12.27.15

Insensitivity at the EPO’s Management – Part IV: Criticism Regarding Patent Scope is Verboten

Posted in Europe, Patents at 12:17 pm by Dr. Roy Schestowitz

Battistelli’s commandment: thou shalt not question the management

EPO as god

Summary: The inability to (safely) scrutinise patent maximalism at the European Patent Office (EPO), where declining standards are exploited as desperate means geared towards meeting or beating quality-agnostic goals

SEVERAL countries in the world have rather ruthless patent policies. They would be willing to grant and protect/enforce patents on just about anything, under the wrong assumption that monopoly is virtuous and collectively beneficial. The EPO increasingly serves the big monopolies, even when they're not European. The EPO, as we showed in part II of this series, also starts supporting monopolies on cancer, not just on software/mathematics/logic (inherently inseparable). It’s incredibly misguided and controversial.

India is one of those very few countries that became widely known for rejecting patents on a lot of drugs, for the benefit of the collective health of Indian people (a very large population). India restricts patents in several other domains as well, e.g. software. Victory (for now [1, 2]) over software patents in India has been big in the Indian news sites today/yesterday, at least the English-speaking sites. Here are three new examples:

Europe’s EPO has been odd when it comes to software patents (“as such”) and increasingly when it comes to patents on life, as we noted here several times in recent months. Those inside the EPO who dare to speak out about it apparently suffer retribution. How do we know? Well, stay tuned for the remainder of this long series, which binds together several stories of several people who suffered the wrath of the EPO’s management. Under the Battistelli-led regime, more than ever before, staff is reduced to mere lemmings having to accept the systematic robbery of their basic rights, the abduction of the Office by brutes with mates in the industry, and the detrimental ‘public’ ‘service’ to Europe. This is effectively a coup d’etat and merely suggesting that it exists had become a punishable offence. If the EPO was a purely theist institution (not science in disguise), Battistelli would be its Mohammad or Jesus or Buddha or Moses. There is no room for questioning, however unscientific it may seem.

Revolving Doors of High-Level EPO Management: Jacques Michel and the Questel Deal With the EPO

Posted in Europe, Patents at 11:43 am by Dr. Roy Schestowitz

Jacques Michel
Photo credit: Gao Lulin Foundation

Summary: A look at the old taboo, namely allegations of a conflict of interest involving the French for-profit Questel and the European Patent Office, where Jacques Michel held high positions before these two signed a lucrative contract to digitise about 67 million pages of patent collections

MOVING on to the next item on our busy EPO agenda (Christmas is an opportunity to keep abreast of the news whilst also coping with the ever-growing backlog), today we leave behind Europatis and move on to Questel. For those who missed what we wrote about Europatis, here it is in four consecutive parts:

  1. Jacques Michel (Former EPO VP1), Benoît Battistelli’s EPO, and the Leak of Internal Staff Data to Michel’s Private Venture
  2. Europatis: “Turnover of €211,800 and Zero Employees”
  3. Loose Data ‘Protection’ and Likely Privacy Infringements at the EPO: Here’s Who Gets Employees’ Internal Data
  4. Summary of the EPO-Europatis Series

Before Jacques Michel founded Europatis (we got hold of the corporate statutes of Europatis, a confirmation letter by a bank that the starting capital of €4000 had been duly deposited, and a shareholders’ resolution naming Jacques Michel as the general manager) he had done numerous things, including some time at IIPI, a career at the EPO, and a career at Questel.

“Jacques Michel migrated from Questel to the EPO.”Based on Questel’s own Web site, in 1989 “Questel [was] chosen by the European Patent Office (EPO) to develop its internal search system, EPOQUE.” Prior to that, in 1987, there was a “Cooperation between Derwent, INPI [French Patent Office], and Questel to open the Markush Darc service for structural searches in chemical patents.” 7 years earlier, in 1980, there was a “Cooperation with INPI (French Patent Office) and first patent online database, INPI-1 accessible to the public début de la co-opération avec l’Institut National de la Propriété Industrielle (INPI): very first step for Questel in the IP space.”

So Questel is yet another thing (like Team Battistelli) that migrated from INPI to the EPO. Jacques Michel migrated from Questel to the EPO.

“As to Jacques Michel’s previous endeavours, please turn to exhibit #1,” one reader told us, responding to our ongoing exploration regarding Michel’s extra-curricular (or extra-EPO) activities. A copy is included with fresh, improved quality, OCR information [PDF].

“According to Questel’s own Web site, EPOQUE dates back to 1989.”It is a Masters thesis by one Jiaji Ma, submitted in 1992 at the ENSSIB, the “École nationale supérieure des sciences de l’information et des bibliothèques” near the French city of Lyon, which translates to something like “National Superior School of Information Science and Libraries”.

“It was a different time and a very different EPO,” this well-informed reader said to us, “and the public actually got something of value out of all of the Questel wheeling and dealing. The Masters Thesis does seem to confirm how really “convenient” all this business was, but we still don’t know what exactly happened behind closed doors — governments may have been involved directly.

“I just found my copy of an “official” history of the EPO. On page 192 it is written that Jacques Michel was VP1 from 1987 to 2003. That means he would have been hired after the 1986 Questel deal, so in appearance everything was theoretically above board.”

“There is some uncertainty here, as causality is hard to concretely prove.”According to Questel’s own Web site, EPOQUE dates back to 1989. That’s when the EPO enters the picture, based on their “official” history.

There is some uncertainty here, as causality is hard to concretely prove. “But I was told many years ago the story of someone who got immediately sacked,” a reader told us, “when he dared raise that story. Unfortunately I never learned his name or the exact circumstances, and decades have passed, so proof is difficult.”

Our reader has read the thesis and interpreted it as follows:

Its title is “Pouvoirs Publics et Serveur Questel”, i.e., “Public authorities and the Questel Server”

In the 1970s, witnessing the rapid US developments in the database sector, the French government under Giscard d’Estaing wanted to develop its own national expertise in a field it perceived as being of strategic importance.

Questel was a result of this political will.

And Mr. Michel had a longtime association with Questel.

The thesis begins with the following interrogation on page 7:

French: 2. Une question centrale: quelles sont les relations entre les pouvoirs publics et Questel en France

English: 2. A central question: what is the relationship between public authorities and Questel in France?

On page 10:

Original: Questel a été créé sous l’impulsion de la politique nationale des pouvoirs publics. C’est un phénomène particulier à la France par rapport aux autres pays.

Translation: Questel was created as a result of a national policy of public authorities. It is a phenomenon peculiar to France which distinguishes it from other countries.

Original: De 1978 à 1982, les relations entre l’Etat, représenté par le Bnist puis la Midist, et Questel, représenté par Télésystèmes, s’inscrivent dans un “régime de régie intéressée” (voir fig. 1). C’est à dire un double régime: d’une part Questel est organisé comme une entreprise par la société Télésystèmes, une filiale d’une grande firme publique et d’autre part, elle se développe par les subventions de l’Etat. Son statut juridique est celui une entreprise privée, et son rôle est de fournir des services publics.

Translation: From 1978 to 1982, the relations between the State, as initially represented by Bnist and later by Midist, and Questel, as represented by Télésystèmes, are conducted within a “commercial public service regime” framework (see fig. 1). This means a dual regime: one the one hand Questel is organised as a commercial venture by the Télésystèmes corporation, a subsidiary of a large public corporation, and on the other hand, it develops itself through State subsidies. Its legal form is one of a private company, and its role is to supply public services.

An exact translation for the expression “régime de régie intéressée” isn’t obvious. It is something of an an oxymoron, with a whiff of that nearly proverbial concept of “privatised profits and socialised losses”…

Original: A l’issue de cette période, le serveur national Questel n’est qu’une des cinq divisions de la société Télésystèmes, mais une convention lie Questel et les pouvoirs publics. Avec cette convention, Questel reçoit des aides importantes: 23 MF en 1979, 19 MF en 1980, 24 MF en 1981 et 26 MF en 1982. Pendant cette période, Questel ne peut pas vivre sans subvention de l’Etat (voir le tableau 1 et 2). De plus, dépendant d’une société informatique et logiciel, l’activité de serveur national est l’occasion de développer un savoir-faire en ingénierie documentaire qui dégage pour Questel en 1981, 8 MF. [...]

Translation: At the outset of this period, the Questel national server is only one of five divisions of the Télésystèmes corporation, but an agreement binds Questel and the public authorities. With to this agreement, Questel receives significant financial assistance: 23 MF in 1979, 19 MF in 1980, 24 MF in 1981 and 26 MF in 1982. Questel couldn’t exist during this period without State subsidies (see tables 1 and 2). Moreover, as a part of a data processing and software house, the activity as national server allows it to develop a know-how in document and software engineering, which brought Questel 8 MF in 1981. [...]

According to the last row of table 1 on page 36, Questel received during its early years about 132 million Francs of public money overall.

But the first wave of austerity hit the first Mitterand government, in place since 1981, and Questel was essentially told it would have to learn to survive on its own — eventually.

Original: En même temps que l’achèvement de la convention, un plan d’entreprise de 4 ans est élaboré pour 1983-1986 au terme duquel Questel doit atteindre l’équilibre financier. Pendant cette période dans le cadre d’un cahier des charges, l’Etat apporte une aide forfaitaire et plafonnée. Une subvention globale de 40 MF est répartie pour moitié entre le Ministère de l’industrie [...], et le Ministère des PTT. La figure 2 suivante montre les relations entre pouvoirs publics et Questel durent cette période.

Translation: At the same time the agreement was completed, a 4-year business plan is developed for 1983-1986 time frame, at the end of which Questel should reach the break-even point. During that period the State provides a capped lump-sum subsidy according to a predefined specification. A global grant of 40 MF is supported evenly between the Department of Industry [...] and the department of Post and Telecommunications. Figure 2 shows the relationships between public authorities and Questel during that period.

Let’s meet Jacques Michel on page 39:

Original: Il faut indiquer que pendant cette période, il n’y a plus de subvention directe pour Questel, mais les aides indirectes de l’Etat existent encore: les produits du CNRS, comme Francis et Pascal, les produits de l’INPI, notamment les brevets et les marques, sont toujours diffusés sur Questel, ce qui constitue une aide administrative. Il y a également des aides du personnel: les directeurs de Questel sont quasiment tous venus des organismes publics. Prenons un exemple plus clair comme celui des titres de Jacques Michel dans les différentes périodes: il était chef du Bnist, de la Midist, puis directeur de Questel, actuellement il est chef [sic] de l’Office Européen des Brevets, et ces brevets sont commercialisés par Questel!

Translation: It should be stated that for this period, although there are no more direct grants for Questel, indirect aids from the State still exist: the Francis and Pascal [bibliography databases] of the CNRS [National Scientific Research Centre], and those of the INPI [French patent office], namely patent and trade-mark information, are still distributed through Questel, thus constituting assistance from public bodies. Let us also look at staffing assistance: practically all Questel directors come from public bodies. Let us take as case in point the titles held by Jacques Michel during the different periods: he was the chief of Bnist, of Midist, then became the director of Questel, and is now chief [sic] of the European Patent Office, whose patents are marketed by Questel!

Note the use of an exclamation mark at the end of the paragraph.

Michel was in fact VP of the former DG1, which in its former organisation was in charge of prior art search services at The Hague and Berlin. It subsumed the forerunner organisation called “Institut International des Brevets”, and thus remained vertically integrated with its own support and IT services. Michel may not have been the President of the EPO, but his position as VP1 wielded considerable power and influence.

Nowadays, DG1 is in charge of search and examination. Support services and IT are now the province of other DGs led by “virtuosos” of the likes of Željko Topić and Alberto Casado Cerviño.

