Intellect or Insanity, Jonathan Klinger's Blog

It seems that those who were astonished, abhorred, enraged or outraged from finding out that the National Security Agency (NSA) tracked millions of united states citizens and did so with the cooperation of numerous internet service providers, telecommunication companies and web-based hosting services had not even bothered to read the news in the last decade and to see reports on unauthorized searches in computers and about the way that the law authorities act. We, as Israelies, can only be jealous of the public outrage from such authoritarian conduct, because, well, in Israel, the situation is quite worse. The Israeli authorities took George Orwell’s book, Ninteen Eighty Four, and made it in to a master plan.

CC-BY-NC-ND Gerard Van der Leun

To us, as Israelies, the NSA’s authorities sound like a poor joke. Because, the NSA can only pray to get the legal and popular acceptance that the Israeli Police and other investigative authorities obtained. During the last decade, Israel enacted many surveillance laws that allowed unprecedented use of personal information for investigatory uses, and not just for the prevention of terror.

In 2007, the Israeli parliament enacted the Criminal Procedure (Enforcement Authorities – Metadata) Act. The act itself granted the police, as well as other investigative agencies, abhorrent authority to obtain widespread information about nationals, and even without judicial review. The authorities could approach the telecommunication providers (ISPs, mobile operators and phone operators), pay a few Shekels, and obtain answers to queries, as long as such queries relate to specific crimes or investigations. For example, if a murder occurred in a specific street, the police could have approached the cellular providers and request the subscribers who were in the street at a specific time.

In a similar manner, the police could approach an Internet service provider and request a list of subscribers who browsed a certain page, or inquire who was the subscriber who leaked anonymous information to a military correspondent about inadherence to the supreme court’s ruling in the military’s conduct.

The act’s application was so successful that the police requested more information about subscribers, even though it was not authorized to do so; the police, for example, requested to find out who is the sales representative who sold the mobile devices and what payment means were used to pay the bills. The act, which made the courts into a rubber stamp (because no metadata request was denied, apparently) allowed the police to request 9,000 requests in 2009; out of which, almost 2,000 were related to political activities such as public disturbances.

That’s why the Israeli Civil Rights Association appealed against the act (HCJ 3809/08 ACRI v. The Police), but the appeal was rejected. Following the rejection of the appeal, the state decided it wants more authority for more authorities, so that even authorities like the Parks and Forests Authority will be entitled for your GPS location, and that more information will be provided without judicial review, as the courts already approve almost all the requests.

Here, in Zion, we can only be jealous about the US Citizens who are abhorred; Israel addressed Google for subscriber information (not by the Metadata act, as it does not apply to Google), about 350 times since 2009. Google responded to most of these requests; meaning that there are 350 people in Israel that the government obtained their correspondence, and that we cannot be certain that they were informed about such intrusion. But Google is an exemption, it provides us with reports.

Israeli nationals are always subjected to espionage and surveillance: employers read your email, the state sets up traffic cameras, parking cameras, security cameras and protection cameras. And all this time we ask: do we need protection from criminals or the state?

[Originally Published in Room 404 / Haaret’z

0.
Israel is to attempt, again, to pass a bill that authorizes police officers to issue warrants to Internet service providers to block or restrict access to specific websites involved either in gambling, child pornography or copyright infringement. The bill itself proposes that such administrative procedures shall be clandestine and that court decisions shall be made ex-parte, where some of the court’s ruling will not be even disclosed to the owner of the website, and the court may hear and use inadmissible evidence.

In my opinion, one of the saddest things in a democracy is that powers with authority can change the rules after the game commenced. This is story with blocking of gambling sites, an experiment which began around 2010.

Fortunately, after a lot of hard work by the Israeli Internet Society, The District Court of Tel-Aviv quashed the block and ruled that the police had no authority to order Internet service providers to block access to certain sites or IP addresses (decision now on appeal, see the Hebrew original ruling at AA 45606-10-10 ISOC N. Shachar Ayalon).

However, Israel is famous for presenting bills that bypass constitutional rulings, and now wants to reassert this authority, without limitation, by presenting a new bill: The Bill for Restricting Uses for Preventing Crimes (Amendment – Restriction of Access to a Website and various revisions),2012 , (Google Translation).

