Nuraphone Headphones Review

For the past few months I’ve been bombarded with adverts for some supposedly next generation headphone technology which adapts to your individual hearing, the ‘Nuraphone’. Various industry professionals were shown in the accompanying videos, reacting with apparent amazement at the sound quality. As a bit of an audio geek, I wanted to see for myself whether or not there was anything to the claims, and ended up picking up a pair recently – something that probably also partly confirms that online marketing campaigns really do work.

One thing that’s worth noting is that Nura released a software upgrade for the headphones at the end of July which added a bunch of features, and corrected some issues that people had reported. They even added in active noise cancellation – which wasn’t present before. That is particularly cool, and something that it’s good to see a company do. Newer stock of the Nuraphone come pre-loaded with this update.

Nuraphone

The Concept

Custom Hearing Profiles

The main principle behind the Nuraphone is relatively simple, in theory at least. You first connect them to a smartphone app, where some quick tests result in a custom ‘hearing profile’ being created. This profile is then stored in the headphones, and playback is tailored accordingly – theoretically resulting in sound that is far more pleasing to your ears than a generic approach would provide.

Over and In-Ear Design

The other main defining characteristic of the Nuraphone is their unique over/in-ear design. The outer silicone cup encloses your ears (and doesn’t irritate any of my many cartilage piercings), and delivers bass frequencies, whereas the inner ear portion sits just inside your outer ear, delivering the mid and treble frequencies. This helps provide a nice separation, and a much fuller sound. It works very well, though does feel pretty weird at first.

Immersion Mode

Immersion mode uses drivers in the outer cups to provide ‘feeling of a live performance’. This basically makes the bass much fuller and deeper, without compromising on the quality of the mid or treble frequencies.Nuraphone

What Other People Say

I was intrigued by the Nuraphone, but also pretty skeptical. It didn’t help that the reviews online ranged wildly from the bizarrely enthusiastic to the dismissive. There were many puff pieces from sites who were clearly just happy to get a free pair, but there were also users who claimed that they and their friends had the quality was so good that they had actually been moved to tears on their first listen. Others weren’t as enamoured, angrily dismissing the Nuraphone as nothing but marketing spin, or even suggesting that £30 generic earbuds sounded just as good. Ouch.

In general, many of the criticisms seemed to focus on the following:

  • The design was too heavy and uncomfortable – especially if you have glasses.
  • The sound wasn’t that impressive.
  • The setup was complicated and confusing, resulting in different profiles every time.
  • The ‘generic’ profile that you compare your personalised profile with sounded worse than it should, and that something shady must be going on.

I don’t think I’ve ever seen such conflicting experiences with a single product, which only pushed me to try them out for myself.

My Experience

Setup

Setting up the headphones was as simple as downloading the app, connecting via Bluetooth, and following the on-screen instructions. I had no bother getting the cups in the right place, and despite trying the calibration process a few times, my profiles were pretty much the same each time. It couldn’t really have been much easier.

Nuraphone
Brand new Nuraphone with the plastic wrap still intact.

The one real annoyance is that once set up is complete, you’re encouraged to switch between a generic ‘flat’ profile and your own personalised one to hear the difference. As many people have commented online, the problem is that the generic profile sounds pretty terrible on its own – far worse than you would expect even as a baseline from far cheaper headphones. It’s as if it has been heavily compressed. As a result it all seems a bit disingenuous, and Nura have probably not done themselves many favours by including this ‘feature’.

Comfort

After reading all of the negative reviews, I expected the Nuraphone to be extremely heavy and uncomfortable, but in actual fact, they slipped on with ease; the silicone of both the ear-cups and headband feeling both soft and comfortable. They weren’t particularly heavy – at least not markedly more so than other cans I’ve worn, and even the in-ear protrusions didn’t feel all that bad – going less deep than I expected. As for my glasses, they didn’t seem to make the slightest bit of difference to proceedings.

I wore the headphones for about seven to eight hours on the first day (with breaks), and my ears definitely got a bit sore by the end, though I knew to expect this from the Nura support team, who claimed that the tips of the in-ear portions would soften up with use. Despite this physical discomfort, my ears didn’t ever get hot or sweaty, which seems to be thanks to the use of the ‘TeslaValve’ air-flow technology. Not just a gimmick after all!

After listening to feedback on the issue of comfort, Nura have started to include different tip sizes with new purchases, including small and medium. There are also some third party options out there that are compatible, though whether they have a significant impact on the sound (negatively) is up for debate.

Controls

Many of the fundamental controls of the Nuraphone are contained within the accompanying smartphone app. Some of these can be mapped to a couple of touch sensitive ‘pads’ on the side of the cans – such as volume up/down, play/pause, etc. Both single and double tap gestures are supported, allowing you to choose four controls to make use of.

I personally have volume up and down configured for the single taps, with social mode and play/pause for the double taps. At first I thought this was a bit awkward, but after a day or so I found it really natural, and have even found myself trying to tap on the side of my other headphones out of a force of habit. After using the Nuraphone controls, the physical buttons on my Sennheisers feel a bit clunky and unintuitive.

