Google and China

Rob Hanlon and Stephen Frost, CSR Asia, on 31 Mar 2010, criticised Google's HR motives to withdraw from Mainland China. The core of their arguments is nothing new: Google was not making any profit, to stay would have been counterproductive to their business model; to withdraw in the name of HR is not helpful to China's HR activists and it is an illusion to believe a foreign company can influence China's policies on whether to censor or not.

http://www.reports-and-materials.org/Google-Theatre-CSR-Asia-31-Mar-2010.pdf

Well, at the end of the reading, frankly, I am less than convinced by their arguments. I have no doubt that Google withdrew because it was not making enough money, but I do not think it is the only motive. I completely disagree with their stand about people/companies not being able to influence others including foreign governments. This is saying that nobody is responsible for whatever happens and history defies such argument. As we are talking about HR, let us think about Nelson Mandela. He was the catalyst of a whole movement who changed the course of history. Gandhi did the same against the then British Empire which power we forget the might.

Google's answer to the criticism is poorly drafted I think. The HRW's response is much more interesting as it points towards the weakness of Hanlon and Frost's arguments.

http://www.reports-and-materials.org/Google-response-re-CSR-Asia-19-Apr-2010.doc

http://www.reports-and-materials.org/Human-Rights-Watch-reply-re-CSR-Asia-on-Google-20-Apr-2010.doc

All the reports are on the Business and HR website at http://www.business-humanrights.org/Links/Repository/1000252

For the earlier report on Google closing its site: Google Shuts China Site in Dispute Over Censorship (NY Times 22 March 2010) and different comments on the Business and HR website: http://www.business-humanrights.org/Links/Repository/1000132

Update on China's filtering software

China puts brakes on internet-filter rollout - ZDNet.co.uk (01 July 2009)

After the uproar when people learnt that China ordered computers made in the US to incorporate a filtering software, there seems to be a back up. Obviously, the Minister of Industry and Information Technology refused to acknowledge attempts to curtail free speech. As in the West, the official line is that filtering is necessary because of child porn. But I wonder what it really means? Will they do it next time without bothering to say anything, 'hidding' the software in the hard drive?

PC makers lobby, but prepare for China censorware (ZDnet.co.uk 29 June 2009)

See also in French:

Logiciel de filtrage Web : la Chine fait marche arrière (JDN, 1 July 2009)

I don't think the EU Chamber of commerce's opinion had any influence, although one never knows how much concerns about money may have weighted in the balance.

EU Chamber urges China to rethink internet filter (ZDnet.co.uk, 30 June 2009)

From 30 April 2009, but valuable. It is about the UK Internet Watch Foundation, that self-regulatory body (yet using taxpayer's money), filtering the internet. We had already questioned the transparency of the filtering. The IWF own report does not reassure much about the utility of its role, not about the criteria it uses to do its job.

Child Porn Blacklist Group Claims Its Approach Is Working, But There Are Lots Of Questions(TechDirt, 30 April 2009)

See previous post http://cybercrimeatessex.blogspot.com/2009/02/transparency-in-cybercrime.html

Hadopi, right to access a court of first instance and piracy policy

Before it was even adopted by Parliament, the French bill that promoted the three strikes policy in its attempt to fight piracy was doomed.

The EU Parliament condemned it (See TechDirt, 6 May 2009) EU Says No To Three Strikes On Accusation Only; Requires Court Order

and even the UK TalkTalk ISP (TechDirt, June 9, 2009) director considered it was silly to forbid, "pirats will always win" UK ISP Boss: 'The Pirates Will Always Win'

Without surprise, the bill, passed by an empty Assembly, was declared unconstitutional by the Constitutional Council and thus in effect can only become a Statute if the unconstitutional provisions are withdrawn.

"French Constitutional Council Guts 'Three Strikes' As Unconstitutional" (TechDirt, 10 June 2009)

Legally, the decision is particularly enlightening when it comes to the grounds of unconstitutionality. The Council found several flaws, all in line with what I have been writing about in this blog:

- violation of freedom of speech and communication because the sanction was not decided by a court, but by an administrative agency; I keep saying that a court/ the judiciary has to decide on withdrawing illegal content as much as who committed any other illegal behaviour

