Quotulatiousness

July 5, 2014

Did Rolf Harris face a kangaroo court?

Filed under: Britain, Law, Media — Tags: , , , , — Nicholas @ 09:59

I didn’t follow this particular case (or any of the recent British witch-hunting expeditions against former celebrities), but this post makes it seem as if at least some of the charges Harris was convicted of were remarkably flimsy:

Rolf Harris has been convicted and for many that is conclusive proof of his guilt. However, we should not forget that the British justice system is not perfect, it can make errors, as these high profile miscarriages of justice show.

I do not know if Rolf Harris committed the crimes he was accused of. However, I find the fact that he was convicted, based on the evidence reported by the BBC, alarming.

Let me explain why:

    COUNT ONE – VERDICT: GUILTY

    “The woman said she was aged seven or eight when she queued to get an autograph from Harris at a community centre in Hampshire in 1968 or 1969. When she reached the front of the queue, Harris had touched her inappropriately with his “big hairy hands”, she told the jury.

    The court heard that no evidence could be found that Mr Harris had been at the community centre. He also showed his hands to the jury and denied they were hairy.”

When they say that no evidence could be found that Mr Harris had been at the community centre, they don’t mean a cursory glance turned nothing up. They searched local newspaper archives between January 1967 and May 1974, council records and even conducted letter drops appealing for witnesses. Nothing, not a single piece of independent evidence that he was ever there!

It is hard to see how the uncorroborated recollection of an event alleged to have happened 45 years ago, when the witness was eight, can constitute proof beyond reasonable doubt.

On another count of which Harris has been found guilty by the court:

So the accuser couldn’t remember when it happened (or how old she was), she couldn’t remember where it happened and yet the jury found her 36 year old memory of the indecent assault to be evidence beyond a reasonable doubt!

When we talk about the indecent assault we are not talking about something so traumatic, like rape, that it would understandably be burned into her memory. We are talking about a 17 year old having her bottom touched in the 1970′s, a time where bottom pinching was considered mainstream enough for popular TV shows such as Are You Being Served and on billboards for respectable brands such as Fiat.

Again, nobody who wasn’t there can be sure what Rolf Harris did or didn’t do in this case, but I know that there is an £11m incentive for people to make up accusations and without any corroborating evidence there has to be a reasonable doubt in favour of the accused.

I have no idea whether Harris is actually guilty of the accusations, but I’m astonished a court could convict based on such flimsy evidence. Clearly, at least in high profile media-related cases, the presumption of innocence has been replaced by a presumption of guilt.

July 2, 2014

EU publishers want a totally different online model for content – where they can monetize everything

Filed under: Business, Europe, Law, Media — Tags: , , — Nicholas @ 10:19

Glyn Moody reports on the passionate desire of EU publishing organizations to get rid of as much free content as possible and replace it with an explicit licensing regime (with them holding all the rights, of course):

For too many years, the copyright industries fought hard against the changes being wrought by the rise of the Internet and the epochal shift from analog to digital. Somewhat belatedly, most of those working in these sectors have finally accepted that this is not a passing phase, but a new world that requires new thinking in their businesses, as in many other spheres. A recent attempt to codify that thinking can be found in a publication from the European Publishers Council (EPC). “Copyright Enabled on the Network” (pdf) — subtitled “From vision to reality: Copyright, technology and practical solutions enabling the media & publishing ecosystem” — that is refreshingly honest about the group’s aims:

    Since 1991, Members [of the EPC] have worked to review the impact of proposed European legislation on the press, and then express an opinion to legislators, politicians and opinion-formers with a view to influencing the content of final regulations. The objective has always been to encourage good law-making for the media industry.

The new report is part of that, and is equally frank about what lies at the heart of the EPC’s vision — licensing:

    A thread which runs through this paper is the proliferation of ‘direct to user’ licensing by publishers and other rights owners. Powered by ubiquitous data standards, to identify works and those who have rights in those works, licensing will continue to innovate exponentially so that eventually the cost of serving a licence is close to zero. The role of technology is to make this process seamless and effective from the user’s perspective, whether that user is the end consumer or another party in the digital content supply chain.

[…] the EPS vision includes being able to pin down every single “granular” part of a mash-up, so that the rights can be checked and — of course — licensed. Call it the NSA approach to copyright: total control through total surveillance.

Last year, when the National Post started demanding a paid license to quote any part of their articles (including stories they picked up from other sources), I stopped linking to their site. I suspect most Canadian bloggers did the same, as I see very few links to the newspaper now compared to before the change in their policy. It worked from their point of view: I’m certainly not sending any traffic to their site now, and there was never a chance of me being able to afford their $150 per 100 word licensing rate. Win-win, I guess. The EPS is hoping to avoid that scenario playing out in Europe by mandating that all content use the same kind of licensing, backed up by the power of the courts (and the kind of pervasive surveillance tactics the NSA and its Anglosphere partners have honed to a very fine edge).