Now, if you turn to p. 52-53, you see that something of a miracle occured…

Original: En 1986, Télésystèmes-Questel est retenu par l’Office Européen des Brevets pour la numérisation de ses brevets publiés en Europe depuis 1920, soit environ 67 millions de pages.

Translation: In 1986, Télésystèmes-Questel is retained by the European Patent Office for the digitisation of its patent [collections] published in Europe since 1920, representing about 67 million pages.

Isn’t in an amazing coincidence? Questel was still rather unprofitable and there comes suddenly this large contract… And Jacques Michel becomes VP of the very organisation which rescued Questel.

Nearly three decades later, the exact order in which these events occurred ago have become blurred. It was however common knowledge that whoever dared to voice at the EPO questions or opinions about that deal was essentially committing a career limiting move, with potentially immediate and prejudicial consequences.

But Questel’s existence was now secured.

Original: Dès 1986, Questel détient un tiers du marché mondial de l’information en ligne sur les brevets ce qui représente 25% des heures de connexion de Questel, et ce marché augmente de 10% par an. Questel est devenu un des premiers fournisseurs des informations en ligne sur les brevets dans le monde. D’après Jacques Michel, l’activité des brevets assure à Questel une notoriété, une crédibilité et une dimension internationale de premier plan (Infotecture, no. 133, 1986).

Translation: Questel owns in 1986 one third of the world market for online patent information, representing 25% of connection time, and this market grows by 10% per year. Questel became one of the lading leader of online patent information throughout the world. According to Jacques Michel, the patent-related activities provide Questel notoriety, credibility and a first-rate international stature (Infotecture, no. 133, 1986).

Not bad, ain’t it?

It’s OK for France or Europe to have an industrial policy. After all, the Americans have DARPA, NASA, Boeing, three armed services, etc. But is it the task of an international organisation with shared ownership? And did other member states have a say in this?

Could that be the reason why a later project involved other European partners in addition to the French one?

Original: Une plus grande coopération européenne apparaît en 1989. L’Office Européen des Brevets signe un contrat de 10 millions de DM avec trois sociétés: Télésystèmes Questel, Bertelsmann Computer Beratungsdienst (Allemagne) et Sarin (Italie) pour développer le projet EPOQUE qui permet de développer l’information sur les brevets et représente 24 million de documents avec une croissance de 800 000 par an.

Translation: A greater European cooperation project appears in 1989. The European Patent Office signs a 10 million DM contract with three different companies: Télésystèmes Questel, Bertelsmann Computer Beratungsdienst (Germany) and Sarin (Italy) for developing the EPOQUE project which permits the development of patent information and represents 24 million documents, with an annual growth of 800,000 documents.

Footnote: EPOQUE is the EPO’s workhorse worldwide patent database. It is for example used for the backend of the Espacenet service. It used to run under a heavily modified IBM mainframe database engine with roots extending back in the 1960s. The EPO has developed it’s own in-house, improved and up-to-date search engine from scratch. This project took a long time to come to fruition, but now license fees no longer must be paid.

The conclusion on p. 59:

Original: Notre analyse permet de faire comprendre que les relations entre pouvoirs publics et Questel sont très étroites.

Translation: Our analysis allows one to understand that the relationship between the public authorities and Questel is a very close one.

Whether that’s a fair analysis of the machinations or not, on the balance of probabilities it seems likely that Questel was almost bailed out by the non-French EPO after Michel had entered the EPO (a couple of years earlier he became VP1 at the EPO).

When Team Battistelli makes an argument about the independence of the boards and other such nonsense (as if sending them to a different country/city would somehow improve institutional independence or perception of integrity) people ought to ask themselves whether EPO management itself is as ethical and pure as it wishes to present itself, all while appointing family members to top positions under dubious circumstances [1, 2, 3, 4].

Battistelli’s Proposed Changes to Pensions “Difficult to Understand”, “Liable to Cause Instability”, Without Consultation or Justification

Posted in Europe, Patents at 10:05 am by Dr. Roy Schestowitz

The increasingly-greedy EPO proceeds to the next cutback and the rationale is disingenuous

Medical doctor for EPO

Summary: Legal opinion from Jordan Howells and Ludovica Moro tackles the latest proposal from the EPO’s management, putting forth their refutation of what’s often used as opportunistic ‘damage control’ (e.g. against negative/hostile media whenever there’s a major scandal or protest)

Pensions at the EPO have been the subject of recent changes. Having crushed basic rights of staff, the EPO’s management goes after pensions, too. Since pensions are often based on promises and subjected to changes for many decades, there is plenty of room there for gradual gouging. “Pensions have already been weakened and lowered in a variety of ways over the last years,” one reader told us before seeing the latest. “What did they come up with this time? It might be relevant in that it could constitute further proof that the EPO is being transformed into a plain “cash cow” for the member states. The problem is how to redirect the money from EPO coffers to the NPOs [national patent offices] and their governments.”

“Paying someone or compensating someone does not give one the right to break national laws.”Before the Administrative Council sessions someone sent us the following document. We decided not to publish it at the time, in part for ‘diplomatic’ reasons (the reaction of delegations). “The document was made available to EPO staff,” a reader told us, “and management has certainly seen it.” We have looked at it carefully and asked numerous people about it (people with whom we have secure communication channels). We have run this site for nearly a decade and as far as we know not even once was a source caught or even found to have spoken to us (my PGP key now appears to the right of each article I write), so whenever an opinion is needed we are able to get it (even from people within Microsoft) prior to publication.

Days ago we decided that given our possession of the legal opinion regarding the pension scheme’s amendment which was already voted on anyway, and given professional/legal profession privilege (which we suppose or interpret as meaning that the EPO cannot under any circumstance sniff out the document, which it already has anyway), there’s no longer any point to postponing the release, as text, of the 20-page document noting that the EPO’s amendments are weird at best and futile at the very least. Maybe the document is too long for one to actually bother reading, so we encourage people to read the conclusions part only (starts in page 19, where horizontal lines are representative of page breaks).

“Below are 20 pages compacted into a single Web page.”Putting the opinion out there would not necessarily help other international organisations, where the circumstances are rather unique. The only upside might be that we’ll have something to link to down the line whenever Team Battistelli raves about its “pensions”, as if that somehow justifies all the gross abuses against staff. Paying someone or compensating someone does not give one the right to break national laws.

Below are 20 pages compacted into a single Web page. This opinion has been given to help dissect changes that impact the lives of existing, former, and future staff of the EPO.

OPINION

RE: THE PROPOSED AMENDMENTS TO THE
PENSION SCHEME REGULATIONS
CA/93/15

TO THE STAFF UNION
OF THE
EUROPEAN PATENT OFFICE

1. INTRODUCTION

1.1 We have been instructed by the Staff Union of the European Patent Office (‘SUEPO’) to produce an opinion in respect of proposed amendments by the President of the European Patent Office (‘the President’) to the system of compensation for taxation on pensions of former EPO staff members.

1.2 The relevant circular is CA/93/15, dated 5th October 2015, which was submitted by the President to the Budget and Finance Committee (for opinion) and the Administrative Council (for decision). Since the initial instruction, it has emerged that the circular has been resubmitted after having been amended and as such, CA/93/15 Rev.1 must also be considered.

1.3 There have been a number of historical changes to the Pensions system at the EPO, with reviews taking place in 1977 and 1989 and changes being made in 2006 and 2008/09. More recently, in December 2014, the Administrative Council decided to reintroduce the former tax adjustment in lieu of the lump-sum payment as partial compensation for national taxation of pensions. The amendments relate specifically to Article 42 of the Pension Scheme Regulations and the relevant Implementing Rules. These amendments are described as having been introduced ‘as an immediate measure in view of the need to provide a timely solution to the practical deficiencies of the [partial compensation system]’.

1.4 The rationale for the current proposed amendments to the tax adjustment system is stated by the President as being to ‘better align the calculation method with the purpose of the system, while maintaining an adequate level of administrative efficiency.’ A majority of three quarters of the votes is necessary to effect the changes.

1.5 Both SUEPO and the Association of European Patent Office Pensioners produced commentaries on Document CA/93/15, in which they considered the proposed amendments from their respective positions.


2. BACKGROUND

2.1 The European Patent Office is an international organisation and as such, it enjoys a number of immunities from the laws of its host nations. However, Article 16(2) of the Protocol on Privileges and Immunities of the European Patent Organisation states that pensions do not fall within these immunities and as such, are subject to national income tax.

2.2 Article 42 of the Pensions Scheme Regulations of the Office provides for a tax adjustment payment to partly compensate staff members who joined the office before 1st January 2009 for national income tax levied on their pensions, those staff members having been ‘grandfathered’ through previous amendments. The amount of this compensation is calculated by reference to tables of equivalence which are established for each tax year and Member State by the International Service for Remunerations and Pensions (ISRP) – a service provider which deals with the six Co-ordinated Organisations and other international organisations. The tables of equivalence are based on information provided by national tax
authorities which state the theoretical national tax levied on pensions.

2.3 The rationale for making the further proposed amendments is stated as being to ‘better align the calculation method with the purpose of the system, while maintaining an adequate level of administrative efficiency’. Specifically, concern is expressed that the theoretical sum calculated may give rise to a discrepancy between the amount paid by the pensioner and the compensation paid by the EPO, such that this may constitute ‘additional income’. The proposal purports to aim both to mitigate the ‘undesired effects’ of the system whilst at the same time, maintaining its advantages and having regard to pensioners’ need for stability.

3. ACQUIRED RIGHTS

3.1. Whilst the position in respect of acquired rights is well rehearsed, the subject is worth considering briefly, before moving onto other areas of concern. The doctrine of acquired rights was developed by the ILOAT as a means of determining which terms of the relationship between staff members and their


employer may and may not unilaterally be amended by the organisation1. The relevant test was set out by the ILOAT in the leading case of Lindsey2 in which it said the following:

“The terms of appointment of international civil servants and, in particular, those of the officials of the Union, derive both from the stipulations of a strictly individual character in their contract of appointment and from Staff Regulations and Rules, which the contract of employment by reference incorporates. Owing, inter alia, to their increasing complexity, the conditions of service mainly appear not amongst the stipulations specifically set out in the contract of appointment but in the provisions of the above-mentioned Staff Regulations and Rules. The Staff Regulations and Rules contain in effect two types of provisions the nature of which differs according to the objects to which they are directed. It is necessary to distinguish, on the one hand provisions which appertain to the structure and functioning of the international civil service and the benefits of an impersonal nature and subject to variation, and, on the other hand, provisions which appertain to the individual terms and conditions of an official, in consideration of which he accepted appointment. Provisions of the first type are statutory in character and may be modified at any time in the interests of the service, subject, nevertheless, to the principle of non-retroactivity and to such limitations as the competent authority itself may place upon its powers to modify them. Conversely, provisions of the second type should to a large extent be assimilated to contractual stipulations. Hence, of the efficient functioning of the organization in the general interest of the international community requires that the latter type of provisions should not be frozen at the date of appointment and continue so for its entire duration, such provisions may be modified in respect of a serving official and without his consent but only in so far as modification does not adversely affect the balance of contractual obligations or infringe the essential terms in consideration of which the official accepted appointment.”

Emphasis added

_____
1 The equivalent concept at the World Bank is that of ‘fundamental and essential’ terms and conditions of employment as established in the leading case of de Merode, which was the first case of the World Bank Administrative Tribunal.
2 ILOAT case 61 Linsdey (1962)


3.2. In apply this doctrine, the ILOAT has drawn a distinction between the amendment of terms in respect of which staff members have acquired rights on the one hand, and the amendment of the method or ‘modalities’ which appertain to the performance or delivery of the term or condition to which the staff member has acquired a right. Where the proposed amendments relate to the modalities – that is to say, to those terms which are of an impersonal nature – then, it is often held that organisations may make amendments to them, although each case turns on its own merits. Aware of this, organisations often seek to make changes to the methodology, rather than attacking the right itself; one such example might be to amend the way in which a particular benefit is calculated or provided.

