Tuesday, 23 March 2010
Sexting: no child porn for the US courts
"Court Rejects PA DAs Attempt To Charge Teens For Sexting Themselves", TechDirt, 18 March 2010 - The court is right in legal terms. The child porn offence was meant to protect children against others (and adults) rather than against themselves (and their peers). But morally and practically, it is not satisfying. The DA could have used the money spent in prosecuting differently? I think this is one of the offences most deeply affected by our ways of consuming the new technologies
"California Court Says Online Bullying Is Not Protected Free Speech" TechDirt, 19 March 2010. Decision justified as long as the "bullying" fits the definition of harassment; calling somebody a jerk without a pattern of abuse is no harassment.
"ACS:Law Now Using Dubious Legal Theories To Threaten Slyck.com", TechDirt, 22 March 2010. It is not so much the headline that interests me than the details of the article: NY has passed a legislation to avoid forum shopping in liber law. In effect, libel decisions from foreign jurisdiction are unenforceable on its territory. This destroys the idea that one can be liable from anything published on the web by any jurisdiction; indeed, a condemnation can only be enforced if the country of residence accepts the enforcement! Remains the issue of the trial by abstentia and the difficulties the person may have to travel to the country who took the original decision as traditionally, stepping on one's territory is to accept its jurisdiction. So the ban is enforced differently!
But for no change in the law, just change in illegal methods to act: "Disgruntled Ex-Auto Dealer Employee Hacks Computer System To Disable Over 100 Cars" TechDirt, 18 March 2010
"In declining to adopt the Seventh Circuit's interpretation of "without authorization," the court held that a "person uses a computer 'without authorization'... [only]  when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone's computer without any permission), or  when the employer has rescinded to access the computer and the defendant uses the computer anyway."... The Ninth Circuit declined to hold that the "defendant's authorization to obtain information stored in a company computer is 'exceeded' if the defendant breaches a state law duty of loyalty to an employer" because no such language was found in the CFAA.... The Ninth Circuit noted that because the CFAA was "primarily a criminal statute," and because there was ambiguity as to the meaning of the phrase "without authorization," it would construe any ambiguity against the government.... "
Compared with the UK, I thought of the Brown case where two police officers accessed the database (vehicle registration) for personal purposes, and then the Alison case in similar fashion: originally, the courts found there was no hacking; but the HL in Alison considered that "without authorisation" meant that without authorisation for the purpose involved.
Applied to the UK, the comment would meant that the HL got it wrong? I would disagree
"Courts Stretching Computer Hacking Law In Dangerous Ways" TechDirt, 18 March 2010
with the original post from Google also from 22 March 2010.
What I was intringued by in Google's statement was the following sentence: "We believe this new approach of providing uncensored search in simplified Chinese from Google.com.hk is a sensible solution to the challenges we've faced—it's entirely legal and will meaningfully increase access to information for people in China. " I wonder what Google meant by "legal": legal to uncensor in China? or legal to redirect links?
I also noticed that after the English version of the post, other links to the same content are posted in different languages. Quite interesting to see how Google is catering for his non-anglophone users
"If ACTA Gets Approved, Expect China To Use It As Justification For Censorship", TechDirt, 22 March 2010
"Would UK Politicians Support The Digital Economy Bill If It Applied To Offline Activities As Well?" TechDirt, 19 March 2010
It is especially worrying when one sees those types of headlines and attitudes:
"More ACTA Leaks: Would Create Special Organization To Manage Worldwide Copyright Laws", TechDirt, 19 March 2010
"EU Proposes Criminalizing Inducing Infringement In ACTA Draft; Could Outlaw Google", TechDirt, 18 March 2010 - it is the EU commission, not the Parliament; and it continues the general trend in EU Law of wanting to edict criminal sanctions whereas criminal law is not supposed to be a competence for the EU institutions
"If ACTA Gets Approved, Expect China To Use It As Justification For Censorship" - TechDirt, 19 March 2010 - well China will indeed always use whatever possible to reinforce surveillance
Thursday, 18 March 2010
And of course completely illegal, thus scary:
"School Accused Of Spying On Kids In Their Homes With Spyware That Secretly Activated Webcams" TechDirt 18 February 2010
I like the irony of it all. Trying to secure identities of people, and yet failing badly...
