Select Committee on Science and Technology Minutes of Evidence

Examination of Witnesses (Questions 980 - 998)



  Q980  Earl of Erroll: Can I just ask, did they actually do that, because surely there are in a sense some legal jurisdiction problems and trade implications there?

  Professor Zittrain: There are wonderful problems waiting to be taken up -

  Q981  Earl of Erroll: Did they fry the machines?

  Professor Zittrain: The order is stayed pending an appeal. The order was issued last August but the case has been on appeal since, so no, nothing has been fried yet. I will say that the basis of the appeal is not on the draconian nature of the remedy, instead it is that the jury got it wrong and the patents are not really infringing, that sort of thing.

  Q982  Earl of Erroll: There must be a major legal problem of jurisdiction if you start frying people's computers which have been sold legally in other jurisdictions? If that happened in Britain, we could sue all sorts of people up the line.

  Professor Zittrain: I think that may be so. It can certainly create potential causes of action between the users and the vendor, EchoStar. On the other hand, from a pure jurisdictional point of view, it is possible but not certain that the plaintiffs will say, "You, court, have jurisdiction over this defendant EchoStar and you can order EchoStar on pain of contempt or additional damages to perform any action around the world in order to bring itself in compliance." Now, you might say an EchoStar box installed overseas is not infringing a US patent, but should they find that the patent extends to that, that that caused a sale of a TiVo to be lost, I do not think the issuance of the order alone need occasion a jurisdictional conflict. But it is a good question, I agree.

  Q983  Earl of Erroll: It is, yes. I am going to explore one of the other things a bit further, which is that UKERNA's written evidence argued that imposing safety can make users psychologically dependent on others for their safety and thus highly risk-averse and intolerant of any failure." We see this, for instance, in other people's attitudes to the relative risks of air and train travel versus car travel, but even car travel is actually highly regulated in many ways and in terms of car design, driving standards, road standards, policing, all those sorts of things. A balance needs to be struck, but is the balance that prevails in Internet services the right one?

  Mr Cormack: I think it is heading in the right direction. Since writing the submission, I think I have probably modified my view. I think it is now a bicycle rather than a car, but I think the question actually makes the point very nicely that safety in a car depends on multiple factors. It depends on the individual, it depends on the individual being qualified to drive, it depends on the car being checked annually for safety once it gets to three years old and it depends on roads being well built. Some of those the market will deliver, I believe. As I have already said, I think the ISP market is now on a spiral heading towards well-designed networks: at different speeds, but I doubt that anybody's security systems are going to get worse. Whether we want to introduce Internet driving tests or compulsory annual testing at the owner's expense on PCs, I do not know. Having done time on help desks, I would love to be able to say to a user, "You are just too incompetent to use this system. Go away," which is what a driving licence would allow you to do. There is something which I did not mention earlier. There are actually some regulatory pressures against doing the right thing. The mere conduit defence, I think you have mentioned, where in fact the definition of that means that because it is a binary switch you are either a mere conduit or you are not, and you cease to be a mere conduit when you select the information which is delivered. There is at least a concern that an ISP, certainly if it introduced filtering, is selecting the information which is delivered. I do not know about ISPs, but I know colleges have expressed their concern that if they filter, it is actually worse to try to filter and get it slightly wrong than not to try to filter at all. That is actually the law working contrary to what we would like to do, so I think there is a problem there.

  Q984  Earl of Erroll: Just to explore the ISP a bit further—we have actually discussed it, but to make it slightly more specific, we know that the ISPs can detect when attacks are coming from insecure machines and maybe we should require them to do more. Specifically, do you think it would be a good idea to force the ISPs to do more to fix the machines proactively, as we were talking about then, and if we did do that should it really be through incentives or through regulation?

  Mr Cormack: I think forcing the ISP to fix the machine feels like a very, very bad idea, if nothing else because there would be a huge liability. As Professor Zittrain has suggested, you have no idea what is on that computer. The user could have downloaded absolutely anything. Your attempt to fix it could well start the whole thing to stop working.

  Q985  Earl of Erroll: Because you could not select a target, the botnet?