• "16. Considérant que les pouvoirs de sanction institués par les dispositions critiquées habilitent la commission de protection des droits, qui n'est pas une juridiction, à restreindre ou à empêcher l'accès à internet de titulaires d'abonnement ainsi que des personnes qu'ils en font bénéficier ; que la compétence reconnue à cette autorité administrative n'est pas limitée à une catégorie particulière de personnes mais s'étend à la totalité de la population ; que ses pouvoirs peuvent conduire à restreindre l'exercice, par toute personne, de son droit de s'exprimer et de communiquer librement, notamment depuis son domicile ; que, dans ces conditions, eu égard à la nature de la liberté garantie par l'article 11 de la Déclaration de 1789, le législateur ne pouvait, quelles que soient les garanties encadrant le prononcé des sanctions, confier de tels pouvoirs à une autorité administrative dans le but de protéger les droits des titulaires du droit d'auteur et de droits voisins ;"

- violation of presumption of innocence by reversing the burden of proof to the accused; it is what I always found disturbing in those cases where the RIAA in the US bring lawsuits/charges before the Court and it is most of the time for the defendant to find proof s/he did not commit the action.

• "18. Considérant, en l'espèce, qu'il résulte des dispositions déférées que la réalisation d'un acte de contrefaçon à partir de l'adresse internet de l'abonné constitue, selon les termes du deuxième alinéa de l'article L. 331-21, " la matérialité des manquements à l'obligation définie à l'article L. 336-3 " ; que seul le titulaire du contrat d'abonnement d'accès à internet peut faire l'objet des sanctions instituées par le dispositif déféré ; que, pour s'exonérer de ces sanctions, il lui incombe, en vertu de l'article L. 331-38, de produire les éléments de nature à établir que l'atteinte portée au droit d'auteur ou aux droits voisins procède de la fraude d'un tiers ; qu'ainsi, en opérant un renversement de la charge de la preuve, l'article L. 331-38 institue, en méconnaissance des exigences résultant de l'article 9 de la Déclaration de 1789, une présomption de culpabilité à l'encontre du titulaire de l'accès à internet, pouvant conduire à prononcer contre lui des sanctions privatives ou restrictives de droit ;"

- violation of privacy if the private institutions collecting data about illegal downloading use this data for other purposes; we know by experience that it is well possible, so I wonder how the Constitutional Council thought his "reserve of interpretation" will be complied with and which mecanisms will be used to ensure compliance.

• 27. Considérant que la lutte contre les pratiques de contrefaçon sur internet répond à l'objectif de sauvegarde de la propriété intellectuelle et de la création culturelle ; que, toutefois, l'autorisation donnée à des personnes privées de collecter les données permettant indirectement d'identifier les titulaires de l'accès à des services de communication au public en ligne conduit à la mise en oeuvre, par ces personnes privées, d'un traitement de données à caractère personnel relatives à des infractions ; qu'une telle autorisation ne saurait, sans porter une atteinte disproportionnée au droit au respect de la vie privée, avoir d'autres finalités que de permettre aux titulaires du droit d'auteur et de droits voisins d'exercer les recours juridictionnels dont dispose toute personne physique ou morale s'agissant des infractions dont elle a été victime ;

Censure du Conseil constitutionnel : pas d'happy end pour l'HADOPI (Juriscom. 10 June 2009)

"French court curbs internet piracy legislation" (ZDnet.co.uk, 11 June 2009)

David El Sayegh (Snep)"Couper l'accès Internet comme on envoie les contraventions établies par les radars" (JDN, 11 June 2009)

Filtering,

EC: New net-neutrality law is unnecessary - ZDNet.co.uk: "EC: New net-neutrality law is unnecessary"

The Conseil constitutionnel (French Constitutional Court) rejected part of the Bill nicknamed Hadopi in its provisions that were allowing an administrative authority to cut the right to access the internet. The Authority, although independent, did not provide sufficient safeguards to the internet user, given that was at stake freedom of expression. Only a court, as part of the judiciary with its own requirements of independence and impartiality, could take such decision.

The decision is interesting for several reasons:
1- in relation to the "independent administrative authority" system which France is so fond of, the decision puts a halt to a recurrent trend to transfer legal issues from the courts to non judicial authorities.
2 - it is a reminder that freedom of communication and expression are so intrinsic to the internet, that any measure curtailing it, whatever the justification offered, must be assessed by the courts. Compared with what is happening with ISPs taking down materials, the decision makes one think about the appropriateness of those take down notices procedure not validated by courts...
3 - I am not as sure as the Commission that net neutrality is not needed; resorting to courts is not the main method within Europe. Harmonisation at EU level should be certain before engaging into a dangerous path

From filtering to software piracy

How the desire to control child pornography turns into a piracy/ illegal trade issue...Apparently, upon request of China, computers shifted from the US to China must contain a 'Chinese' filtering software... which code is partly stolen from a US company!