3.3. However, there would seem to be a considerable lacuna in the reasoning of the ILOAT and consequently, the case law, in the situation where the proposed amendments to the method or ‘modalities’ are so great that they might properly be said to amend the term itself. At what point are amendments to the methodology for calculating a benefit, or indeed, compensation, so great that they have the effect of upsetting the balance of contractual relations, or of amending the essential nature of a term, in consideration of which, an official accepted appointment? By way of a basic example, consider the situation where an education allowance is calculated prior to amendments and on that basis, provides for a sum of €100,000 to be paid to the staff member; but after the methodology for calculation is changed, the sum falls to €1,000. It is patently nonsensical to argue that this is merely a change to the modalities for calculation and therefore, that it does not infringe on the staff member’s acquired rights; on the contrary, the changes to the methodology are themselves the means by which the acquired right is taken away, albeit under the pretense of a mere amendment to the method for determining the sum of the education allowance. The reality is, that such a change has had the effect of changing – fundamentally – one of the key things in consideration of which a staff member accepted employment and in the process, has upset the balance of contractual relations between the organisation and the staff member.


3.4. The cases of Lamadie (No.2) and Kraanen3 clarify that the test is applied on an objective basis, that is to say, would the provisions under consideration induce the mind of an ordinary applicant, when he was considering joining an organisation, to accept that offer? This is as opposed to that of the Applicant in the case, viewed on a subjective basis.

3.5. Having regard to the example above, the argument to be brought by SUEPO in this instant case would be to address this lacuna. The pensions adjustment represents a significant portion of pensioners’ remuneration and, when compounded by the in-built delay in applying the adjustment and its now apparently circular application, which has the effect of further reducing the amount of the adjustment (cf. paragraph 7.7, below), one might argue that it is questionable whether the pensioner is getting the adjustment to which they are entitled at all.

3.6. It is undoubtedly of some concern that the proposed amendment set out in CA/93/15 came shortly after earlier changes in December 2014, for several piecemeal alterations made over the years may well be indicative of a creep towards more wholesale modification which, if they had been made at once, ‘might upset the balance of contractual obligations’ between the EPO and its Staff Members and thus have been frustrated by virtue of the doctrine of acquired rights.

4. CONSULTATION

4.1. The EPO enjoys functional immunity from legal suit; as a consequence, in the normal course of affairs, its staff members have no recourse to national courts4. For this reason, procedural regularity takes on particular significance in international organisations – a point that is made by Amerasinghe5. Adherence by the Organisation to its Regulations is fundamental to protecting the rights and interests of its staff members. As such, failures in respect of the consultative
_____
3 Lamadie (No.2) and Kraanen ILOAT Judgment No. 365 [1978] (IPI/EPO)
4 The importance of consultations, engaging with staff and providing access to a proper remember have been demonstrated by the lifting of the immunities of the EPO by the Dutch courts – a decision that was confirmed by the Court of Appeal.
5 Amerasinghe, C.F., The Law of the International Civil Service, 2nd Ed, OUP 1994 at page 366


process may amount to procedural irregularity giving rise to a cause of action in
itself.

4.2. Article 38 of the Service Regulations (November 2015) sets out provisions in respect of the General Consultative Committee. This Committee might properly be thought of as the main forum for participation by staff members in proposed changes to the terms and conditions of employment which affect them and their colleagues. Article ‘(1)’ states that:

“The General Consultative Committee shall consist of:

  • the President of the Office as Chairman. The President may delegate his chairmanship;
  • all full members of the Central Staff Committee and in their absence their alternates;
  • an equivalent number of full members appointed each year by the President of the Office and in their absence their alternates.”

4.3. Article 38(2) provides that:

“The General Consultative Committee shall, in addition to the specific tasks given to it by the Service Regulations, be consulted on:

  • any proposal to amend these Service Regulations or the Pension Scheme Regulations, any proposal to make implementing rules and, in general, except in cases of obvious urgency, any proposal which concerns the conditions of employment of the whole or part of the staff to whom these Service Regulations apply or the recipients of pensions;
  • any question of a general nature submitted to it by the President of the Office;
  • any question which the Staff Committee has asked to have examined in accordance with the provisions of Article 36 and which is submitted to it by the President of the Office.”

By virtue of Article 38 (1) and (2) it is clear that there is a duty incumbent upon the President of the Office to Consult with, inter alia, the Central Staff Committee in respect of the proposed amendments to the Pensions Scheme Regulations, the regulations having been drafted using the imperative ‘shall’. In this instant case, no argument can be made in respect of ‘obvious urgency’ which might negate such a duty, for the proposed changes do not arise from ‘something unforeseeable’6 as would be required on the reasoning of the ILOAT in Judgment 1061. Furthermore, one may take from Judgment 3395 (applying Judgment 2919) that when the requirement for consultation is engaged, it must be meaningful and conducted in good faith.

4.4. The logical and proper order for consultation would have been for the first document – CA/93/15 – to have been submitted to the GCC, after which, their opinions, proposals and amendments could be submitted to the Budget and Finance Committee (‘BFC’) for consultation “on all questions submitted to the Administrative Council in which the financial implications have to be taken into consideration” as is mandated by Article 6 of the Financial Regulations. Yet reference to the timeline of events in respect of this matter belies any claim that proper consultation has taken place, for the order has in fact been reversed. The BFC convened on 22nd October 2015, while the GCC was later ‘consulted’ for less than two hours on 23rd November 2015. As a consequence, the BFC was blind to any amendments that followed and further, the GCC was rendered incapable of considering any amendment which would have a financial implication, the BFC having already sat. Moreover, compounding the existing lack of meaningful consultation, a second incarnation of the document – CA/93/15 Rev.1 – was produced. This has not and will not now be considered by either of the GCC or the BFC. The inclusion of illustrative tables in the latter document demonstrates vividly the fundamental lack of understanding of how this proposal will work in practice: indeed, had they been included in the first paper, then this may well have given council members pause for thought, for the simplistic examples provided only serve to highlight the lack of actuarial modeling and the difficulties that will arise for pensioners trying to apply the proposed system. Further, the insertion at paragraph 15 of Part 1 states:
_____
6 ILOAT Judgment 1061


“As a result, the tax adjustment would be calculated on the basis of the pensioner’s actual income tax taking into account all sources of income, but it could not be higher than the theoretical amount determined as per the tables of equivalence.”

This addition is clearly directly contradictory to Article 42 (3) which states, inter alia, that:

“No account shall be taken of:

  • individual factors related to the personal circumstances or private means of a particular pensioner,
  • income other than that arising under these Regulations,
  • the income of the spouse or dependents of the pensioner.”

The additional paragraph 15, if it had been seen by the GCC, would surely have given rise to questions and concerns in respect of this apparent contradiction and flaw in logic in the way the system is to be operated.

4.5. Extraordinarily, it is clear that this proposal has been drawn up without any real consultation of the EPO Pensioners’ Association, which brings into question the validity of any consultation thus far. On 24th November, the Chairman of the Association was invited by the Office to a meeting on 30th November. The purpose of the meeting was not disclosed and two further requests for, notification of the purpose of the meeting, together with access to any papers for it, were ignored. Only at the start of the meeting was the Chairman informed that the purpose was to get the Association’s input on the revised document CA/93/15 Rev.1. It would seem that this was little more than a box-ticking sham consultation, in which the process has been engineered so as to stifle any meaningful feedback from those affected. This would, of course, be even more significant an issue in circumstances where there is an explicit agreement or undertaking by the President to consult the Association: indeed, such circumstances, if they did in fact apply, would appear to give rise to a case of procedural irregularity.


4.6. The importance of consultation with the Staff of the EPO is all the more pertinent given the recent historical tensions between the President of the Office and the Staff. Indeed, proper consultation is there as a means of ameliorating concerns about prospective changes and enabling the Office to achieve its stated aim of ‘maintaining the advantages of the current system…[whilst] bearing in mind the pensioners’ need for stability’. Yet actions speak louder than words and the course adopted by the Office suggests that this objective might more accurately be described as ‘lip service’, than a true statement of intent.

5. LACK OF DETAIL AND CLARITY

5.1. There is a significant lack of detail and clarity in the proposals. The frequent amendments to the pensions scheme regulations by the office in the past would seem to be demonstrative of a lack of genuine thought, consideration and consultation when it comes to making changes. This is all the more egregious for pensioners who, together with their families, should enjoy a certain level of stability, having worked and planned on the basis of the system that was in place. As the ILOAT put it in Judgment 3375 at Consideration 20:

“It is trite principle that an international organisation owes its staff members a general duty of care not to cause them undue hardships. Accordingly, the relations between an organisation and a staff member must be governed by good faith (see, for example, Judgments 2116, under 5, and 1526, under 3)”.

In this respect, it would seem that the Office is not exercising the requisite duty of care, which should be expected when dealing with reforms affecting staff, pensioners and their families.

5.2. Neither a comparative analysis nor detailed calculations have been carried out in order to study the impact of the amendments to the current system or the consequences which may flow from them. A simulation might quite reasonably be expected and should be carried out in parallel with the current system for at least one-year in order properly to consider the viability and desirability of the proposed reforms. Given that the main stated aim is to mitigate the undesired effect of


providing to some individuals a higher tax adjustment than the national income tax effectively paid – the implication being that this is an unjustified and unaffordable cost – the Office should provide evidence to quantify and justify the considerable additional costs that will be incurred in administering such a system, for it seems almost inevitable that these costs would vastly outweigh the alleged benefits. Indeed, it is striking that no information has been provided as to how many pensioners such overpayments are said to apply and further, that the very reason that such changes were not pursued in the past was exactly that which is missing from the proposal, namely, the costs associated with administering such proposals. The policy changes appear to be based on mere supposition and speculation rather than any evidence-based rationale.

5.3. Further, a pilot tax adjustment amendment would allow for the specific logistics to be worked out without adversely affecting the most vulnerable class of individuals with whom the office interacts. Precise sample calculations should be made on the amounts and incomes that will be taken into consideration to determine the adjustment; none of these issues are dealt with in CA/93/15 or CA/93/15 Rev.1.

5.4. Article 52 of the Pensions Regulations states in the imperative, that:

“Implementing Rules for giving effect to these Regulations shall be adopted by the Administrative Council acting on a proposal by the President of the Office and after consulting the General Advisory Committee.”

