Criticism in the US and Cuba

Criticism has the possibility of being more effective in Cuba than in the US.

Doug Madory, Director of Internet Analysis at Dyn Research, sent me a note saying the Cuban blog Internet1.cubava.cu is down, displaying the message "This site has been archived or suspended." He tried emailing the blog's author, but that email bounced.

You cannot see the blog at this time, but the Internet Archive has stored a couple of recent posts, including this one:

The post is critical of ETECSA for not being transparent about the cause of an outage and whether they plan to compensate users. I have no way of knowing whether the problems with the blog are related to this criticism or not -- I hope not -- but it got me thinking about criticism in Cuba versus the US.

I have been quite critical of my Internet service provider, Time Warner Cable, in blog posts. For example, I have said they violate network neutrality, offer terrible customer service, abuse their monopoly power and mislead customers on pricing. This is the image I used to illustrate the post on misleading prices:

In spite of all that, I continue to receive my usual, overpriced service.

In the US, we are generally free to criticize ISPs, political candidates, corporations, the government, etc., but that criticism has little effect. My opinion of Time Warner Cable is common and many people have pointed out the same failings as I have, but nothing has changed.

Cuban blogger Carlos Alberto Pérez has said "I don't criticize to knock the system down. On the contrary, I criticize to perfect the system." I may be naive (probably am), but criticism has the possibility of being more effective in Cuba than in the US.

An itemised phone bill like none ever seen

[Adapted from my evidence (PDF) to the Joint Parliamentary Committee scrutinising the Draft Investigatory Powers Bill]

Mandatory retention of Internet Connection Records - destination IP address, service name (e.g. Facebook or Google), web address (e.g. www.facebook.com or www.google.com) - would engage the right of freedom of expression.

This may seem a bold claim in the face of the oft-repeated assertion that ICRs are nothing more than the online equivalent of an itemised phone bill. The Home Secretary, introducing the draft Bill, said:

“So, if someone has visited a social media website, an Internet Connection Record will only show that they accessed that site, not the particular pages they looked at, who they communicated with, or what they said. It is simply the modern equivalent of an itemised phone bill.”

In her oral evidence to the Committee on 13 January 2016 she emphasised that:

“You are not trying to find out whether they have looked at certain pages of a website, which is where I think the confusion may arise because of what people felt was in the draft Communications Data Bill. It is simply about that access to a particular site or the use of the internet for a communication.”

If a comparison can be drawn with an itemised phone bill, this would be an itemised phone bill like none ever seen^[i]. We can illustrate this by considering the questions that could be answered by scrutinising an actual itemised phone bill compared with one containing the destination information that would be logged in an ICR.

Who has she spoken to?

This is the focus of the traditional itemised phone bill.

The itemised phone bill shows called telephone numbers. In pre-online, pre-mobile days it would have been a fair assumption that whoever was using the telephone was speaking to somebody at the called number, so that a conversation took place^[ii].  That might be somebody at a household telephone or at a public telephone box.  The number might be a private office switchboard^[iii], at which point the information on the itemised phone bill terminated.  It gave no information about which extension the call was routed to behind the private switchboard, or who took the call at that extension^[iv]. (The former changed to an extent with the advent of DDI numbers.)

A subscriber lookup would provide information about the householder or organisation to whom the called number was allocated.

Itemised phone bills have always, with a few exceptions (e.g. dial-up data calls, recorded message services) essentially given information (including when the call was made and its duration) about conversations between human beings.

What has she been doing?

Our notional ICR itemised phone bill now starts to part company from an actual itemised phone bill. It is possible to infer a partial picture of someone's activities by studying a record of whom she has talked to on the telephone.  ICR logs differ in both degree and kind.

ICRs differ in degree in that we now speak on mobile phones and send text, e-mail, SMS and all the other varieties of messages to people in vastly greater volumes than we ever did in the days of landline telephone conversations. This itself provides a vastly richer and more detailed map of our activities than ever was possible with an itemised phone bill.

