Book Recommendation – “The Twenty-Six Words That Created the Internet”

The latest book I have to recommend comes from law professor Jeff Kosseff, in which he examines one of the laws that have been most crucial to the development of the Internet: s.230 of the Communications Decency Act. For those not familiar with the CDA, it is a piece of American jurisprudence that has essentially enabled businesses such as Twitter and YouTube to develop platforms built on user generated content, without themselves becoming liable for everything that those users may say or do.
Jeff Kosseff - Twenty Six Words That Created the Internet - Book Cover

Understanding the CDA is increasingly important – not just for lawyers or academics focussed on intermediary liability – but for anybody with an interest in the future of the Internet. This book provides a comprehensive explanation of the law’s history and original aims, as well as its development through case law. Whilst it isn’t necessarily an ‘easy’ read due to the subject matter, Kosseff’s narrative style means that it remains engaging throughout, never letting things run dry, or too theoretically abstract.

‘The Twenty-Six Words That Created the Internet’ was published in April of 2019. Given the impact of the CDA, it is almost hard to believe that such a complete study hasn’t come around before now. Either way, if you want to learn (a lot) about one of the most important laws underpinning the Internet as we know it, read this.

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Book Recommendation – “Speech Police: The Global Struggle to Govern the Internet”

‘Speech Police: The Global Struggle to Govern the Internet’ is the latest publication from speechpoliceUN Special Rapporteur on Freedom of Expression, David Kaye. Following on from his 2018 report on content regulation, this book looks at the issue of who decides what kind of speech is acceptable online, and the potential implications of the increasing expectations placed on platforms to regulate certain kinds of content.

Kaye’s narrative style is both thoughtful and engaging, covering difficult concepts in a clear and concise fashion, but also exploring aspects of the debate that are often overlooked. Coupled with a relatively low page count, this means that Speech Police is not only a valuable read for those already familiar with the questions around content moderation and freedom of expression, but is also extremely accessible for those new to the topic. As a result, this book is a must read for anybody currently studying or working in tech policy, or those who are simply concerned about the future of the Internet.

Sabbatical Aims

Every five years, Automattic employees can take a three month sabbatical from work to get away from the computer and recharge. The idea is that it helps highlight areas where you as an individual have unwittingly become solely responsible for particular tasks, and allows you to come back with a refreshed perspective and enthusiasm. That’s my take on things anyway.

I have been employed by Automattic for well over five years at this point, and I sign off at the start of next week – having pushed the date back a bit to make sure the weather was a bit nicer (!).

Three months is a fair amount of time to fill, but it can easily end up being filled with nothing in particular if you don’t take the time to plan out what you want to do. For that reason, I’m posting this up with my aims for the next few months, so I can look back on it at the end of June and see whether I actually did any of the things I said I would.

So here it is. Over the sabbatical I want to:

  1. Travel. I have a number of trips booked – from spending some time in Japan, to visiting my parents in Canada.
  2. See more of Scotland. I have been all over Scotland, but there are still plenty of areas that I haven’t been. I don’t have any concrete plans yet, but I want to get to at least one or two different places – preferably further north than Inverness.
  3. Make time for old friends. I have too many people that I haven’t seen in ages, and I want to change that. I’ve booked a long weekend to visit some folks down south in May to start with.
  4. Get better at guitar. Despite having played guitar for about 18 years, I am nowhere near as proficient as I should be. Rather than learn other people’s songs, I always just wrote my own, and my skills have suffered a bit as a result. I’ve bought some official tab books from bands I like, and want to use them to get much more proficient. The way I will test whether I’ve done this will be whether or not I can confidently play a significant number of songs from those books that I couldn’t play before.
  5. Write and record music. I have a few musical projects on the go at the moment, and not enough time to really sit down to write and record. I want to make use of the time I have, and release at least one album by the end of June.
  6. Finish and submit another journal article. I have been working on a second journal article for a while, but not found the time to finish it. I want to do so, and submit it for publication.
  7. Read more. Specifically, I want to take the time to finish and enjoy a pile of books that have been building up. I’m keeping a list of them all to see how many I get through.
  8. Go to the gym regularly. I already go to the gym at least once a week, but it’s too easy to find excuses when you are busy working. I want that to change.
  9. Take more photos. I haven’t been taking many pictures over the past few months, and I want to get back into the habit. Specifically, shooting and developing a bunch of film.
  10. Tidy up. This is a boring one, but I want to get some things in order. Marie Kondo style.

so that’s it: my ten aims, out there for posterity if not accountability. Looking over it now, it’s probably too much to pack in to what I am sure will be a few months that fly by – but it’s good to aim high. I’ll report back once the sabbatical is over and see how I got on.