Yet the vagaries apparent in the proposals are supported only by the assertion of the Office7 that it will be – hitherto unnamed – ‘specialists’ who will determine the way in which the proposals are to be implemented, after they have been approved by the Council. Indeed, at the meeting with the Pensioners’ Association, the representatives of the Office were not able to answer a single question in respect of implementation – not even which entity has been tasked with the application of the amended system. In the absence of specific proposals and models, save for the very basic and simplistic examples provided in the paper, it may be possible to argue that the implementing provisions themselves are deficient and irregular.
_____
7 At the 30th November meeting with the Pensioners’ Association


5.5.
ILOAT Judgment 3324, which arises from a dispute at the World Customs Organization (‘WCO’), concerns a decision by the President not to implement a salary increase recommended by the Co-ordinating Committee on Remuneration of the system of Co-ordinated Organisations. Although that case concerns salaries and not pensions, the issues raised are, in many respects, analogous and it seems quite reasonable to apply the principles affirmed by the Tribunal in its judgment in case 3324, mutatis mutandis, to the case of pensions, for there is considerable cross-over in respect of the points in principle. Specifically, the Tribunal stated at Consideration 16:

“According to the case law recalled in detail in Judgments 1821 (under 7) and 1912 (under 13):

“The principles governing the limits on the discretion of international organisations to set adjustments in staff pay have been well established in a number of judgments. Those principles may be concisely stated as follows:

(a) An international organisation is free to choose a methodology, system or standard or reference for determining salary adjustments for its staff provided that it meets all other principles of international civil service law: Judgment 1682 [...] in 6;
(b) The chosen methodology must ensure that the results are “stable, foreseeable and clearly understood”: Judgments 1265 [...] in 27 and 1419 [...] in 30;
(c) Where the methodology refers to an external standard but grants discretion to the governing body to depart from that standard, the organisation has a duty to state proper reasons for such departure: Judgment 1682, again in 6;
(d) While the necessity of saving money may be one valid factor to be considered in adjusting salaries provided the method adopted is objective, stable and foreseeable (Judgment 1329 [...] in 21), the mere desire to save money at the staff’s expense is not by itself a valid reason for departing from an established standard of reference: Judgments 1682 in 7 and 990 [...] in 6.”


5.6. It could well be argued that if the above considerations apply to salary adjustments, it would be entirely illogical for the same considerations not to apply in the analogous case of tax adjustments, as in this instant case. Indeed, just like the salaries example, where the tax adjustment is concerned:

(a) The Organisation may choose the method for doing so, provided it complies with the provisions of international administrative law;
(b) It must be stable, foreseeable and clearly understood;
(c) It does, as a matter of fact, refer to an external standard (although prior to these proposed amendments, it would seem that there is no discretion to depart from it). Where there is a discretion, then there is a duty on the organisation to state proper reasons for such departure; and
(d) Whilst the purported necessity of saving money may be one valid factor in changing the tax adjustment provided the method adopted is objective, stable and foreseeable, the mere desire to save money at the staff’s expense is not, by itself, a valid reason for departing from the established standard of reference.

Indeed, it would seem that there is a quite apparent lack of objectivity, stability and foreseeability in the rather opaque and untested proposals that have been put forward by the President and so it may be possible to argue, analogously, by applying the principles set out above, to this instant case: the proposals fail on at least grounds ‘b’ and ‘d’. It is of note that in Judgment 3324, the Tribunal explicitly rejected the Organisation’s recourse to budgetary reasons and the world economic climate. Such arguments must surely be even less persuasive in the case of the EPO – a profit-making institution – which has a running budget of €2.05 billion, enjoys cash reserves of €2.0 billion (excluding the cash in the Reserve Fund), has a Reserve Fund of €6.5 billion with the major sub-fund relating to a ring-fenced provision for pensions and one other sub-fund containing in excess of €80 million set aside for the tax adjustment alone.


6. INTERACTION WITH NATIONAL TAXATION LAWS

6.1. In respect of the tax treatment of pensioners by the EPO and its interaction with national taxation rules, notwithstanding the lack of detail and clarity concerning exactly how the regulations are to be applied, it seems inevitable that if the changes are implemented, the situation will become considerably more complex, bureaucratic and uncertain. Moreover, further to the inevitable additional administrative and actuarial costs of running the system in the proposed way, it would seem logical that the lack of certainty and predictability will generate more legal challenges and complaints to the figures reached by the Office.

6.2. Individuals’ tax situations may be complex and many pensioners may have sources of income other than their EPO pensions which will impact on actual tax paid. Article 42(3) makes an explicit assertion, namely, that:

“No account shall be taken of:

  • individual factors related to the personal circumstances or private means of a particular pensioner,
  • income other than that arising under these Regulations,
  • the income of the spouse or dependent of the pensioner.”

However, in seeking to pay an adjustment based on the actual tax paid, where this differs from the theoretical amount, this must necessarily be based on individual factors related to the personal circumstances or income other than that arising from the EPO pension.

6.3. The elected governments of the Member States of the EPO often provide for the value of certain items to be deducted from income tax due. One such example is the provision in a country’s tax law which permits for deductions to be made for losses incurred. As such, if a pensioner sought to write off the value of losses suffered on an investment, for example, then the extent and impact of such losses is mitigated by enabling the pensioner to retain some of the tax due. Yet under the EPO’s proposal, the Office would effectively be benefiting from the losses incurred by the pensioner by using those losses – which are entirely unrelated to


the income from the EPO pension – as a means of reducing the amount of compensation paid.

6.4. It would seem impossible to separate the effect of unrelated tax deductions, from an assessment of actual tax due on a pensioner’s income from the EPO pension, without reference to the theoretical national tax which would have been levied on the pension, if such deductions had not been made – in other words – by applying the system that is currently in place. The proposal as it stands, then, would appear to be logically flawed and contradictory.

6.5. There are two ILOAT cases which specifically deal with the relationship of national taxation and the amount of compensation to be paid. The first – 2257 – was delivered on 16th July 2003 and deals with the overpayment of tax adjustment which was designed to compensate – in part – for taxation of the applicant’s pension in his home country. In that case, the Claimant specifically raised the argument that income from other sources caused his EPO pension to be taxed at a higher rate which was not taken into account in the calculation. The effect of this was that his tax adjustment amounted to approximately 27 per cent of the tax actually incurred on his EPO pension. The Tribunal confirmed the EPO’s arguments at the time in respect of the interpretation of Article 42(3), namely, that:

“only the complainant’s EPO pension income can be taken into account when calculating the tax adjustment. This means that the tax rate applied will assume that the complainant’s only income is his EPO pension income. While this method of calculating the complainant’s tax adjustment does in fact create a distinction between him and other EPO pensioners, for example, those whose EPO pensions constitute their whole income, or whose countries of residence impose a flat tax rate, a distinction does not always constitute discrimination. Distinctions between persons can be valid. A distinction will be invalid when it is based on an irrelevant characteristic. In this case, Switzerland’s decision to apply progressive taxation, in combination with the EPO’s method of calculating tax adjustments, while creating a distinction, does not constitute discrimination. There is no principle of international law which requires the EPO to ensure that all of its pensioners are treated the same vis-à-vis the taxes they pay in their home countries.”


6.6. The effect of this paragraph is that the pensioner must bear the burden of national tax laws, whether for better or worse, since the EPO may only consider the theoretical amount due. The way in which the proposed amendments are drafted does not change this. The language of Articles 42(2) and (3) appears to be not only logically internally irreconcilable, but also at odds with the EPOs own earlier, clearly stated position and the decision of the Tribunal in case 2257. Apply the proposals as best as possible, in light of the lack of clarity contained therein, the only reason why the actual income tax payable by the pensioner would be lower than the theoretical amount of taxation adjustment is the personal circumstances of the Applicant, such as, allowable deductions for losses – precisely those factors which have previously been held to be irrelevant.

6.7. The second case is Judgment 2911 which was delivered on 8th July 2010. The case concerns the payment of the tax adjustment and household allowance, and the treatment of pensioners where their circumstances have changed, in that instance, as a result of separation. The Complainant argued that the EPO should take into account the way he is treated under German tax law (i.e. as being legally separated and therefore not enjoying the tax relief enjoyed by married taxpayers) when calculating his tax adjustment, specifically, that using the table applicable to married couples was unlawful. The EPO again reiterated the point that a pensioner’s status under national taxation law is not relevant to the way it interprets the Pension Scheme Regulations and the Tribunal held in Consideration 7, that “under the Pension Scheme Regulations, the status of a pensioner under German tax law is irrelevant for the purpose of determining the tax adjustment”.

6.8. The EPO appears to want to ‘have its cake and to eat it’, but in doing so, it seems to have introduced illogicality, contradiction and inefficiency into the Pensions Scheme Regulations which have hitherto worked well and efficiently, such that they may now be unworkable.


7. CONTRARY TO THE EFFICIENT FUNCTIONING OF THE OFFICE

7.1. While cost-cutting is a fact of life for many institutions, the very substantial administrative and actuarial burden of pursing the proposed changes is such that not only is there no evidence that the amendments would deliver savings, but the situation may in fact be quite the opposite. Further and in any case, the ILOAT has held that hypothetical financial difficulties in the future do not provide justification for unilaterally departing from the system it had adopted8.

7.2. For the pensioners and their beneficiaries the new system will be a heavy administrative burden, in particular, in cases where the pensioner has incomes from other sources. The list of uncertain and unclear facts is long, but among others, pensioners are, of course, residing in different countries, and as such, it will be extremely difficult to find a common solution for the presentation of their yearly tax assessment without inflicting undue hardship and instability on these former staff members.

7.3. Each member state has a different national tax system and this will not contribute to the stability of the newly proposed tax adjustment amendment. The proposals do not provide any suggestion in this respect and it would seem that the administrative costs relating to the introduction of the proposed reform have been significantly underestimated. No details have been provided in respect of who will take care of the administrative difficulties in processing tax assessments from former staff members or their surviving beneficiaries residing in 38 different member states, provided in more than 20 different languages. Indeed, it does not appear from CA/93/15 that this point has been considered, let alone costed with the appropriate bureaucracy factored in.

7.4. For example, there are cases where two tax assessments relating to different years are issued in the same financial year and there are other cases where the tax assessment is finalised two or three years later, such as in the Netherlands, as
_____
8 ILOAT 3324 (2014) although it should be noted that this case may be distinguished on the basis that it concerned the non-application of existing rules and a recommendation, and not the amendment of regulations, as in this instant case.


allowed by the national law9, or even longer when the assessment is subject to a legal suit or an examination by the tax authorities. Furthermore, in the example relating to loss relief, this is often only realised and claimed back several years after the initial investment is made. It is, perhaps, regrettable in this regard that national taxation laws are considered to be ‘irrelevant’, for the amendments taken without consideration of the same may well lead to perverse effects in respect of the payment of tax adjustment such that some pensioners may not be able – by design – to comply with the requirements of the Pensions Scheme Regulations.

7.5. The amendments state, per Article 42(4), that a failure to provide the relevant tax returns may result in the pensioner’s right to the tax adjustment being extinguished. Incredibly, there is no time period specified, after which a pensioner would be deemed ‘non-compliant’, it appears unclear from the text whether the loss of the right to the adjustment will apply only to that year or permanently, and further, the requirement that the pensioner “refund any amounts unduly received” is left undefined. How is it possible to know whether sums have been unduly received, if no tax calculation is known? Who is to decide whether a sum has been unduly received and according to what criteria?

7.6. The introduction of the proposed amendments will leave all existing and future pensioners with a one or two-year gap in their income since the compensation will be paid only after evidence of the tax payment has been provided. The Office could continue to pay the tax compensation on a monthly basis and settle any difference with the amounts that it considers due at a later stage, as it does for the education allowance, for example. Indeed, education allowance and daily allowances are all paid in this way in order to avoid having to collect, manage and process complex individual data that are likely to lead to administrative overhead costs, higher than any sums gained.

7.7. Furthermore, it seems that no regard or consideration has been given to the apparent vicious circle that the proposed amendments will introduce. EPO pensions are not exempt from national taxation and for the same reason, nor are
_____
9 Dutch General Tax Law, Article 11, para 3 states that the establishment of the tax assessment expires three years after the date on which the tax amount is due.


any adjustments. As such, the tax adjustment will itself have to be declared as taxable income. This will result in the situation where the declaration of taxation to national authorities in a year is, by definition, not accurate, for the amount of the adjustment will not have been paid and accounted for; as such, the amount of the adjustment will, itself be inaccurate, for it will be based on a lower tax figure which does not include the adjustment. Then when it is paid (at the wrong rate, since it is based on a necessarily inaccurate tax declaration), it will result in a higher and inaccurate level of income for the following year which will, yet again, render any following tax declaration and consequently, the next adjustment figure, inaccurate. This may, for some pensioners, result in a substantial decrease in income.

