Subscribe To
Posts
All Comments
Wednesday, January 24, 2018
Friday, May 10, 2013
Little Fuss on Big Data?
"Big data" is everywhere - and no, that's not ungrammatical. From the 2.5 quintillion bytes of data that IBM says we create every day, government, IT firms, consulting firms, and universities are not only intensively searching for more and more ways to crunch massive amounts of structured and unstructured data to yield new insights into behavior and make better predictions and decisions, but adding to those data by relentlessly publicizing the virtues of using big data. In the midst of the almost deafening buzz about big data, two commentaries this week offered some trenchant observations about the care with which we need to gather and analyze big data.
First, in a May 9 article for Foreign Policy, Kate Crawford of the MIT Center for Civic Media warns against blind trust that big data necessarily "illuminate the hidden world of human behavior." Crawford makes five main points. First, as she puts it,"Numbers can't speak for themselves, and data sets -- no matter their scale -- are still objects of human design. The tools of big-data science . . . do not immunize us from skews, gaps, and faulty assumptions." Noting that "there is a problematic belief that bigger data is always better data and that correlation is as good as causation," she points out the risks of reliance on social-media data in light of its potential nonrepresentativeness, confirmation bias, and flawed or biased algorithms. Second, while she accepts that "[b]ig data can provide valuable insights to help improve our cities," she also observes that "big-data approaches to city planning depend heavily on city officials understanding both the data and its limits." Third, she identifies the real potential for researchers, marketers, and even law enforcement to use big data in improperly discriminatory ways. Fourth, she observes that big data can pose threats to privacy, through re-identification of individuals whose data are part of big data aggregations, and through tracking individuals' identities and activities. Fifth, she cautions that "unless we recognize and address some of big data's inherent weaknesses in reflecting on human lives, we may make major public policy and business decisions based on incorrect assumptions." Crawford concludes on an optimistic note, saying that "we can draw on expertise across different fields in order to better recognize biases, gaps, and assumptions, and to rise to the new challenges to privacy and fairness."
Second, in a May 10 post on Wired's Innovation Insights blog, entrepreneur Ari Zoldan focuses on three significant problems with big data: (1) "it’s so vast and unorganized, that organizing it for analysis is no easy task," such as the identification of assumptions on which algorithms for big-data analysis are based; (2) the sheer volume of data can lead researchers into "signal error" (i.e., overlooking large gaps in data) and confirmation bias; and (3) the risk that drastically wrong conclusions from incorrect analysis will be broadcast faster in a globally connected world. Zoldan offers three pieces of advice: (1) "approach every data set with skepticism [and] . . . assume that the data has inherent flaws"; (2) "realize that data is a tool, not a course of action," and use common sense in analyzing and basing decisions on big data; and (3) reiterating that we need "the means to analyze and interpret [big data] for use."
The two commentaries make similar points, and that's a good thing. The points they raise are fundamental to developing a healthier and more informed perspective on big data and its responsible use in societies around the world.
First, in a May 9 article for Foreign Policy, Kate Crawford of the MIT Center for Civic Media warns against blind trust that big data necessarily "illuminate the hidden world of human behavior." Crawford makes five main points. First, as she puts it,"Numbers can't speak for themselves, and data sets -- no matter their scale -- are still objects of human design. The tools of big-data science . . . do not immunize us from skews, gaps, and faulty assumptions." Noting that "there is a problematic belief that bigger data is always better data and that correlation is as good as causation," she points out the risks of reliance on social-media data in light of its potential nonrepresentativeness, confirmation bias, and flawed or biased algorithms. Second, while she accepts that "[b]ig data can provide valuable insights to help improve our cities," she also observes that "big-data approaches to city planning depend heavily on city officials understanding both the data and its limits." Third, she identifies the real potential for researchers, marketers, and even law enforcement to use big data in improperly discriminatory ways. Fourth, she observes that big data can pose threats to privacy, through re-identification of individuals whose data are part of big data aggregations, and through tracking individuals' identities and activities. Fifth, she cautions that "unless we recognize and address some of big data's inherent weaknesses in reflecting on human lives, we may make major public policy and business decisions based on incorrect assumptions." Crawford concludes on an optimistic note, saying that "we can draw on expertise across different fields in order to better recognize biases, gaps, and assumptions, and to rise to the new challenges to privacy and fairness."