UK Immigration Problems: RBS Bank Statements

Regular readers will be aware that my wife and I are currently going through the long process for her to gain British citizenship, after moving here from the United States. Contrary to popular belief, marriage doesn’t mean that you automatically have a right to stay in the UK.

There are many, deep flaws and contradictions with the law and the Home Office’s application of it. I’ve written about some of this before, but there is plenty I haven’t covered, which is partly out of a very real fear that any concerns I raise publicly could prejudice the outcome of the process itself… which is in of itself a huge problem that we need to face up to. However, I want to do my bit to highlight a few of the more specific problems I have come across, with my conjoined perspective as a lawyer, and the spouse of a non-EU citizen.

In this entry I am going to detail a practical procedural issue that has cropped up multiple times throughout our visa ‘journey’. Theoretically, it should be one of the most straightforward portions of the whole process, but in reality it has turned out to be a bit of a nightmare. That is: getting copies of bank statements that satisfy the Home Office Requirements.

Fair warning: This is fairly long, and probably not much interest to those of you just looking for a casual read – but I think it’s important to be comprehensive, and I know that these posts are picked up by others looking for help on Google – so it is what it is.

Home Office Requirements

In order to qualify for a spousal visa, or visa renewal (called ‘Further Leave to Remain’, or ‘FLR(M)’ in this case), you need to prove that you and your partner have financial means of support. You can do this in various ways, but the most realistic for ‘regular’ couples is through income from employment. In other words, demonstrating that you have a job where you earn at least £18,600 per annum (this figure goes up if you have children).

In order to prove your income, you need to submit payslips covering a 6 month period, with corresponding bank statements. If you’ve changed jobs, this becomes 12 months. In of itself, this seems straightforward enough. However, there are some complications:

  • You cannot apply for a visa renewal/extension more than 28 days before your current visa expires. (well, technically you can, but this will cause problems further down the line).
  • Any evidence you provide has to be from less than 28 days prior to the date of your application.
  • Once your evidence is submitted, you still need to either send off all of the documentation, or attend an appointment in person. There is no guarantee that you will get an appointment at short notice, or in the location you want. In the past, people have frequently had to travel across the UK to find any available open spot. In our case, we had to go down to Liverpool from Glasgow.

When it comes to the bank statements themselves, things are complicated further.

  • Electronic print outs of bank statements are not accepted, unless accompanied by an official letter from the branch stating their authenticity or stamped on each page to the same effect.
  • Bank staff rarely understand the specific requirements of the Home Office, and are often unwilling to provide stamped statements/a letter in the first instance – leaving you to ‘order’ paper copies instead.
  • Ordering statements can take time, and are subject to delays.

It isn’t unusual for banks to say that ordering copies of statements could take up to two weeks, which leaves a pretty short window of time for the evidence to arrive, be submitted, and then to get an appropriate appointment. All the while, the anxiety over the rapidly impending deadline is growing.

Royal Bank of Scotland and Copies of Statements

I am an RBS customer who gets digital statements. I used to get paper statements sent in the post, but they had such a problem getting my flat address correct (unbelievably, they couldn’t understand the slash or dash system), that it made things even harder. So, now I don’t. That means that I need to order copies of my statements every time we come for another round of visa extensions.

The online RBS Support Centre states that ‘you should receive your paper statement within 5-6 days of ordering it.’ That isn’t ideal, but it’s also not awful. So long as they stick to that timeframe, you should be able to pull together everything you need.

RBS Statements Website

To THL, or not to THL?