  Mr Cormack: You could attempt to remove the botnet software. However, the software is likely to have added things at a sufficiently low level in the operating system to conceal its own existence from the user. Removing that could well make the operating system extremely unstable and crash at some later point, and I think the users would then have a reasonable complaint against their ISP. I have some sympathy for the idea that if an ISP sees a large amount of traffic coming from an individual machine it should reduce that machine's ability to harm others, whether by blocking its content entirely or whether by reducing the band width, or whatever. I think those are possible. Whether the solution would scale to the size of large ISPs, I do not know.

  Professor Zittrain: To start to get at that question, I want to stick with the traffic analogy for a moment. I have been intrigued by a movement in traffic management called "Unsafe is Safe" and in a number of cities in Europe, including the Dutch city of Drachten, they have implemented something called Verkeersbordvrij—I know I am not pronouncing that properly—which is the absence of road signs, and I actually think there might be a neighbourhood in Kensington where this is being tried as well. It is completely counterintuitive, at least to me, but by removing in the Dutch case nearly every sign and having only two rules (one is to generally be careful and the other is not to park your car in a way that other cars get blocked, but otherwise they have eliminated even parking spaces, you just park the car wherever it is not blocking somebody else) there has been a remarkable decline in traffic accidents. Part of what they attribute that decline to is that it compels people to actually be much more aware of their environment and of other drivers. They have to take responsibility for their own safety, and it means that they do. Whether that would work in every city in the world is highly dubious and trying to transplant that to the Internet context, where it is much harder to make eye contact with other users and when the harm that one can cause is not as symmetric—if you get into a car accident you do not only dent the other car, you dent your own—these are some of the puzzles to cure, but I actually think there do exist cures that we can try and code which represent what you describe as the incentives route before trying the outright regulation route. One example of that would be—I mentioned StopBadware before—we are working with a number of companies, including Google, so that when we see one of these websites which is spewing malware, and we can detect it automatically, we add it to a list. Google shares the list with us. We also make it available to other search engines. When somebody performs a search and one of these sites which has the badware on it comes up as a hit, it does come up but then it has an extra line in the hit provided by Google which says, "Warning, this site may harm your computer." If you click on the link anyway, instead of going to the site it takes you to an interstitial page provided by Google which says, "No, we really mean it. We think there's badware on this site. We recommend that you back up and try another result. If you really want to continue, okay, you may highlight, copy and paste the URL and go on." In our experience partners like Google have found approximately 30,000 sites in the past month which meet these criteria. The webmasters of the sites see an over 90 per cent drop off in traffic when the interstitial is added. At that point the webmaster goes from a level of priority for fixing the site which was achieved by only warning but not having the interstitial, I would say tenth on the list of things to do that day, to it is the number one thing, and I do not care if it is a weekend or a holiday, that webmaster was desperate to get the site back up. It may be an over-incentive, but that is a great example of a collaborative effort run under a .ac or .org rubric in cooperation with dotcom, hopefully spread out enough so we are not creating some new gatekeeper which might then abuse the power to put up the interstitial, which allows us to have people making the eye contact and expressing, "Actually, your car is blocking an entire river of traffic."

  Q986  Chairman: How much of the useful, valuable generative function of a PC would be lost if you only allowed it to communicate on the terms of the user of that PC, if you did not leave the door open completely? You would lose this sort of grid computing potential we hear about, but people could sign up for grid computing if they wanted. If they did not want to sign up their computer to be in a grid, I cannot see why you cannot stop people coming into that computer and using it as a botnet, as a zombie. I just do not understand that and I am not convinced by anybody yet. Perhaps you can convince me. Richard tries all the time, but can you convince me that that is just not possible, so that the PC will communicate when you ask it to communicate? I am told you have absolutely no idea, your computer is sitting there, spewing out Viagra ads to millions of people and you do not even know it. I find that ridiculous. You should be able to provide that capability and tell the person, "This computer is spewing out Viagra ads. Do you want it to do that?" I just do not understand this.

  Professor Zittrain: I think each of us is eager to take a crack at it.

  Mr Cormack: Two points. The initial software gets there by invitation, almost universally. The initial software is not software, it is an email message saying, "Here is something attractive, something you want. Please download it." So the user is fooled into inviting the software in. On the question of subsequent transmission, there is plenty of software available already which you can put on your own computer which says, "The following program is trying to communicate with the Internet. Do you wish it to do so?"

