CyberLaw Blog

Archive for October, 2008

Reporters Without Borders

31.10 – Turkey: censorship threat to news website Bianet

(GIF) Lawyers acting for creationist religious leader Adnan Oktar asked the Turkish news website Bianet (www.bianet.org) on 28 October to remove an article about online censorship that was written by two specialists in Internet law, Yaman Akdeniz and Kerem Altiparmak.

‘Oktar now holds the record for suing websites that mention his name,’ Reporters Without Borders. ‘He has already brought 62 lawsuits. We support Bianet’s efforts to resist this absurd censorship.’

Posted on 20 October and entitled ‘Adnan Hodja against the Internet: all the bans contrary to the law,’ the article criticised the legal procedures used against websites and the arbitrary way some of them, especially those sued by Oktar, have been closed. ‘Adnan Hodja’ is one of the names used by Oktar. Akdeniz teaches Internet law at Leeds University, in Britain. Altiparmak teaches law at Ankara University’s political science faculty.

(Via Techdirt.)

Big Guns Come Out In Effort To Show RIAA’s Lawsuits Are Unconstitutional: “People have been submitting this story nonstop, but I wanted to take some time to read the details before commenting on it. It’s not the first time that folks have argued that the damages sought by the RIAA in various lawsuits against file sharers are unconstitutional. However, the few times it’s been brought up in court, the arguments haven’t been persuasive. However, this time around, it looks like the big legal guns are getting involved, and the argument seems a lot more comprehensive and compelling.

In the past, it’s been noted that the RIAA has curiously avoided suing any Harvard students, with one of the theories being that Harvard had made it quite clear to the RIAA that it would fight back hard. And, with Harvard law school at its disposal, and various professors there indicating that they had serious legal problems with the RIAA’s strategy, the RIAA simply decided to ignore any file sharing going on at that prestigious university.

However, for RIAA critic and well known law professor, Charles Nesson, waiting around for the RIAA to sue someone at Harvard was getting boring, so he went out and found a case to participate in. Along with two third year law students, Nesson has hit back hard on the RIAA’s efforts in a court filing, where it’s noted that the very basis for many of the RIAA’s lawsuits is very likely unconstitutional.

He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called ‘theft’ in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That’s because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines:

Imagine a statute which, in the name of
deterrence, provides for a $750 fine for each mile-per-hour that
a driver exceeds the speed limit, with the fine escalating to
$150,000 per mile over the limit if the driver knew he or she
was speeding. Imagine that the fines are not publicized, and
most drivers do not know they exist. Imagine that enforcement of
the fines is put in the hands of a private, self-interested
police force, that has no political accountability, that can
pursue any defendant it chooses at its own whim, that can accept
or reject payoffs in exchange for not prosecuting the tickets,
and that pockets for itself all payoffs and fines. Imagine that
a significant percentage of these fines were never contested,
regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of
whether they can prevail in front of an objective judicial body.

Beyond just questioning the constitutionality of the law, Nesson argues that the court ought to punish the RIAA for its abuses of the law.

This Court should exercise its inherent power to allow
background image redress to Joel Tenenbaum for Plaintiffs’ abuse of law and
federal civil court process. As detailed throughout this brief,
Plaintiffs are using any and all available avenues of federal
process to pursue grossly disproportionate — and
unconstitutional — punitive damages in the name of making an
example of him to an entire generation of students.
The case at hand warrants the use of inherent federal power
not just because of what Plaintiffs are doing to Joel Tenenbaum
in this Court, but because of the manner in which Plaintiffs are
abusing the federal courts all across the country. Plaintiffs
have pursued over 30,000 individuals in the same way they have
pursued Joel….
For these 30,000
individuals, Plaintiffs have wielded federal process as a
bludgeon, threatening legal action to such an extent that
settlement remains the only viable option. Joel Tenenbaum is
unique in his insistence, in the face of it all, on having his
day in court. The federal courts have an inherent interest in
deciding whether they will continue being used as the bludgeon
in RIAA’s campaign of sacrificing individuals in this way.

The filing goes on to describe in rather great detail just how this is an abuse of the law and the courts, noting that it is a ‘perversion of lawfully initiated process to illegitimate ends,’ and citing the case law that suggests such behavior should be punished by the courts: ‘One who uses a
legal process … against another primarily to accomplish a
purpose for which it is not designed, is subject to liability to
the other for harm caused by the abuse of process.’

And this is where it gets good.