I logged onto digital banking as outlined above, and chatted with one of the advisors. Here we ran into the first problem. I was told that they could order me a ‘transaction history list’ (THL) instead of a statement. When I queried what the difference was between the two, they said ‘there’s no big difference’. Well, that isn’t really good enough. What might be a minor difference to customer support at RBS could well be enough to have the FLR(M) rejected. No thanks. After a while of trying to figure that out, I decided to just go into the branch.

The branch staff were helpful, but nobody in there seemed to be able to tell me what the difference was between a THL and a statement either. We went through a checklist on the bank’s system to determine what I needed, and it came out saying THL – but again, no explanation of why there were two different sets of documentation, and what was what. To be safe, we ordered a ‘copy statement’ – despite all of the efforts of the bank’s systems to direct us down the THL route. I asked how long the statements would take to arrive, and the teller dropped the bombshell that it could be up to 2 weeks (10 working days). Reassured by his insistence that they usually come through much faster than that, I went home. In any event, he said he would check in on the status of the request in a couple of days and let me know if there had been no update.

One week in. No Statements.

After five days, I hadn’t received any statements, and I was beginning to get antsy. At this point I knew I wouldn’t be getting anything in the post over the weekend, and the clock was ticking. I went into the branch to get some kind of confirmation that the statements were on their way. However, after being told (again) that I could ‘just print them off from digital banking’, it turned out that they don’t have any visibility on the status of statement orders, as they are fulfilled from some central place. Great. I was again reassured that the statements would arrive within ten business days, and that there was ‘nothing’ they could do in the meantime. Gritting my teeth, I left, and tried to tell myself that it would be fine.

Bad Memories

At this point I was getting extremely stressed out with the seemingly blasé attitude of the bank, and for good reason. When we were first applying for a fiancée visa so that my partner could come to live in the UK, I had a huge bust up with the Royal Bank of Scotland’s main branch on Gordon Street, in Glasgow.

As mentioned previously, the address on my paper statements had been messed up for months, and not fixed despite my repeated attempts. As a result, they were useless for evidentiary purposes. I went into the bank to get copies of the statements printed off and stamped, naively thinking that this would be a simple request. Oh no. I was flatly told that my request was ‘against RBS policy’. I didn’t really believe this at first, and thought that common sense would prevail after I explained the situation, and how the only reason I didn’t have paper statements in the first place was as a result of the bank’s failure to grasp Glasgow flat addresses properly. Unfortunately, it did not.

Despite me stressing that my immigration lawyer had stated that I needed a specific format of statement to comply with the Home Office regulations, the staff told me that the bank manager had denied my request because ‘You know what lawyers are like. They say lots of things’ and ‘we see people all the time applying for student visas and the print outs from digital banking are fine’.

Faced with the prospect of my entire life plans falling apart as the result of a decision made by a condescending bank manager who wouldn’t even come and speak to me directly, I blew a gasket, and caused such a scene that I was taken into a side room where the manager made me show him where in the Home Office regulations it said that this is what I needed (yes, really).

Endless RBS Contradictions

As you can imagine, I was a bit concerned (!) that if the statements I had ordered didn’t arrive in time, that my only option would be to go into the branch and get them printed/stamped/authenticated – and that I would have to carry out some kind of demonstration in order to do so. I had a full speech and strategy prepared, which included sitting down on the floor of the bank until they provided me with the proper documentation. That might sound extreme and ridiculous, but remember that getting these paper statements is necessary to make sure that my wife is not deported from our home in Glasgow, and our whole lives turned on their heads. With that in mind, it suddenly doesn’t seem all that unreasonable.

Anyway, unsatisfied with the answer I’d received from the bank, I then attempted to call the branch directly and speak with a manger to get some kind of reassurance that if worst came to the worst, they would be able to help me. However, I was routed to a digital banking call centre in Liverpool (the cruel irony). At first, they seemed to understand my question, which was a relief – but then they came back to say I should just print off the PDF statements from my online account. After yet more explanations, they then told me that definitively speaking, branches were not allowed to print off, stamp, and authenticate statements like I had asked.