“Fixing” soccer games for fun and profit

Filed under: Business, Law, Soccer — Tags: , , , , , — Nicholas @ 08:49

Bill Barnwell discusses what we know (or what we’ve been told) about corruption in soccer matches all the way from Finland to Cameroon to the current World Cup fixtures in Brazil:

Late Monday night, FIFA’s worst nightmare began to break. The Cameroon Football Federation sent out an urgent press release announcing that they were investigating claims that several of Cameroon’s recent matches were fixed, most notably the country’s 4-0 loss to Croatia during the group stage of the World Cup. The allegations come from a story in German newspaper Der Spiegel, which reported that notable alleged Singaporean match fixer Wilson Raj Perumal told the paper in a pre-match Facebook chat that the African side would have a player sent off in the first half before losing 4-0. Both would later occur in the match. Perumal further alleged that the Cameroon team had “seven bad apples” and has been involved, to some extent, with fixing all three of its group stage matches before exiting the tournament.

Perumal has since issued a statement, via the co-authors of his biography, denying that he predicted the result.

Of course, allegations of fixed soccer matches aren’t anything new. What makes this so shocking and so meaningful is the idea that a World Cup match was fixed. It’s one thing for some third-division match under a rock in front of 40 people to be rigged. If a World Cup match can be manipulated with the globe watching, though, is there any match that can’t be fixed?

[…]

Perumal and an associate eventually found their way to Scandinavia, where they would fix matches at a number of clubs in Finland. Most notably, Perumal offered to invest more than a million Euros in struggling Finnish side Tampere United if they allowed him to invite several awful players from outside the country on the take to come play for the club. They took about half of the money and didn’t bother to play the players Perumal brought on; they’re also now banned from Finnish soccer. For some of his fixes, Perumal was actually able to issue instructions during matches to players on the pitch from the team bench.

Perumal suggests that he didn’t need influence over much of a team to fix a match, preferring to focus on the defense. “I prefer back-line players: the two central defenders, the last man stopper and the goalkeeper. If you can get three back-line players on your payroll then you can execute a fix because, when you want to lose, the attackers can’t help you,” he wrote.

[…]

As for Cameroon, well, it’s hard to say what will become of them. If there are seven players on the team who are proven to have fixed matches at the World Cup, their punishment will be severe, with permanent banishment from the sport a likely option. I’ll be intrigued to see what the investigation reveals, even if I’m very skeptical that an investigation conducted by the Cameroon FA and FIFA will be very thorough. They have little to gain from revealing their own corruption. I don’t know that Cameroon necessarily manipulated results during this World Cup, but I would be surprised if the entire tournament actually went untouched by match fixers. There’s simply too much to be gained and too little to stop it from occurring.

June 29, 2014

Gay journalist decries same-sex marriage

Filed under: Law, Liberty, USA — Tags: , , — Nicholas @ 11:19

Okay, I over-state in the headline (does that make it “clickbait”?). But in the Guardian, Hugh Ryan recognizes that the fight for same sex marriage has not gone quite the way many activists thought it would:

We didn’t queer the institution of marriage. It straightened us

Wisconsin. Indiana. Utah. Hardly a week goes by that the courts don’t rule same-sex marriage street legal in another state in America (the last twenty-two consecutive cases have all come down on the side of marriage equality), making what once seemed impossible now seems unstoppable. Wedding white is the new black — and all the gays are wearing it.

So on this anniversary weekend of the Stonewall Riots, let me be the shrill voice in the back of the church, speaking now instead of forever holding my peace. I think we’re losing something. I have no desire to turn back the clock on marriage equality: it provides both real and symbolic benefits to queer communities, families and our country as a whole. But I cannot ignore the coercive (and corrosive) power that marriage holds. In this country, it is not just an option: it is the option. It is the relationship against which all others are defined, both an institution and an expectation — and you cannot have one without the other.

Before marriage was an option of first resort, queer people had been making our own ceremonies and families for (at least) a century. This will never stop, but the new expectations of marriage will curtail this kind of life-building (just ask any single straight woman over thirty how people treat her relationship choices). We will have to justify our reasons for not marrying, and any relationship that survives past a certain sell-by date will be looked at as pre-marriage.

[…]

Somewhere along the line, the gay rights movement — and maybe the gay community writ large — separated its short-term goals and some people’s immediate needs from the larger ideals of justice and societal change that initially stirred our community to action. This diminution happened by degrees, making it almost impossible to locate the moment when we could have turned around. But I suspect we will one day look back on the contentious 1999 Millennium March on Washington as the point of no return.

