivalent to testifying agaist yourself...

Mathematics

[HalfFlat]

According to the EuroLinux article,

the European Patent Office just published a new examination directive which extends the realm of the European patent practice to software, business methods and mathematics.

Patenting mathematics is outright crazy. It's the same sort of crazy that allows the patenting of software, but in the past one could always say: patenting algorithms is like patenting mathematics, and thus clearly nonsense. reductio ad absurdum has come along and bit us all on the arse.

Trying to imagine a world where mathematics is patentable is both hard and disturbing. Can you imagine if only licensed physicists were allowed to use Hilbert space theory? If one needed to pay a levy every time one used Shannon's law to help design a product? Where would we be if the finite element methods could only be applied to engineering analyses with the blessings of its creators?

How much mathematical progress would be made, if every mathematician had to check whether the work they were building on was patent-encumbered? If every publication had to first get the approval of some patent holders, with the possibility of a required payment?

It quickly gets surreal. Many statements in mathematics are equivalent when viewed in the appropriate fashion. Many too are based on certain sets of axioms. What does patentable mean when viewed in this light?

This to me is a clear sign that extreme IP advocates have just completely lost the plot.

Re:Mathematics

[Jerf]

The EuroLinux article links to a French version of the text; an English version can be obtained by changing the "f" to an "e" (or following my link).

Here's the part on Mathematics:

These are a particular example of the principle that purely abstract or intellectual methods are not patentable. For example, a shortcut method of division would not be patentable but a calculating machine constructed to operate accordingly may well be patentable. A mathematical method for designing electrical filters is not patentable; nevertheless filters designed according to this method would not be excluded from patentability by Art. 52(2) and (3).

First, note that the Patent office, evidently not being staffed by mathematicians, believe that they have not rendered mathematics patentable. Or, in other words, explanation-free protests based on the statement that they have will only confuse them, and cause them to distrust the protesters. After all, "These are a particular example of the principle that purely abstract or intellectual methods are not patentable."

I see three problems with this:

1. "Purely abstract or intellectual methods" often are algorithms. For example, we tend to express the mathematical concept of "graph reachability" as the algorithm that tells us whether a given node is reachable from another. It can be defined other ways (including second order existential logic), but we tend to think of it algoritmically first, moreso for complicated properties.
   
   Therefore, despite protests from the Patent Office that mathematics are not patentable, damn near every discrete mathematics definition and algorithm is patentable, or close enough that a the prospect of fighting a patent would scare anybody.
   
2. "A mathematical method for designing electrical filters is not patentable; nevertheless filters designed according to this method would not be excluded from patentability by Art. 52(2) and (3)." Functions are only relevent in terms of the results. (Merely specifying a domain is rarely useful.) If one can create a mathematic concept, then proceed to creatively patent the (useful, for the Patent Office's amazingly low standard of "useful") results that can come from concept and associated functions, then the only useful part of the concept is effectively patented. Combine this with the next problem ->
   
3. An increasing amount of math is taking place on computers. For instance, the famouse and importent 4-Color problem was proven by a computer. This will only increase over time. Therefore, there may be no difference between the abstract math and the concrete implementation, which means there is no difference between patenting math and patenting an algorithm.

Remember that as you protest to the EU. They don't speak our language and, frankly, they don't know jack shit about math. And it shows. They honestly think that under these rules, math is still unpatentable.

(And frankly, I don't think we stand a chance in Hades of convincing them otherwise. The more ignorant you are, the more you think you know on a given topic, and I'd lay money these people honestly believe they know mathematics. Which means they will not listen to people like us.)

Very important things

[psicE]

First, remember that the Council of Europe is not the EU. It doesn't even have the same members. Just because this organisation passes a stupid law, doesn't mean the EU is evil, and doesn't mean the EU is contradicting itself.

Second, the Council of Europe didn't write this law, the US did; as such, I wouldn't expect many (if any) continental EU countries to sign it, especially considering it may contradict some of their EU responsibilities and they'd rather be part of the EU than pass this law.

Third, if they somehow did pass this law, we could always create a country in Antarctica.

You want my password?

[InfinityWpi]

Gee, sorry, I can't seem to remember it. Contempt of court? Fine. Hey, charge my company while you're at it, they're the ones who make me change it every other month and never write it down...

Terrible..

[saqmaster]

To be honest.. I find the whole RIP bill disgusting.. It's a complete violation of your privacy.. but saying this is nothing new and I won't go there..

One things i've noticed though, is the amount of UK ISP's (Freeserve, AOL to name two), to me, seem to be abusing their shadow proxies (cisco cache engines I presume)..

For, whilst using AOL or FreeServe, you try and telnet to _any_ outside mailserver on port 25, you get their mailserver. It's actually _impossible_ to get to any other SMTP service whilst dialled-up with one of these ISP's.

Now, sure this could be because they're attempting to optimize their network, but on the other hand, they could have their SMTP relays configured to store/cache messages locally - ideal for RIP bill investigations..

Scary thought..

Don't you love how this works?

[Eccles]

First, governments cooperate on creating a treaty with provisions that would never pass muster with the folks back home if they tried to pass it directly. Once signed, they then work to pass laws implementing the treaty. If people complain about the provisions, the lawmakers disclaim responsibility, saying they have to do this to comply with the treaty.

It HAS happened and It DOES happen, EXACTLY like this. Let's not get fooled again.

Legal basis

[TheSHAD0W]

The legal theory behind this law is that the encryption around a file is equivalent to a safe holding a document. If the authorities have a warrant to search the contents of that safe (or the contents of that location, for that matter), they will ask you for the key.

The difference is, of course, that if you don't give them the key, they can cut open a safe. With data under a high level of encryption, they can go spit. So instead, a judge issues an order requiring you to disclose your password, and if you refuse, you're held in contempt and jailed indefinitely. Never mind the conflict with the 5th Amendment; they want to search your (virtual) personal papers, and you aren't allowed to stop them.

(As an aside: The FBI wanted passwords to files they got from Kevin Mitnick's hard drive, the last time they caught him. Mitnick refused to provide them... But on Mitnick's release, the judge ruled that Mitnick couldn't have his files back, since he couldn't prove they didn't contain pirated information. I'd call it a violation of 4th Amendment rights.)

As to whether such a law would hold up in court, for that we'll just have to wait.