At the same time as this though, I had tweeted the bank’s social media team at @RBS_HELP to pose the same question. They had a different answer – equally as definitive:

RBS Bank Statements FLR(M)

To throw more mud in the water, I also read about someone else in Scotland who was fighting a similar battle, and who had been told after a whole load of mucking about that it was down to the bank’s discretion.

So… what one is it? Why was this so difficult? Is getting a copy of paper statements not simply a basic function of a bank? Why did we spend Billions of taxpayers’ money to bail out banks if they can’t even provide such a base line of service? Why is this process being made so much harder needlessly by an institution that is supposed to be making efforts to recover public trust?

How many days again?

By this point, my stress levels were through the roof. I can usually handle pressure well, but when you are trapped in a situation that you have no control over, and have to rely on other people who have no personal investment, it’s much harder – especially given the high stakes.

I had talked myself off the ledge with the reasoning that I had only been charged for the ‘historic bank statements’ on Friday the 1st of March. Despite that being 5 working days after I ordered them in the first place, I thought they would surely turn up by Tuesday. Either way, if they weren’t here by the Friday I would go into the branch, armed with the rationale that they had failed to deliver on the 10 business days statement.

Come Wednesday though, there was still no sign of the statements, and I was losing patience. I checked over the bank’s support documentation again, to see whether I had missed anything – but nope, it clearly said that statement copies would only take 5-6 days. At this point, we were at 8-10. I decided to ask the digital banking advisors for some reassurance, but that only served to frustrate me further, as they insisted that the statements would take 10 working days to arrive, irrespective of what their own site said:

RBS Statements

I asked RBS on Twitter what the deal was, and after telling me AGAIN to just download and print PDF statements, they said that the ‘timescales would depend on the type of statement’ – with zero recognition that their documentation says nothing about this.

RBS StatementsRBS don't listen

Not helpful.

The crescendo

In the end, I decided that waiting a few more days wasn’t worth the damage to my blood pressure, and I went into the bank determined to get the statements that day. As it turned out, the manager had been contacted by the Twitter team, and was prepared to help out. He was incredibly apologetic, and took the time to make sure that I got the statements and the accompanying letter in a format that would meet the Home Office requirements.

The Lessons

There’s a few things that can be taken from this experience:

  • The Home Office regulations are deliberately and unnecessarily restrictive on both the format of the statements, as well as the timescales involved – which makes it extremely difficult for applicants and institutions to reasonably comply.
  • Despite this, the Royal Bank of Scotland is failing its customers on a number of counts. Specifically by the inaccurate information on their website; the inconsistency and lack of clarity on process between different departments/members of staff; as well as the unreasonably long time to process basic requests.
  • Despite eventually providing the requested information, people should not have to rely on kicking up a fuss online.
  • RBS need to stop telling people to download PDF statements from online banking as the default response to any kind of statement query. It is misleading, shows a lack of interest or basic understanding, and will trip up people who are not as familiar with the specifics of the Home Office requirements as I am.

This is just one example out of many of the procedural problems inherent in the UK’s immigration law. Having a broken system which places pressure on applicants purely as a kind of punitive stress test is not beneficial for anybody – irrespective of what your views on immigration might be.

Further update

After I posted the above, I contacted the office of the Chief Executive, Ross McDonald to complain about the lack of clarity in the process, and their lack of understanding. After a couple of back and forths, they said:

All our staff have access to an online business support manual which clearly explains the process and timeframe for ordering and providing copy/historic statements. Five to six days is regularly achieved, but I am aware of instances where the process has taken longer and a project team is reviewing the process to establish what is going wrong.

In terms of providing statements quickly, we provide up to seven years statements via Online Banking and these can be printed and are suitable for almost all purposes. You can get an up to date statement covering the last few months transactions at any of our branches and again these should be suitable for most purposes. It is our policy to no longer authenticate documents such as statements and passport documentation via the application of a stamp and signature.

So basically:

  • Statements are (usually) provided within 5-6 days of ordering them – but there are problems with that.
  • No recognition of the disparity between the website information and the information provided by staff online and in branch.
  • A statement (again) that online banking statements are ‘suitable for most purposes’ – completely ignoring everything I’ve repeatedly said about the Home Office requirements.
  • A definitive statement that RBS will not authenticate statements via a stamp – contrary to what their online helpdesk and branch staff said.

