Friday, July 31, 2009

Too many strange unanswered questions in the McKinnon extradition case

On Friday the English High Court ruled that Gary McKinnon, who fought a long legal battle to avoid being extradited to the U.S. after he was charged with breaking into 97 computers belonging to different branches of the US Government and military in 2001, should face extradition because that represented ''a lawful and proportionate response to his offending.'' Did it?
When one starts to analyse the case there are far too many questions that remain unanswered and make difficult to explain the willingness of English judges to pay such a deference to the US government, which would clearly and legally not do the same if the situation was the other way around. It is important to begin by pointing out that the judiciary is part or a branch of the state that has, as explicit and historic purpose, to serve the interest of the nation (of which its citizens are part). Within that context, even in this world of complex interdependence, the international relations and international agreements of a country have, as ultimate purpose, to give some benefit to a nation and its citizens. Accordingly, to send a country’s citizen to be tried abroad for a crime that has been committed, very likely, both in England and abroad seems very, highly, strangely unusual and it would take from a judge an exercise of imaginative interpretation that would put him very close to disregarding the right to a fair trail, as established by article 6 of the European Convention of Human Rights and incorporated into English law by the Human Rights Act 1998.
There is little doubt about the fact that what McKinnon did in 2001 was and is a crime under both American and English law and, again, it is not easy to explain, regardless the judge and CPS 's spin on it, why a UK national is not tried within UK.
Now, in the unlikely, but possible situation where it is decided that the crime was committed only in the US, can the defendant still be tried in the UK?
Under international law principles, courts can assert jurisdiction over a defendant based on the nexus between the court, the defendant and the crime. Courts can (and normally do) follow the territoriality nexus where the defendant is tried in the forum where the crime was committed. In this particular scenario, deciding where the crime took place would be paramount to know where McKinnon should be tried. Here again, the proper application of statutory and case law to the facts of the case seems to lead to the unequivocal conclusion that a crime has also been committed in the UK. Jurisdiction can also be established based on the nationality nexus, where the defendant is tried within its own country regardless of the place where the offence has been committed. Here again, taking into account that the ultimate purpose of the organization of the state is to act for the benefit of the country and its citizens, courts would normally use this form of asserting jurisdictions where by doing so they understand that a national would not be punished for a crime committed abroad that the home country considers to be serious enough or, on the contrary, the citizen would receive a punishment that results too harsh or disproportionate for that country’s standards. In the case of English law, when dealing with murder and manslaughter, the English courts have jurisdiction over offences committed abroad, if it was committed by a British citizen as established by section 9 of the Offences against the Person Act 1861 and section 3 of the British Nationality Act 1948, and confirmed in R v Cheong (2006) AER (D) 385. There have been also plenty of cases recently where the British Government has requested a British national to be sent to England to be tried for crimes committed abroad but that would have a disproportionate sentence in other country. In the case of McKinnon, even in the unlikely case that it is understood that his crime was committed only in the US, English courts have the legal basis to assert jurisdiction over him and try him here, and taking into account the ultimate purpose of the state, already mentioned before, they must do so.
And all of that without entering into the many other questions that the case arises…
Why, taking into account that the article 8 of the US-UK extradition treaty is so imbalanced in favour of the US and also taking into account the known and acknowledged lack of respect for international law and due process to foreigners and in some cases American citizen (has the judge heard about Guantanamo, the Salgado case, Padilla and hundred of others), the judge still thinks that the response is proportionate? Last week a paedophile that raped a boy was sentenced to 4 years of prison here in England while McKinnon could get a sentence several times longer in the US for entering into those computers looking for information about UFOs, is that proportional? Why the press keeps referring to the hacker “breaking” into the American sites when the hacker actually “entered” into them? (the difference is fundamental because in the non-virtual space it is radically different to be accused of trespass than to be accused of burglary and in the present case McKinnon entered into sites that had the password left blank so he actually did not "break" into those computers). Why the judge is so keen to extradite a British citizen with such a dubious legal basis when higher English courts have refused to extradite foreigners that committed crimes much more serious? In sum, in most countries (developed and not) a ruling that leaves so many strangely unanswered questions would merit an investigation into the judge’s conduct…

Ruling against Google and Yahoo in Argentina

A district court in Argentina has ruled that Google and Yahoo have to pay A$ 50,000 in damages for indexing pages where the name of Virginha Da Cunha and her image have been linked to sexual and erotic content. The claimant, an actress, singer and composer (not being in Argentina never heard about her before), sued the search engines alleging the illegal use of her image and claiming A$ 50,000 in material and “moral” damages from each of the named search engine companies.