Second, in a May 10 post on Wired's Innovation Insights blog, entrepreneur Ari Zoldan focuses on three significant problems with big data: (1) "it’s so vast and unorganized, that organizing it for analysis is no easy task," such as the identification of assumptions on which algorithms for big-data analysis are based; (2) the sheer volume of data can lead researchers into "signal error" (i.e., overlooking large gaps in data) and confirmation bias; and (3) the risk that drastically wrong conclusions from incorrect analysis will be broadcast faster in a globally connected world. Zoldan offers three pieces of advice: (1) "approach every data set with skepticism [and] . . . assume that the data has inherent flaws"; (2) "realize that data is a tool, not a course of action," and use common sense in analyzing and basing decisions on big data; and (3) reiterating that we need "the means to analyze and interpret [big data] for use."
The two commentaries make similar points, and that's a good thing. The points they raise are fundamental to developing a healthier and more informed perspective on big data and its responsible use in societies around the world.
Friday, May 3, 2013
Siringo's Ghost: Cattle Branding and Rustling in the Digital Age
In his classic 1885 memoir of cowboy life, A Texas Cowboy, Charles Siringo described what many would assume is a bygone era, when cowhands drove cattle along the Abilene Trail, branded cattle with hot irons, and occasionally "liberated" cattle belonging to unwary ranchers. Beef producers today may use the latest in technology, from ATVs to smartphone apps, but a number of recent reports indicate that Siringo's ghost would be right at home with two aspects of current U.S. cattle-raising: branding and rustling.
As a recent post by Jimmy Stamp on the "Design Decoded" blog at Smithsonian.com shows, the technology of marking cattle has changed remarkably little since Siringo's day. Cattle ranchers still depend largely on hot branding irons (many of them now electric) to affix unique markings, which are recognized and regulated by state authorities from North Dakota to Texas and from Virginia to Hawaii. DNA testing is certainly feasible, but far more time-consuming and costly to confirm ownership than a readily visible brand.
What makes branding an especially critical part of cattle-raising is the recent resurgence in cattle rustling across the Midwest and West, thanks to rising beef prices. According to USA Today, the number of cattle and horses reported rustled to the Texas and Southwestern Cattle Raisers Association increased from 7,600 in 2011 to more than 10,400 in 2012, and reports of missing or stolen cattle in California increased from 1,110 in 2011 to 1,225 in 2012. So far in 2013, various news media have reported rustling incidents in Arkansas, Iowa, Kentucky, Missouri, Oklahoma, and Texas.
Who's behind cattle rustling these days? According to one Missouri country prosecutor, some of the people who work in legitimate cattle-raising. As he put it, "Odds are . . . that you'll be out at 1 a.m. facing two or three cowboys hopped up on meth[.] They're doing the same thing they do during the day, but they're doing it at night. They work at large ranches or other livestock organizations and know what they're doing." Other law enforcement representatives and ranchers agree. One Missouri cattleman said, "You worry about the meth heads, but the organized thieves are the bigger problem."
Siringo's ghost also would nod knowingly if he were to read about some cattle-rustling techniques still in use, such as rebranding cattle to alter the true owner's brand and, if confronted by cattlemen while the rustling is in progress, exchanging gunfire to get away.
What's the solution? Like other aspects of cattle-raising, mostly low-tech seasoned with a dash of high-tech. Video cameras have been used successfully to record rustling in progress, but most of the measures that law enforcement and cattlemen advocate would have worked equally well in the 19th century:
As a recent post by Jimmy Stamp on the "Design Decoded" blog at Smithsonian.com shows, the technology of marking cattle has changed remarkably little since Siringo's day. Cattle ranchers still depend largely on hot branding irons (many of them now electric) to affix unique markings, which are recognized and regulated by state authorities from North Dakota to Texas and from Virginia to Hawaii. DNA testing is certainly feasible, but far more time-consuming and costly to confirm ownership than a readily visible brand.
What makes branding an especially critical part of cattle-raising is the recent resurgence in cattle rustling across the Midwest and West, thanks to rising beef prices. According to USA Today, the number of cattle and horses reported rustled to the Texas and Southwestern Cattle Raisers Association increased from 7,600 in 2011 to more than 10,400 in 2012, and reports of missing or stolen cattle in California increased from 1,110 in 2011 to 1,225 in 2012. So far in 2013, various news media have reported rustling incidents in Arkansas, Iowa, Kentucky, Missouri, Oklahoma, and Texas.
