CyberLaw Blog

Archive for October 29th, 2008

[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.)

Bigger databases increase risks, says watchdog

The proliferation of ever larger centralised databases is increasing the risk of people’s personal data being lost or abused, the government’s official privacy watchdog claims today.

The warning from the information commissioner, Richard Thomas, comes as he discloses that reported data losses have soared in the past year.

The number of data breaches – including lost laptops and memory sticks containing sensitive personal records – reported to him has risen to 277 since the loss of 25 million child benefit records was disclosed nearly a year ago.

The new figures show that the information commissioner has recently launched investigations into 30 of the most serious cases. The 277 breaches include 80 reported by the private sector, 75 within the NHS and other health bodies, 28 reported by central government, 26 by local authorities and 47 by the rest of the public sector.

‘It is alarming that despite high-profile data losses, the threat of enforcement action, a plethora of reports on data handling and clear information commission guidance, the flow of data breaches and sloppy information handling continues,’ Thomas says in a speech today.

His warning follows an admission yesterday by the home secretary, Jacqui Smith, that the technical work on creating a giant centralised database of all email, text, phone and web traffic will go ahead despite the fact that ministers have decided to delay the legislation needed to set it up and instead put the proposal out to consultation.

The information commissioner says that data losses have already led to fake credit card transactions, witnesses at risk of physical harm or intimidation, offenders at risk from vigilantes, falsified land registry records and mortgage fraud: ‘Addresses of service personnel, police and prison officers and battered women have also been exposed. Sometimes lives may be at risk.’

Thomas acknowledges that the rise in the number of breaches reported to him may be because of improved checks and audits as a welcome result of organisations taking data security more seriously.

He says: ‘More laptops have been encrypted and thousands of staff have been trained. But the number of breaches notified to us must still be well short of the total. How many PCs and laptops are junked with live data? How many staff do not tell their managers when they have lost a memory stick, laptop or disk?’

The information commissioner warns that as new technology is harnessed to collect vast amounts of personal information, the risks of it being abused increase: ‘It is time for the penny to drop. The more databases that are set up and the more information exchanged from one place to another, the greater the risk of something going wrong.

‘The more you centralise data collection, the greater the risk of multiple records going missing or wrong decisions about real people being made.’

His warning follows an admission yesterday by Jacqui Smith that the technical work on creating a giant centralised database of all email, text, phone and web traffic will go ahead, despite the fact that ministers have decided to delay the legislation needed to set it up and instead put the proposal out to consultation.

The home secretary yesterday defended the idea of a huge new database when she appeared before parliament’s human rights committee, telling MPs and peers that 95% of security and organised crime investigations since 2004 had made considerable use of communications data. ‘It is fundamentally important to ensure that convictions are secured. We face a fundamental change in the way that technology is going in relationship to communications data,’ she said, arguing that without such a database, one of the most important tools for law enforcement agencies was likely to be eroded.

Her insistence that the technical work in Whitehall – known as the interception modernisation programme – will continue while consultation takes place on the project next year follows criticism from the director of public prosecutions, Sir Ken Macdonald, who warned that the government was in danger of ‘breaking the back of freedom’ by the relentless pressure of a security state.

The home secretary refused to respond to the DPP’s criticism yesterday, apart from observing that he had not made such comments in cross-government talks on the project

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

Thirty organisations are under ICO investigation over data breaches: “The UK’s privacy watchdog the Information Commissioner’s Office (ICO) is currently pursuing 30 investigations into serious data security breaches, it said. In the past year 227 breaches have been reported to it.”

(Via OUT-LAW News.)

Liberty: Observer story takes liberties: “

Newspaper conjures data endorsement for mobile operators

Updated The civil rights group Liberty has rubbished a newspaper report that it has been approached by several UK mobile operators in an attempt to win its public support for their data protection policies. If such an approach had been made it would have been rejected on principle, Liberty told The Register.…

“

(Via The Register – Comms.)

Illegal immigrant caught with pirate and porn DVDs – WalesOnline

Oct 23 2008 by Gary Marsh, Cynon Valley Leader

AN illegal immigrant who admitted being in possession of nearly 1,000 pirate films and pornography has been jailed.

Zhong Mei Teng admitted more than 12 charges put to him by Rhondda Cynon Taf and Cardiff Trading Standards following a number of searches of his address and person during the last year. Teng said he intended to sell to raise money for his children in China.

After admitting the offences at Cardiff Crown Court this month, he was jailed for a total of 12 months. The judge also recommended he be deported at the end of his sentence because he is in the UK illegally.
(more…)

Why your boss should never be your Facebook friend: “How one Sydney worker’s claim of illness was undone by his Facebook update”

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

New laws on porn ‘will criminalise thousands’, according to opponents of proposed legislation

Perhaps it was the bondage trousers his mother was so famous for creating in the 1970s but photographer Ben Westwood has made a career of depicting what some might see as the more explicit end of soft pornography.

Now he is moving onto the political frontline by spearheading a campaign against anti-pornography legislation that is due to come into force some time next year. He believes it will make possession of his own photography and other art illegal.

Westwood, 45, eldest son of fashion designer Vivienne and her first husband, Derek Westwood, has joined the campaign Caan – the Consenting Adults Action Network – which claims he is the first of several artists and celebrities planning to lend their names to the battle to overturn section 63 of the Criminal Justice and Immigration Act 2008, which gained royal assent earlier this year. It was intended to target people who view illegal hardcore pornography websites. Under the new rules, criminal responsibility shifts from the producer – who is already responsible under the 1959 Obscene Publications Act – to the consumer. It makes it illegal to have pornographic material that depicts necrophilia, bestiality or violence that looks life-threatening or likely to result in serious injury to the breasts or genitals.