1.
You can read a bit more about the bill at Oded Yaron’s article at Haaretz.com (behind a paywall). In general, the bill’s purpose is to circumvent the relevant court ruling and allow the police to block websites. In the district court ruling, the police’s authority to shut down gambling houses cannot apply to websites. However, the bill’s current wishes seem to be broader:

Had a certified police officer reasonable grounds for suspecting that the website is used to commit an offense specified in the Second Schedule [gambling, child pornography or copyright infringement - jk], and that there are reasonable grounds for concern that the website will continue to be used for committing a crime unless access is restricted, he may issue a warrant for Internet Service Providers to limit the access to that Web site; a warrant under this section may be issued even if the website also contains activity which is considered legal [or legitimate - jk] provided that the illegitimate activity is the main purpose of the website.

Now, as befits any modern legislation, justice it made but us not seen. Article 3 of the bill discusses execution of additional warrants, where everything shall be made ex-parte:

“material relating to the request to extend the validity of an administrative restriction or information based on which such request and any other material provided subject of the application process will be made to the judge only; material will be marked and returned to the police officer or authorized claimant (in this section the applicant) after examining “

But it’s not just that material will be ex-parte; in some cases, the ruling itself may be withheld from the appellant. “The court shall notify the owner or occupier and the police officer on its decisionunder this section, and it may determine that the decision, or parts of it, shall be confidential“.

2.
This means Israeli that citizens may find themselves in a situation where they are subject to a warrant which is confidential. In such case, They will not be able to challenge such an order, because the grounds for the decision will unlisted . Sounds interesting? Well, I remind you that when we discussed that Communication Metadata Law, which allows police to receive GPS data on phone and Internet subscribers and records of their phone calls, everything was made in confidential decisions (with no further judicial review on them). Therefore, do not know how the law is implemented, how these requests really served illegally, and how judicial review works.

3.
The bill itself is absurd if you understand the Internet: everybody knows that no matter what order blocking a given Web site, its validity is about as much as an order of Police fires in summer temperature does not exceed 25 degrees Celsius (or if you’re in the US, that it won’t snow on Christmas). I mean, okay, ISPs will restrict users from browsing, but that’s not actually something that works (proxy servers et all).

4.
But of course there’s the issue of the slippery slope. The original act, which is to be amended by the bill, gave a judge the authority to issue a warrant under careful review; however, the bill conveys this authority to a police officers.

5.
What about additional uses? Well, in order to pass the bill, the police began with abhorrent offenses considered: child pornography and gambling. Clearly, no one will oppose the authority to block such websites if he’s not a pedophile or a gambler. Well, not really. That’s why the phrase “Second Schedule” is used to described to offenses that are subject to this authority, in fact the bill asserts a short list of offenses, where the minister of justice can always add additional offenses. Once the bill is passed, no one can be certain that no additional offenses will enter there.

6.
The real danger here is practice: in the same week where we discovered that the military police apparently investigated a blogger which was exposed using the metadata act without respecting his journalistic immunity and confidentiality of sources, and on the same week as the non-democratic nations want to rule the internet through the ITU convention, Israel decides to publish this bill. And why? because Israel deems it ok to gamble all your money is the state lottery, but not right when you give money to foreign websites.

0. Abstract.

[This Wednesday I shall lecture at the LiSS working group conference, here is a draft of my lecture] From 2003, and until today, the Israeli Government has been working diligently in order to legislate the biometric database act and the orders and ordinances according to it. However, This biometric database is not the only biometric database in Israel and is not the only database where government authorities have access to. In my brief lecture, I shall present a different approach, asking whether this database act was actually required and what are the reasons for choosing a legislative act when doing so. When doing so, I’ll have to ask whether the act of legislation was needed because the social contract was broken, or because it was a megalomaniac act made out in will to block any different approach to databases.

1. Database Laws, Privacy.

Let’s first understand how government databases operate. The Israeli Privacy Protection Act does not differentiate public sector databases from private sector ones; moreover, article 23D provides any person the right to know about such database and article 23C provides government bodies the right to request and transfer data from other databases when the action is required by law or by the body’s function. Meaning, if it was it’s desire, the Government could have set up a registered database and operated the biometric database out of such act; but in such case, it couldn’t have mandated the people to provide their biometric information.

So what could it do? It could have amended the Census Act. The Israeli Census Act is the act regulating the management of the Israeli Census (which, as we already know, was leaked to the Internet); article 2 writes down the fields in the database that are required to be listed. In such case, amending and mandating a person’s biometric data under it could have solved the biometric database problem in a 1-line amendment, without requiring massive legislation.

However, The Israeli legislator decided to pass a 30 page long act (PDF), which describes in full the security and use in detail, and allow public debate over it. In order to understand why, let’s understand how other government databases work.