7.8. It is also unclear why pensioners should be compelled to disclose their financial situation and tax paid to their former employer. This may raise data protection issues in most of the member states. The requirement to disclose each pensioners personal financial situation will indiscriminately hit all present and future pensioners, whilst the office will simply disregard those who actually receive a lower tax adjustment than they pay and so are of no interest to the Office.

8. CONCLUSION

8.1. In seeking to impose the proposed amendments, the Office – the former employer – would be seeking not only to pry into the personal affairs of the pensioner, but may in fact effectively be benefiting from his or her losses.

8.2. It seems clear from the proposals that they are difficult to understand, for they are lacking in clarity and detail, and are liable to cause instability. No proper consultation, assessment or analysis appears to have been carried out and no justification has been provided for departing for the existing, tried and tested system.

8.3. Furthermore, there is an inherent logical lacuna in the proposals which contradicts the previously stated position of the Office – one which has been upheld by judgments of the ILOAT. It is not possible, to take no account of personal


circumstances on the one hand, whilst effectively requiring disclosure of and benefitting from, the same on the other hand.

8.4. It would seem that a cogent argument can be made in resisting the proposed amendments. Those charged with approving the proposals should surely require a fully-costed actuarial assessment with a full impact assessment and account of how the administrative and cost burden will be dealt with; but also how such additional challenges can be justified. To do anything less would appear not only to be negligent on the part of those charged with approving the proposed changes, but also indicative of reckless disregard for how operating funds are spent.

If we can assist further or if you require clarification in respect of any of the points above, please do not hesitate to contact us.

Jordan Howells

Barrister
(England and Wales)

Ludovica Moro

Avvocato
(Italy)
European Qualified Lawyer
(England and Wales)

Monday, 14th December 2015

To emphasise 8.2 (above): “It seems clear from the proposals that they are difficult to understand, for they are lacking in clarity and detail, and are liable to cause instability. No proper consultation, assessment or analysis appears to have been carried out and no justification has been provided for departing for the existing, tried and tested system.”

Links 27/12/2015: Perl 6, Solus 1.0

Posted in News Roundup at 8:06 am by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

  • Why Don’t You Contribute to Open Source?

    In my How Much Do You Cost? post last year, I said open-source contribution is a very important factor in defining who is good and who isn’t, as far as programmers go. I was saying that if you’re not contributing to open source, and if your GitHub profile is not full of projects and commits, your “value” as a software developer is low, simply because this lack of open-source activity tells everybody that you’re not passionate about software development and are simply working for money. I keep getting angry comments about that every week. Let me answer them all here.

  • Open Source Software Went Nuclear This Year

    Open source software—software freely shared with the world at large—is an old idea. A guy named Richard Stallman started preaching the gospel in the early ’80s, though he called it free software. Linus Torvalds started work on Linux, the enormously successful open source operating system, in 1991, and today, it drives our daily lives—literally. The Android operating system that runs Google phones and the iOS operating system that runs the Apple iPhone are based on Linux. When you open a phone app like Twitter or Facebook and pull down all those tweets and status updates, you’re tapping into massive computer data centers filled with hundreds of Linux machines. Linux is the foundation of the Internet.

  • ownCloud 8.2.2, 8.1.5, 8.0.10 and 7.0.12 here with Sharing, LDAP fixes

    The latest ownCloud stability and security updates are available, bringing improvements to sharing capabilities and performance enhancements to the ownCloud 8.2 series and LDAP, sharing and many minor fixes to the earlier releases. We recommend to upgrade as soon as possible! Please note the change in upgrade behavior for the Linux packages which require system administrators to manually run the occ upgrade command. Read on for more details about this end-of-year gift from your friends at ownCloud.

  • The problem with self-driving cars: who controls the code?

    The Trolley Problem is an ethical brainteaser that’s been entertaining philosophers since it was posed by Philippa Foot in 1967:

    A runaway train will slaughter five innocents tied to its track unless you pull a lever to switch it to a siding on which one man, also innocent and unawares, is standing. Pull the lever, you save the five, but kill the one: what is the ethical course of action?

    The problem has run many variants over time, including ones in which you have to choose between a trolley killing five innocents or personally shoving a man who is fat enough to stop the train (but not to survive the impact) into its path; a variant in which the fat man is the villain who tied the innocents to the track in the first place, and so on.

  • Events

    • Nha Trang ICT 2015

      I came to Nha Trang this year to bring Fedora back there after the successful event last year. This year, the event was held in another university in Nha Trang, TCU with more participants from other universities in Nha Trang and nearby cities.

      There was a academy/science conference in the morning with some talks from open source enterprises who sponsor the whole event. The afternoon was reserved for FOSS communities and I had a session to introduce about the Fedora project to all students and lectures. There were about 200 attendees join into a big classroom.

      During the session, I talked to them about the benefit of contributing to FOSS and Fedora. I told participants what the employers need in general when they recruit new employees, especially young students. Basically, they need candidates to have critical thinking, group working, English speaking and technical skills. Students can study those skills during participating in a FOSS project like Fedora.

  • BSD

    • 2.2.6-RELEASE Now Available!

      pfSense® software version 2.2.6 is now available. This release includes a few bug fixes and security updates.

  • Openness/Sharing

    • Open Hardware

      • Little Helper: Open Source Hardware Hacker Multitool

        The open source gadget looks like an iPod (if an iPod had header pins sticking out of it). It has basic analog I/O capability, can generate PWM pulses, sniff I2C traffic, and do lots of other features. It is open source, so you can always add more capabilities if you need them.

  • Programming

    • Santa Claus in Linux Style: Top Linux Hardware and Free Linux/Programming Books & Courses Recommendations
    • PHP version 7.0.2RC1

      Release Candidate versions are available in remi-test repository for Fedora and Enterprise Linux (RHEL / CentOS) to allow more people to test them. They are available as Software Collections, for a parallel installation, perfect solution for such tests. For x86_64 only.

    • The Perl 6 release

      The December 25 entry follows with the Rakudo Perl 6 release. “This version of the compiler targets the v6.c ‘Christmas’ specification of the Perl 6 language. The Perl 6 community has been working toward this release over the last 15 years.”

    • Signs that you’re a good programmer

      The most frequently viewed page on this site is Signs you’re a bad programmer, which has also now been published on dead trees by Hacker Monthly, and I think that behoves me to write its antithesis. “Bad programmer” is also considered inflammatory by some who think I’m speaking down to them. Not so; it was personal catharsis from an author who exhibited many of those problems himself. And what I think made the article popular was the “remedies”–I didn’t want someone to get depressed when they recognized themselves, I wanted to be constructive.

      Therefore if you think you’re missing any of the qualities below, don’t be offended. I didn’t pick these up for a while, either, and many of them came from watching other programmers or reading their code.

Leftovers

  • Two men miraculously found alive 72 hours after Shenzhen landslide in China

    RESCUERS scrabbling through the aftermath of a huge three-day-old landslide discovered two people alive in the mud, as China’s cabinet announced a probe into the country’s latest industrial accident.

    Almost 72 hours after being buried alive by a tide of earth and rubble, 19-year-old Tian Zeming was pulled from the soil by emergency workers who have been battling around the clock in the search for survivors.

    Images from the scene showed dozens of firefighters and police thronging around a stretcher, apparently bearing the teenager to a waiting ambulance.

    [...]

    “The lack of safety supervision and passive attitude in taking precautions has caused the whole nation to shake with anger and shocked the world!” user Xizidan wrote in a post that was taken down by authorities, but found on the censorship tracking website Weiboscope.

  • Health/Nutrition

    • Bottled air from Canada is selling like crazy in China

      The startup has been capturing that air in “massive cans” through a clean compression process, which according to Vitality Air, “lock[s] in the pure air without any contamination.” The siphoned air is taken back to the company’s bottling facility, where “we begin filling our convenient delivery cans to the brim with excellent air.”

      Vitality Air’s pitch might read like a throwaway joke on Silicon Valley, but the company has found a market for their version of Canada Dry. People in smog-filled Chinese cities have been buying up the cans in bulk.

  • Security

    • #OLEOutlook – bypass almost every Corporate security control with a point’n’click GUI

      In this tutorial, I will show you how to embed an executable into a corporate network via email, behind the firewall(s), disguised as a Word document. There is no patch for this issue.

    • Somebody Tried to Get a Raspberry Pi Exec to Install Malware on Its Devices

      Liz Upton, the Director of Communications for the Raspberry Pi Foundation, has tweeted out a screenshot of an email where an unknown person has proposed that the Foundation install malware on all of its devices.

      In the email, a person named Linda, is proposing Mrs. Upton an agreement where their company would provide an EXE file that installs a desktop shortcut, that when clicked redirects users to a specific website. (Raspberry Pi devices can run Windows as well, not just Linux variants.)

    • Botnet of Aethra Routers Used for Brute-Forcing WordPress Sites

      Italian security researchers from VoidSec have come across a botnet structure that was using vulnerable Aethra Internet routers and modems to launch brute-force attacks on WordPress websites.

    • Steam Had A Very Rough Christmas With A Major Security Issue

      The security issue looks like it might be resolved now, but resulted in gamers being able to see other account holder’s information. Seeing other accounts included partial credit card information, addresses, and other personal information. For a while, the Steam store was completely shut down. The issue seems to stem from some caching issues due to account holders being presented with the wrong information.

    • Xen Project blunder blows own embargo with premature bug report

      The Xen Project has reported a new bug, XSA-169, that means “A malicious guest could cause repeated logging to the hypervisor console, leading to a Denial of Service attack.”

      The fix is simple – running only paravirtualised guests – but the bug is a big blunder for another reason.

  • Defence/Police/Secrecy/Aggression

    • US Has More than 200,000 Soldiers Deployed Around the World

      The United States armed forces now have more than 200,000 soldiers deployed in one hundred countries of all continents, according to Defense Department reports.
      About 9,800 remain in Afghanistan, while about 3,500 in Iraq and Syria under the pretext of fighting Islamic State (IS), most of the latest from the 82nd Airborne Division.

      The Navy maintains about 40 ships deployed, the largest of which is the USS Harry S. Truman aircraft carrier, with about 5,000 sailors and officers on board-.

      In recent days, this naval unit crossed the Suez Canal with its escorts ships to station in the Persian Gulf Gulf and from there to take part in the bombing against the IS targets in the region.

    • America’s Unending War On Terrorism Will Destroy Humanity And Planet Earth

      Ostensibly, the Arab Middle East is controlled and managed by the US intelligence network; otherwise, Arab leaders would have hard time to stay afloat. The authoritarian Arab leaders live in palaces, not with people to understand the outcomes of their political folly and ignorance. Ironically, the US-Russian air strikes and killings of the civilians in Syria and Iraq will instigate reactionary opposition and increased insurgency to topple the puppet regimes. Daveed Gartenstein-Rosss writing in Foreign Policy (“Thank you for Bombing-Obama- Why al Qaeda might be the biggest winner of America’s airstrikes on the Islamic State.”), argues that President Obama is using wrong strategy to attack ISIL: ‘But an emphasis on degrading and destroying IS while giving a pass to other jihadist groups in Syria could have serious consequences that could leave al Qaeda in the catbird seat.’ America enjoys a record of failure in strategic thinking and practices if you view the war theater in Afghanistan and Iraq and now the forged battleground is Syria.

    • Cameron, Spy Chiefs Trade Secrets With Merkel Over Daesh Terror Threat

      UK Prime Minister David Cameron and the chiefs of Britain’s three intelligence services have briefed German Chancellor Angela Merkel on the latest terror threats, including Daesh, also known as ISIL, in what analysts say is a rare move.