ICRs differ in kind from an itemised phone bill in that they are not limited to our conversations (whether voice, e-mail or messages) with other people.  An ICR is an itemised phone bill that would log not just whom we conversed with when, but our online journeys: our 'visits' to the bank, the bookshop, the butcher, the baker, the travel agent, the doctor, the clinic, the hospital, the therapist, the support group, the hotel, the club, the concert hall, the public lecture, the political meeting, the trade union office, the ticket agency and so on without limit.

It would go further, logging not just our consciously initiated activities but also those initiated by our smartphones and connected tablets while they are in our pockets, beside our beds at night and so on.

In this respect ICRs bear little resemblance to an itemised phone bill.  If anything they are more akin to universal CCTV surveillance when we step out beyond our front door and venture into public spaces. However that analogy is itself debatable.

What has she been reading?

ICRs would create logs of every website (or equivalent) that we accessed. On my understanding of the draft Bill that would include blogs and newspaper sites^[v].

In this regard ICRs are far removed from both itemised phone bills and CCTV in public places. They do not resemble any kind of log that it has been thought appropriate to compel in the offline world.  It is as if, on our notional itemised phone bill, we were to find a state-mandated list of the titles of the books, newspapers and magazines that we had read in the last 12 months.

We never used to read books over the telephone. Now we read blogs remotely. It is a mere accident of technology that by doing that, instead of reading a physical book in an armchair at home, we engage in what the draft Bill (and RIPA before it) classifies as a 'communication'.

DRIPA was limited to something that people would generally regard as an online communication: internet e-mail, SMS messages and the like.  Reading something remotely, however, is not a communication in the sense of a group of conspirators discussing criminal plots between themselves.  It is a highly personal activity of one individual alone.

Someone who accessed my own blog could[vi]trigger the creation of an ICR showing that they had accessed 'cyberleagle.blogspot.co.uk' (the URL up to the first slash - but now see footnote [vi]), or maybe 'www.cyberleagle.com' if they used that address. The ICR might record the name of the blog: 'Cyberleagle'. It would record the date and time of the access^[vii]. It would presumably have to be linked at least to source data identifying (to the extent possible) the device that accessed the blog.

Mandating that logs of online reading habits be kept is analogous to being made, in the offline world, to keep a list of the books, newspapers and magazines that we have read in the last year.

Reading is in the nature of a home activity. We are far more cautious about the intrusion of general powers into the home. We treat with greater respect for privacy activity takes place there than activity that takes place in public or semi-public places[viii].  When considering online activities we should always consider whether the activity in question is an extension of the home or an excursion into a public or semi-public place.

State-mandated lists of reading habits also strike at the heart of freedom of expression. Our freedom to choose what to read is jealously protected for good reason.  Reading fuels our quest for knowledge. It is emancipatory[ix].  Merely making an officially mandated list of what we choose to read chills freedom of expression. If the ordinary citizen is put in the position of worrying about whether reading a controversial website might excite official suspicion or trip a red flag on some state computer system, that alone is sufficient to chill freedom of expression whatever the safeguards and restrictions on access.

A proposed law requiring us to make and keep a list of physical books, newspapers and magazines that we had read in the last 12 months could expect to be greeted with public outrage.  This aspect of ICRs is an exact parallel.

Reading is also a large part of the 'online visiting' aspect of ICRs. The two are inextricably entangled.  

Even if 'reading' websites could somehow be conceptually separated from 'visiting' websites, it is difficult to envisage any practicable way in which ICR retention could be implemented for only some types of website. Either way, the whole proposal would stand or fall with the 'reading' element.  

---

[i]           Nor should we forget that when itemised phone bills first appeared they excited alarm as to how revealing of people's personal lives they could be.

[ii]           Of course other possibilities existed, such as sending a coded signal by a pre-arranged sequence of calls and hang-ups. Nevertheless there was still a communication between two people.

[iii]          The public telephone number of an office switchboard is somewhat equivalent in the internet world to an ISP allocating one public IPv4 address to the household or office router rather than allocating multiple public IPv4 addresses to individual devices in a household. An ISP allocating a public IPv4 address to one individual device in the household or office is a bit like what used to be called a 'direct outside line'.

[iv]          It is somewhat ironic that the example on page 9 of the ICR Operational Case gives 4 digit extension numbers as an example of something equivalent to a port number. A private extension number would never appear on an itemised phone bill. An 'extension' would have appeared on a bill only if the caller dialled a direct line or a DDI number.