2. Government Databases and legislation.

First let’s see what are the databases which were legislated and which weren’t; Meir Sheetrit, the biometric database’s entrepreneur, said that “Israel has enough [other] biometric databases“. However, if we inspect his claims, we find out a different perspective; the one who says who and when is required to provide his information willfully to the database.

Let’s first inspect what are the databases that were legislated under the Israeli Law: The Israeli Anti-Money Laundering Act, The Israeli Census Act (which actually does not establish a database, but only allows the inquiry of information), The Police DNA Database (The Criminal Procedure Act (Searching in a person’s body and taking of identifying information)), Criminal Records (The Criminal Record Act).

On the other hand, there are quite a lot of databases which contain information which is as personal and as sensitive as the legislated databases, including the migrant workers biometric database, the driver’s license database which includes photographs and according to the Israeli transportation office, does not require legislation in order to retain a database (where the transportation office provides this biometric information at least to the ministry of interior), the unemployed database, which contains fingerprints of unemployed and  the Bus Authority database that contains information regarding passengers and their routes.

3. Why do you legislate databases?

We can see that while some databases were legislated because of their sensitive nature (money laundering, f.e), there is no actual difference between the sensitivity; There is no actual difference between money laundering information or the biometrics of a migrant worker. We can also say that legislation did not come because of the voluntary nature of the database; a person cannot choose to be unemployed or not to travel by car or bus. None of the non-legislated databases are actually voluntary; they just address specific needs and puts the person “agreeing” to provide the information in an inferior place: he is either unemployed, or he wishes to travel to Israeli to work, he may want to drive in Israel or take a bus. These are all daily functions that a person cannot go without.

4. Why Legislation.

Now, let’s go to the theoretical assumption that legislating the biometric database could have been made without any real or substantial legislation; It could have actually just establish a national database by issuing an order of the Passport Act, seeing that most Israelies have a passport, and hold the information in a way that is “required” to issue a passport; he could have went in the same way the Transportation Office went, and required just the issuance of fingerprints. However, the choice to legislate the database was taken. And why?

The reason is the Israeli Privacy Protection Act, but not the article requiring willful consent, nor the article mandating informing the data subject on its rights, but because of article 23C. Let’s inspect the text:

“Notwithstanding article 23b, providing the information is permitted, if not prohibited by any legislation or professional ethics – (1) between public bodies, if one of the following exists (a) providing the information is in the authority or role of the body who provides the data and it is required to exercise a law or a cause by the authority of the data provider or its recipient; (b) providing the database is to a public body who is allowed to demand such information according to law from any other source; (2) from a public body to a government office or another state establishment, or between offices or bodies as such, if the providing of information is required to exercise any legislation or for a purpose in the authority or roles of the data provider or its recipient …”

Well, we do need to read this carefully: There could have been a state-wide database without legislation;  however, in such case the Police could not have been granted access to the information. And why? because neither article 23b(a)(i) nor article 23b(a)(ii) allow it: The first alternative requires specific authorization under law to disclose the information and the second requires that the police would have been authorized to request the information at source. However, the police are not entitled to coerce a person to give them his biometric information, and the ministry of interior [was] not authorized to specifically assist the police.

Therefore, unlike other databases, the mobility of the information and the detachment between the cause of why it was collected and its use brought the actual need for legislation.

5. Ruling out other factors.

Now, we can inquire about the question of whether this was actually the reason; whether there was a secret hand that required it. The only reason to explain why a 30-page long bill was passed was explained when alternatives were presented to the government. The rejection of the Adi Shamir proposal, for a non-identifiable database, and the choice to store both a person’s facial photo and fingerprint (where such information is not required to maintain a clean database, see Yoram Oren’s statement “if the purpose is to reduce a list, then yes“). Meaning, the legislator was presented with at least two alternatives that allow a secure database that does not allow double-inclusion and does not retain so much sensitive data, but rejected it.

Such rejection may be discussed later in courts when inquiring about the constitutionality of the act, but that’ out of the point. The choice of both legislating and deciding on this architecture was made solely in order to allow surveillance.

6. Summary and Conclusions.

We know that the legislator had other options to legislate a database (or not to legislate it); and that it could have allowed it to be used quicker, without any pilot and even with the coercion against the persons, but in such case, the police and other security authorities could not have obtained access to the database. Therefore, the sole purpose of addressing legislation is in order to allow such access, and unless we can rule this out, this is the true purpose of the database.