Maybe the same-sex marriage wave will begin a broader reconsideration of why our government is in the business of giving benefits to sexual relationships at all — gay or straight. Perhaps we will some day expand these privileges, for which we have fought so hard, to any group of people in a long-lasting relationship of care that keeps them safe, happy, and less dependent on government services — the way France tried (and largely failed) to do with their pacte civil de solidarité. Maybe we can queer the institution.

NFL Films may have key evidence in the concussion dispute

Filed under: Football, Health, Law — Tags: , — Nicholas @ 11:02

At Viking Update, John Holler says an old NFL Films product may become very important in the ongoing dispute between the league and former players over concussions:

The ongoing concussion lawsuit that appears to be close to being settled out of court is making progress to be finalized. The bottom line is that players needing help will get significantly more assistance than they have in the past because the spotlight is on and both sides are compelled to try to reach a mutually-agreed upon decision.

But, if the case remains unsettled, the NFL equivalent to the Zapruder film may well already be in possession of the NFL.

Many of the former players who are seeking reparations for the injuries they sustained during their playing days played the sport at a much different time. They weren’t just Old School. They played in the school that was replaced by the school now referred to as Old School.

Over the weekend, thanks to the good people at Netflix, I watched a three-disc NFL Films series called “Inside the Vault.” The series highlighted the NFL of the 1960s and early 1970s and, while used as a promotional tool, gave unprecedented access to what actually happened on the sidelines of games when injured players were being treated and, at times, sent back into action.

The footage contained on the DVDs was both fascinating and troubling. At the time the “vault” was opened in 2003, NFL Films was getting involved in the new medium of marketing and selling itself. The DVD market of the time created “The Vault.”

What the NFL Films set portrayed was a testament to the bravado of the NFL and the players, coaches and sideline personnel involved. Ed Sabol founded NFL Films and, in the “Vault” collection, he was interviewed and quoted as saying that he instructed his camera crews not to unnecessarily throw away any film that wasn’t spoiled in developing.

Freedom of (certain kinds of) political speech

Filed under: Law, Liberty, Politics, USA — Tags: , , , , , — Nicholas @ 10:04

Mark Steyn explains why it’s not a trivial thing to allow the Internal Revenue Service to operate as the financial wing of a political party:

… we’ve had a steady stream of emails from readers explaining that this is all well and good but it’s taxable income and what I really need to do is set up a 501(c)3 or 501(c)4 or 501(c)87 or some such as a vehicle for this campaign.

To which the answer is: well, we certainly considered the possibility, and a few years ago I might have entertained the notion. But not anymore. The National Organization for Marriage, which was founded to protect the pre-revisionist definition of marriage, is, in its various arms, both a 501(c)3 and a 501(c)4. As such, its tax returns are publicly available, but not its donor lists. Nevertheless, it is obliged to report its donors on Schedule B to the Internal Revenue Service. Someone at the IRS leaked the donor lists to a man called Matthew Meisel, a gay activist in Boston. Meisel in turn passed it on to the gay group Human Rights Campaign (whose president was a national co-chair of the Obama re-election campaign), and HRC in turn published the list of donors, which was subsequently re-published by The Huffington Post.

There’s no secret about why they’d do such a thing. As we know, if you disagree with progressive orthodoxy, you have no right to host a cable-TV home-decor show or give a commencement address at an American university or be a beauty-queen contestant. But that’s not enough for these groups. If you’re not a public figure, if you’re just a Californian who puts up a yard sign or a bumper sticker on Proposition Eight, your car will be keyed and your house defaced. And likewise, if you slip a check in the mail for a modest sum, it is necessary that you also be made an example of. Brandon Eich, Richard Raddon and Scott Eckern all lost prominent positions as chief executives because of their donations. But Marjorie Christoffersen, a 67-year-old Mormon who works in the El Coyote restaurant in Los Angeles, was forced to quit because she wrote a $100 check in support of Proposition Eight.

So, when it comes to the leaking of donor lists, we’re not dealing with anything “theoretically” or “potentially” “troubling”. These guys act on this information, and act hard, and they are willing to destroy your life for a hundred bucks.

This is nothing to do with whether you support or oppose same-sex marriage. This is about whether you support free speech, public advocacy, private advocacy and ultimately — one day soon — the sanctity of the ballot box, and whether you oppose a culture of partisan thuggery.

So how did leaking the National Organization for Marriage donor lists work out for the IRS? Well, after a two-year legal battle, the Government of the United States admitted wrongdoing and agreed to settle. For $50,000.