Who's behind cattle rustling these days? According to one Missouri country prosecutor, some of the people who work in legitimate cattle-raising. As he put it, "Odds are . . . that you'll be out at 1 a.m. facing two or three cowboys hopped up on meth[.] They're doing the same thing they do during the day, but they're doing it at night. They work at large ranches or other livestock organizations and know what they're doing." Other law enforcement representatives and ranchers agree. One Missouri cattleman said, "You worry about the meth heads, but the organized thieves are the bigger problem."
Siringo's ghost also would nod knowingly if he were to read about some cattle-rustling techniques still in use, such as rebranding cattle to alter the true owner's brand and, if confronted by cattlemen while the rustling is in progress, exchanging gunfire to get away.
What's the solution? Like other aspects of cattle-raising, mostly low-tech seasoned with a dash of high-tech. Video cameras have been used successfully to record rustling in progress, but most of the measures that law enforcement and cattlemen advocate would have worked equally well in the 19th century:
- More extensive branding (for example, one Missouri op-ed noted that "only a few thousand of Missouri's 60,000 operations have registered brands");
- Neighborhood watches and other basic surveillance measures, such as counting cattle regularly; and
- Rewards, sometimes up to $1,000 per cow.
Friday, April 26, 2013
FTC Issues New Consumer Fraud Survey for 2011
The Federal Trade Commission just issued the third in a series of surveys measuring consumer fraud in the United States. According to the FTC survey's estimate, in 2011 some 25.6 million adults – 10.8 percent of the adult population – were victims of one or more types of fraud that the survey covered.
· “Almost one-quarter of those who engaged in Risky Purchasing Practices as defined were victims of one or more of the included frauds (Table 16 and Figure 16). This is almost three times the rate of those who did not meet the definition (24.8 percent v. 8.5 percent).” [Note: Risky Purchasing Practices were defined as situations in which “(i) the consumer purchased a product or service as a result of a telemarketing call, after seeing a television advertisement or infomercial, or after receiving an unsolicited commercial (“SPAM”) email, (ii) the purchase was from a company with whom the consumer had not previously done business, and (iii) the consumer did not make the purchase at a store or the seller’s place of business, but rather purchased the item via the Internet or by telephone.”]
· “Survey participants who had experienced a serious negative life event in the last two years – events such as a divorce, the death of a family member or close friend, a serious injury or illness in their family, or the loss of a job – were more than two-and-a-half times as likely to have experienced fraud as were those who had not suffered such a negative event . . . .”
· “[T]hose who reported being highly patient were 7.0 percentage points less likely to have been a victim of one or more of the frauds in the survey than those with low patience . . . .”
· “Those with the lowest numeric skills were at least 50 percent more likely to have been victims of the frauds covered by the survey than were those with greater numeric skills . . . . Those with the lowest numeric skills were particularly susceptible to prize promotion frauds.”
· “[T]hose who indicated that they had more personal debt than they could handle financially were significantly more likely to have been a victim than those with less debt.”
· “African Americans were almost twice as likely to have experienced one or more of the surveyed frauds as were non-Hispanic whites . . . [and] Hispanics were also more likely than non-Hispanic whites to have been victims of the surveyed frauds.”
· “Those between 55 and 74 had the greatest chance of being victims of fraudulent prize promotions: 2.8 percent of those between 65 and 74 were victims of fraudulent prize promotions as were 1.8 percent of those between 55 and 64 . . . .”
(The types of frauds most frequently reported included “fraudulent
weight-loss products, fraudulent prize promotions, being billed for a buyers’
club membership that one had not agreed to purchase, being billed for Internet
services that one had not agreed to purchase, and fraudulent work-at-home
programs.”)
The report is noteworthy, among other reasons, for
highlighting various factors that appear more predictive of whether a person
will fall victim to consumer fraud:
·
“[T]hose who reported a high general willingness
to take risks were more than twice as likely to have been victimized as were
those who reported a low willingness.”· “Almost one-quarter of those who engaged in Risky Purchasing Practices as defined were victims of one or more of the included frauds (Table 16 and Figure 16). This is almost three times the rate of those who did not meet the definition (24.8 percent v. 8.5 percent).” [Note: Risky Purchasing Practices were defined as situations in which “(i) the consumer purchased a product or service as a result of a telemarketing call, after seeing a television advertisement or infomercial, or after receiving an unsolicited commercial (“SPAM”) email, (ii) the purchase was from a company with whom the consumer had not previously done business, and (iii) the consumer did not make the purchase at a store or the seller’s place of business, but rather purchased the item via the Internet or by telephone.”]