A rumor was spread that Israel was the brain behind an elaborate trojan horse, Stuxnet, which alegedly penetrated into the Iranian nuclear reactor and apparently caused damage. the trojan horse contaminated some civil facilities as well. The trojan horse, which utilizes no less than four different zero-day vulnerabilities in Microsoft Windows seems interesting and elaborate. However, the alleged involvement of Israel, alongside the claim that civilian facilities were damaged in the act, raise one interesting question: Could there be electronic war crimes?

The Public International Law, which bases the humane treatment to civilians in the different Geneva Conventions, sets the standards to use in times of war and defines acts prohibited by states in order to keep wars as civil as possible. The different conventions limit force and sanctions against civilians, but do those treaties and conventions apply on electronic warfare?

Prima facia, article 53 to the fourth Geneva Convention which deals in protecting civilians in times of war states that “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations“. However, the fourth convention applies only, in this article, to occupied territories (Prosecutor v. Dario Kordic, Mario Cerkez). In contrast, the 1977 protocol amended and added to article 51 and stated that “Indiscriminate attacks are prohibited. Indiscriminate attacks are:those which are not directed at a specific military objective; “. Meaning that an electronic attack against civilian property that couldn’t discriminate between military and civilian facilities are prohibited (However, most states have not adopted the 1977 protocol).

Jack Goldsmith states that the inability to determine which computers are military and which are civilian may protect the use of computer viruses in electronic warfare, but I reckon the other way around: In the same way that indiscriminate shooting against innocent civilians is a war crime, so is using a trojan horse that does not differ civilian and military computers. The indiscriminate use is as prohibited as the use of chemical weapons which cannot discriminate civilians and soldiers. It is not a coincidence that the terminology is the same: computer or biological viruses.

And what about the civil liability? Theoretically, the state immunity (and liability) should be limited in times of war (and see, in IsraelThe Act of Civil Torts (State Liability) 1952) and the state should not be liable for acts where the state protected itself; however, this doctrine should not be used in cases where civil damage arose when the state knew, should have known and forseen the damage (HCJ 8276/05Adallah v. Minister of Defense). Therefore, the civilian casualties in Israel’s alleged cyber-attack should have liability against it.

The US Supreme court decision in 08-769 United States v. Stevens 559 U.S. ___ (2010) (via Balkinization) may shed light on additional issues regarding free speech. Stevens, was more than any other thing, a decision which ruled that 18 USC 48, a clause that ordered that anyone who knowingly creates, sells, or possesses a depiction of animal cruelty, if done for commercial gain, may face five years imprisonment if the work does not have “serious religious, political, scientific, educational, journalistic, historical, or artistic value”. Stevens was an owner of a website that published and sold movies of dog fights, which were filmed where and when dog fights were legal (f.e japan) and sold them throughout the United States. When indicted, Stevens claimed that 18 USC 48 was not narrowly tailored and should be void.

The Supreme court accepted Stevens’ request, and explained, in part, that where animal cruelty may be defined differently in different jurisdictions, it causes the law to prohibit publishing or displaying legal activity, such as hunting, and “A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another State where the same conduct is unlawful” and “Those seeking to comply with the law thus face a bewildering maze of regulations from at least 56 separate jurisdictions“.

Moreover, the court addresses the issue of the exemption, which allows the publication for serious religious, political, scientific, educational, journalistic, historical, or artistic value, and explained that “Most of what we say to one another lacks “religious, political, scientific, educational, journalistic, historical, or artistic value” (let alone serious value), but it is still sheltered from government regulation” and that “The Government’s attempt to narrow the statutory ban, however, requires an unrealistically broad reading of the exceptions clause“.

Calling such clause invalid by the court, more than any other thing, may shed light on Israel’s attempted Censorship Bill, drafted by Parliament Member Amnon Cohen during the 2006 term. Cohen offered that all ISPs shall be mandated to block all websites that may be inappropriate to minors, including “displaying sexual relations with violence, torture, degrading nature, humiliation or abuse”, “displaying sex with a minor or a person pretending to be a minor”, or “displaying a man, or any of his organs, as a sexual object”, all when “the content in the said sites lack, distinctly, artistic, scientific, journalistic, educational or instructional value“.

The similarity between the clauses is not coincidental, The Ministry of Communication’s attempt was to legislate the act in accordance with the Israel’s supreme court decision in re Playboy (HCJ 5432/03 Shin v. The Council for Cable and Satellite Broadcast). However, the Court’s ruling that such clause, even when exempting publications with social values, is not tailored to fit the constitutional funnel, may allow us some more hope when others try to engage in censoring the Israeli web.