What a joke.

Freedom of Speech and the DMCA: Abuse of the Notification and Takedown Process

Last month, my first academic journal article was published by the leading international publication on IP law: the European Intellectual Property Review from Thomson Reuters.

From the abstract:

The Digital Millennium Copyright Act’s “notice and takedown” process is increasingly referred to as a model solution for content removal mechanisms worldwide. While it has emerged as a process capable of producing relatively consistent results, it also has significant problems—and is left open to different kinds of abuse. It is important to recognise these issues in order to ensure that they are not repeated in future legislation.

To that end, this article examines the DMCA with reference to its historical context, and the general issues surrounding the enforcement of copyright infringement claims. It then goes on to discuss the notice and takedown process in detail—along with its advantages, disadvantages, criticisms and praise. Specific examples of the kinds of abuse reported by online service providers are outlined, along with explanations of the statutory construction that allows these situations to continue. To finish, the viability of potential alternatives and proposed changes are discussed.

The article itself is available on WestLaw, citation: E.I.P.R. 2019, 41(2) at 70However, you can also get a copy of the PDF below.

Freedom of Speech and the DMCA: Abuse of the Notification and Takedown Process (PDF)

This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in European Intellectual Property Review as ‘Freedom of speech and the DMCA: abuse of the notification and takedown process’.
E.I.P.R. 2019, 41(2) at 70 and is reproduced by agreement with the publishers. This download is provided free for non-commercial use only. Further reproduction or distribution is prohibited.

Why Article 13 is Flawed: Practical Examples from an Independent Musician

There has been a recent trend of seemingly well-intentioned musicians taking to Twitter to engage with critics of the seriously flawed Copyright Directive, and in particular Article 13. Whatever the content of their arguments, it almost inevitably boils down to some kind of accusation that whoever disagrees with them is ‘just an academic’, a ‘big tech apologist’, or someone that doesn’t understand or appreciate what it’s like to be an independent musician.

I’ve been on the receiving end of these kind of claims, to the point that engaging any further became fruitless. Simply by dint of my position as a legal academic/employee of a tech company, the claim is that I must have an inherent bias that clouds my ability to critically analyse how copyright law will impact artists, because I am not a musician.

My Credentials

The thing is, I am a musician, and have been for almost 20 years. I sing and play guitar in a grunge band called Closet Organ, who successfully crowdfunded our last album, which included a vinyl LP release. I make chip-music and have played live as unexpected bowtie in places as far flung as London and Osaka. There’s also the innumerable other projects including the ‘bizarre and disturbing’ electronica of cup fungus, the scuzzy pop of Hog Wild, and the chilled out samplewave of ease and desist. I’ve personally put on a pile of gigs, been on tour as a music photographer more than a few times, was Review Editor of a fairly significant indie zine, and currently run my own underground tape label Cow Tongue Taco Records. I loved and played music long before I ever took a law class, or was employed by… well, anybody.

Safe to say, I have some investment in independent music.

Closet Organ
Me, playing to a rapt audience

Why ContentID doesn’t work for independent artists

For those not familiar with Article 13 of the proposed EU Copyright Directive, the long and short is that it will effectively require service providers such as Facebook to implement content filtering systems to detect and remove/prevent the upload of material that belongs to another party. YouTube already has a similar system in place – by far the largest and most complicated of its kind in the world – but the Directive would massively extend its reach.

There are numerous and detailed criticisms of Article 13, but all of them seem to fall on deaf ears as they come from the perceived position of a ‘corporate shill’, so here I want to briefly outline just one major issue that independent artists experience with the current ContentID system – and why any kind of expansion will inevitably be damaging rather than of benefit.

If an independent artist wants to get their music out there into the world, to the most popular music sharing sites, they need to use some kind of recognised distributor – as direct submissions are either impossible, or extremely restricted. A pile of these have sprung up, including Amuse, RouteNote, DistroKid, etc. Some charge a subscription fee per year, some take a cut of any revenue generated, and some of them don’t even have a website – operating just from an app. The concept is simple: You send your music to them, and they distribute it digitally to the various partners. One of these partners is YouTube.