[v]           The assumption in the draft Bill appears to be that all websites would be covered by 'telecommunications service' in Clause 47(6)(a) (see e.g. the Guide para 44).  A scheme that required service providers subject to a retention notice to determine whether individual websites were or were not providing a 'telecommunications service' would presumably be unworkable.  If a site were subject to retention under the (differently worded) Clause 71 but fell outside Clause 47(6)(a), then it would not be subject to the access restrictions of Clause 47(4).

[vi]              If only the destination IP address were logged and not the blog's web address that might show only that the Blogger platform was accessed. (The Home Office's recent written evidence to the Committee says that subdomains such as "cyberleagle.blogspot.co.uk" would be treated as content, not communications data and so could not form part of an ICR. "www.cyberleagle.com" could still be part of an ICR. This differs from the previously understood position. See my further evidence (PDF) to the Committee.)    

[vii]         The ICRs Fact Sheet says: "[An ICR] will involve retention of a destination IP address but can also include a service name (e.g. Facebook or Google) or a web address (e.g. www.facebook.com or www.google.com) along with a time/date."

[viii]            RedLines and No Go Zones: the coming surveillance debate.

[ix]              "TheresaMay's Threat to the Privacy of Reading" John Naughton, the Guardian, 8 November 2015

A Universiy of Havana hot zone?

A Cuban WiFi zone on and around the University of Havana?

Alejandro Ramos Encinosa, from the University of Havana, has written a short description of a campus WiFi project that would bring connectivity to the UH campus and nearby neighborhoods. Ramos says there are over 25,000 students on campus and only about 3,000 computers in labs. Like ETECSA's public WiFi hotpsots, students will access the network using their own devices, saving the university capital and maintenance costs.

It is noteworthy that they plan to offer access to non-students who are near the campus. A few Cubans have been able to gain unauthorized access to the networks of universities and other organizations, but it sounds like the university intends to provide open access in this case.

It is not clear whether the off-campus access will be paid or free. (I assume it will be free for students). The only free public access project I know of in Cuba was a hotspot opened up by the artist Kcho, but that was more of a symbolic photo op than meaningful infrastructure.

Free or paid, if 25,000 students and the public are to use this network, it will need a fast connection to the Internet (or even the Cuban intranet if that is the intention). I assume that backhaul capacity would have to be provided by ETECSA, in which case they might charge for public access as they do with their existing hotspots.

<random speculation>
Since I don't know what is actually planned and what the status of the project is, I can offer some highly speculative suggestions. Might students be involved in the installation of the network -- something along the lines of Net Days, which I described in a post on connecting Cuban schools? If there is sufficient backhaul capacity, could they deploy mesh networks in the neighborhoods around the campus -- perhaps look at Guifi Net or the adhoc "street net" LANs in Havana.
</ random speculation>

If you are familiar with the project, let us know about what is planned and its status.

Cubaoutsource.com -- an online meeting place for Cuban developers

I've written several posts on the well-educated, underemployed Cuban tech community, which is beginning to form an ecosystem through meetups and hackathons. The government has also established a professional society, the Unión de Informáticos de Cuba, to bring qualified computer scientists together.

Community benefits, Unión de Informáticos de Cuba

Manuel Alejandro Gil Martín, a Cuban developer who lives in Chile, hopes that his new site, Cubaoutsource, will further community building. His goal is to help developers find and collaborate with each other and to offer outsource service. The site has just launched with profiles of fourteen registered members. They have between 6 and 30 years experience and have used various languages and tools. For example, two of the registrants have Python experience -- they can get to know each other now.

Cubaoutsource is light-weight social media, following the principle "do what you do best and link to the rest." User profiles include fields for links to LinkedIn and StackOverflow profiles for career and project details. (Perhaps version 2 should add a link to a Makerbase profile).

I've been talking about community building, but, as the name implies, the site is also aimed at facilitating employment and outsourcing. President Obama has loosened regulations, allowing US organizations to outsource the development of mobile apps to Cubans. That is a (vaguely worded) start, but there will no doubt be more.