Speaking of social mode, this is a nifty feature that turns off the active noise cancellation, and turns on microphones to allow you to hear what’s going on without having to take off the headphones. I’ve found this really useful in practice, though it can be a bit disconcerting to have certain ‘exterior’ sounds suddenly amplified louder than they actually are with the headphones off.

It’s not all great news though. The controls themselves are extremely sensitive, with no adjustment possible. Often I would end up accidentally triggering the pads when adjusting my glasses, or just moving my arms about, and I had to continually turn the headphones back down. There are also some functions that can only be accessed via the app, which is a bit annoying. For example, at the time of writing you can’t adjust the level of Immersion mode without being connected to the phone app – which would be handy for switching between genres. I’ve heard from Nura that they are working on a desktop app which would help alleviate this issue for those of us who regularly listen on our computers.

Finally, the controls don’t work when a cable is connected, which is understandable, but a bit irritating, breaking the continuity of experience.

Connectivity

I’ve been dubious of wireless technology for a long time, given the pretty crappy historic quality of even higher end headphones. As a result, I only recently bought into the whole arena and was pleasantly surprised. Still clinging to this, I was put off at first by the prospect of having to buy a separate, expensive analogue cable, but realised that I don’t actually need one for everyday listening.

In terms of the quality of the bluetooth connection itself, it was generally pretty good. For some reason my first pair worked fine with my laptop, but dropped out constantly when connected to my phone when I put it in my pocket. That meant they were totally useless for walking about, and I was restricted to using them when stationary at a desk, or on the couch till they got replaced. Generally though, once this was resolved, the connectivity was good, and I only had the odd blip here and there. Definitely not something that would be irritating or especially notable.

This all leads nicely to my biggest issue with the design of the Nuraphone: the proprietary nature of the cable connection. Apparently in order to allow compatibility with a bunch of separate devices, they had to create a new single port that is used for everything, including charging. I’’m not really convinced by this argument, and it means that it’s yet another cable to carry when travelling, which isn much harder and pricier to replace. The nightmare scenario would be misplacing one while on a trip.

Sound

In the past I have played with various special music EQ apps that provide extra stereo spacing and increased ‘ambience’, but always returned to listening flat, as they never did a great job of applying equally the quality across genres. In other words, what sounded good with electronica would make grunge sound utter garbage. I suspected that this would be much the same with the Nuraphone, and I was pretty disappointed when it seemed to be the case upon first listening. Techno sounded pretty good, but generally the sound was too coloured, with vocals often lost in the mix. It wasn’t until I realised that I had an additional EQ set on my Mac already that was interfering with things that I actually heard what the Nuraphone could do, and my perception completely changed. Why bother even bringing this up? To highlight that it’s important to start with a flat EQ, or you’re going to get a distorted perception of the sound – which is easily done.

While I wasn’t exactly reduced to tears, the sound from the Nuraphone really was pretty impressive, bringing a whole new feeling of dynamism to music that I knew well. It was as if my favourite tracks had been given a personal re-mastering, and it was amazing. I scoured my library to find old songs and re-discover them in a different light. Despite an overall perceivable increase in quality, a lot of this seemed to come down to the ‘Immersion’ mode. When I first read about it, I was dubious. Cranking up the bass so it rattles against your ears doesn’t really ‘capture the feeling of being at a live performance’. However, I have to honestly say that there is something in that claim. With the slider at 75% I could feel every kick of the bass drum in early Green Day albums as if Tre Cool himself was in the same room, and there were times during some songs that genuinely reminded of being at a music festival due to the interaction of instrumentation.

There have been some comments that the Immersion mode is too heavy handed, such as:

The Immersion effect might suit bassheads or movie-watchers, but you’ll get the most balanced sound with it on very low – or turned off.

That hasn’t really been my experience (though maybe I’m a basshead?). Even at a fairly high level (70%), the Immersion mode only serves to add a bit of greater depth to the tracks, and doesn’t result in distorted or farty bass – though there is a definite cut off where this changes. To be honest though, if I wanted a flatter, more ‘balanced’ sound, these are not the headphones I personally would be using in the first place.

How do they compare to my other headphones though? I don’t really have technical details here, but there’s no doubt in my mind that they offer a much more dynamic and engaging sound. My other headphones still sound and feel great, but if I want to really get lost in the music, I’ll go with the Nuraphone every time.