0.
No matter what, at this moment all the Israeli legal community knows that someone, somewhere in the internet, called Rami Mor a quack.

1.
The supreme court’s decision in RCA 4447/07 Rami Mor v. Barak was quite a surprise. Rami Mor an alternative medicine practitioner, was enraged that someone, somewhere in the internet, slandered him. Mor filed two different motions, the first against 013-Barak, (OCR 1238/07 Rami Mor v. Barak) and another one against Bezeq International (OCR 1752/06 Rami Mor v. Bezeq Int) to reveal the identity of anonymous posters. After the motions were dismissed, Mor petitioned to the Haifa District Court, where judge Yitzhak Amit ruled (RPA 850/06 Rami Mor v. Yedioth Internet) that the veil of anonymity shall only be removed where a cause of action against the anonymous commenter exists and where the anonymity was used in order to avoid liability; moreover, the court explained that “an additional mean is required” in order to accept the petition. Mor, who did not accept the ruling, appealed again to the supreme court. This week, in a precedent decision, the Israeli supreme court ruled that the veil of anonymity is, sometimes, a constitutional right, and that currently Israel has no procedure to unmask commenters who post anonymously as there is no legislation.

2.
Hon. Justice Eliezer Rivlin dismissed Mor’s petition and analysed the procedure to reveal anonymous posters. According to his ruling “it is an attempt to harness, prior to a legal proceeding, the justice system and a third party in order to conduct an inquiry which will lead to the revealing of a person committing a tort so that a civil suit could be filed against him. It is, de facto, an investigative-like procedure that the court is drafted to in a preliminary procedure in this way or another. This procedure is not trivial, it involves policy consideration and requires legislative regulation“. His decision rules, actually, that until a procedure will be legislated, petitions to reveal anonymous users may not be granted (and according to estimations, there is at least one daily request per ISP).

3.
Justice Rivlin alson rules out the availability of an Israeli John Doe process as it contradicts due process. “It is, in fact, a judicial change of the civil procedure rules by adding a new chapter titled ‘John Doe Lawsuits’, if such update is needed, it should be done by legislation“. This is a substantial ruling as it has implications on standing cases where John Does are presenting their case to avoid being revealed (see, for example, OCR 567/08 א 4854/07 Barlomenfeld v. Google Inc). But it mostly have meaning in another pending case, the appeal on OCR 11646/08 Premier League v. Doe (which the supreme court is hearing under CA 9183/09 Premier League v. Doe) (English summary of the case). The Premier League’s request was to reveal an anonymous website operator who posted links to video streams of sport events. But does the Rami Mor decision say anything else?

4.The supreme court ruled that:

Shattering the ‘illusion of anonymity’, in a reality where a user’s privacy feeling is a myth, may raise associations of a “big brother”. Such violation of privacy should be minimized. In adequate boundaries the anonymity shelters should be preserved as a part of the Internet Culture. You may say that anonymity makes the internet what it is, and without it the virtual freedom may be reduced.

Actually, at this moment there are dozens of requests to unmask anonymous users that following the Mor decision may be dismissed; apart from that, several lawsuits are based on evidence that was obtained in such manner (or not in such manner, decent disclosure etc) and may be dismissed as the evidence was obtained by violation of privacy (see HCJ 6650/04 Doe v. The Rabbinical Court of Netanya). In fact, the supreme court took five years of case law, and ruled that it is based on a legal mistake. No more cases which need to choose between Judge Amit’s approach to the method construed by Judge Michal Agmon-Gonen in PP 541/07 Jacob Sabo v. Yedioth Internet and the interpretation of Judge Drora Pilpel in PP (Tel-Aviv) 250/08 Brokertov v. Google, but a ruled precedent by the supreme court.

5.
The real meaning is that now a hasty legislator needs to start drafting an adequate procedure, where the Knesset may ask if there is room for a John Doe process in Israel or not.

[Originally in Hebrew]

After a few weeks of work, and many comments from various open source enthusiasts, we (Hamakor) filed our memorandum today in response to the Israeli Patent Authority’s call for submissions (more here), calling the Israeli regulatory authorities to refrain from granting patents on software [Hebrew Memorandum].

Our main claim was that protecting software through patents shall provide protection on ideas, which are usually expressible in more than one manner, and shall be the beginning to a race to the bottom where every person shall register as many patents possible and incur high costs on each player in the software field.