"L’argent du beurre des ayants droit : Hadopi 2 bientôt patchée" PC INpact 5 March 2010
"French Government Looking To Set Up The Great Firewall Of France?" TechDirt 18 February 2010
While most European countries are happy with the secrecy surrounding ACTA (and the EU COmmission also), Sweden, the EU data protection agency, and the EU Parliament are quite worried about it.
"Parliament threatens court action on anti-piracy treaty" EurActiv 10 March 2010
"La « Cnil européenne » demande plus de transparence sur l'Acta", 01net, 23 February 2010
And yet, Sweden accepted that the expert who has worked for the music industry in the Pirate Bay case could be head of the IT crime unit.
"Swedish Investigator Hired By Warner Bros. During Pirate Bay Investigation Now In Charge Of IT Crime In Sweden" TechDirt, 26 February 2010
THose copyrights claim are becoming ridiculous, as even a video of PRof. Lessig has been taken done on YouTube. Ironically, Prof. Lessig was in favour of copyrights in Second Life
"Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation" TechDirt, 2 March 2010
Tuesday, 16 March 2010
"Print Mindset vs. Internet Mindset: Do You Link? Do You Credit Sources?" TechDirt, 9 March 2010
Columnist Claims Italy's Google Verdict Makes Sense, TechDirt, 9 March 2010 (with M. Masnick obviously disagreeing)
and a speech by Lessign at the Italian Parliament, probably scheduled long ago and thus a coincidence with the verdict, "Lessig Gives A Well-Timed Speech To The Italian Parliament On Internet Freedom", TechDirt, 11 March 2010
and some pointing out that the EU may prefer privacy to freedom of speech. It is not wholly true, but yes, Europe definitely has a different vision of what is privacy in comparison with the US and even the UK, "Where Are The European Regulators In Charge Of Protecting Freedom Of Expression?" TechDirt, 9 March 2010
The problem is certainly due to the abundance of information available, despite the shortcomings in some countries of censorship, "Society Doesn't Know How To Deal With Abundance" TEchDirt, 11 March 2010
The first one is about Chatroulette's site which works on the basis of logging in for random chats with people all over the world (well, at least that is what they tell you). The principle may seem great but exhibitionists and voyeurs populate the site so much that whoever uses it is sure to encounter some unpleasant images or chat on a regular basis, about one every ten chats. The problem is that students, children, anybody has access to it.
What I found fascinating is the fact that people want to spend time at random with images displayed, often of their own private homes. There is a sense that their privacy is not infringed because the others do not know where they live... But that is on the basis that they reveal nothing of themselves. Yet, even with one image (that can be captured from the webcam), somebody can start tracking down the person since some websites allow to search for matching pictures. Anonymity cannot really exist.
"Online voyeurs flock to the random thrills of Chatroulette", The Observer, 14 February 2010 page 20
On an anedoctal use of Chatroulette, "Band 'Releases' New Album Via Chatroulette" 15 February 2010
and for the French Secretary of State to ask for regulation of Internet at an international level: "Nadine Morano demande à l’ONU de réguler Internet", 01net, 25 February 2010
The second article is about comments made by Mark Zuckerberg, one of the founders of Facebook that "people have gotten really comfortable not only sharing more information and different kinds, but more openly and with more people", and that lack of privacy as a "social norm". The article astutely points out the constrast between the affirmation and the reality of Mr Zuckerberg's behaviour to withdraw pictures from his facebook page! We may feel comfortable with others' lack of privacy, but not with our own. There is here an element of voyeurism, like with gossip: it is fine to gossip about others, but not about ourselves!
Even more interesting is a Sunday Times poll explained in the article, where 63% disagree with the statement that privacy matters less than before and 70% say they are worried about communication of private data.
There is an obvious need to redefine privacy in the internet age, I would add, in the Facebook age. What does it mean in legal terms?
There is also a question of education and responsiblity here. All those examples of people having posted images of others (without their knowledge) in embarrassing situations with unintended consequences of loss of jobs, refusal of qualification etc... There is a need to learn about our responsiblity towards others, like when on the road, and seeing a bad driver - one cannot pretend not seeing him/her and continue driving, one has to adapt-; but there is also a need to learn not to take images at face value, that seeing somebody being drunk once does not mean s/he is unfit for a job. Relativity... a new relationship to images and words on the net...