Nuraphone case

Other Stuff

  • Portability: Unfortunately, despite having pretty great passive and active noise cancellation, the Nuraphone don’t seem especially great for travelling. They don’t fold down, and the protective case is pretty chunky. I still need to decide whether or not they are worth sacrificing precious space for in my carry on.
  • Audio fade in: The Nuraphone have a built in ‘fade in’ to the audio when they start playing back from silence. That means that if you fire up Spotify, stick on the headphones, and start playing a track with a banging intro, it ends up lacking punch. I can see the benefit of this feature when you put the headphones back on – to avoid getting blasted mid-song at full volume, but this should 100% be an optional feature, not something that can’t be turned off.
  • Noise cancellation: The passive noise cancellation of these headphones is pretty decent already, but the active noise cancellation is especially good. The combination seems to block out more ambient noise than my Sennheiser HD 4.50 BTNC cans, and it’s pretty amazing to hear the difference toggling ‘social mode’ on and off makes.
  • Battery life: The Nuraphone boast an impressive 20 hour battery life. I haven’t tested them continuously, but what I do know is that the headphones arrived on a Monday; I used them heavily, and by Friday morning they were only down to 40%. In practice this means I’d only really need to charge them about once a week, which is pretty great.

Conclusion

I really didn’t want to like these. Despite having a glimmer of hope that they might be decent, I planned to try them out for a few weeks then send them back after discovering that they were mostly just marketing puff after all. However, that isn’t how things worked out.

The truth is that I really like the Nuraphone. The sound is different to anything I’ve heard before in a set of headphones, and the Immersion mode really helps bring certain kinds of music alive. I’m excited about listening to music again, and for that reason alone they are well worth the money for me. If they only took standard cables, and folded down to be a bit more portable, it’d be tough to find any big flaws.

They retail for £349, but you can often find 20% off discount codes on Reddit. 

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UN Special Rapporteur’s Report on Content Regulation (2018)

With the news that the United States are to withdraw from the UN’s Human Rights Council, it seemed poignant to highlight one of their recently published Special Rapporteur’s reports, in which they looked at the state of online ‘content regulation’, and the impact on freedom of expression.

[It] examines the role of States and social media companies in providing an enabling environment for freedom of expression and access to information online.

The report itself is one of the better publications from an official entity, and talks about a lot of important issues that other bodies tend to ignore (willingly or otherwise). As a result, the whole thing is worth reading, but a few portions in particular stood out for me, and are worth sharing:

Counter Speech

One of the current major questions in the realm of intermediary liability is how platforms should deal with ‘extremist’ content. In an attempt to find a compromise between ‘doing nothing’, and total removal of anything questionable (with all of the resultant implications for freedom of expression), the concept of ‘counter speech’ is often brought up as a solution. In principle the idea is that instead of silencing disagreeable expression, people should instead seek to directly counter the ideas. This avoids the problem of subjective censorship, protecting free speech, and also ‘shines light into the dark’, rather than driving people underground where there is little or no critical dissent.

As well intentioned as this approach may be, it is one that is now unfortunately being misconstrued as an obligation for platforms to incorporate, rather than interested individuals or groups. For example, there are suggestions that the likes of YouTube should place an interstitial banner on disputed content to warn viewers of its nature. In the case of pro-ISIS videos, this notice would include links to anti-extremism programs, or counter narratives. As the report wisely notes:

While the promotion of counter-narratives may be attractive in the
face of “extremist” or “terrorist” content, pressure for such approaches runs the risk of transforming platforms into carriers of propaganda well beyond established areas of legitimate concern.

Despite the fact that there is little evidence that such an approach would do anything but bolster the already established beliefs of those viewing the content in question, there would inevitably be calls for it to be extended to any particularly contentious content. Ostensibly, pro-choice campaign websites could be overlaid with arguments from conservative religious groups; McDonalds.com with a link to the Vegan association. This may seem far fetched, but the danger is clear: as soon as we replace our own critical faculties with an obligation on intermediaries to provide ‘balance’ (even with the most extreme of content), we open the door to the normalisation of the practice. There is scant analysis of this particular issue out there at the moment, and I’m especially pleased to see it highlighted by the UNHRC.

Trusted Flaggers

Many companies have developed specialized rosters of “trusted” flaggers, typically experts, high-impact users and, reportedly, sometimes government flaggers. There is little or no public information explaining the selection of specialized flaggers, their interpretations of legal or community standards or their influence over company decisions.

Lack of definition of terms

You can’t adequately address challenges if the terms aren’t defined. For that reason, crusades against vague concepts such as ‘hate speech’, ‘fake news‘, etc are at best, doomed to failure, and at worst, a serious threat to freedom of expression. This isn’t a problem limited to the issues surrounding intermediary liability, but one which is made more visible by the globalised, cross jurisdictional nature of the Internet.

The commitment to legal compliance can be complicated when relevant State law is
vague, subject to varying interpretations or inconsistent with human rights law. For
instance, laws against “extremism” which leave the key term undefined provide discretion to government authorities to pressure companies to remove content on questionable grounds.

This is pretty self explanatory, but something which is often overlooked in discussions around the responsibilities of intermediaries in relation to content regulation. We should not accept the use of terms which have not been properly defined, as this allows any actor to co-opt them for their own purposes. Tackling ‘online abuse’, for example, is a grand aim which can easily garner much support, but which remains empty and meaningless without further explanation – and thus, open to abuse in of itself.

