Chagos and the Law Lords

Witnessing the evidence as the Lord Laws hear the case of the Chagos Islanders - forcibly removed fr

I meet Olivier Bancoult, leader of the Chagos Refugee Group in Mauritius, in the lobby of the House of Lords ahead of the hearing to determine whether the Chagossians will be allowed home.

"A big day," I say by way of a greeting. "Yes, a big day and a good day. Today is my mother's 80th birthday," he replies with a smile. His mother, Rita Issou, sits on a bench along with three other Chagossians a few yards away from where we are standing. She is smartly dressed but looks very frail. It’s understandable - and not just because of her age; she has experienced many sorrows in her long life including the loss of her husband and two sons (one to alcohol and the other to heroin) since the family was exiled to Mauritius from their island home of Peros Banhos in 1968.

Olivier tells me that in all 28 islanders have made the trip from Port Louis to London to witness how their fate will be decided in the highest court of the land. "I am very optimistic - justice will be done. We will return to Chagos very soon," he says confidently.

It has become obvious that there will not be enough space to accommodate all the visitors. A male clerk takes charge and announces that only the people at the front of the queue will be allowed in. This means that a lot of the UK-based Chagossians who have been holding a legal protest on the pavement opposite the House of Lords won't get a seat.

The Law Lords have arrived on time and at 11 o'clock around 70 of us file into the room. Before they enter the male clerk says that if anyone is going to leave the room to let him know whether they are coming back. If not the seat can be allocated to those who are waiting patiently outside in the corridor.

It's a highly ritualised setting. The five Law Lords -- Bingham, Hoffman, Roger, Carswell and Mance -- enter and we all stand up and bow. They sit in a semicircle at the front of the room. Facing them are the respective barristers -- Jonathan Crow QC and Kieron Beal acting for the appellant, British Foreign Secretary, David Miliband, and Sir Sydney Kentridge QC, Anthony Bradley and Maya Lester acting for the respondent, Olivier Bancoult.

Behind them sit other members of the respective legal teams including Richard Gifford of London-based solicitors, Clifford Chance, who has worked tirelessly on this case since the late 1990s.

Jonathan Crow stands up and makes the case for the government invoking the Colonial Laws Validity Act 1865. He chooses not to defend what was done to the Chagos islanders by previous governments -- "the awfulness of what happened in the 60s and 70s" -- but instead focuses on the role and scope of orders in council issued under the royal prerogative -- "the highest level of political judgement" -- as they relate to the defence interests of the UK and US. He extends the argument and says that there would be an "unacceptable risk" to both countries if the islanders returned to the Chagos Archipelago and points out that in any case they have received generous compensation from the British government which amount to "substantial sums at today's prices".

After about 40 minutes some of the journalists from the news agencies have got enough of what they want for a story and leave the room. Their places are taken by some Chagossian women. Some of the Law Lords then start to make interventions. They ask questions or elaborate points of law. When one of the Law Lords says something Crow likes he nods his head a lot.

When Crow gets a difficult question he moves from side to side before giving his reply. And when he gets a really difficult question or one that he doesn't know the answer to as, for example, when he was asked when Mauritius became a republic he raises his left shoulder and goes into a bit of a crouch. But interestingly his voice remains clear at all times even when he is evidently flapping his wings to stay up in the legal air.

Crow’s courteousness even extends to his adversary, South African-born, Sir Sydney Kentridge, who was once a member of Nelson Mandela's defence team. From time to time, Sir Sydney makes an intervention to correct or challenge a point although it is difficult for those in the audience to hear what he says. "My learned friend is not one to jump up and intervene all the time and I thank him for that," says Crow as he turns and bows in the direction of Sir Sydney who is seated next to him. Jonathan Crow QC is a smooth operator.

At one o'clock the case is adjourned and it's time for lunch. I would have liked to have seen Sir Sydney in action but I think it's more important that some of the Chagossians gets a chance to see what's going on. After all, it's their lives that are the subject of legal debate and not mine. I inform the clerk that I won't be returning.