We noted that the chilling effect created by the fear of using software protected by patents, be it free software or proprietary software, and incur costs on the system solely in order to purchase insurance from the theoretical patent infringement. In such case, any independent development of software without legal assistance from the first day of development shall be problematic, and deter developers from developing free software or promote innovation.

In Israel, unlike the United States which awaits decision in re Bilski, and a recent USPTO decision in Srinivas Gutta & Kaushal Kurapat, and unlike the EU which has a strict approach towards software patents (clause 52 to the EU Patent Directive does not acknowledge software patents), Israel has a theoretical decision by the patent registrar, Noam Meir in Pat 131733 Eli Tamir, which was yet to be examined by the supreme court and has yet to be accepted as precedential. Meir stated, in his decision that “the hardware is patentable and the software is outside the realm of patentability (…) even though software itself is unpatentable, physical computed systems, which integrate hardware and software, or who make technological use of new software in order to present a new result with inventional progress, may be patentable in several conditions”.

We believe that software patents do not promote innovation but are only used to bash business opponents and prevent innovation. For example, patent number 5960411 which was filed by Amazon. This patents tries to own exclusivity over “one click purchases” in electronic commerce website. The same could be said on patent number 6727830, which describes a method of double clicking in order to open an application. Both patents present no innovation apart from algorithms. Moreover, a research conducted between 2000 and 2001 in Stanford found out that the use of patented software technologies enhance sales in websites and allows the general wealth to grow, while it deters other from using similar technologies. Therefore, even if Amazon invested millions of dollars in a system which would enable faster purchases and lower drop rates, the innovation does not contain any technological or industrial nature, but conceptual. Protecting ideas is not something that should occur in free markets, where we find that we wish for greater competition between the expression of these ideas.

Patents in the digital world are different from physical patents in two manners: The period of protection and the form of expression. Where technological applications such as the tumbler lock was created more than 4,000 years ago, different types of applications based on it were registered as patents for more than a century. However, protecting a specific lock for a period of a few decades does not interfere with the free market in the same manner which protecting software does. In the computing industry, and especially in software, five years are eternal, let alone twenty years.

The exponential growth in computer chips, based on Moore’s Law, causes a fast development of technology where five year old software are almost irrelevant.

The second rationale is that in the physical world an idea may be applied in two different forms, establishing free competition, without infringing the patent (for comparison, C 2469/02 Hasbro v. Lee-Dan, CA 9678/05 Beytimu v. ARRABON -HK- limited, C (Haifa) 399/04 ARRABON HK v. Beytimu). For example, the patent granted to General Mills in regards to the Monopoly Game was so wide where it prohibited almost any board game that allowed transacting funds (see also Anti-Monopoly, Inc. v. General Mills 55 A.L.R.Fed. 223; 204 U.S.P.Q. 978; 611 F.2d 296): “This invention relates to board game apparatus and is intended primarily to provide a game of barter, thus invoking trading and bargaining”. In such a situation, theoretically a game may had been applied in a way that wouldn’t breach the patent; however, in software the thing would be impossible.

The problem is that in the world of software patents the border between the definition of the problem and its solution is unclear; sometimes, the patent granted is on the problem’s definition and not on its solution. For example, the voice codec MP3 is protected by a software patent. In the field of video and audio compression patents were granted so that they protect using the files using algorithms different from the patented algorithm.

In such case, the proprietary algorithm’s creators demands royalties also for the decompression of a compressed file, so that every media player’s manufacturer should pay even when the decompression was made by a different algorithm (and see, for example clause 24 to the Israeli Copyright Act which states that “Use of the computer program for purposes for which it was intended, including correction of errors in the computer program or making it interoperable with a computer system or with another computer program” is permitted).

An additional problem, which defines software patents as a race to the bottom, is that the Israeli venture capital corporations measure intellectual property in start-ups by patents. Under their method of inspection, the sole manner to quantify property is by the possible amount of patents. This characteristic creates a race to the bottom that usually incurs high costs of registering patents on start ups, and attempts to patent any piece of innovation, even when it is obvious it isn’t patentable. In a similar manner, Netex applied in 1998 for a patent on smart and semantic browser address bar, so that every search using the URL box in a browser would be covered by the patent. However, though the patent lacks innovation in our opinion, and where there is no indication that there was no prior art, the question is what separates the address bar from every other input box, be it by website or software. They are all input boxes that operate in a similar manner.

We believe that the unstoppable registration of patents shall not only incurr costs on the Israeli High-Tech field, but also harm software due to the Software Patents Arms Race.

