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Archive for the ‘Cyber Law’ Category

Section 230 of the Communications Decency Act of 1996 (CDA) provides immunity for interactive computer service providers that merely publish information provided by another information content provider. Put another way, as long as the computer service provider is not deemed to be the information content provider (i.e. the one responsible for the user-generated content), the immunity under the CDA applies.

A cyber crime is anything that violates any right of any Internet user using the Internet itself. This can be anything from cyber stalking to identity theft to cyber terrorism. Because these crimes have been born, people have also worked to protect themselves. Hence, cyber laws were born. These are laws that aim to control and explain the legal aspect of online crimes. And because these online offenses have been committed on a massive global scale, cyber law is now becoming a fast-expanding field in the legal profession.

Therefore, the question becomes whether the actions are sufficient enough to transform the service provider into a content provider. Most generally believe that one who simply allows for posting of user-generated content qualifies for immunity under the CDA.

If they tell you they don’t have the resources to try to trace the email and identify the sender they are probably right. Unlike CSI on TV not many police departments have a full time computer crimes division and if they do they are probably overwhelmed with cases.

Despite their world rampancy, cyber crimes are still not institutionalized in some countries, hence, no cyber laws are created there nor do any apply. Cyber crimes, if, at all, they are recognized as such, differ from country to country in the way they are dealt with. It is an established fact that though a country may not have specific cyber laws in place, there remains a need for solid policies and guidelines to prevent the unrestricted commission of such violations.

New court decisions are being issued on Section 230 regularly, and it is imperative that website operators understand the scope of their liability as it relates to their use of user-generated content. Generally speaking, the more neutral the website, the more likely the website operator will be deemed a service provider rather than a content provider. However, questions still remain as to what particular requirements or other activity may cause the CDA’s immunity to not apply.  

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Cyberbullying has been a serious problem in this nation for a long time. Missouri has had a well known history of this with the Megan Meier case that occurred in 2006. Not long ago, a ninth grader was arrested under this law when she created a nasty website against another classmate. “She would be better off if she just died” was a comment used on there. The bully has been turned over to the juvenile system. The current law went into affect in August 2008 and has caught others under this law.

It came as no surprise to me to hear that users can lose internet connection if they illegally share files, or even if anyone in their home or organisation has been doing this without their knowledge. A TV documentary months ago showed how filesharing can easily be tracked, and my own internet provider had decided to cut off connection for anybody doing this. I can’t say I minded and in fact I was pleased. The documentary worried my own teenagers and they have since resisted the temptation to download free versions of expensive software from sites their friends were recommending. No more worries about them secretly getting dodgy downloads that could damage the computer.

This is not like a verbal argument where something is said and forgotten. When something is posted online, it is there to stay unless someone removes the post. Children think that by posting these things, nobody will come across them except for their friends and those they know. They never think of the long term affects and the dangers in what this can do to another person. So, is free speech worth it?

I have known a lot of sports gamblers in my lifetime and they all started out small: $5 here and $10 there. Eventually, they run a bad streak and just lose everything because all they need is just 1 win to get everything back. For example, if you lose 10 times in a row (that does happen), you can lose a lot of money. 1st bet: 100, 2nd bet: 200, 3rd bet 300, 4th bet 600, 5th bet 1,200, 6th bet 2,400, 7th bet 4,800, 8th bet 9,600, 9th bet 19,200, 10th bet 38,400. If you started betting just $100 for the first bet and try to get back to even but you lose 10 times in a row that’s a total loss of $76,800. I know what you’re thinking. Who in the world does this? People have done it and I have seen it firsthand. Sports betting is very emotional and sometimes you just don’t use your head, you bet on emotion.

The article accuses Peter Mandelson, who is responsible for the Bill, because it doesn’t include measures to stimulate the digital economy by ‘ensuring that broadband is cheap, fast and neutral’ and also to get ‘Britain’s poorest connected to the net’. It also states that copyright rules shouldn’t get in the way of entrepreneurship and the ‘freedom to create new things’, because schoolchildren should freely be able to use the publicly-funded media such as the main television channels

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Section 230 of the Communications Decency Act of 1996 (CDA) provides immunity for interactive computer service providers that merely publish information provided by another information content provider. Put another way, as long as the computer service provider is not deemed to be the information content provider (i.e. the one responsible for the user-generated content), the immunity under the CDA applies. However, CDA specifically holds that a computer service provider may be liable and not immune if that which is provided by the web host or other ISP makes it “responsible, in whole or in part, for the creation or development of” the offending conduct.

