September 4, 2010
Texas AG Investigating Google Search Results
From the New York TImes: The Texas Attorney General is investigating whether Google's search results are "search neutral." In a post on the company's blog, Google explains that
Occasionally, we’re asked about the “fairness” of our search engine -- why do some websites get higher rankings than others? The important thing to remember is that we built Google to provide the most useful, relevant search results and ads for users. In other words, our focus is on users, not websites. Given that not every website can be at the top of the results, or even appear on the first page of our results, it’s unsurprising that some less relevant, lower quality websites will be unhappy with their ranking.
The Texas Attorney General’s office asked for information about a number of companies whose cases have been well publicized.
The post gives further information about its response to the AG's request.
September 2, 2010
Cloud Computing and Data Protection and Security in the EU
We are in the midst of a revolution within computing. It goes under the name of cloud computing. Analysts estimate that in 2012, the size of the enterprise cloud-computing business may reach $60 billion to $80 billion – or about 10% of the global IT-service and enterprise-software market [DeSa09]. Such inevitable revolution brings about a lot of benefits but also several legal concerns. It has emerged from a recent study that security, privacy and legal matters represent the main obstacles that are encountered when implementing cloud computing, because the market provides only marginal assurance. This paper briefly describes the main legal issues related to cloud computing and then focuses on data protection and data security, which are by far the biggest concerns for both cloud service providers (CSPs) and (potential) customers. I build on the work done last year as contributor to the European Networks and Information Security Agency (ENISA) ‘Cloud Computing Risk Assessment’ to further analyse data protection and data security issues. It is worth clarifying that the present paper analyses cloud computing services offered by CSPs to businesses (as opposed to consumers), i.e., B2B cloud computing.
Download the paper from SSRN at the link.
FCC Chair's Remarks On Open Internet Access
“Over the past months we have worked to preserve the freedom and openness of the Internet, based on the conviction that an open Internet is vital to innovation and private investment, competition, and free speech.
“These efforts -- including the dedicated work of FCC staff and participation by a broad range of stakeholders -- have over time changed the terms of a longstanding and acrimonious debate. We have moved from a world of four disputed and unenforceable open Internet principles -- about blocking by broadband providers of lawful online content, applications, and services -- toward the acceptance of six enforceable rules: the original four principles plus the concepts of nondiscrimination and transparency. These would prevent broadband providers from wrongly playing favorites with lawful Internet speech or businesses, and would empower consumers and entrepreneurs with information about broadband choices and networks.
“We have made progress over the last year -- but of course we still have work to do. Today, we take the next step.
“Recent events have highlighted questions on how open Internet rules should apply to ‘specialized’ services and to mobile broadband -- what framework will guarantee Internet freedom and openness, and maximize private investment and innovation. As we’ve seen, the issues are complex, and the details matter. Even a proposal for enforceable rules can be flawed in its specifics and risk undermining the fundamental goal of preserving the open Internet.
“Accordingly, the FCC’s Wireline and Wireless Bureaus are seeking further public comment on issues related to ‘specialized’ (or ‘managed’) services and mobile broadband. The information received through this inquiry, along with the record developed to date, will help complete our efforts to establish an enforceable framework to preserve Internet freedom and openness.
“As we move forward, the FCC will continue to be vigilant in guarding against threats to Internet freedom. We will be focused on a vision of a ubiquitous and superfast Internet, with flourishing entrepreneurship and vibrant start-ups, and massive private investment in Internet infrastructure, content, and services -- an Internet that is an engine for our economy, and provides a world of knowledge and free speech accessible to all.”
Judge Removes Juror For Facebook Comment; Sentences Her To Write Essay On Sixth Amendment
From the AP: a judge hearing a case of resisting arrest removed a juror in the case for posting a Facebook page on which the juror had written that it was "gonna be fun to tell the defendant they're GUILTY" during the trial. The judge, told by the defense of the existence of the statement, sentenced the former juror to a fine and to write an essay on the importance of the right to a fair trial.
Judge Druzinski told juror Hadley Jons, "You violated your oath. ... You had decided she was already guilty without hearing the other side." Ms. Jons apologized to the court. The defense attorney's son found Ms. Jons' statement on Facebook.
News of the World Staff Alleged To Have Hacked More Than Just Royals' Phones
The Guardian has picked up a New York Times investigative report on allegations of phone hacking and other improper activities linked to Andy Colson, now media advisor to the British Prime Minister, but formerly editor at News of the World. Some of this information has already surfaced, with the trial and conviction of Clive Goodman, former royal editor at the News of the World. But apparently more staff at NOTW may have been involved, and hacking may have extended to more of the elite than just the royal family. The Times' original story here.
September 1, 2010
Information is the lifeblood of a free society, and the professional press is a crucial source of information. For many years, the positive externalities from investigative and beat reporting were cross-subsidized by robust advertising and subscription revenue. Yet the professional press is experiencing a severe economic crisis, and news organizations across the nation are on the brink of insolvency. When an activity that generates positive externalities is undersupplied, the textbook policy response is a government subsidy. Yet if the press becomes financially dependent on the government, would they be deterred from monitoring and criticizing the government? If so, the subsidy would undercut the very social benefits it is meant to preserve.