After two years in the toilet of American “justice”, I can tell you that 50 grand barely covers your tips to the courthouse washroom attendant. It’s nothing. The IRS budget is over $11 billion, so you figure out how many organizations’ donor lists they can leak for 50K a pop while still keeping it under “Miscellaneous” in the annual breakdown. $50,000 isn’t even a slap on the wrist — and this notwithstanding that the IRS, as it has in the Lois Lerner case, obstructed and lied, almost laughably: For example, they claimed that the leak was an inadvertent error by a low-level clerk called Wendy Peters in March 2011. But in February 2011 Mr Meisel, the gay activist, was already letting it be known that he had a source who could get him the info.

As in the Lerner case, the inconsistencies and obfuscations were irrelevant. Like Ms Lerner, Mr Meisel took the Fifth. The NOM asked the Department of Justice to grant Meisel immunity so that he could be persuaded to disclose what really happened. But Eric Holder’s corrupt Justice Department had already decided it wasn’t going to investigate the matter so it had no reason to grant Meisel immunity. The Fifth Amendment, a constitutional safeguard to protect the citizen against the state in potentially criminal matters, is being creatively transformed to protect the state against the citizens in matters for which a corrupt and selective Justice Department will never bring criminal prosecution.

So, when it comes to leaking confidential taxpayer information for partisan advantage, the IRS got away with it.

June 27, 2014

FATCA puts “private-sector assets on a bonfire so that government can collect the ashes”

Filed under: Bureaucracy, Cancon, Law, USA — Tags: , , — Nicholas @ 00:02

In The Economist, a look at the looming deadline for non-US financial institutions to start turning over all their data on their US clients to the IRS:

FATCA stands for Foreign Account Tax Compliance Act, an American law passed in 2010 to crack down on the use of offshore banks, particularly in Zurich and Geneva, to hide taxable assets. The law, part of which takes effect on July 1st, is the most important and controversial development in decades in the international fight against tax evasion. It is feared and loathed by moneymen because of its complexity, its global reach and the high cost of compliance. One senior banker denounces it as “breathtakingly extraterritorial”.

The US government is so worried that US citizens are stiffing them for “their share” that they’re willing to risk blowing up the financial lives of millions of Americans living and working in other countries just to get those theoretical “missing” taxes. I started to type “ironically”, but I really mean “typically” the measure will cause great hardship for law-abiding Americans and do little to inconvenience the scofflaws.

The financial industry is struggling to work out which funds, trusts and other non-bank entities count as “financial institutions” under the law. There is also confusion over who is a “US person”. The definition is broad and includes not only citizens but current and former green-card holders and non-Americans with various personal and economic ties to the United States. Some Canadian “snowbirds” who travel to America for part of each year could be caught in the net, says Allison Christians, a tax professor at McGill University. As the complexities of implementation have grown apparent, the American authorities have had to extend several deadlines. Banks, for instance, will get a two-year moratorium on enforcement as long as they are striving to comply.

FATCA has already sent a chill through the 7m Americans who live abroad. Thousands have been told by their local banks and investment advisers that they no longer want their custom because it is too much hassle. Many others will now have to spend thousands of dollars to straighten out their paperwork with the IRS, even if they owe no tax (and most do not, since they will have paid a greater amount abroad, which counts as a credit against tax owed in America).

[…]

FATCA is about “putting private-sector assets on a bonfire so that government can collect the ashes,” complains Richard Hay of Stikeman Elliot, a law firm. Mark Matthews, a former deputy commissioner of the IRS now with Caplin & Drysdale, another law firm, argues that the effort put into hunting offshore tax evaders is disproportionate: the sums they rob from the public purse “look like a pinprick” compared with other types of tax dodging, such as the under-declaration of income by small businesses.

June 26, 2014

Domestic violence – it’s not as simple as you think

Filed under: Law, Media, Soccer, USA — Tags: , — Nicholas @ 08:42

In Time, Cathy Young discusses Hope Solo’s alleged domestic violence this week:

The arrest of an Olympic gold medalist on charges of domestic violence would normally be an occasion for a soul-searching conversation about machismo in sports, toxic masculinity and violence against women. But not when the alleged offender is a woman: 32-year-old Hope Solo, goalkeeper of the U.S. women’s soccer team, who is facing charges of assaulting her sister and 17-year-old nephew in a drunken, violent outburst. While the outcome of the case is far from clear, this is an occasion for conversation about a rarely acknowledged fact: family violence is not necessarily a gender issue, and women — like singer Beyoncé Knowles’ sister Solange, who attacked her brother-in-law, the rapper Jay Z, in a notorious recent incident caught on video — are not always its innocent victims.