Vague rules

Following on from the previous section, platforms (perhaps partly as a direct result of the contemporary political rhetoric) adopt vague descriptors of the kind of content and/or behaviour which is unacceptable, in order to cover a variety of circumstances.

Company prohibitions of threatening or promoting terrorism, supporting or praising leaders of dangerous organizations and content that promotes terrorist acts or incites violence are, like counter-terrorism legislation, excessively vague. Company policies on hate, harassment and abuse also do not clearly indicate what constitutes an offence. Twitter’s prohibition of “behavior that incites fear about a protected group” and Facebook’s distinction between “direct attacks” on protected characteristics and merely “distasteful or offensive content” are subjective and unstable bases for content moderation.

Freedom of expression laws (generally) do not apply to private entities. In other words, Facebook et al are more or less free to decide on the rules of engagement for their platform. However, as these intermediaries increasingly control the spaces in which we as a society engage, they have a responsibility to ensure that their rules are at least transparent. The increasing multi-jurisdictional legal burdens and political pressures placed upon them to moderate content reduces the likelihood of this significantly. It also provides little to no stability or protection for those who hold views outside of the generally accepted cultural norms – a category that includes political activists and dissidents. In many parts of the world, having a homosexual relationship is considered ‘distasteful’ and ‘offensive’, as are the words of the current President of the United States – which demonstrates the problem with allowing (or expecting) a technology company to make such distinctions.

‘Real name’ policies

For those not familiar, this refers to the requirement from certain platforms that you must use your actual, legal name on their service – as opposed to a username, pseudonym, nickname, or anonymity. Officially the reason is that if someone is required to use their ‘real’ name, then they are less likely to engage in abusive behaviour online. We can speculate as to the real motives for such policies, but it seems undeniable that they are often linked to more accurate (aggressive) marketing to a platform’s user base. Either way, the report notes:

The effectiveness of real-name requirements as safeguards against online abuse is
questionable. Indeed, strict insistence on real names has unmasked bloggers and activists using pseudonyms to protect themselves, exposing them to grave physical danger. It has also blocked the accounts of lesbian, gay, bisexual, transgender and queer users and activists, drag performers and users with non-English or unconventional names. Since online anonymity is often necessary for the physical safety of vulnerable users, human rights principles default to the protection of anonymity, subject only to limitations that would protect their identities.

Within traditional digital rights circles (if there is such a thing), there appears to be a growing belief that anonymity is a bad thing. I’ve even heard suggestions that the government should require some kind of official identification system before people can interact online. This is clearly a terrible idea, and may seem utterly laughable, but when you consider that this is exactly what will be law for adult websites in the UK later this year, it seems like it might not be completely out of the realms of possibility after all. We need to better educate ourselves and others on the issues before the drips become a wave.

Automated decision making

Automated tools scanning music and video for copyright infringement at the point of upload have raised concerns of overblocking, and calls to expand upload filtering to terrorist-related and other areas of content threaten to establish comprehensive and disproportionate regimes of pre-publication censorship.

Artificial intelligence and ‘machine learning’ are increasingly seen as some kind of silver bullet to the issues of moderating content at scale, despite the many and varied issues with the technology. Bots do not understand context, or the legal concept of ‘fair use’; frequently misidentify content; and are generally ineffective, yet the European Union is pressing ahead with encouraging platforms to adopt automated mechanisms in their proposed Copyright Directive. Rather than just trying to placate lawmakers, intermediaries need to recognise the problems with such an approach, and more vigorously resist such a solution, instead of treating it as a purely technological challenge to overcome.

Finally…

Companies should recognize that the authoritative global standard for ensuring
freedom of expression on their platforms is human rights law, not the varying laws of States or their own private interests, and they should re-evaluate their content
standards accordingly.

This is a pretty strong statement to make, and demonstrates an approach that I strongly resonate with. In principle, at least. In practice however, companies are obliged to follow the legal obligations of the jurisdictions in which they are based (and sometimes even beyond, given the perceived reach of the GDPR). The extent and application of ‘human rights law’ varies significantly, and there are no protections for intermediaries that rely on mythical ‘global standards’ – even the UN Declaration of Human Rights.

Open letter to MEPs: Article 13 of the Copyright Directive

The latest threat to both freedom of expression and the neutrality of the Internet is the proposed European ‘Copyright Directive’, and in particular, Article 13.

Much has been written on the dangers of Article 13, so I won’t repeat it here. Needless to say, if implemented, there would be serious consequences for how we interact online. It would be far easier for people to have content taken down from the Internet, or to prevent you from posting certain things, even if they have no real legal justification for doing so. In other words, you’d better get used to seeing this:

Facebook Link Blocked

You can (and should) write to your MEP to express concerns about the upcoming law. You can do so using sites such as saveyourinternet.eu, but I didn’t think their template letter or MEP search was particularly good, so I wrote my own. Feel free to modify and use the below language. You can find and contact your MEPs using https://www.writetothem.com/.