In response to this conundrum, this Article proposes a three-part analytical framework for evaluating press subsidies. The first step is to assess how effectively the subsidy safeguards press independence, including the extent to which the First Amendment helps to achieve this goal. The second criterion, which this Article calls “focus,” gauges how effectively a subsidy channels resources to externality-generating activities, as opposed to other uses. For example, a subsidy that induces press organizations to hire more reporters is superior to one that can be used, instead, to fund pay raises for the advertising staff or more attractive office space. The third criterion is political plausibility. How likely is a subsidy to attract political support? And how much political support does it need? One that can be implemented under current law, for example, requires less political support than one that depends on broad new legislation.
Based on this framework, the principal recommendation of this Article is for news organizations to make greater use of the nonprofit form. By providing a subsidy through the charitable deduction, we would not empower the government to choose how much funding to allocate to each news organization. Instead, the charitable deduction allows the government to piggyback on the judgments of private donors about which charities to support. In addition, this subsidy is feasible politically since it already can be used, to a significant extent, under current law. This Article also considers four alternative subsidy structures, highlighting their strengths and weaknesses and showing the tradeoffs they present.
The Lawyer On the Net
The Internet allows citizens to comment on public affairs with an amplified and unfiltered voice, creating an open, community-based culture where robust debate flourishes. However, many of the ideals and practices of participatory culture clash with the traditional legal culture as it exists in the United States. This cultural conflict can be seen in emerging narratives, in the form of web blogs and lawyer emails that go “viral,” in which lawyers comment on the lack of humanism within big law firm hiring and firing practices; expose the alienating work environments experienced by low-level contract attorneys; or criticize judges who show hostility toward criminal defense attorneys.
From a critical standpoint, these narratives tell the story of a broken legal profession, implicitly arguing that the liberal humanism that the profession supposedly embodies does not apply to all lawyers. These stories are, in effect, structural critiques of the profession. Nonetheless, these missives have the potential to run afoul of ethical rules and professional norms that prohibit attorneys from impugning the integrity of the judiciary and the legal profession. Because these narratives provide a valuable critique of the profession, however, ethical rules or professional norms should not operate to shut these stories down. As the democratic ideals inherent in participatory culture become more deeply embedded in our society, the legal profession should also evolve and embrace a more pluralistic and unconstrained approach toward professionalism.
Part I of this Article describes the characteristics of participatory culture relevant to the legal profession. Part II explores the emerging format of the online lawyer narrative and Part III analyzes the professionalism issues raised by these new narratives.
Download the paper from SSRN at the link.
Final Report: New Challenges To Data Protection (European Commission Directorate General, Justice)
This is the Final Report of a major study commissioned by the European Commission as a basis for its review of the European data protection regime.
The purpose of the study was to identify the challenges for the protection of personal data produced by current social and technical phenomena such as: the Internet; globalisation; the increasing ubiquity of personal data and personal data collection; the increasing power and capacity of computers and other data-processing devices; special new technologies such as RFID, biometrics, face-recognition,etc.; increased surveillance (and "dataveillance"); and increased uses of personal data for purposes for which they were not originally collected, in particular in relation to national security and the fight against organised crime and terrorism - and to produce a report containing a comparative analysis of the responses that different regulatory and non-regulatory systems (within the EU and outside it) offer to those challenges, and that provides guidance on whether the legal framework of the main EC Directive on data protection (Directive 95/46/EC) still provides appropriate protection or whether amendments should be considered in the light of best solutions identified. This is that report. Douwe Korff was the Team Leader for this study and Ian Brown his fellow core expert. Other experts provided country reports and/or important further advice and greatly contributed to this study. They are: Peter Blume (DK), Chris Hoofnagle (USA), Graham Greenleaf (AUS), Lilian Mitrou (GR) and Filip Pospisil (CR) (experts) and Ross Anderson (UK), Caspar Bowden (UK), Katrin Nyman-Metcalf (EST) and Paul Whitehouse (UK) (advisers).
Download the report from SSRN at the link.
Dow Jones v. Gutnick and the Evolution of Defamation Law
The internet is currently the most versatile medium of communication. It remains true to its heritage having been designed by the US military to withstand a nuclear attack. At conception it was designed to route around censorship and controls. It however, now functions in the civilian world in which laws and regulation are the norm. The Australian High Court attempted to put in place regulations and principles on on-line Defamation in Dow Jones v Gutnick (Gutnick). However the borderless nature of the internet has brought to the fore, the complexities involved in developing internet legal principles. This is in a world still fraught with inherently different legal systems, with one foot placed on globalisation and the other clinging on to sovereignty. A clash between free speech and reputation was the result of Gutnick and a renewed offensive is in the offing. The pertinent question explored in this discourse is whether the defamation principles reiterated and established by the High Court of Australia in Gutnick will survive.
Download the paper from SSRN at the link.
August 31, 2010
The CIA Comes In From the Cold
From the AP: How Leon Panetta interacts with reality TV.