What isn’t made clear by these distribution networks is that by submitting your music to YouTube, you essentially give the distributor a licence to enforce your copyright on the platform using the ContentID system. This automatically detects any music uploaded along with a YouTube video (including short clips), and flags it up as unauthorised. To many this might sound great. Stop people stealing your stuff!

The problem of course is that there is very often no way to denote authorised uses or channels with these common distribution services. Let’s consider the following two scenarios:

Scenario A: a young singer songwriter starts to build up a decent following online, by sharing clips on SoundCloud and YouTube. With the money they’ve made from the ads on their DIY videos, they put together a full-length album and use one of the most popular distribution services to make it available on Spotify, Apple Music, Amazon, YouTube etc. As they get more and more well known, they dig deep and fund a really flashy music video to promote the album. After teasing it on Facebook and Twitter, they upload it only to find that it has immediately been flagged for a copyright violation – on behalf of the distributor. The video won’t necessarily come down, but it does mean that they won’t be able to monetise it – and will lose out on the ad revenue they were expecting to recoup the cost of the production. Panicked, they dispute the claim using YouTube’s resolution procedure, but there’s no indication of how long that might take, and it has thrown off all of the promotions they were planning. There’s no explanation of this anywhere in the distributor’s app that they used, and they can’t get a hold of anybody who understands the issue and has access to release the video for commercial use.

Scenario B: An artist (A) is asked by a fellow musician (B) if they would be interested in a collaboration. The process is simple: B will supply A with some vocal samples that A can then chop up and use however they wish. A gladly accepts, and comes up with a whole electronic composition that brings the vocals to life. B loves the track, and asks if they can use it on their upcoming DIY release. A agrees. B’s friend runs a small label who agrees to put out the album, and they use a distribution service which sends the album to all the major partners automatically – including YouTube’s ContentID system. A few years later, A is producing short video blogs and decides to use one of their old tracks as background music. It gets flagged up as a copyright violation automatically, which A disputes – but the appeal is rejected by the distributor, who has no knowledge of how the track came about in the first place.

Both of these scenarios are common, and a version of B actually happened to me personally. There are plenty of other similar situations, which are easily discoverable with a bit of Googling.

There are a few takeaways here:

  1. Independent musicians are at the mercy of a system which locks them out from negotiating their own contracts without major label backing, and they therefore have to rely on gatekeepers which provide an inadequate level of information and control over their own music.
  2. Artists who are starting out lack the information required in order to make informed decisions about their interaction with such services, and can inadvertently give away their ability to exploit their creations commercially due to how the systems are constructed.
  3. The ContentID approach to copyright enforcement gives huge clout to the first entity to register a piece of work within their system – which is rarely going to be the artist themselves.
  4. This model has no room for the ad-hoc, informal, and varying ways in which independent musicians create and share their works online.

In Summary

The current ContentID system works on a first-come, first-served basis. It puts huge power in the hands of intermediary distribution services which do not provide a service that can ever give artists the amount of control over their licenses they would require to fully exploit their creations. The nature of the beast means that informal collaborations between like-minded folks can unexpectedly tie up their creative expression years down the road. Article 13 will only expand these systems, which will inevitably be less sophisticated on other platforms than ContentID. Independent artists lose the ability to share their work even further.

So… as an academic, a tech employee, but perhaps most importantly a musician: Article 13 is a disastrous piece of law, and should be scrapped.

Home Office Data Subject Access Request: Part Two.

Back in May I wrote about the data subject access request I had submitted to the Home Office, and how they required a ‘written confirmation of likeness’ signed by a very particular list of people before providing any information. This is purportedly to verify your identity, but as I noted at the time, the requirements are stricter than those that the same organisation sets for processing passport applications. One may reasonably surmise that this could be an attempt to put people off from making these requests.

I am following up with this post to document what happened after I submitted the request, for those interested in the reach and limits of data protection law.

Objection to the Home Office’s disproportionate requirements

At the time, I objected to the unusually stringent verification requirements, as well as that these would not be accepted online. Extract below:

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.