· “Survey participants who had experienced a serious negative life event in the last two years – events such as a divorce, the death of a family member or close friend, a serious injury or illness in their family, or the loss of a job – were more than two-and-a-half times as likely to have experienced fraud as were those who had not suffered such a negative event . . . .”
· “[T]hose who reported being highly patient were 7.0 percentage points less likely to have been a victim of one or more of the frauds in the survey than those with low patience . . . .”
· “Those with the lowest numeric skills were at least 50 percent more likely to have been victims of the frauds covered by the survey than were those with greater numeric skills . . . . Those with the lowest numeric skills were particularly susceptible to prize promotion frauds.”
· “[T]hose who indicated that they had more personal debt than they could handle financially were significantly more likely to have been a victim than those with less debt.”
· “African Americans were almost twice as likely to have experienced one or more of the surveyed frauds as were non-Hispanic whites . . . [and] Hispanics were also more likely than non-Hispanic whites to have been victims of the surveyed frauds.”
· “Those between 55 and 74 had the greatest chance of being victims of fraudulent prize promotions: 2.8 percent of those between 65 and 74 were victims of fraudulent prize promotions as were 1.8 percent of those between 55 and 64 . . . .”
Monday, March 25, 2013
Jamaican Government Anti-Lottery Scam Campaign Advances
Since at least 2007, Jamaican-based lottery fraud schemes have been the subject of sustained law enforcement interest. A 2010 threat assessment by the International Mass-Marketing Fraud Working Group (IMMFWG) noted "the rising popularity of lottery fraud schemes targeting U.S. residents among Kingston- and Montego Bay-based criminal enterprises. These operations are using police corruption, murder, kidnappings, robberies, and other violent tactics to discourage rival groups, compete for proceeds and lists of potential victims, and expand their operations." [Full disclosure: I co-chair the IMMFWG.] A Jamaica Observer article reported that more than 200 people in Jamaica had been killed because of disputes between competing lottery-scam operators.
Although the problem has festered for some time, this year a series of events brought the problem to international attention. In January, an eight-year-old British girl visiting Jamaica was shot to death in a roadside shop, "an innocent victim of gangsters fighting a turf war" (Daily Mail) over lottery scams. The murder quickly led to the arrests of eight individuals.
This month, there has been a flurry of action, in both the United States and Jamaica. After Dan Rather of AXS-TV and CBS This Morning ran stories on the problem, on March 13 the U.S. Senate Special Committee on Aging held a public hearing on Jamaica-based lottery scams that target seniors, The Senate Aging hearing -- which received extensive media coverage in both countries -- is available on the Committee's webpage, which includes a video of the full hearing, as well as prepared statements by adult children of fraud schemes, law enforcement representatives (York County (Maine) Sheriff's Department, U.S. Postal Inspection Service, and U.S. Immigration and Customs Enforcement), and private-sector entities (AARP and Western Union), Two other links on the webpage are, respectively, especially instructive and poignant: an audio recording of a telephone conversation between a Jamaican scam artist and an intended victim; and a brief video clip of an 83-year-old victim suffering from dementia who is exhorted not to answer any more calls but who sends more money to Jamaican scammers the very next day.
That same week, on March 16, the Jamaican Ambassador to the United States, Stephen Vascianne, gave a speech in New York to members of the Jamaican-American Bar Association and other professionals. In that speech, Ambassador Vascianne reportedly urged the audience to help raise awareness about the Jamaican lottery scam. He also called attention to "public campaigns [that] have also been launched in Jamaica to counter the mistaken notion spread by entertainers that scamming is justifiable reparations for slavery and other historical sins."