[…]

Research showing that women are often aggressors in domestic violence has been causing controversy for almost 40 years, ever since the 1975 National Family Violence Survey by sociologists Murray Straus and Richard Gelles of the Family Research Laboratory at the University of New Hampshire found that women were just as likely as men to report hitting a spouse and men were just as likely as women to report getting hit. The researchers initially assumed that, at least in cases of mutual violence, the women were defending themselves or retaliating. But when subsequent surveys asked who struck first, it turned out that women were as likely as men to initiate violence — a finding confirmed by more than 200 studies of intimate violence. In a 2010 review essay in the journal Partner Abuse, Straus concludes that women’s motives for domestic violence are often similar to men’s, ranging from anger to coercive control.

[…]

But this woman-as-victim bias is at odds with the feminist emphasis on equality of the sexes. If we want our culture to recognize women’s capacity for leadership and competition, it is hypocritical to deny or downplay women’s capacity for aggression and even evil. We cannot argue that biology should not keep women from being soldiers while treating women as fragile and harmless in domestic battles. Traditional stereotypes both of female weakness and female innocence have led to double standards that often cause women’s violence — especially against men — to be trivialized, excused, or even (like Solange’s assault on Jay Z) treated as humorous. Today, simplistic feminist assumptions about male power and female oppression effectively perpetuate those stereotypes. It is time to see women as fully human — which includes the dark side of humanity.

June 22, 2014

George W. Bush’s former Drug Czar does his very best Baghdad Bob imitation

Filed under: Law, Liberty, USA — Tags: , , , , — Nicholas @ 11:46

Image courtesy of Meme Generator

Image courtesy of Meme Generator

Nick Gillespie reports on the one war we should be happy to lose once and for all:

It turns out that Dick Cheney isn’t the only Bush administration muckety-muck still fighting the last war.

Even as the former vice-president took to the pages of The Wall Street Journal to blame Barack Obama for the deteriorating situation in Iraq, George W. Bush’s drug czar, John P. Walters, is arguing in Politico that no, really, victory in the war on drugs is just around the corner. We’ve just got to hold the line, don’t you see, especially against Barack Obama, “whose administration has facilitated marijuana legalization” despite also setting a record for federal raids against medical pot dispensaries in California.

More important, insists Walters, is that you understand “Why Libertarians Are Wrong About Drugs.” Well, OK. I know I’ve been wrong about drugs at times. For instance, I seriously worried that Colorado might have taxed its fully legal pot out of reach of most buyers, thus allowing a black market to thrive. But it turns out that the biggest problem in the Centennial State is how to spend extra tax revenues generated by pot sales, which are coming in 40 percent higher than expected. Oh yeah, and crime is down in Denver.

Recognizing that public opinion increasingly backs treating pot similar to beer, wine, and alcohol, Walters explains that the “the libertarian commitment to freedom should absolutely be acknowledged and, in a time of growing state control, defended. But, when it comes to drugs, libertarians have yet to grasp just how much drug abuse undermines individual freedom and erodes the very core of the libertarian ideal.”

This is simply the old, unconvincing argument that currently (read: arbitrarily) illegal drugs rob individuals of the ability to act rationally or purposefully and thus present a special case in which freedom must be disallowed. This canard is as worn as out as a meth addict’s gums. The same thing was said about booze in the run-up to Prohibition, of course: The man takes a drink and then the drink takes the man and all that.

June 19, 2014

The Washington R*dsk*ns

Filed under: Bureaucracy, Football, Law — Tags: , , , , , — Nicholas @ 08:39

Robert Tracinski on the real story behind the Washington Redskins trademark dispute:

… I think everyone should be terrified by the new ruling by the US Patent Office cancelling the team’s trademark.

The ruling was based on a dubious argument that “redskins” is a slur against Native Americans. Well, then maybe we’d better rename the state of Oklahoma, which drew its name from Choctaw words that mean “red people.” Or maybe we should petition the US Army to decommission the attack helicopter it named after a people it defeated in 1886. Then again, forget I mentioned it. I don’t want to give anyone ideas.

This name-bullying has become a kind of sport for self-aggrandizing political activists, because if you can force everyone to change the name of something — a sports team, a city, an entire race of people — it demonstrates your power. This is true even if it makes no sense and especially if it makes no sense. How much more powerful are you if you can force people to change a name for no reason other than because they’re afraid you will vilify them?

Given the equivocal history of the term “redskins” and the differing opinions — among Native Americans as well as everyone else — over whether it is offensive, this was a subjective judgment. […] When an issue is subjective, it would be wise for the government not to take a stand and let private persuasion and market pressure sort it out.

Ah, but there’s the rub, isn’t it? This ruling happened precisely because the campaign against the Redskins has failed in the court of public opinion. The issue has become the hobby horse of a small group of lefty commentators and politicians in DC, while regular Washingtonians, the people who make up the team’s base of fans and customers, are largely indifferent. So the left resorted to one of its favorite fallbacks. If the people can’t be persuaded, use the bureaucracy — in this case, two political appointees on the Trademark Trial and Appeal Board.