My guess is that in five years, Cubans will be doing a lot of off-shore programming and application development -- especially for Spanish language clients -- and a lot of that will be for the US, where there are over 37 million Spanish-speaking people aged 5 and up.

US Spanish speakers age 5 and up, Pew Research

If I were a Cuban programmer, I would take a few minutes to register with Cubaoutsource. Like any social media, Cubasoutsource needs scale, and, if it catches on, it will contribute to the Cuban tech ecosystem.

Paquete Semanal, S. A.

A legitimatized "Paquete Semanal, S. A." could distribute Netflix content in Cuba today.

To the extent that we are allowed to see it, Cuba's plan for the Internet focuses on connectivity in homes and public places and support of areas that are considered socially important like education and health care. Even if Cuba is patient and leapfrogs current technology, a large investment will be required in service of those goals.

What about digital entertainment?

As shown below, real-time entertainment (audio and video traffic) accounts for over 70% of North American, fixed access, downstream traffic during peak hours. Netflix is the individual leader with 37.1% of downstream traffic.

The infrastructure investment needed to support digital entertainment is beyond Cuba's means, but, necessity being the mother of invention, Cuba has outsourced digital entertainment to El Paquete Semanal. The organization supporting El Paquete has grown organically and efficiently distributes content in a timely manner. There is demand for their product and El Paquete may be Cuba's largest private employer.

That is the good news, but is El Paquete officially legal? And isn't it's viability dependent upon copyright piracy?

Ironically, El Paquete must also suffer from piracy by end users. I don't know if they worry about that today or just tolerate it and rely on fresh weekly material for their revenue. Regardless, if prices rise after the removal of the wholesale piracy subsidy, there would be a greater incentive for end-user piracy.

Normalization of relations between the US and Cuba will eventually require elimination of the piracy subsidy that makes El Paquete viable. When the negotiations on digital piracy take place, Cuba should consider the strategic role El Paquete plays and find a settlement that allows it to remain a part of the Cuban digital infrastructure.

(There might even be competing "paquetes semanales" -- with the government acting as a wholesaler that negotiates deals with content owners).

Netflix entered the Cuban market shortly after December 17, but that seemed to be a symbolic step, with no prospect of profit. It will be many years before Cuba is able to support the streaming of Netflix content, but a legitimatized "Paquete Semanal, S. A." could distribute Netflix content in Cuba today.

=====
Update 1/7/2016

In this post, I have focused on content distribution, but the Cuban film and creative communities could be a source of Spanish language content for Netflix and others to distribute in other nations, including the US. I had suggested earlier that Cuba could be a source of content for Google and it's been reported that Cuba is being considered as a location for "Fast and Furious 8" -- might we see Google, Amazon, Netflix and other production centers in Cuba one day?

Alan Gross talks about his years in prison in Cuba

His suicide threat was a ploy to turn up the heat on the Cubans.

Alan Gross at home. (Suzanne Pollak/Washington Jewish Week)

Alan Gross has talked about his experience in Cuban prison in a recent interview. He described his life after being in prison as surreal and says the incarceration was not about him -- he was a mere bargaining chip in US-Cuba negotiations and propaganda. (What he did was costly to the US taxpayer and, had he succeeded, would not have mattered).

He says he was threatened and confined to a cell 23 hours a day, but never tortured. He did not eat well, losing 70 pounds the first year and 40 more during the next three years and malnutrition led to his losing several teeth. He coped with the hardship by exercising religiously, finding something to laugh at every day and drawing strength from memory of his family that had survived the Holocaust.

Gross had limited contact with his family for the first 3 1/2 years and was not aware of the efforts being made on his behalf in the US. When he learned of those efforts, he let it be known that he was in failing health, despondent and unwilling to see anyone but his wife. He went on a nine-day hunger strike in April 2014 and said he would kill himself if he were not freed by the end of 2015.

He now says he never intended to commit suicide -- it was a ploy to turn up the heat on the Cubans, who had been alarmed by his hunger strike.

Gross had worked on many similar USAID communication projects before going to Cuba and misses that work, but said he was now afraid to leave the US.