To prove the abuse of the process, the filing uses the RIAA’s own words against it. First, the writers note (and cite the relevant cases) that even if there is a ‘proper purpose’ behind the filing, it’s an abuse of process if the primary purpose in filing the lawsuit is different than the ‘proper purpose’ behind the lawsuit. And, then the authors point to multiple sources where the RIAA noted that the reason it was filing these lawsuits was not to punish these particular individuals for file sharing, but as part of its ‘deterrence’ educational program. From deterrence, Nesson shows how it’s actually used as more of a bludgeon to get students to settle, which is clearly not the ‘proper purpose’ of the law:

In essence, Plaintiffs are using the prosecution of Joel
Tenenbaum to extort other accused infringers: the accused are
told to either pay the settlement, or else be exposed to the
protracted litigation and potentially astronomical damages that
Joel now faces. See Milford Power Ltd. Partnership by Milford
Power Associates Inc. v. New England, 918 F.Supp. 471 (D. Mass.
1996) (holding that ‘the essence of the tort of abuse of process
is the use of process as a threat to coerce or extort some
collateral advantage not properly involved in the proceeding’).
The intimidation tactics are working: of the 30,000 accusations
the RIAA has leveled against individuals, only a single
defendant has made her case in front of a judge and jury… (that sole defendant is now awaiting a
new trial).

The RIAA intimidates and steamrolls accused infringers into
settling before they have their day in court and before the
courts can weigh the merits of their defenses. The inherent
dangers in allowing a single interest group, desperate in the
face of technological change, led by a voracious, cohesive,
extraordinarily well-funded and deeply experienced legal team
doing battle with pro se defendants, armed with a statute
written by them and lobbied and quietly passed through a
compliant congress, to march defendants through the federal
courts to make examples out of them should lead this Court to
say ’stop.’

This case is going to be worth watching closely. It looks like the RIAA failed in its efforts to tiptoe around the legal bees’ nest of Harvard Law.

Data Protection the DVLA Way: “

Just don’t ask awkward questions

Don’t mess with the DVLA, or bad things might happen to your data.…

“

(Via The Register – Public Sector.)

ECJ says websites need phone numbers or web forms: “Companies have to provide a means of contact on their websites in addition to their postal and email addresses, the European Court of Justice has ruled. A telephone number, or a contact form that is answered within 60 minutes, were deemed acceptable.”

(Via OUT-LAW News.)

EU privacy chiefs update rules for overseas data transfers: “The European Union’s data protection authorities have published amended guidance on how companies can legally share customer and staff personal data with parts of the firm located outside the European Union.”

(Via OUT-LAW News.)

BBC News: Games firms ‘catching’ non-gamers

Games firms are accusing innocent people of file-sharing as they crack down on pirates, a Which? Computing investigation has claimed. The magazine was contacted by Gill and Ken Murdoch, from Scotland, who had been accused of sharing the game Race07 by makers Atari. The couple told Which they had never played a computer game in their lives. The case was dropped, but Which estimates that hundreds of others are in a similar situation.

(more…)

Turkey tightens controls on Internet speech | csmonitor.com: “Turkey tightens controls on Internet speech
The country’s courts and governments have banned 850 websites this year, including YouTube and Blogger.
By Yigal Schleifer | Correspondent of The Christian Science Monitor

from the October 30, 2008 edition”

Istanbul, Turkey – For pioneering Turkish blogger Erkan Saka, these are dark days. Last week, he found himself cut off from a group of blogs that he belongs to and from hundreds of other websites he regularly reads.

A Turkish court had just banned Blogger, the popular blog-hosting site owned by Google, because of illegal material found on a few sites on its servers. It was just the latest among hundreds of sites banned by Turkey’s courts and government this year, raising concerns about censorship in a country with an already troubling record on freedom of speech.

(more…)

[Blog entry by Yaman Akdeniz] Interesting story developing in Turkey right now. If you would recall Adnan Oktar (Adnan Hodja) is the Turkish creationist who is behind almost 61 blocking orders issued by the courts in Turkey to popular websites including wordpress.com, richarddawkins.net, egitimsen.org.tr, groups.google and gazetevatan.com.

As you will read below, this time he threatened to take legal action against Bianet, an independent progressive media site which published an article (in Turkish) that was drafted by myself and Kerem Altiparmak. We basically argued in the article that with regards to private law matters such as claims for defamation, and privacy invasions, the notice & takedown, and right to reply provisions of article 9 of Law No. 5651 should be followed. We explained in the article that unlike article 8 of Law No. 5651 (which is used for blocking access to websites in Turkey), article 9 does not contain “blocking” measures. The Turkish Parliament decided to provide the “blocking measures” with regards to the catalogue crimes listed in article 8 only. Therefore, since the Law No. 5651 came into force, and based on the lex specialis derogat generali doctrine, it is unlawful for the courts, or public prosecutors which are empowered to decide on claims with regards to private law matters to issue “blocking orders” or precautionary injunctions. Currently, the specific governing law is Law No. 5651 and article 9 provisions are not overridden by laws which govern general matters within the Turkish law.