Update: Helpfully, journalists are already compiling lists of offensive team names that justice demands be changed, including the Minnesota Vikings and the Fighting Irish.

June 18, 2014

The liability concern in the future of driverless cars

Filed under: Law, Technology — Tags: , , , — Nicholas @ 08:04

Tim Worstall asks when it would be appropriate for your driverless car to kill you:

Owen Barder points out a quite delightful problem that we’re all going to have to come up with some collective answer to over the driverless cars coming from Google and others. Just when is it going to be acceptable that the car kills you, the driver, or someone else? This is a difficult public policy question and I’m really not sure who the right people to be trying to solve it are. We could, I guess, given that it is a public policy question, turn it over to the political process. It is, after all, there to decide on such questions for us. But given the power of the tort bar over that process I’m not sure that we’d actually like the answer we got. For it would most likely mean that we never do get driverless cars, at least not in the US.

The basic background here is that driverless cars are likely to be hugely safer than the current human directed versions. For most accidents come about as a result of driver error. So, we expect the number of accidents to fall considerably as the technology rolls out. This is great, we want this to happen. However, we’re not going to end up with a world of no car accidents. Which leaves us with the problem of how do we program the cars to work when there is unavoidably going to be an accident?

[…]

So we actually end up with two problems here. The first being the one that Barder has outlined, which is that there’s an ethical question to be answered over how the programming decisions are made. Seriously, under what circumstances should a driverless car, made by Google or anyone else, be allowed to kill you or anyone else? The basic Trolly Problem is easy enough, kill fewer people by preference. But when one is necessary which one? And then a second problem which is that the people who have done the coding are going to have to take legal liability for that decision they’ve made. And given the ferocity of the plaintiff’s bar at times I’m not sure that anyone will really be willing to make that decision and thus adopt that potential liability.

Clearly, this needs to be sorted out at the political level. Laws need to be made clarifying the situation. And hands up everyone who thinks that the current political gridlock is going to manage that in a timely manner?

Quite.

June 17, 2014

BC supreme court attempts to extend jurisdiction over Google’s global services

Filed under: Cancon, Law, Liberty, Media, Technology — Tags: , , , , , — Nicholas @ 08:10

Michael Geist talks about another court attempting to push local rules into other jurisdictions online — in this case it’s not the European “right to be forgotten” nonsense, it’s unfortunately a Canadian court pulling the stunt:

In the aftermath of the European Court of Justice “right to be forgotten” decision, many asked whether a similar ruling could arise in Canada. While a privacy-related ruling has yet to hit Canada, last week the Supreme Court of British Columbia relied in part on the decision in issuing an unprecedented order requiring Google to remove websites from its global index. The ruling in Equustek Solutions Inc. v. Jack is unusual since its reach extends far beyond Canada. Rather than ordering the company to remove certain links from the search results available through Google.ca, the order intentionally targets the entire database, requiring the company to ensure that no one, anywhere in the world, can see the search results. Note that this differs from the European right to be forgotten ruling, which is limited to Europe.

The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country. Yet the B.C. court adopts the view that it can issue an order with global effect. Its reasoning is very weak, concluding that:

    the injunction would compel Google to take steps in California or the state in which its search engine is controlled, and would not therefore direct that steps be taken around the world. That the effect of the injunction could reach beyond one state is a separate issue.

Unfortunately, it does not engage effectively with this “separate issue.”

June 15, 2014

QotD: Shut up – it’s your right and (for some) your privilege

Filed under: Law, Liberty, Quotations, USA — Tags: , , , , — Nicholas @ 08:54

“Privilege” is a term that’s overused and misused in modern political discourse. Too often it’s used like a crass “shut up, I win” button in an argument. But “privilege” is sometimes an apt descriptive term of a human phenomenon: a person’s evaluation of a situation (like interaction with law enforcement) is colored by his or her own experiences, and those experiences are usually circumscribed by that person’s cultural identity and wealth. Any criminal defense attorney who has served affluent clients is familiar with this: such clients often conclude that they are a victim of a conspiracy, or of a “rogue cop” or “loose cannon prosecutor,” because their life experiences lead them to assume that the system can’t possibly treat all people the way they are being treated. By contrast, clients who have lived in poverty (or clients who are African-American or Latino) tend to recognize outrageous conduct in their case as the system working the way the system typically works — business as usual. In my post about the prosecution and death of Aaron Swartz, I argued that Swartz’ community showed such privilege in its reaction to his prosecution, seeing some sort of singular conspiracy where others saw the banal grinding of the system’s unfeeling wheels.