Attn:

  • David Martin MEP
  • David Coburn MEP
  • Catherine Stihler MEP
  • Nosheena Mobarik MEP
  • Ian Hudghton MEP
  • Alyn Smith MEP

Thursday 21 June 2018

Stephen McLeod Blythe
[address redacted]

Dear Catherine Stihler, Alyn Smith, Ian Hudghton, Nosheena Mobarik, David Martin and David Coburn,

I am a legal academic and digital rights advocate from Glasgow, Scotland. I write with respect to the so-called ‘Copyright Directive’, and ask that you stand up against the proposal.

My main area of concern regarding the proposed Directive lies in Article 13. While it does not specifically impose a requirement on intermediaries to introduce pre-screening mechanisms, the language does explicitly refer to ‘the use of effective content recognition technologies’. As a result, this approach is clearly seen as an appropriate norm.

There are many problems with content recognition technologies, which I will not waste your time with by reciting in full. However, the bottom line is that they are expensive to implement; ineffective; easily defeated; frequently mis-identify content; and do not understand context, or the concept of ‘fair use’. In my work I already see significant abuse of copyright laws by complainants who wish to silence critics, and any kind of automated system will simply compound this problem.

Should Article 13 go ahead unchanged, intermediaries will inevitably adopt ‘dumb’ filtering systems in order to reduce their liability, and the result will be a significant chilling effect on both freedom of expression, and free enterprise. The consequences will impact heavily both on individual rights, and the economy.

Yours sincerely,

Stephen McLeod Blythe LLB. LLM.

Facebook and Free Speech: Reinforcing the Echo Chamber

In this Motherboard article, Vice yesterday highlighted some of the internal changes to Facebook’s policy on acceptable speech after the events of Charlottesville last year.

Facebook Free Speech Policy
Image via Motherboard. Included under the fair use doctrine.

Specifically, it was noted that Facebook distinguish between statements supporting a white nationalist ideology, and white supremacy, with the latter in particular considered to be associated with racism – something prohibited on the platform. In response, there have been arguments that this distinction is meaningless, and that Facebook is effectively allowing Nazis to operate on their network as a result.

Facebook infamously ‘curates’ what its users see through the use of algorithms, and they have faced ongoing criticisms that ‘echo chambers’ are created as a direct result. This was particularly true in light of both Donald Trump’s Presidential election victory, and the outcome of the EU membership referendum in the UK. On a personal note, it was something that first became obvious after the Scottish independence referendum in 2014.

With this in mind, the question becomes what people actually want or expect Facebook to be. On one hand, the possibility of anybody sharing far right or extremist ideologies is seen as abhorrent and unacceptable, but on the other, the cultivation of echo chambers that distort political and social reality is decried as irresponsible.

Unfortunately, you can’t break through an online bubble by only allowing that which you find inoffensive to be shared.

The obvious response here is that there is a difference between healthy debate and sharing views which are hateful. However, this is something of a liberal utopian ideal which doesn’t actually play out in practice. Argument is messy. Debate isn’t always healthy. People don’t always play fairly. All of this is self-evident and will remain true whenever those with opposing positions come into conflict. Arguably, those beliefs that are considered most heinous are precisely those which need to be heard, challenged, and resisted, and in the same vein, the areas online which foster these biases without question need to be opened up to opposition.

If all we want is Facebook to be a safe space to share pictures of our dogs and holiday photos, then that is one thing. However, that is never going to be the reality, irrespective of what some may claim. Whenever people have space to express themselves, they will share their views on how the world should be. If we want to avoid all of the problems that doing so within the so-called echo chambers brings, then we need to stop reinforcing them by banning the very opposing views that would break them apart in the first place.

Home Office Data Subject Access Request: Part One

Data Subject Access Requests (under Article 10 of the Data Protection Act 1998) are powerful tools that allowed people to request a copy of any information held on them by organisations (with some exceptions). In order to provide a response, a fee of up to £10 could be charged.

With the new GDPR era, these fees are no longer going to apply, and the access requests will now be covered by Section 94 of the Data Protection Act 2018 (which is set for Royal Assent today). As a result, I suspect we will be seeing far more of these requests… and given how underprepared most organisations have proven to be with the DPA 98’s mechanisms, it will be interesting to see how they cope.

I decided to investigate the process myself with none other than the UKVI. Formerly known as the UKBA. The visas and immigration people. I’m pretty sure they must have some interesting information on me, especially given that my spouse is a foreign national.

Handily, they have a page where you can submit your request for information on gov.uk. The process is, as you would expect, fairly convoluted. There are three categories of information you can request: Basic, Specific, or Detailed. For the ‘Detailed’ request, they are still asking for the £10 fee. However, in order to verify your identity, they require a host of information, including:

  • Your passport number.
  • A copy of your passport.
  • Written confirmation that your passport is a ‘true likeness’ of you.