Chinese censorware has stolen code, says US firm (ZDNet.co.uk, 15 June 2009)

update: "US asks China to drop filtered software " (ZDnet.co.uk, 25 June 2009)

Fight against cybercrime - Costs of

Financial crisis helping, some warn that firms may not invest as much as they should in cyber-security, with the negative consequences this could have. See the interview of Régis Fohrer, French Lieutenant Colonel (Home office): "La crise a un impact négatif sur la lutte contre la cybercriminalité"(JDN, 30 March 2009).

Maybe to palliate this pronostic, the French Home Secretary announced a series of measures to fight cybercrime. Filtering for child porn, and linking the Complaint website of Internet-signalement.gouv.fr to a European website managed by Europol. The last is good news; not sure the first is feasible...
"Michèle Alliot-Marie durcit la lutte contre la cybercriminalité" (JDN 25 March 2009)

Concept of personal relationships and violence

Well, maybe the two articles are not related, but I am struck by their common theme: the nature of personal relationships and how they can be affected by the internet.
The first article relates a survey where 80% German 20yrs old people interviewed said they would prefer to keep their internet connection rather than their partner or car. If true (and again, questions of methodology of the survey), that says a lot about the value attached to bodied relationships: body people are not deemed important. Thus, is it that silly to argue that the next step is an effect of video games on bodied violence if the person is considered as an object rather than a subject? Whatever are the flaws of the surveys done in that respect, I would disagree with the conclusion: there is no strong evidence so far, but it does not mean the phenomenon does not exist. Should we not start good studies?


"I Love You, Honey, But Not As Much As The Internet (or Twitter)" (TechDirt, 24 March 2009)

"Evidence Lacking On Any Connection Between Video Game Violence And Real Violence" (TechDirt, 19 March 2009)



It is also a matter of education, and parents should be a bit more careful when letting their children access the web. It's not so much access to porn and violence that troubles me, but the lack of understanding about reliability of sources and the distinction between fantasy and reality because of images blurring the line.
"Shocker: Parents Don't Have A Good Idea Of What Their Kids Do Online" (TechDirt, 19 March 2009)

"School Shooting In Germany Immediately Leads To Calls To Ban Violent Video Games" (TechDirt, 12 March 2009)

Censorship/filtering policies - contrast?

Because of being late in updating the blog, I saw the two following post/article at the same time.
One would expect a clear difference because of the values the two countries attach or do not attach to democracy. The similarities are striking and worrying.

"Why Are Australia's Would-Be 'Net Censors So Opposed To Transparency?" (TechDirt, 19 March 2009)

"China Blocks YouTube, Again" (TechDirt, 24 March 2009). Yes, the interesting question is when did they allow YouTube again? Once YouTube has removed the problematic content? Or when they devise a tool to block access to the videos at stake?

Piracy, filtering and the place of criminal law

France is trying to create a graded response to piracy obliging ISPs to filter the internet and the users' access to be blocked in case of infringement. It's still a Parliament bill but very controversial.
"Piratage : les moteurs bientôt soumis au filtrage du Web ?" (JDN, 6 March 2009)
I'm not a copyrights' specialist but the story, like everything that I can read about piracy issues (thinking of the Swedish(?) case of Pirate Bay), brings to mind several comments:

1) I don't think copyrights should be violated per se and should necessarily disappear; however, I don't believe either that the system can work the way it was created and generalised a good century ago. The internet changed the background, the landscape in which copyrights operated. Works are now easily available - They are cheap but often of good quality because of the nature of digital technology - the immanent nature of the internet allows for permanent and vast diffusion of works whether illegal or legal

2) thus, criminal law cannot be the response to a problem which dimensions changed because of the internet. Piracy always existed. Not the internet.
In other words, reflexion on copyrights and availability of creative works should be primary rather than a push towards investigation, prosecution and sentencing.
"A la veille du vote des députés : retour sur la future loi ‘création et Internet’ " (Juris.com, 22 February 2009)

And filtering is not the answer.
the IWF story in the UK illustrates well the controversy "IWF chief: Why Wikipedia block went wrong " (ZDNet.co.uk, 20 February 2009)
The following article (in French) reveals a study made about ISPs and their perception of filtering for piracy if the French bill is enacted: most won't do it and if they do, they'll certainly not support the costs (= the Government has to do it!) "Ce que pensent les FAI du filtrage du Web" (JDN, 4 March 2009)

3) compared to other crimes, frankly, piracy is the least important. Especially when those benefiting copyrights are more often than not the big companies and not even the authors themselves. If the same amount of energy and money were put into fraud or child porn, cybercrime would be greatly reduced. Which say something about our society: better to protect property of big businesses than to protect the persons and their individual well-being. Problematic no?

