Digital Thought

Axel Spies, a friend and a brilliant Washington-based high-tech lawyer just sent me this paper on Net Neutrality in the US. A must reading.

Net neutrality continues to be fiercely debated in the United States. The new Democratic FCC leadership has committed to expanding and enhancing existing net neutrality restrictions. The current FCC Chairman, Julius Genachowski, recently announced that he will initiate a rulemaking to codify the FCC’s existing network neutrality principles. Those principles, originally set forth in a 2005 “Internet Policy Statement,” declared that to “encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to:”

* access the lawful Internet content of their choice.
* run applications and use services of their choice (subject to the needs of law enforcement).
* connect their choice of legal devices that do not harm the network.
* competition among network providers, application and service providers, and content providers.

The Chairman has publicly stated that he plans to propose a fifth nondiscrimination principle that would prohibit broadband providers from discriminating against particular Internet content or applications. However, providers would be able to offer “managed services” in some limited contexts. A sixth principle of “transparency” is also debated to require broadband Internet access providers to disclose network management practices.

The FCC’s informal announcement stirred the ongoing debate over the extent to which broadband and other network providers will maintain control over their networks, free from government restrictions, to “manage” their networks, including the ability to block or slow certain traffic, for the benefit of all users. Proponents of a “neutral” network, including Google, Yahoo!, eBay, consumer rights, free speech advocacy groups, and generally the three Democratic FCC commissioners (Chairman Genachowski, Copps and Clyburn), are concerned that without government rules, service providers will act anticompetitively by restricting content, sites, or platforms, on the kinds of equipment that may be attached to the network, and on the modes of communication allowed. In contrast, Internet Service Providers (ISPs), incumbent local exchange carriers (ILECs), including AT&T and Verizon, some cable providers, such as Comcast, free market advocacy groups and generally the two Republican FCC Commissioners (McDowell and Baker) oppose net neutrality obligations.

Earlier legal rulings regarding net neutrality fell short of setting forth a comprehensive policy. The FCC embedded some net neutrality policies in conditions placed on the Verizon/MCI and SBC/AT&T merger approvals. In 2008, the FCC, then led by Republican Kevin Martin, sought to enforce the Internet Policy Statement principles on cable TV provider Comcast when allegations arose that Comcast had blocked consumers from using several peer-to-peer applications. That decision is currently being debated in a federal court appeal. In addition, the FCC principles are currently being imposed on recipients of broadband stimulus funds. “

Kidding apart, the Snow Leopard oddities (laptop heat issue, printer and application incompatibility and so on) raise a still unanswered question: can a software house – and in particular an operating system manufacturer – be free to sell a not well enough tested and not fully usable application?

This is not the rant of a discontented user but a precise legal question. Is it conceivable to let a producer of critical assets – as software surely is – to deliberately mass market unreliable products? Time has come when software manufacturer can’t be anymore allowed to “go crappy” treating users as a bunch of sheep and just “selling a roadmap”.

I don’t know if somebody ever did an assessment of the additional expenses caused by this marketing strategy (or, at least, I don’t know if this assessment has been made available to the public.) The fact is that software manufacturers should bear the legal consequences of their choice. But as Mark Minasi and Alan Cooper pointed out, software houses succeeded in convincing users that things must go that (wrong) way.

Well, it seems that this time Apple marketing guys have slipped on a wet surface. Snow Leopard, the latest MacOS X version, causes serious heat problems to laptops such as the Mac Book Air (mine is literally burning.) A quick look at users’ forums on the Internet shows that this is a widespread problem and that Apple is doing almost nothing to fix it. Sure, a patch will come, but when? In the meantime, it is very hard to use a Snow Leopard equipped laptop.

Apple is more and more posing as Microsoft, and I wonder how the Cupertino-based company could possbily still run its commercial by claiming that OSX works out of the box, with no big legal copies for each advertising statement. But above all, can we still trust Apple?

Somebody might think that this is an exaggerated criticism for a very common event in the computing market (i.e. a new software that is – at least partially – a  crap one) but that’s the point. I start asking myself whether Apples really are the computers for the rest of us.

Snow Leopard… they’d better call it Firefox, oh, sorry, its taken. Why not Firebird, then?

p.s. I switched back to 10.5.8

The strongest claim supporting the Italian Antitrust investigation upon Google News is the alleged Google “dominant position” that would make Italian publishers poorer (better, less rich) by not getting advertising revenues from their online contents.