Over lunch in the House of Lords cafeteria I learn that Olivier Bancoult was meant to meet the one-time leader of the Conservative Party and now Shadow Foreign Secretary, William Hague, but he sent his deputy, Keith Simpson, instead. And it wasn't that Hague didn't have time as he was spotted casually chatting to someone in the lobby of the House of Commons. No, this was a deliberate and tactical avoidance. Why? Not too difficult to figure out. Even members of Her Majesty's official opposition find the issue of the right of return of the Chagos islanders a difficult one to handle. No senior member of the Conservative party wants to jeopardise "the special relationship" and antagonise our American friends, after all.

Meanwhile the Lib Dem foreign affairs spokesman, Ed Davey, puts out a statement. It reads: "The government must cease this endless waste of taxpayers’ money and do what is right by the Chagossians. This is what Robin Cook promised when he was foreign secretary.

"The spectacle of David Miliband’s lawyers invoking 19th century colonial laws to defend the indefensible is frankly sickening.

"This is not a legal matter; it is a matter of principle. The Chaggosians must be allowed to go home.
"Together with the scandal of secret US renditions from Diego Garcia, the abuse of these islands is a shameful stain on Britain’s global reputation."

I couldn't have put it better myself.

Dr Sean Carey is Research Fellow at the Centre for Research on Nationalism, Ethnicity and Multiculturalism (CRONEM), Roehampton University

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Are smart toys spying on children?

If you thought stepping on a Lego was bad, consider the new ways in which toys can hurt and harm families.

In January 1999, the president of Tiger Electronics, Roger Shiffman, was forced to issue a statement clearing the name of the company’s hottest new toy. “Furby is not a spy,” he announced to the waiting world.

Shiffman was speaking out after America’s National Security Agency (NSA) banned the toy from its premises. The ban was its response to a playground rumour that Furbies could be taught to speak, and therefore could record and repeat human speech. “The NSA did not do their homework,” said Shiffman at the time.

But if America’s security agencies are still in the habit of banning toys that can record, spy, and store private information, then the list of contraband items must be getting exceptionally long. Nearly 18 years after TE were forced to deny Furby’s secret agent credentials, EU and US consumer watchdogs are filing complaints about a number of WiFi and Bluetooth connected interactive toys, also known as smart toys, which have hit the shelves. Equipped with microphones and an internet connection, many have the power to invade both children’s and adults’ private lives.

***

“We wanted a smart toy that could learn and grow with a child,” says JP Benini, the co-founder of the CogniToys “Dino”, an interactive WiFi-enabled plastic dinosaur that can hold conversations with children and answer their questions. Benini and his team won the 2014 Watson Mobile Developer Challenge, allowing them to use the question-answering software IBM Watson to develop the Dino. As such, unlike the “interactive” toys of the Nineties and Noughties, Dino doesn’t simply reiterate a host of pre-recorded stock phrases, but has real, organic conversations. “We grew it from something that was like a Siri for kids to something that was more conversational in nature.”

In order for this to work, Dino has a speaker in one nostril and a microphone in the other, and once a child presses the button on his belly, everything they say is processed by the internet-connected toy. The audio files are turned into statistical data and transcripts, which are then anonymised and encrypted. Most of this data is, in Benini’s words, “tossed out”, but his company, Elemental Path, which owns CogniToys, do store statistical data about a child, which they call “Play Data”. “We keep pieces from the interaction, not the full interaction itself,” he tells me.

“Play Data” are things like a child’s favourite colour or sport, which are used to make a profile of the child. This data is then available for the company to view, use, and pass on to third parties, and for parents to see on a “Parental Panel”. For example, if a child tells Dino their favourite colour is “red”, their mother or father will be able to see this on their app, and Elemental Path will be able to use this information to, Benini says, “make a better toy”.

Currently, the company has no plans to use the data with any external marketers, though it is becoming more and more common for smart toys to store and sell data about how they are played with. “This isn’t meant to be just another monitoring device that's using the information that it gathers to sell it back to its user,” says Benini.