Interestingly, they ask for a lot more information, including your parents’ date of birth, etc. This is noted as being ‘optional’, but still presents itself in such a way that it seems like it might be required. Let’s repeat after me: Data Subject Access Requests should not be an excuse to mine more data. I chose not to provide any more details than was necessary.

Back to what was required: Data controllers have an obligation to take ‘reasonable measures’ to verify the identity of a person making a request, and so some of this is fair enough. However, the passport number alone should be sufficient, since the UKVI hold all of the information anyway. A copy of the passport seems unnecessary, and the written confirmation of the likeness just seems bonkers – especially since the list of people who can give this certification is prohibitively small:

 

  • a legal representative, registered with the Office for the Immigration Services Commissioner (OISC)
  • a solicitor, barrister or chartered legal executive
  • a commissioner for oaths
  • a registered charity

Now, I am not one to suggest that the UKVI may well be trying to make it as difficult as possible for somebody to make a subject access request, but it certainly seems like this is not in the spirit of the GDPR, or the DPA 2018. The list above is even more restrictive than the categories of people who can countersign photos to get a passport in the first place. To illustrate the point, here are the professions of folks who can counter-sign your initial passport application:

Examples of recognised professions include:

  • accountant
  • airline pilot
  • articled clerk of a limited company
  • assurance agent of recognised company
  • bank/building society official
  • barrister
  • chairman/director of limited company
  • chiropodist
  • commissioner for oaths
  • councillor, eg local or county
  • civil servant (permanent)
  • dentist
  • director/manager/personnel officer of a VAT-registered company
  • engineer – with professional qualifications
  • financial services intermediary, eg a stockbroker or insurance broker
  • fire service official
  • funeral director
  • insurance agent (full time) of a recognised company
  • journalist
  • Justice of the Peace
  • legal secretary – fellow or associate member of the Institute of Legal Secretaries and PAs
  • licensee of public house
  • local government officer
  • manager/personnel officer of a limited company
  • member, associate or fellow of a professional body
  • Member of Parliament
  • Merchant Navy officer
  • minister of a recognised religion – including Christian Science
  • nurse – RGN or RMN
  • officer of the armed services
  • optician
  • paralegal – certified paralegal, qualified paralegal or associate member of the Institute of Paralegals
  • person with honours, eg an OBE or MBE
  • pharmacist
  • photographer – professional
  • police officer
  • Post Office official
  • president/secretary of a recognised organisation
  • Salvation Army officer
  • social worker
  • solicitor
  • surveyor
  • teacher, lecturer
  • trade union officer
  • travel agent – qualified
  • valuer or auctioneer – fellows and associate members of the incorporated society
  • Warrant Officers and Chief Petty Officers

This means that the requirements for verifying ‘likeness’ are higher to get information held on you by the UKVI, than they are to get a passport in the first place.

For my subject access request, I have been told I have 15 days to submit the relevant documentation, including the above:

UKVI Requirements

Despite making the application online, I also apparently can’t submit the evidence online – so I’m not sure what the point of offering such a service is in the first place.

In my opinion, the requirements are not ‘reasonable’, and providing my passport number alone should be enough. As a result, I will not be submitting statements from a solicitor or charity at this point to support my request. I am going to operate on the assumption that the online system is not properly equipped to deal with subject access requests properly, and that the evidential standard is being confused with actual visa applications. I have contacted the UKVI directly with these concerns. Here’s what I said:

Reference: [redacted]

Hi,

I have just submitted a Data Subject Access Request under s.10 of the DPA 98 and s.94 of the DPA 2018 (which just received Royal Assent). This should further be considered in light of Article 15 of the GDPR.

As part of the evidential requirements listed on your site, I must provide:

1. A copy of my passport.
2. A ‘written confirmation of true likeness’ from a third party.
3. A letter of permission.

Firstly, I want to point out that there is no way to provide these documents online, despite the initial application being made online. I therefore request that you agree to receive items 1 and 3 electronically, rather than by post.

Secondly, I object to the requirement to provide a written confirmation of true likeness. As you will be aware, data controllers are required to undertake ‘reasonable measures’ to verify the identity of the person making the Data Subject Access Request. I submit that by providing a copy of my passport, and the passport number, that this more than satisfies the legal requirement.

Further, I submit that since the list of those who are considered appropriate to provide this written confirmation is less extensive than those who can act as a counter-signatory for a passport application in the first place, that this requirement is demonstrably disproportionate, and as such not required to respond to my request.

To summarise, please advise that:

1. You will accept items 1 and 2 from the above electronically.
2. That the written confirmation of true likeness is not required to give effect to the request under the relevant law.

Yours sincerely,

We will see what happens. Should my subject access request be denied, then it would appear that the UKVI really are requiring a disproportionately high standard to verify people for their Data Subject Access Requests, and I’ll need to revisit it at that point. Stay tuned.

Issues with Article 17 (‘Right to be Forgotten’) of the GDPR

With the GDPR’s deadline now almost upon us, one of the most talked about provisions has been the ‘Right to Erasure’ contained within Article 17.