Furthermore, article 8 and article 9 provisions are clearly distinct from each other. While article 8 regulates serious content crimes committed on websites located both in and outside the Turkish jurisdiction, and provides blocking measures, article 9 regulates private law disputes between individuals and involves notice & takedown and right to reply provisions. The exclusion of blocking measures from article 9 shows that the main concern of the legislators was the tackling of the serious crimes listed in article 8 and blocking is not provided as a preventative measure for the less serious private law disputes.

Going back to the legal threat, obviously we have not “defamed” anyone including Oktar in the article. His lawyers are not happy about the views put forward including the criticism of the courts who have been issuing the blocking orders. They therefore thought it is best to get rid of our “views” completely. However, Bianet, which should be applauded for taking the risk of being blocked and taken to the court in Turkey stands by the decision to publish the article at http://www.bianet.org/bianet/kategori/bianet/110319/internete-karsi-adnan-hoca-tum-kapatmalar-hukuka-aykiri

The threats are not substantiated and will not lead into the article being removed from Bianet’s website nor from privacy.cyber-rights.org.tr. Currently thanks to the anti-censorship movement SansureSansur’s the article is being spread on a considerable number of Turkish blogs like a virus!

A detailed assessment of the Turkish approaches to Internet content regulation will be provided in an 80 page long report entitled Restricted Access: A Critical Assessment of Internet Content Regulation and Censorship in Turkey written by Dr. Yaman Akdeniz and Dr. Kerem Altiparmak. This bi-lingual (English/Turkish) report will be published during November 2008 and will be made available as a PDF file through cyberlaw.org.uk and cyber-rights.org.tr pages.

One to show your boss? Facebook at work ‘is not a time-waster’: “Companies should not dismiss social networking sites such as Facebook and Bebo as merely time-wasting, says a study.”

(Via BBC News.)

Official fined for leaving al-Qaida papers on train

A senior Whitehall official who left highly classified intelligence documents about al-Qaida and the capabilities of the Iraqi security forces on a train was fined £2,500 yesterday by Westminster magistrates court after admitting negligence.

Richard Jackson, 37, of Yateley, Hampshire, who had been seconded from the Ministry of Defence to the Cabinet Office, was charged under a section of the Official Secrets Act covering the safeguarding of information. It is the first prosecution of its kind and it had been assumed in Whitehall he would be disciplined by internal procedures rather than charged under the criminal law. The court heard he had already taken a ‘drastic’ pay cut and effectively been demoted by three grades.

The two joint intelligence committee documents were left on a London Waterloo to Surrey train on June 10.

They were found inside an orange cardboard envelope on a train by a member of the public who passed them to the BBC’s security correspondent, Frank Gardner. He subsequently reported the loss. A damage assessment carried out by the Cabinet Office found the loss had the ‘potential to damage national security and the UK’s international relationships but to date this appears negligible’, the court heard.

District judge Timothy Workman said: ‘Had there been real risks to national security a custodial sentence, possibly suspended, would have been inevitable.’ He said he had taken into account Jackson’s good character, remorse, full cooperation and guilty plea. ‘I am conscious that he has already paid a heavy penalty, a significant reduction in income and damage to his own and his family’s health,’ the judge said.

Jackson, who had a previous warning for not locking secret files in his safe, had accidentally picked up the files with some other papers as he left the office on June 9 and did not realise he had them until he was almost home, the court heard.

As he returned them to the office the next morning he put the folder on the train seat beside him, then got off at Waterloo without them. By the time he realised he had forgotten them the train was already on its way to Woking. He then spent the day frantically visiting lost property offices in the hope of recovering the files.

Neil Saunders, defending, said his client accepted his mistake but ‘there was never any risk to any lives whatsoever’. He said: ‘He was under extreme pressure at this time and it may well be partly because of his own role, the team he was leading and the work he was being asked to conduct that he has made this gross error of judgment.’

Deborah Walsh, prosecuting, said Jackson, who has been sent back to the MoD, did not report the loss of the files until the next day as his superiors were abroad. She added: ‘There’s ample evidence that Mr Jackson failed to take such care to prevent the unauthorised disclosure of the documents as somebody in his position may reasonably be expected to take.’

One of the documents was a seven-page assessment on al-Qaida. The other was described by Gardner at the time as a ‘top-secret and in some cases damning’ assessment of Iraq’s security forces.

Jackson had permission to take the documents out of the office as long as sufficient security was provided, meaning a locked box, Whitehall officials said.

(Via Latest news, sport, business, comment and reviews from the Guardian | guardian.co.uk.)