    • Letter: A reader’s election year thoughts

      The current crises with the ISIS/terrorist threat has political and media fear mongers salivating over the potential of going into another prolonged military conflict. Money would once again flow freely into corporations (mostly Cheney’s Halliburton) involved in supporting combat operations in addition to the weapons of war manufacturers and technology industries developing and maintaining hundreds of technology based combat support systems, most of which are not needed nor completed. In this greedy quest, there appears to be little, if any, concern for thousands of military and civilian deaths and the destruction of in-country vital infra-structure essential for post operation stabilization and reconstruction.

    • France out-Bushing George W. Bush in its terror fight

      France once led the world in lambasting George W. Bush’s “war on terror”. But as François Hollande looks to enshrine emergency powers in the constitution, the country’s leaders are suddenly sounding like the US president they once held in contempt.

    • Palace: No ISIS training camps in PH

      Malacañang on Tuesday denied reports that there is now an Islamic State of Iraq and Syria (ISIS) training camp in the country.

      Presidential Communications Secretary Herminio Coloma, Jr. said National Security Adviser (NSA) Cesar Garcia has denied the report.

    • NATO: Seeking Russia’s Destruction Since 1949

      In 1990, after the fall of the Berlin Wall, U.S. president George H. W. Bush through his secretary of state James Baker promised Soviet premier Mikhail Gorbachev that in exchange for Soviet cooperation on German reunification, the Cold War era NATO alliance would not expand “one inch” eastwards towards Russia. Baker told Gorbachev: “Look, if you remove your [300,000] troops [from east Germany] and allow unification of Germany in NATO, NATO will not expand one inch to the east.”

    • Exclusive: Islamic State sanctioned organ harvesting in document taken in U.S. raid

      Islamic State has sanctioned the harvesting of human organs in a previously undisclosed ruling by the group’s Islamic scholars, raising concerns that the violent extremist group may be trafficking in body parts.

  • Environment/Energy/Wildlife

    • Hundreds evacuated after further flooding in northern England – latest updates
    • More than 100,000 flee El Niño flooding in Paraguay, Argentina, Brazil and Uruguay

      More than 100,000 people evacuated their homes in the bordering areas of Paraguay, Uruguay, Brazil and Argentina due to severe flooding in the wake of heavy summer rains brought on by El Niño, authorities said.

      The Paraguayan government declared a state of emergency in Asunción and seven regions of the country. Several people were killed by falling trees, local media reported.

    • Hanging out with the orangutan whisperer

      But the modest, grey pony-tailed founder and president of the Orangutan Project has made world-first discoveries about the orangutan, which literally translates as a “person of the forest” in Indonesian.

    • Climate Change: A Tale of Two Governors

      That brief conversation in Miami would result in Florida becoming, however briefly, a pioneer in grappling with the effects of climate change — such as flooding and freshwater drinking supplies contaminated with saltwater. After Crist was elected governor, he convened a summit, appointed a task force and helped usher in new laws intended to address a future of climate change and rising sea levels. Crist and the Florida Legislature set goals to reduce emissions back to 1990 levels.

    • UK Deploys Army to Rescue People in North Western County Hit by Floods

      British Armed Forces personnel have been deployed to the English county of Cumbria to rescue people whose homes have been flooded, UK Defense Secretary Michael Fallon said Friday.

      Earlier this month, Storm Desmond brought record amounts of rain to Cumbria, resulting in several bouts of flooding in the region.

    • UK weather: M62 20ft sinkhole causes travel chaos as north of England battered by floods

      The M62 has been closed around a 20ft sinkhole which opened up in the road as the north of England was battered by a month’s rain in a few hours.

      The massive hole opened up between junctions 20 and 19 near Rochdale, Greater Manchester shortly after midday, bringing traffic grinding to a halt.

      The westbound carriageway has been closed as engineers examine the scene.

      Meanwhile, the Met Office has issued ‘danger to life’ flood warnings and the army has been called in to evacuate residents in flood-hit parts of Lancashire and Yorkshire.

    • Live updates: Homes evacuated, pub collapses, city centre on flood alert as rivers across Manchester burst their banks

      Greater Manchester is on flood alert after torrential rain throughout the night.

      Rivers across the region have burst their banks with many roads closed.

      Part of the Waterside pub in Summerseat in Bury has collapsed

      We will bring you all the latest updates here.

    • 10,000 properties without power across Lancashire and Rochdale

      Severe flooding has caused widespread disruption throughout the morning causing loss of power to customers in Rochdale and Lancashire with 10,000 properties currently off supply.

      30,000 properties are usually supplied with electricity from the main substation in Rochdale. Engineers from Electricity North West shifted 10,000 properties from the substation an hour before the flooding hit to secure supplies.

    • Govt looking at new insurance levy over floods

      The Government is considering whether a new insurance levy should be introduced to fund flood cover for homeowners who cannot buy policies.

      Insurance companies do not offer cover to homes and businesses in areas at risk of flooding.

      The Department of Environment, the Department of Finance and the Office of Public works are working on possible solutions.

    • Flooding Causes Manchester Gas Explosion

      Listen to this account from an eyewitness who says that flooding has caused a gas explosion in Bury, Greater Manchester.

    • Pub washed away in Summerseat on River Irwell
  • Finance

    • Capitalism – Not China – Is to Blame for the Current Global Economic Decline

      Capitalism, like a speeding train, barreled into a stone wall in 2008. Shocked and dazed, its leaders have been trying to “recover.” By that, they mean to fix the mangled tracks, reposition the locomotive and cars on those tracks and resume forward motion. No basic economic change, in their view, is needed or even considered. They see no absurdity in such a “recovery plan” – just as they saw no approaching catastrophe in the years leading up to 2008.

    • Prof. Wolff comments on U.S. exports of crude oil at RT International
    • Bitcoin: What It Is And How It Works

      In 2008, a programmer issued a white paper in which he argued that we need an Internet currency not subject to the fees and permissions of third-party intermediaries. So he came up with the digital equivalent of cash online, a system that lets participants send value to anyone else with a Bitcoin address the same way they might send an email. “Like the Internet flattened global speech, Bitcoin can flatten global money,” says computer scientist Nick Szabo, who is suspected as Bitcoin’s pseudonymous creator, Satoshi Nakamoto.

  • PR/AstroTurf/Lobbying

    • Robin Kelley, Malkia Cyril, Richard Rothstein: Do Black Lives Matter to Media?

      This week on CounterSpin: From community rallies around the country to the presidential election, the Black Lives Matter movement has changed the conversation. Keeping a spotlight on state-sanctioned violence against black people, activists have opened up a debate, including in corporate media, that addresses racism and white supremacy in ways more searching and less euphemistic than we’re used to. At least, fewer pundits tell us we’re living in a “post-racial” society—that’s a start.

    • Senate Bill 571 censors factual election information

      And helping taxpayers understand how these vital public goods are going to be delivered or paid for is important too. Which is why many people across Michigan are baffled by the Michigan Legislature’s desire to prevent school districts and other public bodies from distributing factual and unbiased information about ballot proposals within 60 days of the election.

      Gov. Rick Snyder should stand for more information and transparency, not less, and veto Senate Bill 571, now before him.

      Senate Bill 571 would prohibit a public body, or person acting for a public body from using public resources for factual communications referencing local ballot questions by radio, television, mass mailing, or prerecorded telephone message for 60 days prior to an election.

    • Donald Trump: Another Terrorist from the 1 Percent

      “What most concerns the [New York] Times is that the crude politics of Trump shatters the lying rhetoric used by Democrats and Republicans alike to justify the policies of the ruling class, at home and abroad. Thus, it worries that Trump is doing “serious damage” to the country’s “reputation overseas” by “twisting its message of tolerance and welcome.” What is the “tolerance and welcome” of which the Times speaks? Is it perhaps the Obama administration’s deportation of more immigrants to Mexico and Central America than any other president? Or the construction of brutal detention facilities in the southern US to hold men, women and children seeking refuge in the US. The Times writes that Trump “has not [yet] deported anyone, nor locked up or otherwise brutalized any Muslims, immigrants or others.” The newspaper fails to add, “Obama, however, has.”

    • Sanders-Clinton Voter Database Hack: a Campaign Pro’s Perspective

      As you probably already know, Bernie Sanders’ presidential campaign was involved in some recent hijinks involving improper access to campaign data from the Hillary Clinton campaign, after a buggy software patch applied by the contractor maintaining the Democratic Party’s voter database, NGPVAN, inadvertently opened a data firewall. The Democratic National Committee (DNC) suspended the Sanders’ campaign access to Democratic voter lists (a subscription that the campaign had paid for); Sanders responded by suing the DNC; after a brief negotiation, the DNC restored the Sanders campaign access; and Sanders apologized to Clinton for the hack in Saturday night’s debate. Clinton accepted the apology, and noted that most Americans don’t care anyway.

  • Censorship

    • To tolerate or to take offence? That’s the question

      AMOS Yee’s most recent blog post has got him into trouble with the authorities again and has led to vehement responses online. However one response, by the President of the Humanist Society, has chosen not to focus on the 17-year-old himself, but on the perceived vitriol against the youth, in turn sparking two camps of responses both online and offline.

      Even though the letter Humanist Society president Paul Tobin wrote was in response to Amos Yee, his letter about the vitriolic responses towards Yee’s blog post has engaged citizens on a general discussion of intolerance towards offensive remarks online.

    • Tuesdays at Cheongster Cafe: Report Police Report

      It seems like Singaporeans have found themselves a new pastime – filing police reports. The past week alone saw two police reports filed against former Nominated MP Calvin Cheng, for incitement to violence. Add to that police reports filed against Amos Yee earlier this year, filed by National Solidarity Party, and another by Workers Party candidate Daniel Goh during GE2015 and so on, and it seems like our boys in blue have no time to nab criminals but spend their days attending to people with grievances to air.

    • Remembrance theme ranks high on Google Singapore searches

      Outspoken blogger Amos Yee, who sparked an uproar for his criticisms of Lee Kuan Yew, was high on the search list of Singaporeans who followed the controversy online.

    • Anonymous Hacks Asia Pacific Telecommunity Portal to Protest Against Censorship In Asia

      Members of the Anonymous hacker collective have defaced the Asia Pacific Telecommunity website (apt.int), gained access to the site’s admin panel (running Drupal), and also managed to get their hands on a database dump.

    • When Censorship is Really Tempting

      Needless to say competing voices and groups oppose this kind of censorship. Officially I think of censorship as acts of governments to limit or punish ideas that threaten them. On a less legalistic basis, I think we tend to use the term to refer to efforts to shut up any views by anybody that the other person or party or organization objects to. You could say, for example, that when our fellow citizens called us peace activists opposed to the Iraq War “unpatriotic” that were attempting to censor our speech. Bullying, peer pressure, threatened loss of livelihood…all are techniques for suppressing unpopular or unwanted ideas separate from any specific government action.

    • Free speech trumps censorship – be it Cecil Rhodes or Adolf Hitler

      Now they want the statue of the man the campaigners call “the Hitler of South Africa” removed. One can see why. Rhodes began enforced racial segregation in South Africa and was – avowedly – a racist, proclaiming the superiority of Anglo-Saxons. Looking back at him today, it is difficult not to regard him and much of his legacy as toxic.

    • International publishers blast censorship in Turkey

      The International Publishers Association on Dec. 22 condemned what it called “blatant political censorship” in Turkey, saying three journalists’ books had been pulled from shelves on court orders.

      “Books by Hasan Cemal, Tuğçe Tatari and Müslüm Yücel will be removed from sale merely because they were found in the possession of people arrested on suspicion of being members of various outlawed political parties,” the Geneva-based IPA said in a statement.