Soon after that, on March 21, the Jamaican Senate passed the Bill Law Reform (Fraudulent Transactions) (Special Provisions) Act. That bill, according to the Jamaica Information Service, would criminalize "obtaining any property or inducing any person to confer any benefit on any person by false pretence; inviting or otherwise inducing a person to visit Jamaica for the purpose of committing an offence under the Act; and knowingly conducting a financial transaction with the proceeds of an offence." It also reportedly would provide for "powers of search and seizure and restitution, and for guilty persons to be fined and sentenced to a term of imprisonment for up to 25 years." U.S. Ambassador to Jamaica Pamela Bridgewater spoke positively of the Government's introduction of the bill, indicating, according to CVM News, that "the foundation has been laid to fight the lottery scam." ABC News reported that Jamaican Minister of Justice Mark Golding said he expects enforcement of the law, which the Jamaican House of Representatives had already passed, "to begin by the end of this month." While lottery scammers reportedly are "unfazed" at the prospect of extradition to the United States, the Jamaican Government has affirmed its commitment to stamping out the problem.
Although the problem has festered for some time, this year a series of events brought the problem to international attention. In January, an eight-year-old British girl visiting Jamaica was shot to death in a roadside shop, "an innocent victim of gangsters fighting a turf war" (Daily Mail) over lottery scams. The murder quickly led to the arrests of eight individuals.
This month, there has been a flurry of action, in both the United States and Jamaica. After Dan Rather of AXS-TV and CBS This Morning ran stories on the problem, on March 13 the U.S. Senate Special Committee on Aging held a public hearing on Jamaica-based lottery scams that target seniors, The Senate Aging hearing -- which received extensive media coverage in both countries -- is available on the Committee's webpage, which includes a video of the full hearing, as well as prepared statements by adult children of fraud schemes, law enforcement representatives (York County (Maine) Sheriff's Department, U.S. Postal Inspection Service, and U.S. Immigration and Customs Enforcement), and private-sector entities (AARP and Western Union), Two other links on the webpage are, respectively, especially instructive and poignant: an audio recording of a telephone conversation between a Jamaican scam artist and an intended victim; and a brief video clip of an 83-year-old victim suffering from dementia who is exhorted not to answer any more calls but who sends more money to Jamaican scammers the very next day.
That same week, on March 16, the Jamaican Ambassador to the United States, Stephen Vascianne, gave a speech in New York to members of the Jamaican-American Bar Association and other professionals. In that speech, Ambassador Vascianne reportedly urged the audience to help raise awareness about the Jamaican lottery scam. He also called attention to "public campaigns [that] have also been launched in Jamaica to counter the mistaken notion spread by entertainers that scamming is justifiable reparations for slavery and other historical sins."
Soon after that, on March 21, the Jamaican Senate passed the Bill Law Reform (Fraudulent Transactions) (Special Provisions) Act. That bill, according to the Jamaica Information Service, would criminalize "obtaining any property or inducing any person to confer any benefit on any person by false pretence; inviting or otherwise inducing a person to visit Jamaica for the purpose of committing an offence under the Act; and knowingly conducting a financial transaction with the proceeds of an offence." It also reportedly would provide for "powers of search and seizure and restitution, and for guilty persons to be fined and sentenced to a term of imprisonment for up to 25 years." U.S. Ambassador to Jamaica Pamela Bridgewater spoke positively of the Government's introduction of the bill, indicating, according to CVM News, that "the foundation has been laid to fight the lottery scam." ABC News reported that Jamaican Minister of Justice Mark Golding said he expects enforcement of the law, which the Jamaican House of Representatives had already passed, "to begin by the end of this month." While lottery scammers reportedly are "unfazed" at the prospect of extradition to the United States, the Jamaican Government has affirmed its commitment to stamping out the problem.
Friday, March 22, 2013
European Court of Human Rights to Pirate Bay: No Safe Harbor Here
On March 13, in Neij and Kolmisoppi v. Sweden, the European Court of Human Rights (European Court) decisively rejected several challenges under the European Convention on Human Rights by two participants in the operations of The Pirate Bay (TPB), the much-publicized file-sharing service whose operators Swedish prosecutors have been pursuing for violations of the Swedish Copyright Act and the Swedish Penal Code. The Swedish Court of Appeal that reviewed the criminal convictions of the two applicants, Fredrik Neij and Peter Sunde Kolmisoppi, described them, respectively, as "hav[ing] been engaged in the programming, systematisation and daily operations of TPB" and "hav[ing] contributed to the financing of TPB by collecting debts from two advertisers and . . . in closing an advertising agreement" as well as having "contributed to the development of TPB's systematic tracker function and database" and having "configured a load balancing service for TPB." The applicants' sentences, as modified by the Court of Appeal, included 10 and 8 months imprisonment, respectively, as well as joint liability for damages in the amount of approximately
Because both applicants were convicted under the Copyright Act for complicity to commit crimes in violation of the Copyright Act, both of them argued to the European Court that under Article 10 of the Convention -- which grants to everyone the right to freedom of expression -- "their right to receive and impart information had been violated when they were convicted for other persons’ use of TPB." According to the European Court, the applicants asserted that Article 10 "enshrines the right to offer an automatic service of transferring unprotected material between users, according to basic principles of communication on Internet, and within the information society. In their view, Article 10 of the Convention protects the right to arrange a service on the Internet which can be used for both legal and illegal purposes, without the persons responsible for the service being convicted for acts committed by the people using the service."