In a similar manner, there were a few attempts to enforce what is known in the industry as a standard (6:07-CV-113 i4i v. Microsoft and Microsoft’s Settlement with TomTom over FAT32), so that products who tried to interface with known and acceptable standards in the industry were sought for patent infringement. These lawsuits implicate on how innovation is perceived and how interacting with free market occurs. For example, the lawsuit brought by Microsoft against TomTom was in order to prevent TomTom from using open source and free software; the apparatus built by TomTom was based on Linux, and Microsoft claimed that storing data on Fat32 drives was a breach of their intellectual property rights. However, more than any other thing, Microsoft, who holds a de-facto monopoly over Operating Systems, attempted to prevent competition from growing.

We believe that changing the legal atmosphere to a situation where patents shall not be granted over software will not only enable free competition in the Software field, but provide incentives to the Israeli economy, provide quality investments and will base the investment in people and not patents. In such case, not acknowledging software patents shall allow Israeli companies to develop software without fear of being sought for alleged infringement for a different patent. The main insight is that the core of the Israeli Software field is people, and that allows development without fear.

The uncertainty in developing software where an arms race exists discriminates between developers of free software and proprietary software. Free software developers are mostly volunteers and a community which allows progress in an harmonic way that allows the entire society to utilize technology and labor. In such case, many companies may compete on the best technological product, and adapt the software to their product. For example, cellular phones using Google’s Android Operating System could patent the chips in the cellphone, but others may use the same operating system in order to donate and help the development. Acknowledging software patents may incur costs on the millions who develop for no financial purpose, and they will have to seek legal counsel prior to even writing any software.

While we acknowledge that many companies may write to the registrar and call to protect what they perceive is their property, we know that the greater good could grow where software patents shall not exist.

For the reasons specified, we believe that no software patents shall be granted in Israel.

0.
We lost the skyline. The parliament approved yesterday Meir Sheetrit‘s proposal to establish a biometric database. After a few months of delay, including endless discussions in parliament trying to persuade Sheetrit not to go with the database, we lost. It didn’t matter that we brought Two Nobel Prize Laureates and many other professors to explain the dangers, Sheetrit just explained that they don’t know a thing and that they do not represent the best minds in the field. It doesn’t matter that the Israeli census leaked or that the company who is meant to issue the biometric ID cards is the one who was in charge of the census: the Parliament Members just don’t get it.

CC-BY-SA Tomer Lichtash

1.
A biometric database is not something to be taken lightly. While Sheetrit claims that other states have a biometric database, we know he lied. A research by Karine Barzilai-Nahon showed that a biometric database is something unprecedented in the entire world, at least if we think about biometric databases that are used with census data. Even that controversial Dutch database is not as extensive as the Israeli one. The UK ID initiative was not as comprehensive as ours, and yet was not as popular. When we try to understand where we went wrong, I think that it was the international aspect.

2.
We blogged in Hebrew, twitted in Hebrew, interviewed in Hebrew and lobbied in Hebrew. The holy language was not as holy when it involved legislation. We can try the International human rights courts, we can try to petition to Israel’s supreme court, but nothing is as fine as international pressure. It didn’t even hit the international press, only our local Jewish Ghetto.

3.
Now we have two years of an experiment. Let’s see how it goes.

0.
Never rely on a machine and never trust it: The Israeli Labour Party’s primary elections were cancelled due to malfunctions in voting machines. The voting machines were mere PC computers linked together, allowing voters to vote for their candidates. One problem was that Benjamin Ben Eliezer (Fouad) was absent from the votes after he was thrown away from the promised 7th place only four days earlier. However, the failure in deciding to go on voting machines was a human error: Choosing a system that will obviously fail is wrong, and since we knew that this is about to happen, someone has to go home. It is not only The Simpsons’ parody, but also claims for failures in the recent US elections as well rigging the 2004 ones. But still, people want “Progress” and try to use technology where they can’t.

1.
The main issue with electronic voting is that there’s no paper trail of the actual vote (apart from the inherent way of breaching one’s privacy); in contrast of ballots in real votes, the computer just lists the time and the candidate you voted for.. A comprehensive article from Illinois Business Law Journal reviews these problems and explains why electronic voting systems are not fail-safe. These systems are subjected to hacking in a roughly easy manner, and without using complicated tools or technological know-how (and it’s always a good sign when the hacker is threatened by a lawsuit). The fact that these machines use proprietary code and not open source increases both the inherent risk of fraud and hacking, and since no one knows what they record, it’s always open for business.