Proponents of this approach claim many benefits, including lower costs, less need for on-site support and “scalability.” “Scalability” means that the number of licenses and available resources can easily be adjusted as the need increases. Access can typically be provided to any computer with a browser and an Internet connection, but can be controlled through password protection and other measures. Proponents also argue that the cloud makes it easier to manage and push down software upgrades. Software as a service is usually provided on a fee for service approach that may result in cost savings compared to the traditional local area network. Think of it as somewhat like renting as opposed to owning.

Cloud computing is not a technology of the future, but is here today. Google, for example, uses this approach to provide its suite of business applications intended to compete with Microsoft Office. Google applications are provided free or at very little cost. Salesforce.com is one of the best known providers, providing customer relationship management (”CRM”) software to a growing list of companies. IBM and Microsoft are also entering the playing field.

However, as shown above by the CDA’s limitation on immunity, participation in the creation or development of that user-generated content may subject the computer service provider to liability. The question, therefore, is: What is the role of the website operator?

Argument in favour of the Claimant

1. That the claimant only relies on the presumption of damage and that he has chosen not to sue the defendant in the US, Saudi Arabia or Switzerland, calling for a more cautious approach by the court.

2. That it is a misconception under English law to presume that because an item is available on the internet a substantial amount of readers have gained access to it.

3. It can be claimed that publication over the Internet has taken place if and only if the material is accessed and downloaded by a third party within the jurisdiction; and only at trial can the claimant assert that a jury would be perverse not to draw such inference.

4. That the issue of the extent of publication of the two items should be left to the jury to decide on the evidence.

Conclusion

A dispute existed between the two parties as to the difference between a presumption and an inference that the words of the items published on the internet were made available to a “substantial but unquantifiable” amount of readers in the UK jurisdiction. For many reasons, the court held that it cannot be immediately accepted under English law that a claimant may rely on a presumption of law that a substantial publication has taken place merely because an item has been published on the Internet.

As businesses and their lawyers become more experienced with cloud computing issues, it is likely that a consensus will emerge as to how cloud computing issues will be addressed. Hopefully, purveyors of cloud computing services will be flexible and reasonable in addressing legitimate business concerns. However, given the prevalence of “standard” licensing in the software field (often on a shrinkwrap or clickwrap basis) and efforts to limit liability under any circumstances, there is some cause for pessimism.

All that said, here is a list of issues that one might wish to consider asking a vendor or otherwise considering in entering into a possible cloud computing arrangement:

• What contractual obligation will you assume to protect my data? This could include reference to particular steps and procedures, including back-up obligations. The contract or license may specify a standard of care that the provider must meet.
• What contractual obligation will you assume regarding uptime, if any? Will you provide any type of uptime warranty? Even if such a warranty is subject to a limited remedy, it probably would provide considerable incentive for the provider to limit downtime.
• Most providers seem savvy enough to disclaim any interest in your data and will freely say — in a sales setting anyway — that “your data is your data.” Well, that’s good, but how do I physically get my data back at the end of the contract or if you go bankrupt?
• What remedy limitations, if any, are in your terms? Are consequential damages excluded? Are total damages capped (such as to a return of fees paid)? Even if contractual obligations are assumed, if remedies are severely limited, the provider may be shielded from liability.
• Where is my data going to be stored? Are you willing to agree that all my data will be kept in this location under specified conditions and at agreed security levels? This could be important for regulatory reasons, but also for reasons associated with meeting general customer confidentiality obligations or complying with privacy policies.
• Have you inserted a forum selection clause into the terms? Many providers want to insist on litigating on their home turf (which often, it seems, is California), but that is rarely a happy instance for a customer.
• How do I get out of this arrangement if you do not perform and what is my exit strategy? What rights do I have upon termination? What obligations do you have to assist in transitioning to a new vendor or back to a self-managed platform?