In response, the Court first noted that section 1 of Article 10 "guarantees the right to impart information and the right of the public to receive it" to "everyone," whether or not the aim is profit-making, and applies "not only to the content of the information but also to the means of transmission or reception." But section 2 of Article 10 further states, in pertinent part, that the exercise of freedom of expression "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of . . .crime, [and] for the protection of the . . . rights of others . . . ."
In its analysis, the Court first concluded that "the applicants’ convictions interfered with their right to freedom of expression. Such interference breaches Article 10 unless it was 'prescribed by law', pursued one or more of the legitimate aims referred to in Article 10 § 2 and was 'necessary in a democratic society' to attain such aim or aims." The Court then briefly addressed the first two standards. It held that (1) the convictions' interference with the applicants' right to free expression was "prescribed by law" because they "were only convicted in respect of material shared through TPB which was protected by copyright in accordance with the Copyright Act"; and (2) "the convictions and damages awarded pursued the legitimate aim of 'protection of the rights of others' and 'prevention of crime' within the meaning of Article 10 § 2" because "the interference pursued the legitimate aim of protecting the plaintiffs’ copyright to the material in question."
With respect to the third element, whether the interference was "necessary in a democratic society,"
the Court first applied a requirement from its previous decisions that it "determine whether the interference complained of corresponded to a 'pressing social need'." That analysis required the Court to examine "various factors, such as the nature of the competing interests involved and the degree to which those interests require protection in the circumstances of the case." In this case, the Court observed, it had "to weigh, on the one hand, the interest of the applicants to facilitate the sharing of the information in question and, on the other, the interest in protecting the rights of the copyright-holders." With regard to the copyright-holders' interests, the Court explicitly recognized that Sweden "had to balance two competing interests which were both protected by the Convention," a situation in which " the State benefits from a wide margin of appreciation [i.e., discretion or deference]." Moreover, the Court found that margin of appreciation to be "particularly wide" in view of "the nature of the information at hand, and the balancing interest mentioned above."
The Court further found that "[s]ince the Swedish authorities were under an obligation to protect the plaintiffs’ property rights in accordance with the Copyright Act and the Convention, . . . there were weighty reasons for the restriction of the applicants’ freedom of expression. Moreover, the Swedish courts advanced relevant and sufficient reasons to consider that the applicants’ activities within the commercially run TPB amounted to criminal conduct requiring appropriate punishment. In this respect, the Court reiterates that the applicants were only convicted for materials which were copyright-protected." Finally, the Court took into account the nature and severity of the penalties imposed in assessing the proportionality of interference with Article 10 freedom of expression, and concluded that the sentences "cannot be considered as disproportionate." Finally, it found that with regard to all of the circumstances of the case, that the interference was “necessary in a democratic society” within the meaning of Article 10 § 2.
Accordingly, under the terms of Article 35 of the Convention, which sets forth the the admissibility criteria for applications to the Court, the Court unanimously declared that "the application must be rejected as manifestly ill-founded . . . ." (This latter statement merely refers to a specific criterion in Article 35 for admissibility, and should not necessarily be taken as a comment on the merits of the applicants' argument.) Future legal avenues for Neij and Kolmisoppi presumably do not involve decamping to North Korea, as TPB recently suggested (in a hoax) it would for part of its filter operations.
€5 million.
Because both applicants were convicted under the Copyright Act for complicity to commit crimes in violation of the Copyright Act, both of them argued to the European Court that under Article 10 of the Convention -- which grants to everyone the right to freedom of expression -- "their right to receive and impart information had been violated when they were convicted for other persons’ use of TPB." According to the European Court, the applicants asserted that Article 10 "enshrines the right to offer an automatic service of transferring unprotected material between users, according to basic principles of communication on Internet, and within the information society. In their view, Article 10 of the Convention protects the right to arrange a service on the Internet which can be used for both legal and illegal purposes, without the persons responsible for the service being convicted for acts committed by the people using the service."