Campaigners fear the new law will criminalise thousands of people who use violent pornographic images as part of consensual sexual relationships. ‘They say this is about violence but it’s distinctly about sex,’ said Westwood. ‘I feel the stick is always pointed at pornography as this terrible corrupting influence, this idea that it makes people do things that they wouldn’t have done otherwise.

‘My work has always been a campaign against that view. Now I find that someone is deciding to make owning my work a criminal offence. I don’t think there should be laws, any laws, about sexuality. There are plenty of laws against physically damaging a person.’

Westwood’s book of fetish-themed photography, F**K Fashion, published in 2005, contains images of women bound and gagged. ‘The women are all beautiful consenting models,’ said Westwood. ‘Effectively, anyone who has a copy of my book could soon find they are breaking the law.’

The law means artists such as the Chapman brothers and Tracey Emin could find their work falling foul of the law. The Home Office insists the act is meant to target only internet porn.

The outlawing of ‘extreme pornography’ was itself the result of a three-year campaign by Liz Longhurst and MP Martin Salter who collected 50,000 signatures on a petition and won backing from police and the Home Office. Longhurst’s 31-year-old daughter, Jane, was brutally murdered in 2003 by Graham Coutts, who had been viewing extreme pornographic sites depicting scenes of strangulation and faked murder and rape before he killed. He was jailed for at least 26 years.

Mrs Longhurst has said she is aware that many people see her as ‘a horrible killjoy’ but believes that if Coutts, who was referred to a psychiatrist as a teenager because of his murderous fantasies, had not had access to the porn sites her daughter would still be alive.

Salter said the ban was not a moral crusade but just plugging a legal loophole. ‘This is not widening the law on anything that isn’t already illegal, these sites are illegal but we can’t block them because they take place in cyberspace, outwith the UK,’ he said. ‘People like Westwood need to understand we are not being prudish, we are not ratcheting up any bans on porn, just extending the law to cover people using it and trying to reduce the market for this stuff. No one is trying to stop consenting adults doing whatever they want in the bedroom.’

One of the sites used by Coutts is still available and another has simply changed its name after a campaign by the Mail of Sunday to close it down

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

Call for clampdown on rogue online ticket sellers

Ticketing websites have called on the government to crack down on rogue online operators after a spate of high-profile examples of consumers being ripped off.

Andy Burnham, the culture secretary, is believed to be close to launching an industry consultation based around proposals first floated this year in response to concerns about the booming online market in tickets for concerts and sporting events.

Last week, a website called Paperticket became the latest in a string of sites to be shut down by police after complaints from consumers who had paid for tickets for gigs by artists including Kings Of Leon, Barry Manilow and the Killers but had not received them.

The Department for Culture, Media and Sport is keen to draw a distinction between illegal activity and the resale of tickets by genuine fans who cannot attend an event. It believes there is little appetite for an outright ban on reselling tickets, despite Burnham saying this year that it ‘leeches off’ the UK’s cultural life. Instead, it is ready to press ahead with plans for a ‘crown jewels’ list of events for which resale will be banned.

A large industry has developed in offering consumers the ability to resell tickets, with sites such as eBay competing with dedicated offerings such as Viagogo and Seatwave. Most now offer an element of protection to buyers.

Meanwhile, the line between touts and fans has become blurred, with it becoming commonplace for some people to buy a few extra tickets and sell them online in the hope of funding their own purchase.

The Association of Secondary Ticket Agents (Asta), a body that speaks for about 50 mostly traditional agencies that have also moved online, is calling for a kitemark scheme that would reassure consumers.

‘The government’s failure to endorse a kitemarking scheme means the consumer has no way of identifying legitimate traders, leaving them open to exploitation,’ said Asta chairman Graham Burns. ‘We would urge consumers only to buy tickets on the internet from accredited suppliers or legitimate ticket brokers who have signed up to the Asta code of conduct.’

But some of the biggest operators, including Seatwave, have not signed up to the Asta plans, preferring to offer their own indemnity schemes. Most sporting authorities continue to favour an outright ban, while artists including Robbie Williams and the Verve proposed a system whereby they would receive a cut of the proceeds of tickets that are resold.

Both are now seen as unlikely. The government’s ‘crown jewels’ list is likely to be based on the existing list of sporting events of national importance that are reserved for free-to-air television, including the rugby and cricket world cups, the Grand National and Wimbledon. Provision for big one-off concerts such as the Nelson Mandela concert in Hyde Park last summer could also be included.

But some websites, including eBay, are to lobby against even these events being banned from resale. They will say that consumers who have bought tickets to any event should have the right to sell them on, and argue that sporting authorities themselves are guilty of restricting supply via their own licensed hospitality agencies or affiliated clubs.

The government is also working with the Society of Ticket Agents and Retailers, which represents so-called ‘primary’ sellers, to draw up a new code of practice in an attempt to allow fair and equal access to tickets.

Trading standards officers are concerned that unscrupulous online operators can easily bring in a lot of money in a short space of time by outbidding rivals on Google keyword searches for gig tickets, so appearing at the top of sponsored rankings. They can then take orders for a high volume of tickets in a short space of time, before disappearing with the money and failing to come up with the goods.

‘One of the biggest problems is that we generally only find out after there’s a problem. We deal with the aftermath. Because they’re web-based, they are hard to track down until it’s too late,’ said Tony Northcott of the Trading Standards Institute, who reported a steady rise in such cases.

‘On the internet, they can be based anywhere in the world. I’ve heard whispers of ticket sites setting up in Dubai and suchlike. Often they’re long gone by the time we’ve tracked them down. Our advice is to be wary and to always pay by credit card.’

Northcott also warned that the London 2012 Olympics would give rise to a new wave of unscrupulous websites.

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