He still has special affection for the Cuban people, including the Jews he tried to serve and is "gratified to witness a new found diplomatic relationship between Cuba and the United States”.

Year end interview of the president of ETECSA

"The people want to be connected."

ETECSA president, ingeniera Mayra Arevich Marín

Maya Arevich Marín has been president of ETECSA for four years. The following are a few points from a recent year-end interview.

• Interent access was improved through the rollout of Nauta rooms, WiFi hotpsots and improved connectivity at institutions that are important to the society.
• By the end of the year, there will be 65 WiFi hotspots and they will add 80 more during 2016.
• Today there are over 700 public access points in navigation rooms, cyber-cafes, hotels and airports.
• Average daily access is over 150,000 people -- double last year.
• They are encouraging the move to permanent Nauta accounts and hiring agents at WiFi hotspots to stop resellers. They are also experimenting with having people at the WiFi hotspots to assist customers. (It takes time to train support and marketing people).
• They are also working on a system to let people buy time online rather than through an agent. (It seems they could have done this from the start -- send a 2 CUC text message to ETECSA in return for a 1-hour passcode).
• They are working on infrastructure to support this access. They have expanded the capacity of their existing data center and will build two new datacenters and augment backbone access to the international undersea cable in 2016. (She did not mention it, but the bulk of Cuba's international traffic shifted from satellite to cable this year, enabling the increase in access).

In addition to access, she mentioned new applications and improved connectivity in several government sectors:

• There are now 40 thousand doctors who connect from their homes to the Internet via Infomed. They also improved the connectivity of health institutions.
• The Ministry of Justice is putting applications like access to municipal records online.
• Fiber connectivity has been provided at over 25 higher education facilities. By the end of the year, all Cuban universities were connected.
• An interbank network was created and banking applications implemented. There are now 773 ATMs in Cuba, 150 of which were installed this year.
• The Attorney General's office, the Cuban Institute of Friendship with the Peoples (ICAP), the Ministry of Agriculture, the National Institute of Water Resources and BioCubaFarma business group have improved fiber connectivity.
• She said they are preparing new service offerings for 2016, but did not say what they were.

Entertainment is one critical application that was not mentioned. Today digital entertainment is being handled off line by El Paquete, but normalization of relations with the US will at some point eliminate the piracy subsidy upon which it is based, leaving a cost gap.

Finally, Arevich Marín said that since they must pay for infrastructure and equipment with convertible currency, they need to continue generating revenue through expensive service, foreign recharging, exportable services, international voice and roaming charges and government subsidy.

In a way, this was a typical year-end summary by any CEO -- mentioning achievements for the year past and hinting at some plans for the coming year, while ignoring problems.

Viewed from the perspective of the Internet in a developed nation, I am saddened by how little connectivity Cubans have, but I am more interested in where Cuba will be five or more years from now, so, for me, the key point in this interview was the last one -- citing the need for convertible currency. It is an indication that, at least for now, Cuba has decided to be relatively self-sufficient with respect to the Internet, but can they afford a self-sufficient Internet?

The conventional wisdom is that if Cuba wants to expand the Internet quickly, they should privatize and regulate the Internet in return for foreign investment. For example, Doug Madory has suggested licensing mobile providers, an approach that has led to rapid improvement of the mobile Internet in Myanmar, another "green field" nation. Cuba is seeking foreign investment in industries like mining and oil production, but the Internet is basic domestic infrastructure that might reasonably be kept independent. They should consider alternatives for infrastructure ownership and regulation along with foreign investment.

Internet legal developments to look out for in 2016

A preview of some of the UK internet legal developments that we can expect in 2016. Some topics are perennial (see 2015 and 2014), some are new.

EU copyright reform In December 2015 the European Commission published, as part of its Digital Single Market initiative, a proposal for a Regulation on cross-border portability of online content services. In parallel it published a ‘political preview’ of proposals to amend copyright law, for which more detailed legislative proposals and policy initiatives will be worked up during 2016. This process will incorporate the pending review of the Satellite and Cable Broadcasting Directive, which has ventilated the possibility of extending the country of origin copyright rule for TV and radio programmes from satellite to the internet. Other areas of likely interest include copyright exceptions, enforcement (probably against a broader variety of intermediaries) and news aggregation services.