The Home Office responded simply to reiterate that the verification must be done via post:

We require that you send in a copy of your ID via the post, please have your photographic ID certified and sent to us at the address below.

 [address omitted]

We request certified ID in this method for security to reduce the chances of fraudulent data requests.

‘To reduce the chances of fraudulent data requests’? Aye, right. They did not address my questions about inconsistency.

I responded to press them on this:

I understand that you are obliged to take ‘reasonable measures’ to verify the identity of the person making the subject access request. However,

1. I do not see how requiring this to come via the post makes any difference whatsoever.

2. The requirements for certification are far stricter in terms of who can make such a certification than those who can counter-sign a passport (https://www.gov.uk/countersigning-passport-applications). This is not ‘reasonable’, or ‘proportionate’ within the meaning of the relevant law.

I am prepared to send in a certified copy of my ID to verify my identity, but I reject the requirement to have the certification made by one of the following:

* 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

Instead, I ask you again to confirm that you will accept a ‘written confirmation of true likeness’ from someone on the same list that you accept for passport counter-signatories (detailed in the URL above).

If you refuse this, then your requirements would appear designed solely to prevent people from getting access to their data by implementing unreasonable stipulations, and I will be making a formal complaint to the ICO.

They did not respond to this, or my follow up e-mail a few weeks later, so on the 20th of June I reported them to the UK’s Information Commissioner (ICO).

ICO Complaint

Specifically, I drew attention to the inconsistency in the listed requirements for ID verification when it came to passport applications versus data subject access requests, and that it appeared that those that related to the latter were therefore disproportionate.

They replied in just over a week:

The DPA 1998 and DPA 2018 do not state what identification or verification data controllers may request. Data controllers must be satisfied as to the identity of the requester to ensure personal data is not inappropriately disclosed. This also helps prevent fraud. The ICO therefore reviews concerns regarding this matter on a case-by-case basis.

The ICO is satisfied that generally, the level of identification and verification requested by the HO for SARs is both reasonable and proportionate. This is because the HO must be certain of a requester’s identity before releasing any personal information.

In light of the above, we would advise that you provide the HO with the requested documents and verification of these documents to allow the organisation to process your SAR.

Basically, they just reiterated that data controllers have to take steps to verify the identify of those requesting data before processing a subject access request – choosing not to address the specific questions I had raised around proportionality.

I pressed them on this, and after about a month the ICO responded:

I understand that you are concerned about the level of identification requested by the Home Office for subject access requests, as it requires more identification for this than for passport applications.

As stated previously, this is not a matter that is of concern to the ICO at this time. I understand that it appears there is inconsistency within the Home Office in regards to identification requested. However, due to the nature of information held by the Home Office, it must satisfy itself as to the identity of a requester before disclosing personal data.

As it is not up to the ICO as to what the Home Office requests for different applications, and if you are concerned about inconsistencies within the Home Office, we suggest you raise this with the organisation.

I apologise the ICO can’t be of further assistance at this time. However, please note that the concerns you have raised will be kept on file. This will help us over time to build a picture of the Home Office’s information rights practices.

What this tells us

This process was informative as it demonstrates the barriers that organisations such as the Home Office will place in the way of those who seek to exercise their rights under data protection law. By making the process as difficult and cumbersome as possible, it locks out all but the most determined and able.

It also tells us a bit about the ICO’s role and reach in these cases: Namely, that it is extremely limited – at least when it comes to making assessments of proportionality. Rather than taking a holistic view of the data protection practices and requirements of an organisation, the ICO simply looks at each portion in isolation. In other words, it doesn’t matter whether the Home Office’s approach is entirely inconsistent, and demonstrates a clear lack of proportionality on any reasonable assessment of all the facts. The ICO only has to be satisfied that the requirements relating to a very narrow and immediate situation are proportionate, irrespective of the wider context.

This makes no sense except in the most literal of readings, and makes a mockery of the spirit of data protection legislation. We shouldn’t be too surprised that this is the approach of the Home Office though, given the appalling state of the UK’s immigration law.

I am currently debating whether or not to proceed with the formal ID verification process to see what they will provide once you get through the barriers. Watch this space.