  Q987  Chairman: I had that on my machine, I know. Why do not all machines have that? Why is it not compulsory?

  Mr Cormack: I would ask high street computer vendors. I would love to see that sort of software on machines routinely.

  Q988  Chairman: It is a bit like turning the engine off. I do that. One of the troubles is that the handshaking time to connect on a lot of things, particularly wireless networks, is tedious. It is like the internal combustion engine, it does not turn off every time you go to the lights because you have got to crank up the electric starter and get it going again, whereas an electric car can do that. I do not see why we cannot have a system where you have that option, that your communication ports are closed when you do not want to use them.

  Professor Zittrain: Yes. I have two and a half answers to your question. Answer number one is, you are absolutely right, this is exactly what a firewall is by definition. The computer has different ports. These are virtual constructs but the computer can come to understand them, and the firewall says, "I'm not going to let any data out of these ports except only these other ports and I'll only allow data in if I see that it has been invited by a previous communication out by my own port." So if I see my computer send a signal to a web page and say to the web page, "Call me back on this port," I'll then open it because of that invitation. That is why firewalls, to the extent that they are effective, can be effective. It is also why, I completely agree with you, in the short to medium term Internet service providers are in a good position to detect traffic patterns that are machines which appear to have slipped their leads, precisely because of the way, and the volume, they are communicating. There is the off-chance, when you have a million machines, even a small percentage will represent a good absolute number of people who have some reason to be communicating that way and we could see them being able to say, "No, no, it's fine," but in the short term I think it would be very helpful. Now, on the other hand—and here is the half—firewalls themselves are not cure-alls and a way to understand that is, you may remember the era of cookies, when people were very worried about cookies and their browsers, and browsers responded to the market by giving you an option to individually approve every cookie that is about to be set. It turned out that setting cookies is so useful, especially to support the multi-billion pound advertising economy, that cookies are getting set all the time and if you do set your browser for that you are asked in a way in which you have no way of making an informed decision to accept every ten seconds one cookie or another and it becomes overwhelming. This leads to the second and a half point, which is that a number of applications now that you may find yourself using only occasionally really do benefit you and others by having a fairly continuous set of communications over the Internet, and I will give three very fast examples. One is Skype. You would think that Skype, to do computer to computer calling, when I make a call, is making the connection and when I have hung up it might as well be disconnected. But it turns out that thanks to firewalls and some other issues like so-called Network Address Translation, tricks are needed to make Skype work. In those cases, Skype uses lots of other people's idle connections to help it route calls from one machine to another. This is a very interesting use of the generative PC and network. If you were to have every Skype machine disconnect whenever it was not in use, from the point of view of the Skype implementation it would be a selfish thing to do that would actually bring down much of Skype as a network, and that feature is exactly what the people who made Skype (who are also the people who made Kazaa) are now putting into Joost, which is IP television routing around the bottlenecks of traditional television networks—but they are only able to make it work because they can harvest the so-called grid computing. So just as with so many of these applications, they start off obscure and then enter the mainstream, I think peer to peer computing starts off obscure, grid computing to help chart hurricanes or to look for extraterrestrial life, and then they become very mundane to help Skype or Joost do their thing, or the very definition of "end point" turns out to be flexible. I have one Ethernet drop in my house, but using a service like a phone or something else I might find it socially valuable, and others would too, to share that connection and from the point of view of the ISP they do not know from which computer behind that access point there is use taking place and if I turn off my computer the way I turn off a car when I am not driving it, everybody dependent upon my connection now loses the ability to connect.

  Q989  Chairman: I would still argue that the individual should have the option of not having their machine used as a slave, even for Skype.

  Professor Zittrain: Absolutely. I think that is right, and in fact I encourage people sometimes to open up one of those command windows, if they are using Windows, or the terminal window in Macintosh, and just type "netstat" and you can see all of your extant network connections, and if you are running Skype you are communicating with 100 different machines all around the world and you have no idea what data is going into or out of the machine, and frankly Skype has the keys to the kingdom. It is only because we trust the guys who made Kazaa that we choose to run it.