Online consumer contracts In another strand of the Digital Single Market initiative the Commission in December 2015 published proposals for two Directives on online consumer contracts, one applicable to digital content and the other to goods. Member States would be prohibited from enacting either higher or lower levels of consumer protection than specified in the Directives.

Copyright and linking Three more linking cases are on their way to the CJEU, all from Dutch courts: C-160/15 GS Media (a reference from the Dutch Supreme Court concerning a link to an infringing copy of a photograph), C-527/15 Filmspeler (a site blocking case referred by the Central Netherlands District Court; the target site is alleged to have provided a downloadable media player with an add-on containing refreshable lists of links to infringing material; cf Popcorn Time) and C-610/15 Pirate Bay (a site blocking case with linking aspects, referred by the Dutch Supreme Court).

Copyright and temporary copies The C-527/15 Filmspeler reference asks the CJEU whether the transient copies that a user makes when viewing an infringing movie can be excepted from infringement under the EU Copyright Directive’s temporary copies exception. The questions specifically address lawful use and the three step test (which were not covered in the Meltwater/PRCA ‘right to browse’ case).

Site blocking orders The Dutch Supreme Court has referred a site blocking question to the CJEU in C-610/15 Pirate Bay. Meanwhile in the UK the ISPs’ appeal to the Court of Appeal in Cartier v BSkyB (three judgments here, here and here) is pending. This was the first UK trade mark site blocking case and is the first site blocking case since Newzbin 2 to be contested by the ISPs.

Intermediary liability The mere conduit and injunction provisions of the Electronic Commerce Directive are the subject of a German reference to the CJEU in Case 484/14 McFadden. It concerns injunctions against providers of open wi-fi networks to prevent copyright infringement by users. The European Commission has been conducting a public survey on the “regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy” including the intermediary liability provisions of the Electronic Commerce Directive. The survey closes on 6 January 2016. There is crossover with the Commission Communication "Towards a modern, more European copyright framework" issued on 9 December 2015.

The Investigatory Powers Bill Following the Anderson, ISC and RUSI reviews the draft Investigatory Powers Bill has been published and is undergoing formal pre-legislative scrutiny by a Joint Parliamentary Committee. The Committee is expected to report by 11 February 2016. The House of Commons Science and Technology Committee, the Joint Parliamentary Committee on Human Rights and the Intelligence and Security Committee of Parliament are also considering the draft Bill. The Bill itself is expected to be introduced in Parliament in March 2016.

Questions arising out of David Davis and Tom Watson MPs’ legal challenge to the data retention provisions of DRIPA have been referred to the CJEU by the Court of Appeal. A reference from the Swedish courts (C-203/15 Tele2 Sverige) is also pending.

Interception and surveillance complaints to the European Court of Human Rights  include a case taken by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz and one by the Bureau of Investigative Journalism. Amnesty International, Liberty, Privacy International and others have lodged a complaint following the decision of the Investigatory Powers Tribunal on bulk interception and receipt of US PRISM and UPSTREAM interception product. 

Investigatory Powers Tribunal challenges brought by Privacy International and seven ISPs around the world to equipment interference and by Privacy International to use of bulk personal datasets are pending. The latter includes a challenge to the use of national security directions under S.94 Telecommunications Act 1984. 

Mindmap of legal challenges (interactive PDF with links to key documents):

AVMS Directive Review The European Commission is reviewing the Audiovisual Media Services Directive. This raises once again the appropriateness (or not) of extending TV-like regulation to the internet.

EIDAS Regulation The replacement for the Electronic Signatures Directive comes into force on 1 July 2016. As well as electronic signatures it covers ‘electronic identification schemes’ and ‘electronic trust services’.

Data Protection Political agreement on the new General Data Protection Regulation was reached at the end of 2015. The Regulation should be formally ratified early in 2016 and come into force in 2018. Google’s appeal in Vidal-Hall is pending before the UK Supreme Court. Permission to appeal was granted on all points other than whether the claim was a tort.

Net neutrality Revisions to EU telecoms legislation will impose net neutrality rules from 30 April 2016.

[Updated 3 January 2016 to include net neutrality.]