The fight against child porn: to the root of the matter, money

The EU accepted to fund the European Financial Coalition where different firms and NGOs join their forces to combat child porn. The 427,000 euros will go towards tracking down the producers of child porn via the amount of money they manipulate. In other words, it goes to the heart of the matter: money. Porn is about money first of all (for adult porn, it is even truer). The fight has traditionally gone towards the end users probably because it is easier to track them down than to find the producers. But like the mafia or other forms of organised crimes, money (and tax) is the first tool used by criminals; tracking it down allows for the chain to be discovered.

Europa Press release 3 March 2009

In that sense, filtering looks like an inadequate tool. Given the immensity of the web, it is also an ineffective tool to avoid child porn. See "Group Reveals There Are Ways To Fight Child Porn Other Than Useless Web Filters" (TechDirt, 5 March 2009)

Sex offenders and the use of Facebook

Chris Kelly, Facebook's chief privacy officer explained how sex offenders are banned from Facebook. "We have been working productively with General Blumenthal and other attorneys general to keep sex offenders off Facebook, and to assure that those who attempt use our site in violation of their parole or other restrictions are brought to justice. This is one of many measures that we continue to take to make Facebook a safer and more trusted online environment." (our emphasis - the quote is from "Report: 5,585 sex offenders purged from Facebook", CNET, 20 February 2009).

This answers my concerns when I first read the headlines in several newspapers. I wondered on which criteria Facebook banned people. At least it is after a conviction, not before a conviction, and on the terms of the sentence given.
However, I share one concern with TechDirt's author Longino: the ban seems to me very general and rests on the assumption that sex offenders will use Facebook ONLY to track down future victims. To make a parallel, it's like saying that each time they switch TV is to look for and at child porn or the like. Or that they enter a bookstore only to find filthy images. I find the assumption in violation of those offenders' most basic rights of freedom of communication. Let's be clear though: there is a possibility that Facebook or MySpace can be use to groom. HOwever, I think justice should have evidence of it (like where they log in) rather than accept a preemptive ban so broad it is forbidding sex offenders to use an important mean of communication nowadays. "Facebook Boots Off Almost 5600 Sex Offenders; Don't You Feel Safer Now?" (TechDirt, 20 Feburary 2009)

Paying people to filter the internet

China seems to now pay people per porn website discovered and reported. Being cynical, I wonder to which extent this solution might be cheaper than hiring them as full-time employees for the Great Firewall. A future law and economics study?
In terms of human rights and liberties, well, using people to report websites (free of charge) is a common procedure in most countries. UK does it with Internet Watch Foundation; France does it with the Internet Gouvernance website and system, etc... None however when as far as paying them! The question is probably how the prospect of being paid could affect the "objectivity" (if any) of the person's appreciating the contents of the website. As usual, how the information reported is used by Government or non Governmental agencies is crucial as lack of transparency promotes censorship and violation of human rights.

"China Looks To Build Human Firewall With Fun, Prizes" (13 February 2009)

Disappeared posts - hidden filtering

As creepy as the previous one, although the persons involve do not suffer like this woman and her children did and do. Apparently, posts from bloggers disappear when related to music and copyrights.
How on earth can Google accaparate the right to filter without warning and notice? Who are they? the secret police of some private dictatorship?

Google Accused Of Invisibly Deleting Blog Posts On The RIAA's Say-So (TechDirt, 6 February 2009)

It all comes back to one question: who is in charge of filtering and on which criteria? private companies for their own sake or for other companies or for Governments? The first two, in a liberal/democratic State, have always been forbidden; the last has so far been subjected to a policy of check and balances, with transparency at its heart (well, at least that is the objective). WHy should it be different online?

See for example the comment of Kelly for Facebook:

Online watch for illicit content - France

After a bit of research (online though), the text for fraud is a Ministerial Decree from the Home Secretary - Décret n° 2008-1109 du 29 octobre 2008, available at Legifrance http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000019708364&dateTexte
The title itself is "experimental automatic treatment of online pre-complaint". In other words, the online system is just an online tool for the police to do their job and for the victims to complain, as they would do at their local police station.
It is experimental because it has been tested in two "counties" (départments in French). It is the police who investigates once they received the information; a face to face meeting will be requested and if the person does not pursue, the data after 30 days will be deleted.