  Q990  Earl of Erroll: Is there not a big problem, though? If people are only paying for limited band width, then they are actually potentially paying for that Skype connection as well?

  Professor Zittrain: That is true. To the extent that the economics of network connectivity turn out to be that one pays in a metered fashion—and that tends to be more typical, say, in the UK than elsewhere—you have got that one gigabyte limit, or something, the act of sharing one connection can end up exceeding that band width.

  Q991  Earl of Erroll: And therefore the users are inadvertently charged for the thing they did not think they were using?

  Professor Zittrain: I think that is true, and that would certainly help to at least inform the user, "This is the amount of usage you have," just like it is good to know how many minutes have been used on your phone, especially if you are lending it out to people all the time.

  Chairman: We have to move on. Lady Sharp, please.

  Q992  Baroness Sharp of Guildford: Really on the same sort of topic, you kind of argued in your evidence that to achieve the full potential of the Internet it is necessary to ensure that individuals know how to keep themselves safe online. How effectively do you think we as a society are instilling this knowledge, whether into the young or those of an older age, and is it really feasible (as you do suggest at one point) that they should train the kids to teach their grandparents?

  Mr Cormack: I did not teach my grandparents. I taught my parents how to use it safely and that was fairly painless. That we are getting there is possibly overstating it. There is a number of very good things happening. There was a QCA proposal on curriculum for key skills in schools, for which I expected to have to re-write huge sections of the draft. I did not. It was all there. I think the only two things missing were the ability to recognise deceptive communication and the ability to maintain your own computer; to run antivirus, to keep it up to date, those sorts of things. Other than that, that was all there, so the curriculum can exist. Getting teachers, not just to teach Internet security one hour a week but to themselves behave correctly, that is hard. There is a nice series of websites and DVDs produced by Childnet, which is the cross-generation thing. There are lots of good initiatives happening. I did spot a Symantec figure which suggests something has improved because in 2004 twenty-five per cent of all the botnet infected computers in the world were in the UK. Last year we were down to four per cent.

  Professor Zittrain: Probably more computers, just more other computers!

  Mr Cormack: Yes. I could not find the absolute numbers.

  Q993  Baroness Sharp of Guildford: Can I ask a supplementary to this? We understand that many experts ignore advice about encrypting wireless networks and are not in favour of changing passwords regularly, yet these are regarded as being the basics of good security practice. There must be some advice that everyone agrees upon, but how can normal users tell what is good advice and what is not good advice?

  Mr Cormack: Run antivirus and keep it updated. Run regular patching, Windows update, or whatever. Turn on a firewall, both inbound and outbound, and be as suspicious and as cynical as you are in the real world. Do not suddenly become innocent and trusting when you go online.

  Professor Zittrain: I think that advice is difficult to quarrel with, but it also to me expresses the gap between where we are with the state of the art in advice to the mainstream users and where we need to be if they are not to ultimately migrate away, and for that we really do need—it might be a little bit too colourful to call it a Manhattan project, but we need to recognise that the market did not provide for the Internet to begin with. The market provided networks, but they were these proprietary networks. Government subsidies to academia and interested moonlighting commercial entities and research arms did the trick, and then the commercial forces came in to smooth off the rough edges; a very nice two-step. I think we are in the same situation right now, that subsidising a set of tools which do not exist right now but which could be brought online to actually use the generativity of the Internet and PC to create new tools can help us give, in the long term, much better advice to users. Just one quick example of that is a tool that users can download and it would measure certain vital signs off the machine. It is not hard to say how happy the machine is. How often is it re-starting? How many pop-up windows over a time interval is it getting? There are certain metrics you can gather and then compare with other machines in the herd. You are on a network, you can query nearby machines, so that when you encounter new code, just like a new cookie, seamlessly the computer can say, "Has this code been seen before? Has this code been floating around the network for two years or did it just pop up yesterday, and for those computers on which it is already running, did their happiness levels as machines drop, stay the same or go up?" Those are the kinds of instruments which could go onto a dashboard which could help users make informed (but not overwhelming to them) choices about what code to run, and it would be respectful of different levels of risk tolerance for different users. What you might choose to run at home would be different from what a merchant might want, or a cyber café owner, et cetera. It is not one-size-fits-all. So I would love to see some money and some momentum put behind the collective development and experimentation with those tools.