Significantly expanding the ‘Right to be Forgotten’ doctrine established in the Google Spain case, Article 17 allows data subjects (i.e. you and I) to submit takedown requests to any organisation that collects and controls information on them.

There are a number of grounds under which people may seek to have data deleted, which cover a broad variety of circumstances. These include situations where the data is no longer necessary for the reasons it was collected; where it was unlawfully processed; where the subject withdraws their consent; as well as some others. The right is not unlimited, with exceptions where the collection and processing of the data is necessary in the exercise of the right to freedom of expression; where there is a specific legal obligation to retain the information; for reasons of public interest; etc.

Issues with Article 17

Despite some initial reservations, the GDPR (and Article 17 in particular) has generally been lauded as a victory for European citizens, who will gain far more control over what information companies hold on them than they ever previously have had. This is especially true given the arguably extra-territorial applicability, where any organisation that handles European data will be expected to comply.

However, there are a few specific issues arising from the construction of Article 17 that bear some further scrutiny. Rather than analyse the philosophical criticisms of the Right to Erasure, below I briefly look at some of the practical considerations that will need to be taken by data controllers when they receive such a Request for Erasure:

  1. Verification.
  2. Abuse, and a lack of formal requirements for removal requests.
  3. Article 85: Freedom of expression.

Verification of the Data Subject

Before giving effect to an Article 17 request, the controller must use all ‘reasonable measures’ to identify the identity of the requesting party. It is perhaps obvious that an organisation should not be deleting the accounts or other data of somebody without checking first to make sure that the person making that request is authorised to do so. However, this leaves open a number of questions about what this kind of verification will look like. In other words, what steps will be considered ‘reasonable’ under the terms of the law? Will courts begin to see arguments over online platforms account recovery procedures as a result of a denial of access to the fundamental right of privacy via the GDPR? What metrics will a data subject be able/expected to provide in order to discover their associated data? i.e. while it might be easy to request information relating to your e-mail address, what about other identifiers such as IP addresses, or names? These are questions that do not have clear answers, and will inevitably lead to an uneven application of the law, dependent on the situation.

Abuse, and a Lack of Formal Procedural Requirements for Erasure Requests

It should be self-evident at this stage that any statutory removal mechanisms will be open to abuse by parties determined to have content removed from the Internet, and in that regard, Article 17 is no different. However, there is a common misconception that the Right to Erasure gives people the right to stop any mention of them online – especially speech that is critical of them, or that they disagree with. This is not the case, and Article 17 is not crafted as a dispute resolution mechanism for defamation claims (that would be the E-Commerce Directive). These facts don’t stop people from citing the GDPR incorrectly though, and it can quickly become difficult to deal with content removal demands as a result.

The problem is compounded by the fact that there are no formal procedural requirements for an Article 17 request to be valid, unlike the notice and takedown procedure of the DMCA, or even the ECD. Requests do not have to mention the GDPR, or even Right to be Erasure specifically, and perhaps even more surprisingly, the requests don’t have to be made in writing, as verbal expressions are acceptable.

While the reasons for the lack of specific notice requirements is clearly in order to give the maximum amount of protection to data subjects (the lack of requirement for writing was apparently in order to allow people to easily ask for the removal of their data from call centres over the phone), it seems to ignore the accompanying problems with such an approach. The lack of clarity for the general public around what exactly the Right to Erasure includes, along with the lack of procedural checks and balances means that it will be increasingly difficult for organisations to identify and give effect to legitimate notices. This is especially true for online platforms that already receive a high number of reports. While many of these are often nonsense or spam, they will require far greater scrutiny in order to ensure that they aren’t actually badly worded Article 17 requests that might lead to liability.

If we look at the statistics on other notice and takedown processes such as that in the DMCA (the WordPress.com transparency report, for example), we can see that the levels of incomplete or abusive notices received are high. The implementation of even basic formal requirements would provide some minimum level of quality control over the requests, and allow organisations identifiers to efficiently categorise and give effect to legitimate Article 17 requests, rather than the prospect of having to consider any kind of report received through the lens of the GDPR.

Article 85: Freedom of expression

As mentioned earlier, a controller is not obliged to remove data where its continued retention is ‘necessary for reasons of freedom of expression and information’. The obvious question then becomes under what grounds this should be interpreted, and we find some guidance in Article 85 of the GDPR. Unfortunately however, it doesn’t say all that much:

‘Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression.’

This appears to leave the task of determining how the balance will be made to individual Member States. Whilst this isn’t unusual in European legislation, it means that the standard will vary depending on where the organisation is based, and or where the data subject resides. At the time of writing, it isn’t clear how different Member States will address this reconciliation. Despite freedom of expression’s status as a fundamental right in European law, it is afforded scant consideration, and thus weak protection under the GDPR, preferring to defer to national law, which simply isn’t good enough. Far stronger statements and guarantees should have been provided.