If you are considering going to the cloud, you should consider involving your business and technology lawyer early in the process. As stated, there are probably many other legal issues that have not even occurred to me. It is clear, however, that lawyers need to begin considering these issues, because cloud computing is clearly not going away

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According to the Washington ost, in August, 2009 the “Obama administration proposed scaling back the ban on how people use government Internet sites with ‘cookies’ and other technologies…”. This ruling would have allowed extensive collection of private information on every government website. Google, however, would have been excluded from being banned from acquiring personal information of the individuals utilizing that particular search engine.

It was later revealed that the government website was having Google YouTube videos, that used tracking cookies, when people tuned in regarding the president’s address and other government activities taking place. Later in 2009, it was reported that this type of tracking had ceased.

The government responded that the ban would only apply to government websites and that third parties, such as Google, would not be effected by this ban. It was stated in a policy review that having cookies would “improve customer service by allowing agencies to analyze how people use their sites…” Supposedly, individuals would be notified of the tracking and allowed to ‘opt’ out, but this has not happened as yet.

Google is well-known for tracking everything that comes over its Internet site, using ‘cookies’. Some sites use IP tracking which can identify where you are. Sites that are included in this are definitive-ip-search.org/18/index.htm. Providers, including Google, keep mobile phone records and that information can be obtained anytime by the government.

Personal phone calls are noted with the number the call originated from, the number called, the date of the call, and additional information. Such information is stored in extensive directories. Unfortunately, it’s not just government officials that can access this information. Practically ANYBODY can access your personal cellphone info!

Under Homeland Security Rules “cookies” can be used when there is a “compelling need to gather the data on a site”. This law can be applicable at any time, to any person, in any place. So, with Uncle Sam (and God knows who ELSE) “watching,” there are certainly plenty of reasons to watch your conduct and guard your personal information while online. In some instances, all it takes is a nosy neighbor alerting the authorities of your “abnormal activities” to allow certain officials to track and monitor your online and telephone activities.

The Office of Management and Budget Report includes this stipulation, quite clearly. The report was completed ten years ago and continues to be in effect. Quite frankly, personal information is “up for grabs,” as little-to-no legislature has been established in recent years to govern and regulate the use of internet cookies to monitor and track online activity.

Basically, our personal rights and certain liberties may actually be falling BEHIND our technology! It may very well be time to take a good hard look at this. Obviously, we want our elected officials to have the means to apprehend lawbreakers and thwart terrorist plots SWIFTLY. When these abilities are abused, however, it’s up to all of US to come together and voice our concerns! Policies that were put in place over 10 years ago need to be reviewed and changed in order to protect the rights of those who use technology.

Recently, with the increasing ubiquity of digital media, there has been a good deal of controversy surrounding the practice of people making rips of this format of media. It started in the 1990s, with the rise of CDs and DVDs, and has now moved to the realm of Gaming]. You can find millions of opinions on the issue, on whether it’s an ethical practice and whether it’s legal. But what does the law actually say?

Well, the law states that you are allowed to make copies for backup purposes, and that no media company, record company, or game maker can prosecute a gamer for doing so. It goes on to say that in order to stay on the right side of the law, a home user cannot make any financial gain from the copy, and cannot make the copies available for download. They really are meant for archival purposes only. And if you make a DVD for these purposes only, you cannot and will not be sued.

Now, this will ruin some people’s day. After all, it seems like every other person online is modding their game consoles. Wii ISO websites are rampant on the interwebs. But keep in mind that if you do choose to download full version games that are pirated, you could potentially be held legally liable.

Now, let’s assume that you do not plan on being like blackbeard and committing piracy. The copyright laws do not say that the record and game companies are required to provide the software that will allow you to backup your games. And it’s a shame. Because if you’re paying $20 in the case of a CD or DVD, or even over $50 in the case of a game, you don’t want to risk having it get scratched or stepped on, and then face losing your money.

For the most part, CDs normally do not have DRM, and can be archived using free tools like Windows Media Player. And DVD and Video Games can quite often be copied using third-party (i.e. not free) tools that can defeat the DRM. Note: the phrase “defeating the encryption or DRM” sounds kind of like it would entail doing something nefarious. However, as long as you are only doing this for archival purposes, it is most certainly legal. You can find some great game backup software at many of the popular Wii ISO Download sites online.