Sometimes, however, Elemental Path does save, store, and use the raw audio files of what a child has said to the toy. “If the Dino is asked a question that it doesn’t know, we take that question and separate it from the actual child that’s asking it and it goes into this giant bucket of unresolved questions and we can analyse that over time,” says Benini. It is worth noting, however, that Amazon reviews of the toy claim it is frequently unable to answer questions, meaning there is potentially an abundance of audio saved, rather than it being an occasional occurrence.

CogniToys have a relatively transparent Privacy Policy on their website, and it is clear that Benini has considered privacy at length. He admits that the company has been back and forth about how much data to store, originally offering parents the opportunity to see full transcripts of what their child had been saying, until many fed back that they found this “creepy”. Dino is not the first smart toy to be criticised in this way.

Hello Barbie is the world’s first interactive Barbie doll, and when it was released by Mattel in 2015, it was met with scorn by parents’ rights groups and privacy campaigners. Like Dino, the doll holds conversations with children and stores data about them which it passes back to the parents, and articles expressing concerns about the toy featured on CNN, the Guardian, and the New York Times. Despite Dino’s similarities, however, Benini’s toy received almost no negative attention, while Hello Barbie won the Campaign for a Commercial-Free Childhood’s prize for worst toy of the year 2015.

“We were lucky with that one,” he says, “Like the whole story of the early bird gets the worm but the second worm doesn’t get eaten. Coming second on all of this allowed us to be prepared to address the privacy concerns in greater depth.”

Nonetheless, Dino is in many ways essentially the same as Hello Barbie. Both toys allow companies and parents to spy on children’s private playtimes, and while the former might seem more troubling, the latter is not without its problems. A feature on the Parental Panel of the Dino also allows parents to see the exact wording of questions children have asked about certain difficult topics, such as sex or bullying. In many ways, this is the modern equivalent of a parent reading their child's diary. 

“Giving parents the opportunity to side-step their basic responsibility of talking to, engaging with, encouraging and reassuring their child is a terrifying glimpse into a society where plastic dinosaurs rule and humans are little more than machines providing the babies for the reptile robots to nurture,” says Renate Samson, the chief executive of privacy campaign group Big Brother Watch. “We are used to technology providing convenience in our lives to the detriment of our privacy, but allowing your child to be taught, consoled and even told to meditate by a WiFi connected talking dinosaur really is a step in the wrong direction.”

***

Toy companies and parents are one thing, however, and to many it might seem trivial for a child’s privacy to be comprised in this way. Yet many smart toys are also vulnerable to hackers, meaning security and privacy are under threat in a much more direct way. Ken Munro, of Pen Test Partners, is an ethical hacker who exposed security flaws in the interactive smart toy “My Friend Cayla” by making her say, among other things, “Calm down or I will kick the shit out of you.”

“We just thought ‘Wow’, the opportunity to get a talking doll to swear was too good,” he says. “It was the kid in me. But there were deeper concerns.”

Munro explains that any device could connect to the doll over Bluetooth, provided it was in range, as the set-up didn’t require a pin or password. He also found issues with the encryption processes used by the company. “You can say anything to a child through the doll because there's no security,” he says. “That means you've got a device that can potentially be used to groom a child and that's really creepy.”

Pen Test Partners tells companies about the flaws they find with their products in a process they call “responsible disclosure”. Most of the time, companies are grateful for the information, and work through ways to fix the problem. Munro feels that Vivid Toy Group, the company behind Cayla, did a “poor job” at fixing the issue. “All they did was put one more step in the process of getting it to swear for us.”

It is one thing for a hacker to speak to a child through a toy and another for them to hear them. Early this year, a hack on baby monitors ignited such concerns. But any toy with speech recognition that is connected to the internet is also vulnerable to being hacked. The data that is stored about how children play with smart toys is also under threat, as Fisher Price found out this year when a security company managed to obtain the names, ages, birthdays, and genders of children who had played with its smart toys. In 2015, VTech also admitted that five million of its customers had their data breached in a hack.

“The idea that your child shares their playtime with a device which could potentially be hacked, leaving your child’s inane or maybe intimate and revealing questions exposed is profoundly worrying,” says Samson. Today, the US Electronic Privacy Information Center (EPIC) said in a statement that smart toys “pose an imminent and immediate threat to the safety and security of children in the United States”. 