2.
Moreover, along the years a few conspiracy theorists linked between political candidates and voting machine manufacturers. This also may be a problem, when they go malfunct and there’s no way to know what went wrong.

3.
The Israeli Ministry of Interior משרד הפנים מעוניין wants e-voting in Israel after all. Democracy, according to them, is only a small consideration when the costs are too hight. Of course, by looking at our electronic booths you can understand the means of security we implemented. This is a small PC that anyone can hack from a distance and inject with fraudulent votes, or just circumvent it (I was told it uses a cellular connection, which might not be encrypted).

4.
Our politicians got an extension, what are their skeletons?

[Originally in Hebrew]

0.
Sometimes, when discussing the US-Israeli relations, we need to see the broader picture. Things like the Palestinian conflict are just a minor issue in relation to the economy. As most of the English Readers of this blog [this was originally posted in Hebrew, sorry for Hebrew links, but use Google Translate] may not know. Israel had a major crisis around 1985, banks collapsed and were bought by the government. Then, in order to save the economy, our late minister of treasury, Yitzhak Modaey, along with the former prime minister, Shimon Peres, had an initiative. Their plan was to save the economy by a what the former Attorney General (and supreme court justice) Yitzhak Zamir called a historic mistake. Our Omnibus Statute was meant to save the economy by amending a few statutes and giving the government a way to deal with the crisis. The statute was a mean to implement emergency policies in order to save the economy. Along the years, though, the government used the omnibus law, which passed from year to year, as a mean to implement reforms and force economic policies without a real debate about them.

1.
When time came, a petition against the law was submitted to the supreme court as the “Quantity became Quality” (playing on justice Aharon Barak‘s words in HCJ 3267/97 Rubinstein v. The Poultry Farmers Union). The Poultry Farmers petitioned to the supreme court, stating, amongst other things, that there was no real discussion and debate about the Omnibus Statute that year, and while justice Dorit Beinish refrained from striking the statute, she warned the parliament before the quantity becomes quality:

Indeed, this is a legislation process that makes a sufficient and deep discussion hard, and which tempers the decisionmakers in parliament and government ability to gather an established opinion. Let us remind that one of the purposes in the Parliament’s regulation about legislation processes is to allow the parliament members to gather their opinion about every legislation that stands against them (…) and it’s hard to see how the legislation process in the Omnibus Statute allows that purpose” (HCJ 4899/03 Poultry Farmers Union v. The Israeli Government)

2.
Twenty-three years later, and our big Uncle Sam has the same issues. Because of historic mistakes that were caused by a capitalist policy to encourage consuming, Mortgage Banks collapsed since they incenticised high risk loans, as a chain reaction, the US stock indices fell and billions of theoretical dollars were lost. Not too much later, the US Government decided to nationalise several banks and an FBI inquiry regarding AIG’s conduct began.

3.
Right, Israel’s bank crisis of 1985 began because banks loaned people money in order to purchase the ever rising bank shares, which drove the bank shares even higher, until one day people understood that it was worth nothing. Billions of theoretical Shekels were lost. But the same mistake was made in t he US in the mortgage market. Allowing bubbled loans and leverage of real-estate was what made the real estate market bloom, till it exploded.

4.
Well, like in Israel, fast legislation processes were needed. However, the Congress first rejected the Wall-Street Bailout, which caused a major decline in stock indices. Therefore, gently, the government formalised a more serious plan that imploded from the original three pages to one hundred and ten, and then to four hundred and fifty one. 451 pages of tax reforms that most likely will never be read and will cause tax exemption for wooden arrows for children.

5.
And if we’re still with the great Uncle Sam, I am quite troubled by the great endeavours burned in order to assist the Israeli government implement Biometric Identification. This time, our minister of internal affairs Meir Sheetrit, claims that Israeli citizens will not be required a US visa if the biometric database will be approved. The subtext, of course is “if the biometric database will be approved and conveyed to the US authorities”, since without that, the US government has no mean to confirm their identity. What Sheetrit forgot to tell us, being a minister with formal micro-biology education (which the government thought was relevant when they approved his offer for biometric IDs), is that Biometric Passports are easy to fake or copying in a manner that allows Identity theft.

7.
But Sheetrit won’t be blurred by the facts when he will be speaking in front of the Knesset about the biometric identity statute. He’ll explain to the parliament members that the government already signed an agreement with HP to issue the IDs and that the US insists that we have such a database. Our Knesset Members, being so reasonable and have to consider every proposal, will do the right thing and vote seriously, of course. And that’s only if the Omnibus statute won’t be the statute that approves the Biometric Database.