"Facebook’s Mark Zuckerberg says privacy is dead. So why does he want to keeps this picture hidden?" The Sunday Times, 17 January 2010 page 12
For an earlier version of the same problem on Facebook, "Public lives: Does the internet know too much about us?", The Independent, 30 June 2008
The third article is about the EU being worried about Google and the YouTube case in Italy. Europe Looms as Major Battleground for Google, The NY Times, 14 February 2010 (the printed version is titled: In Europe, Unease with Google's Power Grows - bad English by the way)
On the issue of privacy and speech, see Global Network Initiative
He may be charged under the Terrorism Act with conspiring to create a bomb hoax.
Tessa Mayes (privacy law and free speech legal issues), according to the article, said "Making jokes about terrorism is considered a thought crime, mistakenly seen as a real act of harm or intention to commit harm".
Several thoughts come to mind. Yes, any offence that does not require a tangible result and/or a tangible action not based on words (like buying explosives) tips the law towards thought crimes. Some hate crimes can be considered as thought crimes as what is punished is the expression of a thought qualified as being hatred. So some offences linked with terrorism (incitement to, for example; or here the conspiracy to create a bomb hoax) are in that sense a thought crime. Now, this is a choice: Parliament approved its condemnation; others disagree. The question is which power do we want to give to words? Where we draw the line is never easy and I don't think complete freedom of expression should prevail, nor I do share the Government's perception of security and necessity.
Beside this issue and debate, what I find interesting here, is the simple fact that I do not see how the offence of conspiracy to create a bomb hoax can even be committed, given the context. Obviously, the facts can only be analysed in view of what happened at the time (not in view of the fact that no hoax emerged); but given the weather, the airport closure and the Twitter type of interaction, it is difficult to take the post seriously. It is a silly post and the person who wrote it should have been a bit more conscious of his responsibility; but I can't imagine the offence existing in all its elements.
"Twitter joke led to Terror Act arrest and airport life ban", The Independent, 18 January 2010
On a similar note, -the power we want to give to words and where we draw the line between dignity of the person/victim and freedom of speech-, are the attacks Richard Dawkins, the atheist, endured. I do not share his atheist (and that does not make me a creationist, because frankly to consider that the world was created in seven days is a total negation of the bible's message which has nothing to do with providing a history of human kind, but an understanding of our present day situation- In hebrew, Genesis starts by "Bereshit", in other words, in principle, in the principle, not as most latin languages versions put it, "at the beginning" which implies a timeline - and while I am at it, Eve is not Eve until after the transgression: before the transgression, he is Ishah, the other side of Adam called Ish, like in Chinese medicine the Ying and Yang, the masculine and feminin of Man). So back to our story: I do not share his views but it would never occur to me to write with vicious language.
Now, even if it is improper, should we leave people free to do so? Freedom of speech tells that that even not pleasurable speech should be heard. But should we allow speech that fosters tribalism as the article puts it, or hate of others as I would put it? UK law has answered by saying no in specific situations (clear hatred of race, religion, sexual orientation and disability to some extent), but did not say anything for the rest. So is it all about education of people? education about words, their power and who we are in which society.
The author wrote a book on Cyburbia: the Dangerous Idea That's changing How We Live and WHo We Are, London 2009 (my next reading at Cambridge in a few weeks).
"When the net's wisdom of crowds turns into an online lynch mob" James Harkin, The Observer, 28 February 2010, page 31
The whole story made me think of an earlier article about a journalist, Lee Siegel, who was so tired of the vicious comments he used to receive on his blog that he created a personna to counteract it, with nobody realising it was the same person. 1) It says a lot about the degree of analysis use by people (one should be able to recognise a style), 2) It says a lot about what speech is used for, in his case, silencing dissent (against Bush's policies). "Truth and consequences", The Guardian, 27 May 2008
And about distortion of words and its consequences on everyday life: Yasmin Alibhai-Brown: "Freedom of speech can't be unlimited", The Independent, 6 July 2009
If words were not powerful, they would not be used, including to start war or strenghten one's side. "PR groups cash in on Russian conflict", The Guardian, 24 August 2009
So as usual, if people were not so gullable, there will be a bit less fraud and spam.
"Will convicting five major spammers put an end to spam?" The Guardian, 24 June 2010
For other articles on sale of private data and fraud,
"Welcome to DarkMarket – global one-stop shop for cybercrime and banking fraud", The Guardian, 15 January 2010, page 3
"T-Mobile staff sold customers' details to rivals", The independent, 18 November 2009
Further fraud this time with carbon trading, "Fraud Besets E.U. Carbon Trade System", The NY Times, 8 February 2010
and issues of security for smartphones: "Mobile security: Hackers kept at bay by lack of a standard platform" Financial TImes 15 February 2010
Because, once the discussion settled, it happens that the flaws were minor and did not change the overall conclusions of the report: climate change is created by man, the rise in temperatures is alarming, and we better get going otherwise our children will not be living on this planet. So why all that fuss and nothing on hacking?