My advice to shut up is colored, in part, by privilege. I was reminded of this yesterday when Los Angeles County Sheriff’s Deputies searched Justin Bieber’s house. I praised Bieber for shutting up and declining to talk to the cops, and joked that criminal defense attorneys could shame clients into better practices by asking why they aren’t smarter than Justin Bieber.

But Justin Bieber and I — and many of my clients — share a crucial quality: we’re affluent and fortunate. This privilege makes us better able to endure the potential downside risks of shutting up. If we get arrested on a petty or bogus charge by a pissed-off cop, we can make bail. We won’t spend weeks or months in custody on that bogus charge because we can’t scrape together a few thousand dollars. Maybe we’ll spend the weekend in jail, because cops love to arrest you Friday afternoon, but we’ll get out in a few days at most, and in the meantime we won’t lose our jobs. Because we have families and support systems, if we do get thrown in jail on a bogus job by an angry cop, the Department of Child and Family Services won’t take away our children, plunging us into another broken system we have neither the money nor the knowledge to navigate. If the cops tow or impound our car, we can afford to pay the few hundred to few thousand dollars to get it out, and we won’t lose our jobs for lack of transportation. Even if we do lose our jobs because of a bogus and retaliatory arrest, we have savings, and families with savings, and we won’t swiftly lose our homes. If the police choose to retaliate against our silence with petty tickets and infractions and fines rather than arrest, we can fight them or absorb them.

That’s a privilege. Poor people don’t have it. Poor people live on the razor’s edge, and a bogus retaliatory arrest can destroy them. Retaliatory and capricious enforcement of petty crimes and infractions can destroy them financially. Police wield disproportionate power over them, and the criminal justice system and its agendas (like the War on Drugs) disproportionately impacts them. Police are more likely to use force against poor people and for the most part can do so without any significant risk of discipline.

When you and I weigh the downside risks of shutting up against the downside risks of talking, our downside risks are milder, and can be endured. People without our resources face a must starker choice: talk, and incriminate themselves, or shut up, and face an array of consequences they may not be equipped to survive.

Ken White, “The Privilege To Shut Up”, Popehat, 2014-01-15

June 13, 2014

Supreme Court rules unanimously in favour of internet privacy

Filed under: Cancon, Law, Liberty, Technology — Tags: , , , , — Nicholas @ 13:11

Some great news on the privacy front, this time a decision handed down by the Supreme Court of Canada, as reported by Michael Geist:

This morning another voice entered the discussion and completely changed the debate. The Supreme Court of Canada issued its long-awaited R. v. Spencer decision, which examined the legality of voluntary warrantless disclosure of basic subscriber information to law enforcement. In a unanimous decision written by (Harper appointee) Justice Thomas Cromwell, the court issued a strong endorsement of Internet privacy, emphasizing the privacy importance of subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law.

I discuss the implications below, but first some of the key findings. First, the Court recognizes that there is a privacy interest in subscriber information. While the government has consistently sought to downplay that interest, the court finds that the information is much more than a simple name and address, particular in the context of the Internet. As the court states:

    the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users. Browsing logs, for example, may provide detailed information about users’ interests. Search engines may gather records of users’ search terms. Advertisers may track their users across networks of websites, gathering an overview of their interests and concerns. “Cookies” may be used to track consumer habits and may provide information about the options selected within a website, which web pages were visited before and after the visit to the host website and any other personal information provided. The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous – by guarding the link between the information and the identity of the person to whom it relates – the user can in large measure be assured that the activity remains private.

Given all of this information, the privacy interest is about much more than just name and address.

Second, the court expands our understanding of informational privacy, concluding that there three conceptually distinct issues: privacy as secrecy, privacy as control, and privacy as anonymity. It is anonymity that is particularly notable as the court recognizes its importance within the context of Internet usage. Given the importance of the information and the ability to link anonymous Internet activities with an identifiable person, a high level of informational privacy is at stake.

Third, not only is there a significant privacy interest, but there is also a reasonable expectation of privacy by the user. The court examines both PIPEDA and the Shaw terms of use (the ISP in this case) and concludes that PIPEDA must surely be understood within the context of protecting privacy (not opening the door to greater disclosures) and that the ISP agreement was confusing at best and may support the expectation of privacy. With those findings in mind:

    in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.

Fourth, having concluded that obtaining subscriber information was a search with a reasonable expectation of privacy, the information was unconstitutionally obtained therefore led to an unlawful search. Addressing the impact of the PIPEDA voluntary disclosure clause, the court notes:

    Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, I do not see how they could gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information.

Update, 7 July: A few weeks later, the US Supreme Court also made a strong pro-privacy ruling, this one mandating a warrant for police to search the contents of a cellphone.