      The Third Criminal Court of Peace in southeastern Gaziantep province decided to remove a total of three books focusing on the Kurdish problem by journalists Hasan Cemal and Tuğçe Tatari from bookstores after being seized during an operation into a cell where suspected militants of the outlawed Patriotic Revolutionary Youth Movement (YDG-H), youth-wing of the outlawed Kurdistan Workers’ Party (PKK), were detained. The court ruled for the confiscation of the books on Dec. 4, arguing they spread terrorist propaganda and praised criminal activity.

    • Turkey attacked by international publishers for ‘blatant political censorship’

      The International Publishers Association on Tuesday condemned what it called “blatant political censorship” in Turkey, saying three journalists’ books had been pulled from shelves on court orders.

      “Books by Hasan Cemal, Tugce Tatari and Muslum Yucel will be removed from sale merely because they were found in the possession of people arrested on suspicion of being members of various outlawed political parties,” the Geneva-based IPA said in a statement.

    • How Websites Will Signal When They’re Censored
    • Bradbury-Inspired 451 Error Code Warns of Online Censorship
    • Error 451 is the new HTTP code for online censorship

      The Internet Engineering Task Force (IETF), the body responsible for overseeing the internet’s technical standards, has approved HTTP 451, “an HTTP Status Code to Report Legal Obstacles”. The new status code will show viewers when a web page is being blocked for legal reasons.

    • Forget 404 Errors: HTTP Now Has a Code for Censorship

      HTTP status codes are not normally a thing that aids political dissidents, or really anything to get excited about. But the newly-made code 451, to be used when something is taken down for legal reasons, is a timely exception.

      Status codes are used when requesting and transmitting data over the internet, for example, pulling up this page. There are five classes, 100s-500s, and tens or hundreds of specific codes within those classes. You normally don’t encounter the codes unless something goes wrong—the infamous 404 error for a page not found, for example.

    • CALLING OUT CENSORSHIP BY NAME, OR AT LEAST BY NUMBER

      With those words, the Internet Engineering Task Force (IETF) announced new HTTP status code 451, to be used when access to a website is denied due to legal demands.

      Most users pay little attention to status codes, which are numerical indicators of how a website is responding to a browser request. If they are familiar with status codes at all, they have most likely encountered a “404 – File Not Found” or possibly an occasional “403—Forbidden.”

    • Burmese artists caught in self-censorship

      Burmese artists lived under strict laws of censorship since 1964. Through their artworks they battled for freedom and it’s only since 2012 that censorship was abolished. Since then there was an explosion of political art but artists stayed very careful in their choice of subject.

      Walking through the streets of Yangon, Myanmar’s largest city, you could feel an air of silenced excitement. The first free elections in 25 years were only a month away and artist Khin Maung Zaw took me to his home and gallery. The idyllic paintings of Buddhist monks and Burmese landscapes on the wall express the love he feels for his country but “Myanmar is a shattered country. We need to choose democracy. It’s the only way we can talk about our needs.”, says a soft-spoken Zaw. Still, he doesn’t call his work revolutionary: “my works are snapshots of the daily lives of Burmese people.”

    • Mercury News editorial: China’s Internet conference is all about censorship

      If you were planning to hold an Internet conference for the world, where would you choose to hold it?

      “Anyplace but China” would be a reasonable response. Yet last week, no less a luminary that Chinese President Xi Jinping welcomed more than 2,000 guests to the coastal city of Wuzhen, as they opened the World Internet Conference.

      That’s right. China hosted an Internet conference. Has one of world’s heaviest-handed cyber censors decided to join the digital marketplace of ideas? Hardly. Check out the guest list, including delegates from such freedom-loving places as Russia, Pakistan, Kazakhstan, Kyrgyzstan and Tajikistan.

      The purpose of this conference was not to be to open the Internet, but how better to close it. China is promoting the idea of “Internet sovereignty,” which is basically a web of fiefdoms gagged by official censors.

    • China is Finally Taking its Seat at the Big Table
    • China’s Xi calls for cooperation on Internet regulation

      President Xi Jinping has defended his government’s broad censorship of the internet, in a high-profile speech underscoring China’s increasingly emphatic attempts to justify its strict online control.

    • Is American film industry pandering to Chinese censors?

      The director of China’s state-controlled film bureau, Zhang Hongshen, has said that China is at war with Hollywood. China’s propaganda chief, Liu Qibao, believes that Chinese movies should reflect the Chinese Dream. President Xi Jinping declared that art should be patriotic and that foreign films should be sanitized.

    • So you think Thai Internet censorship is bad?

      Every hotel I stayed at in China offered free WiFi, but it was a meaningless gesture. While some of my email got through, I was not able to reply to any of it until I returned to Thailand. Likewise Facebook was blocked, though many might see that as a blessing in disguise.

    • The Delicate Dance of a Chinese Journalist

      China jails more journalists than any other country, but media students say the landscape is changing.

    • Students Call for ‘Terrifying’ Wave of Censorship

      A video shows filmmaker and satirist Ami Horowitz on the campus of Yale University asking students to sign a petition calling for a repeal of the First Amendment.

      Horowitz said he was able to quickly gather more than 50 signatures in less than an hour and believes most who signed were students.

    • Trigger Warnings on College Campuses Are Nothing but Censorship

      Two Yale University professors recently said they would no longer be teaching classes after students expressed outrage that the instructors called for open debate and dialogue in an email. Increasingly, students are making demands of university faculty to limit exposure to material that the students deem to be discomforting. One way this is being expressed is in the call for trigger warnings in course syllabi. The student government at the University of California–Santa Barbara, for example, passed a resolution requiring trigger warnings on every syllabus with no penalties for students who skip a trigger class or assignment.

    • Self-censorship makes us victims of political jihad

      Well-respected ASIO chief Duncan Lewis has advised MPs to use soothing language when publicly discussing Islam, apparently to prevent a backlash. Malcolm Turnbull’s tacit support for the advice is not merely an error of judgment, it is profoundly misconceived.

      During the past week, the government has changed the parameters of the public debate on Islamism in Australia. Along with ASIO, it has reframed the debate to propose the cause of militant Islam is, in part, our response to it.

    • Tact is tactical. Obsequiousness signals surrender
    • Self-censorship? Lok Sabha Speaker expunges her own remarks after Congress raises concern

      Congress leader Mallikarjun Kharge, who had returned to the House by this time, protested against Naidu making comments against the opposition in his absence.

    • e-Books help overcome Book Censorship in the Middle East

      The Middle East is notorious for banning books due to moral, political, religious, or commercial reasons. Iran, Kuwait, Qatar, Saudi Arabia, and Syria are often heralded as the countries that tend to ban the most books.

    • Police encourage social media censorship
    • Students need education, not indoctrination

      There is, it turns out, a bright side to this otherwise depressing affair. A small group of brave and principled students, who identified themselves as ‘representatives of the Harvard undergraduate council’, made themselves heard and announced their outraged opposition to the administration’s latest experiment in thought control. A truly diverse array (just judging by last names such as Biebelberg, Ely, Gupta, Kelley, Khansarinia, Kim, Popovski and so forth) wrote ‘to express concern regarding’ the placemat dissemination. ‘Reject[ing] the premise that there is a “right” way to answer the questions posed’, the protesting students affirmed that ‘we should work to foster a climate that is conducive to frank, open discussion – especially among students who disagree’. The placemat, they complained, ‘gives the impression that the points it articulates are positions endorsed by the college and, more disturbingly, positions that the college thinks students should hold’. College, concluded the students, ‘should engage in the task of helping students to think and speak for themselves, not telling them what to think and what to say’.

    • In Hong Kong, Fears for an Art Museum

      “The problem in Hong Kong is not censorship,” said Pi Li, the Sigg senior curator at M+. “The problem in Hong Kong is self-censorship. It’s self-censorship hidden in the procedures, so it’s difficult to distinguish.”

    • Don’t Let Principals Censor the Internet

      Public schools should not have the power to punish off-campus speech.

    • The Palestinian-Israeli singer challenging everyone’s misconceptions

      Call her a traitor, call her a normalizer — Palestinian-Israeli singer Amal Murkus has heard it all. Now as she gets ready to release her brilliant new album, the avowed Marxist and feminist is speaking out against the racism of the Israeli mainstream as well as Palestinian attempts to silence her.

    • Closing down access to ‘free speech’ is not a joking matter

      The U.S. Supreme Court has a long string of decisions defending speech and speakers that many Americans would like to shut off or shut down. But within a just a few days of each other:

      • Eric Schmidt, the executive chairman of Google, said in an Op-ed piece for The New York Times that his company and others should create algorithmic “tools to help de-escalate tensions on social media – sort of like spell-checkers, but for hate and harassment.”

      • Democratic frontrunner Hillary Clinton called on Web companies to “disrupt” terror groups’ ability to use social media for recruitment and communication, to “deprive jihadists of virtual territory.”

      • GOP poll leader Donald Trump said at a South Carolina rally that “in certain areas” we should just shut down the Internet.

    • Why did Iranian TV censor interview with Zarif?

      After a highly promoted holiday interview with Iran’s popular Foreign Minister Mohammad Javad Zarif was canceled at the last minute, Iranians cried foul, accusing state television of taking sides in a partisan quarrel ahead of the elections.

    • NY Times Warns About Europe Expanding The ‘Right To Be Forgotten’

      We recently warned about how the new Data Protection Directive in the EU, while written with good intentions, unfortunately appears to both lock-in and expand the whole right to be forgotten idea in potentially dangerous ways. A big part of it is that the directive is just too vague, meaning that the RTBF may apply to all kinds of internet services, but we won’t know for certain until the lawsuits are all finally decided many years in the future. Also unclear are what sorts of safe harbors there may be and how the directive protects against abusing the right to be forgotten for out and out censorship. Unfortunately, many are simply celebrating these new rules for the fact that they do give end users some more power over their data and how it’s used.

    • Keystrokes in the West may mean a death sentence in Saudi Arabia

      From posting a message on Facebook to watching the cursor blink on a screen, many of us take online communication for granted. For most, the idea that such activities might lead to severe punishment is absurd. But, in Saudi Arabia, the West’s treasured Middle East ally, keystrokes can result in public stoning, flogging, life imprisonment, crucifixion, or beheading. Saudi Arabia appears to be existentially threatened by freedom of expression.

      On 16 December Ensaf Haida, the wife of imprisoned Saudi blogger Raif Badawi accepted, on his behalf, the 2015 Sakharov Prize for Freedom of Thought. Saudi authorities had sentenced the blogger to 10 years in prison with 1,000 lashes for posting comments that criticized the kingdom’s extremist Wahhabi ideology. They consider his views blasphemous.

      In January 2015, the Saudi authorities publicly gave Badawi 50 lashes. This first round of flogging resulted in such a serious deterioration in his physical health that doctors were able to halt the flogging for a while. But, a remaining 950 lashes still await Badawi.

      United Nations human rights expert David Kaye has expressed alarm at growing repression in Saudi Arabia: ‘Such attacks on freedom of expression deter critical thinking, public participation, and civic engagement, the very things that are crucial to human development and democratic culture,’ he said.

    • Rated R for Ridiculous

      MPAA ratings are more political than ever, so parents should do their own research

    • Why Did Facebook Block the Sharing of This New York Times Article About Nuclear Targets?

      When atomic weapons historian Stephen Schwartz tried to post information about 1950s U.S. nuclear targets to Facebook Wednesday, the site stopped him. “The content you’re trying to share includes a link that our security systems detected to be unsafe,” an automated error message announced. Here’s the strange thing: Schwartz—who pointed out the oddity on Twitter (where Washington Post journalist Dan Zak noticed it)—wasn’t sharing state secrets. He was posting a New York Times article.