Munro says big brands are usually great at tackling these issues, but warns about smaller, cheaper brands who have less to lose than companies like Disney or Fisher Price. “I’m not saying they get it right but if someone does find a problem they’ve got a huge incentive to get it right subsequently,” he says of larger companies. Thankfully, Munro says that he found Dino to be secure. “I would be happy for my kids to play with it,” he says. “We did find a couple of bugs but we had a chat with them and they’re a good bunch. They aren’t perfect but I think they’ve done a hell of a lot of a better job than some other smart toy vendors.”

Benini appears alert to security and the credibility it gives his company. “We took the security very, very seriously,” he says. “We were still building our systems whilst these horror stories were coming about so I already set pipelines and parameters in place. With a lot of devices out there it seems that security takes a backseat to the idea, which is really unfortunate when you’re inviting these devices into your home.”

As well as being wary of smaller brands, Munro advises that parents should look out for Bluetooth toys without a secure pairing process (ie. any device can pair with the toy if near enough), and to think twice about which toys you connect to your WiFi. He also advises to use unique passwords for toys and their corresponding apps.

“You might think ‘It's just a toy, so I can use the same password I put in everything else’ – dog’s name, football club, whatever – but actually if that ever got hacked you’d end up getting all your accounts that use that same password hacked,” he says.

Despite his security advice, Munro describes himself as “on the fence” about internet-connected smart toys as a whole. “Most internet of things devices can be hacked in one way or another,” he says. “I would urge caution.”

***

Is all of this legal? Companies might not be doing enough ethically to protect the privacy of children, but are they acting responsibly within the confines of the law?

Benini explains that Dino complies with the United States Children's Online Privacy Protection Act (COPPA) of which there is no real equivalent in the UK. COPPA says that companies must have parental permission to collect personal information over the internet about children under 13 years of age. “We’ve tried to go above and beyond the original layout of COPPA,” says Benini, when describing CogniToys transparent privacy documents. Parents give their consent for Elemental Path to collect their children’s data when they download the app that pairs with the toy.

Dino bears a striking similarity to Amazon Echo and Google Home, smart speakers that listen out for commands and questions in your home. Everything that is said to Amazon Echo is recorded and sent to the cloud, and an investigation by the Guardian earlier this year discovered that this does not comply with COPPA. We are therefore now in a strange position whereby many internet of things home devices are legally considered a threat to a child’s privacy, whereas toys with the same capabilities are not. This is an issue because many parents may not actually be aware that they are handing over their children’s data when installing a new toy.

As of today, EU consumer rights groups are also launching complaints against certain smart toys, claiming they breach the EU Unfair Contract Terms Directive and the EU Data Protection Directive, as well as potentially the Toy Safety Directive. Though smart toys may be better regulated in Europe, there are no signs that the problem is being tackled in the UK. 

At a time when the UK government are implementing unprecedented measures to survey its citizens on the internet and Jeremy Hunt wants companies to scour teens’ phones for sexts, it seems unlikely that any legislation will be enacted that protects children’s privacy from being violated by toy companies. Indeed, many internet of things companies – including Elemental Path – admit they will hand over your data to government and law enforcement officials when asked.

***

As smart toys develop, the threat they pose to children only becomes greater. The inclusion of sensors and cameras means even more data can be collected about children, and their privacy can and will be compromised in worrying ways.

Companies, hackers, and even parents are denying children their individual right to privacy and private play. “Children need to feel that they can play in their own place,” says Samson. It is worrying to set a precedent where children get used to surveillance early on. All of this is to say nothing of the educational problems of owning a toy that will tell you (rather than teach you) how to spell “space” and figure out “5+8”.

In a 1999 episode of The Simpsons, “Grift of the Magi”, a toy company takes over Springfield Elementary and spies on children in order to create the perfect toy, Funzo. It is designed to destroy all other toys, just in time for Christmas. Many at the time criticised the plot for being absurd. Like the show's prediction of President Trump, however, it seems that we are living in a world where satire slowly becomes reality.

Amelia Tait is a technology and digital culture writer at the New Statesman.