Politico‘s Josh Gerstein has more on the ruling in in Riley v. California:

The Supreme Court’s blunt and unequivocal decision Wednesday giving Americans strong protection against arrest-related searches of their cell phones could also give a boost to lawsuits challenging the National Security Agency’s vast collection of phone call data.

Chief Justice John Roberts’s 28-page paean to digital privacy was like music to the ears of critics of the NSA’s metadata program, which sweeps up details on billions of calls and searches them for possible links to terrorist plots.

“This is a remarkably strong affirmation of privacy rights in a digital age,” said Marc Rotenberg of the Electronic Privacy Information Center. “The court found that digital data is different and that has constitutional significance, particularly in the realm of [the] Fourth Amendment…I think it also signals the end of the NSA program.”

Roberts’s opinion is replete with rhetoric warning about the privacy implications of access to data in individuals’ smart phones, including call logs, Web search records and location information. Many of the arguments parallel, or are virtually identical to, the ones privacy advocates have made about the dangers inherent in the NSA’s call metadata program.

June 12, 2014

Repost: Ballot Box Irregularities

Filed under: Cancon, Law, Politics — Tags: , , — Nicholas @ 06:54

I first posted this article in 2004. I repost it every election:

Ballot Box Irregularities, Canadian Style

This article in Reason Hit and Run talks about the recent decision to allow partisan ballot-challengers to monitor the voting in Ohio. In Canada, these people are called “scrutineers” and they have a vital job.

No, I’m not kidding about the vital part. Each candidate has the right to appoint a scrutineer for every poll in the riding (usually only the Liberal, NDP, and Conservative parties can manage to field that much manpower). I was a scrutineer during a federal byelection in the mid-1980’s in a Toronto-area riding, but I had five polls to monitor (all were in the same school gymnasium). This was my first real experience of how dirty the political system can be.

The scrutineers have the right to challenge voters — although I don’t remember any challenges being issued at any of my polls — similar to the Ohio situation, I believe. They also have the right to be present during the vote count and to challenge the validity of individual ballots. Their job is to maximize the vote for their candidate and minimize the vote for their opponents.

Canadian ballots are pretty straightforward items: they are small, folded slips of paper with each candidate’s name listed alphabetically and a circle to indicate a vote for that candidate. A valid vote will have only one mark inside one of the circles (an X is the preferred mark). An invalid vote might have:

  • No markings at all (a blank ballot)
  • More than one circle marked (a spoiled ballot)
  • Some mark other than an X (this is where the scrutineers become important).

After the polls close, the poll clerk and the Deputy Returning Officer (DRO) secure the unused ballots and then open the ballot box in the presence of any accredited scrutineers. The clerk and DRO then count all the ballots, indicating valid votes for candidates and invalid ballots. The scrutineers can challenge any ballot and it must be set aside and reconsidered after the rest of the ballots are counted.

A challenged ballot must be defended by one of the scrutineers or it is considered to be invalid and the vote is not counted. The clerk and DRO have the power to make the decision, but in practice a noisy scrutineer can usually bully the DRO into accepting all their challenges. I didn’t realize just how easy it was to screw with the system until I’d been a scrutineer and watched it happen over and over again.

This is the key reason why minor party candidates poll so badly in Canadian elections: they don’t have enough (or, in many cases, any) scrutineers to defend their votes. In my experience in that Toronto-area byelection, I personally saved nearly 4% of the total vote my candidate received (in the entire riding) by counter-challenging challenged ballots. We totalled just over 400 votes in the riding (in just about 100 polls) — 21 of them in my polls. I got 15 of those votes allowed, when they would otherwise have been disallowed by the DRO.

There was no legal reason to disallow those votes: they were clearly marked with an X and had no other marks on them; they were challenged because they were votes for a minor candidate. As it was, I had a heck of a time running from poll to poll in order to get my counter-challenges in (I probably missed a few votes by not being able to get back to a poll in time).

The Libertarians only had six or seven scrutineers, covering less than a third of the polls in this riding. If the challenge rate was typical in my poll, then instead of the 400-odd votes, we actually received nearly 2000 votes — but most of them were not counted.

Yes, even 2000 votes would not have swung the election, but 2000 people willing to vote for a “fringe” party would be a good argument against those “throwing away your vote” criticisms. Voters are weird creatures in some ways: they like to feel that their votes actually matter. Voting for someone who espouses views you like, then discovering that only a few others feel the same way will discourage most voters from voting that way again in future.

Another reason that minor party votes matter (that I neglected to mention in the original post) is that parties receive funding based on their vote totals in the previous election. Disallowing minor party votes also deprives those parties of the funding they would otherwise be entitled to next time around. For the bigger parties, this is trivial, but for minor parties, this may be critical to them being able to stay active — and visible to voters — between elections.

« Newer Posts — Older Posts »

Powered by WordPress