  Baroness Sharp of Guildford: Thank you.

  Q994  Lord Harris of Haringey: We are about to hear from Ofcom and I know that you have already talked about the sort of "removing road signs" model, but I want to ask you how effectively do you think the Internet security is regulated in the UK, and in particular do you think Ofcom takes regulation of the Internet services seriously enough and are the provisions of the Communications Act (which exclude the regulation of content from Ofcom's remit) sustainable in the long-term, particularly in the context of convergence?

  Professor Zittrain: One of the real blessings for me of having taken up residence in the UK now much of the year for two years has been to come to know the staff and the people at Ofcom. The kind of ability I have seen with Ofcom staff to take a sober view of what is going on, the curiosity that I see, the intellectual curiosity that I see that they possess to what is going on and the appropriate level of caution with which they treat interventions they might be in a position to make, all of those to me bode very well. I think content regulation is a briar patch that they would not want to be thrown into because, especially once you go there and have to start making truly content-based decisions, security is now a side issue, at least technical security, and it will be much harder to devote attention to. So this is not a paean to inaction, but I think so far Ofcom has been keeping an eye on the situation, understanding that the interventions are delicate enough right now that they require cooperation from a lot of parties. There is not just one regulatory point of intervention that can solve the problem.

  Mr Cormack: I had interpreted the question differently. I think I would agree with your possibly unstated thing, that regulating content is going to be incredibly complicated because it is so hard. Regulation automatically involves drawing lines and defining where those lines are. We have recently been looking at IP television and when different licensing regimes come in, and the question appears to be how much delay from the original broadcast there is. That is a completely arbitrary decision which is going to be made and wherever you draw the line people will either be one second ahead or one second behind. The impact of that, actually defining something, I think would be highly disruptive.

  Q995  Lord Harris of Haringey: Can I just finally ask about the sharing out of responsibility between Ofcom and the Information Commissioner. Do you think that works satisfactorily? Should the Information Commissioner be given more teeth?

  Mr Cormack: I would certainly be very pleased to see the Information Commissioner able to deal more effectively with particularly spam, which I know is a concern of that office. It is interesting that in the past few months it has become apparent that actually the most effective way to deal with spam in the UK is through the civil courts, not by the regulator at all, which is really rather depressing.

  Professor Zittrain: I cannot yet share a useful answer to that question, given my own comparative ignorance of the governance here.

  Lord Harris of Haringey: Thank you.

  Q996  Chairman: We are nearly at the end. There is one very quick question and I would like a very quick answer. Is there a problem with researchers crossing the law when they are researching these topics?

  Mr Cormack: As of today, no, because the amendments to the Computer Misuse Act (1990) brought in by the Police and Justice Acts 2006 are not yet in force. I think as currently drafted and lacking further explanation, I have had a lot of concerns expressed, not just by researchers but by teachers, asking whether they have to stop undergraduate teaching where they are teaching people to code securely by getting them to write an Internet server and then exposing that server to hacking tools. An excellent way to teach programming, but they are saying -

  Q997  Chairman: It is a good way to teach hackers, too?

  Mr Cormack: No, but to teach undergraduates to actually think about security when they are coding, which is all too rare in professional programmers, by clearly demonstrating what happens if you do not, exposing it to the typical background noise of the Internet—right through to people who are at masters level, teaching penetration testing as professional development. They have contacted me, saying, "Do we have to pull this course next year?" My current answer is, "I am afraid I don't know."

  Q998  Chairman: We are going to have to bring it to an end. Thank you very much indeed. You can sense our interest in this and we do not have enough time, but we never have enough time when we really get interesting witnesses. So thank you very much indeed for your contributions. If you think of anything else which you think might be useful for us, please let us know.

  Professor Zittrain: Thank you.

  Mr Cormack: The thing I had forgotten halfway through was that if an ISP takes action to degrade or modify a user's connection, they must provide the user with information so the user can fix his own problem.

  Chairman: All right, we note that. Thank you.

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