Over Compliance

Unfortunately, the amount of extra work required to analyse and deal with these requests as a result of the law’s construction – along with the high financial penalties detailed in Article 83 – mean that it is likely that many organisations will simply resort to removing data, even where there is no lawful basis for the request, or requirement for them to do so.

We may fairly confidently speculate that the response from many data controllers will be to take a conservative approach to the GDPR’s requirements, and thus be less likely to push back on any potentially dubious requests as a result. Insistent complainants may find that they are able to have speech silenced without any legitimate legal basis simply out of fear or misunderstanding on the part of third party organisations.

With a well publicised and generally misunderstood right to removal, lack of procedural requirements, and a reliance on intermediaries to protect our rights to freedom of expression, we may find ourselves with more control over our own data, but with far less control over how we impart and receive information online.

Header image by ‘portal gda‘ on Flickr. Used under CC BY NC-SA 2.0 license.

Nazi Pugs Fuck Off

One of the latest cases to spark intense debate around freedom of expression happens to fall in my own back yard. The facts of the ‘nazi pug’ case concerned one Mark Meechan, aka ‘Count Dankula’, who filmed himself training his girlfriend’s dog to react to various phrases such as ‘gas the Jews’, and then posted it on YouTube. In his own words:

“My girlfriend is always ranting and raving about how cute and adorable her wee dog is, and so I thought I would turn him into the least cute thing that I could think of, which is a Nazi”

Meechan was subsequently charged and convicted in a Scottish Sheriff Court under s.127 of the Communications Act 2003, which makes it an offence to (publicly) communicate a ‘message or other matter that is grossly offensive or of an indecent, obscene or menacing character’.

Count Dankula

Offensive speech should not be a criminal offence

The accused argued that the video was intended as a joke to noise up his girlfriend, as evidenced by the disclaimer at the outset. This position was rejected by the court, who stated that humour was ‘no magic wand’ to escape prosecution, and that any determination of context was for them to decide.

In passing the sentence, the Sheriff brought up the fact that the accused’s girlfriend didn’t even subscribe to his YouTube channel, and so claimed that as a result the notion that the escapade was in fact intended as a private joke didn’t hold any water. This is important as it demonstrates a deep cultural ignorance of how people communicate in an age dominated by online platforms, but also for what may well be a more interesting point: That the actions could only be classed as an offence under the Communications Act by dint of the fact that the video was posted on a ‘public communications network’. In other words, if the same ‘joke’ had been demonstrated at a house party, down the pub, or even on stage in front of hundreds of people, then it could not have brought about the same kind of prosecution.

This brings about two questions:

  1. Should there be any distinction between posting a video online (or via telephone), and making statements in person? If so, why?
  2. Should anybody ever face jail time for making ‘offensive’ statements?

These are questions that can only realistically be properly addressed by Parliament – not the Sheriff court, though one would have hoped that they would have taken a more liberal approach to statutory interpretation, or that the Procurator Fiscal would have had more foresight to not pursue a conviction.

I’m certainly not alone in my view that the video was tasteless. However, a bad sense of humour should not be enough to justify the possibility of a criminal offence. Further, even if the video was in fact an expression of a genuine conviction (which has not been at issue in this case), then it still should not warrant the possibility of jail time – especially not when the distinction lies on the fact that the statements were made on a ‘public communications network’ rather than in person. Remember, this was not a question of ‘incitement’, but simply offence.

Nazis are not your friends

It appears that in many ways, the court were bound by the statutory terms, and that the 2003 law itself is inadequate, to say the least. However, there is another element to this tale that is worth discussing. Namely, that individuals such as the former leader of the so called English Defence League have come out to associate themselves with the issue, and that not enough has been done to reject those attempts.

The support of the far right is not particularly surprising, as they are increasingly taking up the bastion of free expression to justify their odious positions. I is also understandable that when faced with what you perceive as an unwarranted criminal prosecution that you would welcome any support that you can get, or that the media would try to draw connections where there are none. However, the enemy of my enemy is not necessarily my friend. If arseholes such as Tommy Robinson whose views you claim to be diametrically opposed to try to co-opt your situation for their own political ends, you have a duty to clearly, loudly, and publicly tell them to fuck off. When the far right started to infiltrate punk culture based on the premise of certain shared values, the Dead Kennedys responded in no uncertain terms.

I don’t and won’t claim to know the politics of the accused in this case, but the situation should be a warning for all who consider ourselves to sit on the liberal end of the spectrum: Be wary of those who seek to use a shared belief in freedom of expression as a trojan horse. Yes, fight for the right of those you disagree with to speak, but don’t let the crows trick their way into your nest as a result.

Meechan has indicated plans to appeal the conviction in order to make a point about freedom of speech, although it is unclear at this point under what grounds he will do so. Either way, whilst this is something I would generally support, it is becoming increasingly tough to do so with the knowledge that each development gives people such as the EDL a platform without any real challenge.


For a more in depth analysis of the law involved in this case, have a look at this post from thebarristerblogger.com.

P.S. I don’t blame the pug.