The CNIL (a quango for ensuring privacy in the collection and use of data) approved of the scheme in April 2008 - Délibération n° 2008-102 du 29 avril 2008 portant avis sur un projet de décret en Conseil d'Etat autorisant la création d'un traitement automatisé dénommé « pré-plainte en ligne » PUblished in the JO 31 october 2008 http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=14152FC1A28C9B4FFBC3C63149E83684.tpdjo04v_1?cidTexte=JORFTEXT000019709044&dateTexte=20081031&categorieLien=cid

Transparency in cybercrime reporting/filtering of content

The following paper of Dr. Ian Brown, published on SSRN, touches upon an important issue in my opinion linked with cybercrime. The Internet Watch Foundation filters contents from the web after reporting by users. BUt the process is far from transparent (actually, very little is known about it) and the problem for me as a criminal lawyer, is that the content leads to a criminal offence/sanction but all along the process of investigation and decision no governmental agency (police officers, courts...) either do appear. Why?
At least France launched in November 2008 its website to report problematic content (offensive or eve fraudulent content) and the people in charge are governmental officials who must report to the Prosecutor in case of criminal offences committed. https://www.internet-signalement.gouv.fr/PortailWeb/planets/Accueil!input.action
I have not found the original piece of legislation creating this website and its process but at first sight, the French system is preferable.

Fraud - France launced a new reporting website

To combat fraud, the French Government launched in November 2008, a new website to enable user to report frauds (escroquerie in French) https://www.internet-signalement.gouv.fr/PortailWeb/planets/Accueil!input.action

the complaints are investigated by police officers and then refered to the Prosecutor if the facts fit the legal offence of fraud. The police officers are a special unit of the Cybercrime unit (l'Office Central de Lutte contre la Criminalité liée aux Technologies de l'Information et de la Communication)

But actually, the headlines are misleading because the website is not simply about fraud, but about illegal and harmful content as far as I could understand on the "questions and responses" webpage, with express reference to parents monitoring their children's use of internet.
https://www.internet-signalement.gouv.fr/PortailWeb/planets/Faq.action

at least the process seems a bit more transparent than that of the IWF in England!

sex offenders and MySpace

Two interesting bits of information here: 1) that MySpace does filter its users' profile to search for sex offenders; I can understand why, but this is a permanent ban or ostracism on those offenders based on the philosophy of no rehabilitation. It looks like excommunication except no religious belief is at stake. Do we have a right as a society to reach such extreme measures? Is that an acceptable cost to protect children notably against predators?
2) the reliability of profiles on MySpace: fakes are numerous and nothing should be taken for face-value...

"Raising Some Questions About Smoking Gun Sex Offender Profiles On MySpace" (TechDirt, 28 January 2009)

Offensive content: no need to filter? The (US) FCC chairman's position

He does not believe in filtering internet content because people choose what to look at rather than are bombarded with what they do not want to look at (unlike TV packages it seems).
Technically this is true. In addition, we would add that filtering the internet is nearly a lost battle unless we build firewalls like China's. And we certainly do not want to go down that route.

"Kevin Martin Opposes Regulating Internet Content?" (TechDirt, 13 January 2009)

So where does it leave us? First, there is no doubt that offensive content exists. Its definition may vary from country to country, but most do recognise that offensiveness has legal consequences. If we do not question that basis, the question is how do we imagine the legal consequences to be? Traditionally, faced with offensiveness, states have forbidden or regulated by rating. Problem with the internet is that prohibition is nearly a lost cause, and rating is difficult. Those who worked on hate crimes are worried about enclosure, rather than about distribution, i.e. enclosure of those filled with hatred within their own world; and thus they propose as a way forward dialogue.
When it comes to chatrooms, newsgroups and the like, dialogue or at least responses from non haters are easy.
When it comes to websites and distribution of materials, it's more difficult to promote dialogue because per se the technology used is not based on dialogue. On the other hand, filtering etc... is problematic and questionable. Should we then use the ISPs to put a warning, like some of the watchdogs have, instead of being cops like for copyrights issues?
"UK Government To Force ISPs To Become Copyright Cops" (TechDirt, 19 January 2009)

censorship and China

Surprise! Net Censorship Circumvention Tools Sell User Data (TechDirt, 12 January 2009)

Internet Companies Apologize To China For Being Too Good (TecDirt, 9 January 2209)