"Strange case of moving weather posts and a scientist under siege", The Guardian, 2 February 2010 (page 6)
The decision is not yet published on BAIILI, but the one of 31 July 2009, before that new evidence was brought in in October 2009, is on the website.
New hopes then for Mr. McKinnon which I hoped will not be dashed.
"Judge says extraditing Gary McKinnon may be unlawful" The Guardian, 14 January 2010, page 9
Monday, 15 March 2010
So let us review the story about Google rethinking its policy in China. Much ink has been spilled over the issue.
First, Google made its annoucement on 13 January 2010, a date that feels a bit like a new year/new resolution statement. The annoucement was not to censor anymore its search results on Google China, whether or not requested by Chinese authorities. The consequences, i.e. the possible end of any business presence in China, were recognised as a possibility. What seems to have triggered the decision was a series of cyberattacks against Chinese human rights activists. (Guardian, 13 January 2010, front page and page 3).
"Google to end censorship in China over cyber attacks" (Tania Branigan, TheGuardian, 13 January 2010)
"Google counts cost of censorship and draws red line under China" (Bobbie Johnson, TheGuardian, 13 January 2010)
On the details of the attacks, see Guardian 14 January 2010 and 15 January 2010.
"Google acted on censorship amid China dissident fears" (TheGuardian, printed version 14 January 2010, front page)
"Google's move on Chinese censorship welcomed by human rights activists"
(TheGuardian, 14 January 2010, page 14)
"Accounts invaded, computers infected – human rights activists tell of cyber attacks", The Guardian, printed version 15 January 2010
The attacks bring into light how internet communications are central to governmental response to politics, including war. "Cyber-warfare 'is growing threat'" The Guardian, 4 February 2010, page 7; similarly, six months ago, "MyDoom virus hits key networks in US and South Korea" The Guardian, 9 July 2009, page 16 (the title in the printed version is slightly different: "Cyber attacks paralyse government computers in US and South Korea"). But for a different vision on a 'supposed' cyberwar: "White House Cyber Security Guy: There Is No Cyberwar", TechDirt, 9 March 2010
However, the cynics add that Google never made the money it expected to make; it has only one third of the search engines market in China which is dominated by Baidu= Governmental Chinese version of search engine. So its decision may not rest so much on willingness to defend democratic values through guaranteeing freedom of expression, than on profit-making interests.
In addition, Google's decision in 2006 to censor results hurt the company's reputation, so much that one of its founder, Sergey Brin, called it a "net negative" (see Guardian's article, 13 January 2010, page 3; and page 14, 14 January 2010).
Nevertheless, cynicism may not be so much on the agenda. Let us face it: Google is not the new knight defending freedom of expression without awaiting something in return. On the other hand, personal history certainly plays a role here. Sergey Brin emigrated to the US in 1979, aged six, with his parents who were victims of anti-semitism, even under the then-USSR. (Guardian's, Tania Branigan, 14 January 2010, front page).
China's reaction was at the beginning cautious... and heavily censored as few headlines made it on the newspapers/online versions in China itself. Some commentators, pro-governmental line, did not see Google's decision as 1) affecting China much (there are other search engines), 2) as a desinterested decision (aka, Google does not make enough profit to stay).
What seems to emerge on the side, with other companies finding it difficult to enter the Chinese market, is a picture of full protection of Chinese interests (economic or not) against foreign companies and Governments. It fits with a presentation I attended in September 2009 at the Society for Legal Scholars (SLS) in Keele, where the speaker demonstrated that Chinese law favoured chinese contract law in all dispute resolutions, a concept that systematically discards foreign law; in other words, private international law in China is resolved by the quasi-systemic application of local law to the exclusion of foreign law. An article on the International Herald Tribune of 14 January 2010 page 15 is quite revealing on those behaviours. The article even ends up by saying, in more polite form, that foreign companies sell their soul to China, accepting to give for free, for fear of loosing a market share, what they would never have tolerated in other countries. I know the story is not exagerated. In his second volume on Globalisation, which focuses on Water, Eric Orsenna (French Academician and writer) explains that the French company Alstom more or less gave the plans of its water turbines for the three Dams on the yellow river, in exchange for obtaining the market... Except that the turbine plan is now copied and Alstrom not needed...