In response, the Court first noted that section 1 of Article 10 "guarantees the right to impart information and the right of the public to receive it" to "everyone," whether or not the aim is profit-making, and applies "not only to the content of the information but also to the means of transmission or reception." But section 2 of Article 10 further states, in pertinent part, that the exercise of freedom of expression "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of . . .crime, [and] for the protection of the . . . rights of others . . . ."
In its analysis, the Court first concluded that "the applicants’ convictions interfered with their right to freedom of expression. Such interference breaches Article 10 unless it was 'prescribed by law', pursued one or more of the legitimate aims referred to in Article 10 § 2 and was 'necessary in a democratic society' to attain such aim or aims." The Court then briefly addressed the first two standards. It held that (1) the convictions' interference with the applicants' right to free expression was "prescribed by law" because they "were only convicted in respect of material shared through TPB which was protected by copyright in accordance with the Copyright Act"; and (2) "the convictions and damages awarded pursued the legitimate aim of 'protection of the rights of others' and 'prevention of crime' within the meaning of Article 10 § 2" because "the interference pursued the legitimate aim of protecting the plaintiffs’ copyright to the material in question."
With respect to the third element, whether the interference was "necessary in a democratic society,"
the Court first applied a requirement from its previous decisions that it "determine whether the interference complained of corresponded to a 'pressing social need'." That analysis required the Court to examine "various factors, such as the nature of the competing interests involved and the degree to which those interests require protection in the circumstances of the case." In this case, the Court observed, it had "to weigh, on the one hand, the interest of the applicants to facilitate the sharing of the information in question and, on the other, the interest in protecting the rights of the copyright-holders." With regard to the copyright-holders' interests, the Court explicitly recognized that Sweden "had to balance two competing interests which were both protected by the Convention," a situation in which " the State benefits from a wide margin of appreciation [i.e., discretion or deference]." Moreover, the Court found that margin of appreciation to be "particularly wide" in view of "the nature of the information at hand, and the balancing interest mentioned above."
The Court further found that "[s]ince the Swedish authorities were under an obligation to protect the plaintiffs’ property rights in accordance with the Copyright Act and the Convention, . . . there were weighty reasons for the restriction of the applicants’ freedom of expression. Moreover, the Swedish courts advanced relevant and sufficient reasons to consider that the applicants’ activities within the commercially run TPB amounted to criminal conduct requiring appropriate punishment. In this respect, the Court reiterates that the applicants were only convicted for materials which were copyright-protected." Finally, the Court took into account the nature and severity of the penalties imposed in assessing the proportionality of interference with Article 10 freedom of expression, and concluded that the sentences "cannot be considered as disproportionate." Finally, it found that with regard to all of the circumstances of the case, that the interference was “necessary in a democratic society” within the meaning of Article 10 § 2.
Accordingly, under the terms of Article 35 of the Convention, which sets forth the the admissibility criteria for applications to the Court, the Court unanimously declared that "the application must be rejected as manifestly ill-founded . . . ." (This latter statement merely refers to a specific criterion in Article 35 for admissibility, and should not necessarily be taken as a comment on the merits of the applicants' argument.) Future legal avenues for Neij and Kolmisoppi presumably do not involve decamping to North Korea, as TPB recently suggested (in a hoax) it would for part of its filter operations.
Thursday, March 21, 2013
Ashley Deeks on Cyberretaliation
Although there's something amusingly recursive about a blogger blogging about another blogger's posting about yet another blogger (okay, not just a blogger but a law professor), Joshua Keating's War of Ideas at ForeignPolicy.com recently posted a useful summary of views by Professor Ashley Deeks of the University of Virginia Law School about cyberretaliation. In the rapidly expanding field of legal scholarship about cyberwarfare and the still-nebulous concept of "cyberterrorism," Deeks cogently argues that when a state seeks to respond to a cyber attack, or more conventional armed attack, that responding state may only take action against a non-state actor in the territory of the state from which the attack emanated if it has the consent of the latter state or if it determines that the latter state is "unwilling or unable" to suppress the threat posed by the non-state actor. Two of her articles touching on these issues can be found on ASIL Insights and International Law Studies (via SSRN).
Subscribe to:
Comments (Atom)