      It’s not immediately clear why Facebook blocked the story—a fascinating and chilling historical narrative woven from publicly available information—or even whether the block was algorithmic or manual. At first, Slate colleagues told me they were able to link to it through the Facebook widget on the New York Times’ page, but attempting that method now generates a message that reads, “The server found your request confusing and isn’t sure how to proceed.” As some have noted, posting the mobile version of the article appears to work, and other articles about nuclear targets failed to generate the same issues. All this suggests that Facebook isn’t really taking issue with the article itself, so what exactly is going on here?

      [...]

      Again, whatever’s going on here clearly isn’t willful censorship. What’s troubling is the lack of transparency. The more powerful Facebook gets, the more such erratic quirks threaten to shape our everyday experience. At the very least, the company would do well to elaborate on what they mean by “unsafe.” Without providing further details, the site is effectively infantilizing its user base. Even if Facebook eventually explains what happened with the New York Times article, the initial mystery is a potent reminder of who really controls our ability to share information.

    • Thai high court upholds conviction of webmaster for postings

      Thailand’s Supreme Court on Wednesday upheld the 2012 conviction of a webmaster for not acting quickly enough to delete online comments deemed insulting to the country’s monarchy, a decision decried by rights advocates as another blow to freedom of expression.

    • British pub’s Facebook account banned over ‘offensive’ name

      Facebook has suspended a 175-year-old British pub’s social media account over its “offensive” name, saying it was derived from a black cockerel — a male chicken, the media reported.

      The manager of the Blackcock Inn in Llanfihangel Talyllyn, a small village in Wales, in November this year received a message from Facebook saying the pub’s account he created had been suspended for “racist or offensive language”, he told the Independent in an interview.

    • Twitter says it is beating the trolls

      After making it easier to report abusive tweets and increasing the size of its anti-troll team, Twitter believes it is getting ‘bad behavior’ under control. As well as bullying of acquaintances and work colleagues, Twitter has also been used to attack celebrities, the gay community, religious groups, and more, with many people feeling driven from the site. It seems that the decision to take a very hands-on approach to troll tackling is starting to pay off.

    • ICFJ’s Butler: American journalists feel the attacks on colleagues in Turkey and elsewhere

      In the past several years, Turkey has been facing increasing unlawful government oppression on civil society and aggressive assaults against the media.

      After consolidating his power, President Recep Tayyip Erdoğan and his Justice and Development Party (AKP) government did not hesitate to arrest critical voices and media professionals, and has even seized private property and companies. While known as a democracy — even if not a liberal one — Turkey, embracing these tyrannical tendencies of President Erdoğan, has brought the entire nation to very unsteady ground.

      Patrick Butler, vice president for programs at the International Center for Journalists (ICFJ), a Washington-based non-profit organization that works to improve the skills and standards of journalists and media around the world, says he is deeply saddened to see assaults on journalists in Turkey.

  • Privacy

  • Civil Rights

    • Digital Rights Battles in 2015: NSA Reform, Net Neutrality, CISA and Beyond

      From John Oliver quizzing Edward Snowden on whether the NSA is collecting our “dick pics” to EFF’s legal team obliterating the patent that was used to go after podcaster Adam Carolla, digital rights issues have been in the public spotlight this year. For the most part, 2015 found us winning hard-fought battles to advance our freedoms online.

    • 10 human rights cases that defined 2015

      It has been a fascinating year in which to edit this Blog. Political and social challenges – from continued government cuts to the alarming rise of Islamic State – have presented new human rights conundrums that have, as ever, slowly percolated to the doors of the country’s highest courts. And all this during the year of an astonishing General Election result and amid continually shifting sands around the future of the Human Rights Act.

      [...]

      This was a historic decision if only for the fact that it was the first time the Investigatory Powers Tribunal had ever found against the Government. It all began with the Edward Snowden leaks and revelations surrounding the US National Security Agency’s communications interception programme. Liberty and other NGOs cited breaches of Articles 8 and 10 ECHR as a result of the UK authorities’ reception, storage, use and transmission of material intercepted and shared with them by their US counterparts.

    • US revokes visa of British Muslim without explanation

      The imam, Ajmal Masroor has accused the United States of enacting the anti-Muslim policies propagated by Republican presidential hopeful, Donald Trump, who prompted global condemnation this month when he pledged to ban Muslims from entering the US.

    • Conservative Media’s Demand That Muslims Atone For Terrorism Is A Rigged Game
    • Iranian-Americans Are Once Again The Escape-Goats. Why?

      We reaffirm our commitment to the principled American ideals of equal opportunity, due process, and the transparent application of the rule of law and justice afforded to all citizens irrespective of one’s national origin, presumed religion, creed, ethnicity, or gender. I submit this note specifically to YOU to take appropriate action to ameliorate the adverse ramifications of certain aspects of HR158:

    • Congress Put Iranian-Americans and Others At Risk for Becoming Second-Class Citizens

      As a powerful Iranian-American community, we are politically passive. Many of our parents came to the US to avoid politics and politicians. But it seems our passive disposition relative to politics and lack of unity regarding politicians has hurt us and the passing of this legislation is a representative example. The legislation that passed last week by both democrats and republicans is un-American. This legislation is legally, socially, and morally wrong.

    • Yahoo now warns users if they’re targets of state-sponsored hackers

      Bob Lord, the company’s newly appointed chief information security officer, said in a blog post that it will notify users if it suspects suspect that their account may have been targeted by a state-sponsored actor.

      “We’ll provide these specific notifications so that our users can take appropriate measures to protect their accounts and devices in light of these sophisticated attacks,” said Lord.

    • Yahoo becomes the latest company to warn users of suspected state-sponsored attacks
    • Controversial China anti-terror law looks set to pass this month

      China’s controversial anti-terrorism law could be passed as soon as the end of this month, state news agency Xinhua said on Monday, legislation that has drawn concern in Western capitals for its cyber provisions.

      The draft law, which could require technology firms to install “backdoors” in products or to hand over sensitive information such as encryption keys to the government, has also been criticised by some Western business groups.

    • These are the people responsible for our out of control police…

      Matthew Harwood’s definitive article shows that America’s police have gone out of control.

    • Smiles and Nerves: Schools reopen in Ukraine’s frontline villages

      Children have been returning to schools in eastern Ukraine after the Red Cross provided materials to repair the damage and allow them to restart their studies this winter.

      Although the guns have been mostly silent since the early September in Ukraine, government troops and Russian-backed militant forces continue to report casualties in the region. Among the most vulnerable populations are children attending schools near the frontline.

    • Trump’s Muslim ban is as American as apple pie

      Genuinely appalled members of the public and press, as well as elements of the Republican establishment, desperate to stop Trump as a loose cannon not beholden either to the party or its decisive megadonors, labored mightily to make Trump’s Muslim ban blather a huge issue, the killer gaffe that would disqualify him as presidential material.

      However, efforts to neutralize Trump through public censure–“bigot” “fascist” etc.—do not appear to be getting much traction.

      I believe there’s a good reason for that.

      When confronted by discriminatory speech and actions, some make the high-minded appeal to Americans’ better nature: “this isn’t us.”

    • Western Democracy: Who’s Watching the Watchers?

      What kind of society do our so-called “Western and networked democracies” count as normal if humans are constantly objectified, monitored and profiled?

    • China’s cyber-diplomacy

      China’s World Internet Conference is last week’s news, but the event will likely reverberate for years to come, as China seeks international support for its notion of a “multilateral” approach to the governance of global cyberspace.

      The piece that follows is one of the most informative I have read so far on the so-called “Wuzhen Summit,” attended this year by President Xi Jinping. Published in The Initium, a Hong Kong start-up that has done some very good reporting on China over the past six months, the piece is written by Fang Kecheng (方可成), a former journalist at Guangzhou’s Southern Weekly newspaper.

    • The Advocates: Four Public Interest Lawyers To Know

      The Bay Area is home to several legal nonprofits focused on issue advocacy. We asked state and federal judges to identify the staff litigators they see as particularly effective advocates.

    • The Perfect Storm in Digital Law

      The final element in this perfect storm is differing cultural expectations about the role of digital laws. The United States, says the stereotype, sees Europe’s digital laws as anti-business, anti-free speech, and pro-regulation. The EU, in turn, sees the United States’ digital laws as anti-privacy, reckless, and dictated by corporate interests.

    • 2 fatally shot, 1 accidentally, by Chicago police on West Side; families demand answers

      Police responding to a call about a domestic disturbance shot and killed a 19-year-old engineering student and a 55-year-old mother of five, and authorities acknowledged late Saturday that the woman had been shot by accident.

      The families of both victims demanded answers after the deaths, which were the first fatal shootings by Chicago police officers since last month’s release of a 2014 video of Laquan McDonald’s death put a national spotlight on the city.

  • Internet/Net Neutrality

    • There’s wi-fi in the middle of the only place in the U.S. where wi-fi is ‘outlawed’

      At the beginning of this year, the Washingtonian ran an incredible piece about “electrosensitives” who had moved to “the town without wi-fi.” These people believe all the signals crowding the air to power our telecommunications-dependent society are making them sick, so they fled to Green Bank, West Virginia, which exists in the US’s only federally-mandated “radio quiet zone.”

    • Facebook’s Fraudulent Campaign on Free Basics

      Facebook is back with its game of trying to pretend that its platform is a substitute for the Internet, particularly for the poor. The originally controversial Internet.org is now back, re-branded as Free Basics, with full page ads in major papers, hoardings and a completely misleading on-line campaign using Facebook itself.

      The Telecom Regulatory Authority of India has issued a notice for public consultation on the issue. While TRAI has put on hold Facebook’s agreement with Reliance offering Free Basics for now, it has not stopped Facebook’s campaign.

    • 10 reasons that explain why you should oppose Facebook’s Free Basics campaign

      Free Basics violates a fundamental principle of the Internet.

  • DRM

    • Welcome to the Digital Dark Ages

      Historians and archivists call our times the “digital dark ages.” The name evokes the medieval period that followed the collapse of the Roman Empire, which led to a radical decline in the recorded history of the West for 1000 years. But don’t blame the Visigoths or the Vandals. The culprit is the ephemeral nature of digital recording devices. Remember all the stuff you stored on floppy discs, now lost forever? Over the last 25 years, we’ve seen big 8-inch floppies replaced by 5.25-inch medium replaced by little 3.5-inch floppies, Zip discs and CD-ROMs, external hard drives and now the Cloud — and let’s not forget memory sticks and also-rans like the DAT and Minidisc.

  • Intellectual Monopolies

    • Copyrights

      • Netgear Shows Customers How to Share Pirate Movies

        Showing users how to send large video files is a task undertaken by dozens of software and hardware manufacturers but for the folks at Netgear the issue is now a controversial one. Want to send a pirate movie to a friend after downloading it from a torrent site? Netgear apparently has an app for that.

      • New Zealand court rules that Kim Dotcom can be extradited

        Kim Dotcom, the New Zealand-based German entrepreneur behind the Mega Upload file-sharing website, can be extradited to the US along with three associates, an Auckland court has ruled.

        Dotcom and his three associates are accused by the US authorities of conspiracy to commit copyright infringement, racketeering and money laundering. However, Dotcom claims that his file-sharing website was little different from many other file-sharing websites.

      • Kim Dotcom Challenges U.S. Govt. in Christmas Address

        The past several years have been a roller-coaster ride for Internet mogul Kim Dotcom. As he continues to fight an aggressive government determined to extradite him to the United States to face serious criminal charges, this Christmas Day the Megaupload founder recaps his case here on TorrentFreak.

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