"China stifles news of Google’s defiance", The International Herald Tribune, 14 January 2010 (p. 1)
"Google Is Not Alone in Discontent, But Its Threat Stands Out", The New York TImes, 14 January 2010 (by the way, this habit of the NYT and IHT not to use the same title in the printed and online version is frankly annoying).
Eric Orsenna, L'avenir de l'eau : Petit précis de mondialisation II (Broché), Fayard 2008 (The future of water: little manual on globalisation II - NB: the first volume was on coton and is as interesting as the second, if anybody can read French - by the way, it is not a complicated French although it is beautifully written).
If we take into account China's policy in conducting business, then it appears very clearly that accepting to censor the results could only amount to failure in terms of believing that the economy will allow for freedom of expression to grow. The economy is in itself a close circuit; nothing from the outside will penetrate it, especially NOT freedom of expression. After 30 years of economic "liberalisation", the West should start looking at the full picture, rather than avoiding the issue: China will not become a democracy by free market. See James Kynge, "Full circle", Financial Times 16/17 January 2010.
"China and the west: Full circle", Financial TImes, 15 January 2010 (printed version, 16/17 january 2010 (like for the Guardian, can't they just give one date???)
Viewed under that light, Bill Gates' comment is not as irresponsible as it may first appear. It is a realist comment: that anyone doing business in China has to accept the fact that democracy is out of question. Then the question is: does one have the guts, to take a familiar expression, not to do business? The West's answer so far is certainly not living to its Enlightenment's ideals.
"Playing the wall game in China" The Guardian, 18 January 2010
"Google may lose business, but gains good will", Miguel Helft, International Herald Tribune, printed version January 16/17, 2010 (can't find the link online)
"Why fearful china stamps out dissent", Peter Beaumont, The Observer, 17 January 2010, p. 22 (can't find the link online either)
Will Google stand up to France and Italy, too? The Guardian, 14 January 2010
"China Issues Another Warning to Google on Enforced Censorship of the Internet" link to NY Times by Business and HR website, 12 March 2010
Tuesday, 9 March 2010
I like the irony of this info. Championing IP rights but not even having the decency to acknowledge authorship. It made me think of a book I am currently reading about openness, secrecy and authorship. The author looks at those issues from the Greek and Roman times to nowadays and tries to understand who information and knowledge were transferred. So far I read only the first two chapters (out of 9) and more or less, there is no secrecy, no willingness to restrict the flow of information. the only evolution has been to acknowledge authorship. Secrecy exists only for magical formulas and what we would consider nowadays as religious writings. But for example military writings (about weapons...) were open to all even though the audience was obviously restricted by lack of education of the masses. The reason was that war was seen as the skill, personal characters of men, of generals, rather than the result of good weapons. Exactly, good weapons were acknowledged as a factor to win a war, but the skills of a leader were seen as more important to use those weapons at their best (and to improve them).
also originality was not key: what was important was the possibility for knowledge to be available with acknowledgments of sources
The Myth Of Originality... Tech Dirt 5 march 2010
Apart from the issue of establishing the facts, the question is can Google be criminally liable? It may sound harsh, but the context of criminal liability has evolved over the past ten years. The biggest sources of privacy violations are within the corporate world with the databases corporations collect, hold and misuse, or because of information they make available. Offenders are not simply individuals. There is a 'collective' responsibility at corporate level and one can see that with the English debate on corporate crime. Except that the English debate is extremely restricted as we focus on manslaughter, whereas France allows for corporate liability for any offence. The question that springs to mind is actually whether Italian law sanctioned the three men as individuals or as representants/agents of Google the corporations.
The usual critic about the take down notice and the absence of a court judgment still holds.
See also "Google and YouTube should put own houses in order Charles Arthur" The Guardian, 1 March 2010, who argues that Google should be more consistent in its take-down policy rather than harrowing on lack of freedom of expression
and "Turns Out That People Are Actually Pretty Honest About Themselves Online" TechDirt 19 February 2010
Not many studies appear on the theme; I suppose that the methodology to research online is not the easiest to practice. BUt it seems that people behave offline and online in pretty similar ways. It certainly corresponds to other studies that examine how people on the long term would present themselves and the discovery that the differences between online and offline are minor.