The judge Virginia Simari, has understood that the search engines are also Internet sites and that their owners decide what contents are included on them. She also considered that “the activities of the defendants facilitate the access to sites that otherwise would be of difficult access and that, in addition, such a facilitation constitutes de node of one of their activities”. “Therefore, it is possible to affirm that the search engines by contributing to the access to the websites are in the best technical conditions to prevent the damages, and it is that profile of the search engines that generates their facilitating activity liability”.

The judge also considered that the fact that the claimant’s professional activity requires her public exhibition in different manners does not legitimate any kind of use of Da Cunha’s image by third parties. She went on explaining that “the standard to measure the damage caused to somebody’s image is conformed by the context where the images in question are presented. In the present case the existence of images of the claimant on websites of sexual, erotic, pornographic content does not leave place to doubt about the impact on the claimant’s image”.

Needless to say that it is expected that both Google and Yahoo will appeal the ruling, but what is peculiar is the way that the judge links seamlessly the damage caused by the offending sites with the search engines that allow people to find them. It is similar to finding the maker of telephotos or zooms liable for the breach of privacy that a paparazzi may commit, or car maker liable for robberies committed by car (or the council that has responsibility for the street where the car is driven to the robbery). But it shows a bigger problem that is starting to arise in jurisdictions like the Argentine, that have a sophisticated legal culture and system and also a fairly litigious nature but judges with no understanding of Internet and new technologies functioning or their peculiar legal principles. Some time ago we discussed the string of domain name disputes judicial decisions where Argentine judges found always in favour of trademark owners when the other party had also a legitimate right to the domain name (as, for example, a family name), and here we have the same situation again. It probably relates to the fact that to be a judge in Argentina you need to be a lawyer and to be a lawyer in Argentina you don’t need to know any thing about ICT law nor you can, as all but one universities don’t have any class on the topic…

Wednesday, July 29, 2009

Blackboard software patent litigation, round...whatever

The United States Court of Appeals for the Federal Circuits ruled on Monday that part of Blackboard’s U.S. Patent No. 6,988,138 (“the ’138 patent”), which claims an Internet-based educational support system and related methods, is invalid, and reversed the lower court decision that imposed damages of U$S 3,300,000 to Desire2Learn for infringing that patent. The later company has always argued that Blackboard course management patents are overly broad and were issued improperly, which, as noted by the Court, would run against the principles established in Atmel Corp. v. Information Storage Devices, Inc., 198 F.3d 1374, 1380 (Fed. Cir. 1999) (“consideration of the understanding of one skilled in the art in no way relieves the patentee of adequately disclosing sufficient structure in the specification”). The ruling still leaves some of Blackboard’s claims standing, which, in addition to the already announced appeal, promises to lead to yet more litigation on the matter…

Wednesday, July 08, 2009

Quis custodiet ipsos custodes? (or the misadventures of proper parenting in an online world)

Newspapers carry the news that yet another girl has been abducted after online grooming and it seems that we could have a news service devoted to things that children have been doing (and they shouldn’t) online and/or what some depraved people have done (or tried to do) to children by using Internet. Probably more than half of the time/space of that news service would be filled with analysis about how dangerous new technologies in general and Internet in particular are for children…and they would be wrong. Information technologies and Internet have the potential to allow children to reach places that we couldn’t dream about when having the same age or allow them to interact with people across the globe and learn about other cultures in ways that no book or library would, but in the same way that children need to be taught how to read, they need to be taught about how to use ICT…and most parents neglect that.
A recent survey suggests that only one in ten parents talk about Internet safety with their kids and there are some cases where parents get quite amused when their kids wander alone online and get into things that they shouldn’t: take as example the 3 years old kid that bought a real digger online when the parents were sleeping…the mother reaction was “It's been a lot of fun”…was it? Or it was a monumental example of irresponsibility from the parents? Would the mother have the same reaction if instead of buying a digger the kid put herself in contact with another “online kid” that then turned out to be a grown up paedophile (like the recent case in Spain)?
It has been repeated hundreds of times but it doesn’t hurt to do it again; Internet is not the problem but parents that use it as an easy way to keep children entertained instead of guiding them through the intricacies of cyberspace, and there is no regulation that can solve that problem. There is, however, an argument that governments and international organizations should devote more resources to the education and information of parents instead of wasting resources in twisting and violating long established legal principles to maintain the profits of industries with obsolete business models. Governments could, for example, mandate the inclusion in the computer manuals and in the ISP connection packs some form of booklet teaching parents the basics of online safety and that would certaintly be better received than forcing ISPs to control users downloading patterns...