There is some doubt, nevertheless, that  Google’s market role could be defined as a “dominant position”. ¹

Although it is undeniable that Google is the users’ preferred choice, and that Google has created from scratch a new business model attracting a huge quantity of customers, its legal status can hardly be defined as “dominant” in the Antitrust meaning. A characteristic of “dominant position” is the customer’s “locked-in syndrome”. Once you buy a product (or a service), its technological, purposely created oddities – such as non-standard file format etc. – make it almost impossible to switch to another similar, competing product. The most blatant example is the operating system market, where Microsoft was able to secure its market quota through its dominant position.

In Google’s case, au contraire, users are not “locked-in”: they can buy advertising services wherever they like, and use other search-engines at their will. Furthermore, Google can’t do anything to force its users to use its services, except by improving efficiency and quality. This means, in other words, that Google might lose its business power on the snap of finger. To put it short, cannot rest on its laurels.

As for the specific claims of the Italian publishers, there is neither a contract with them, nor a broader legal obligation falling on Google’s shoulders, to force the search engine to actually find “everything” on the Internet. ² If they don’t like Google’s “banning attitude” (that still has to be demonstrated, by the way) they can simply find different agreement with Google’s competitors, thus forcing users to change their search engine of choice. Provided – of course – that Internet users find those contents of some value, but this is a horse of a different colour.

Axel Spies, a friend and a very skilled Washington-based lawyer just released a summary on the new French Data Protection Authority deliberation in re: transnational discovery of personal data.

Here is the summary’s full-text.

Yesterday  the Italian headline news announced that the Italian Antitrust, following  claims by FIEG (Federazione Italiana Editori e Giornali – Italian Federation of Publishers and Journals), opened an investigation against Google, “charged” with discriminating against those publishers who had denied the availability of their content in Google’s News platform.

As I’ve pointed out in an interview by ANSA, this claim seems to stand on very weak legs.

As first, people use Google simply because it works. As soon as a (not necessarily new) search engine will prove to be more efficient, people quickly discharge Google.

Secondly: Google is not, by far, the only search engine to provide news search. People are not affected by a “locked-in syndrome” like in the operating system field: in other words, nobody has put a gun on the users’ temples to use Google.

Thirdly: the Internet economy is based on a quid pro quo, and the search engine sector doesn’t behave any differently. Publishers have contents, Google the technologies to make these contents available. If they join forces, publishers get traffic (i.e.: advertising), Google its part of the cake. If they don’t, they loose traffic and advertising revenues. That’s the Internet, honey!

Fourthly, let’s admit – for the sake of the discussion – that Google actually does what it is charged with. So what? As soon as the law is abided, Google is a private company, and the only people who can complain about its business strategies are the shareholders. I don’t see any reason whatsoever to force Google to look for specific content.

A final note: this situation is a typical demonstration of how “innovation” is “awarded” in Italy by the content industry. Instead of trying to unleash the power of new tools, the reaction of the traditional powers is to break it. It happened with software, it happened with music and video, and now with the Internet.

“Authentication of forensic DNA samples” is a paper released on the last Forensic Science International: Genetics issue by a group of Israeli researchers. Authors claim to have found a method to fabricate artificial biological samples (and the way to tell the differences from the original one) and wish that their finding will become a standard in forensic procedures to maintaini “the high credibility of DNA evidence in the judiciary system.”

Does this method really affect criminal investigations and trials?

“We still are in the “bad cop” (or evidence tamperer) field who planted faked biological samples on the crime scene” – says Andrea Cocito, researcher at IFOM, Milan (IT.) In fact, the “fabricated-genetic-evidence defense” has been proven viable in the  OJ Simpson case tried between 1994 and 1995 in Los Angeles, USA. Mr. Simpson’s lawyers were able to raise the suspicion that the results of the analysys on the biological samples coming from the crime scene – aiming at Mr. Simpson as “owner” of the DNA – weren’t reliable enough because of the police handling lack of care. “If” – Cocito argues – “a biological sample has  really been found on the crime scene, if the sample isn’t planted and if it’s not been degraded, then I might analyze both samples (the crime scene one and the one belonging to the defendant) to see if I get a match. In these case, there couldn’t be reasonable doubts on the results.” Thus, matching the defendant biosample collected in a controlled environment with the sample found on the crime scene it is possible to tell the probability of a reciprocal match.

The actual problem, then, is not the intrinsic scientific reliability of a genetic analysis-produced evidence. The problem is the strength of the chain of custody (i.e. the possibility of tracking all the intermediary steps, from the crime scene to the Court.) It is evident that if during the journey some part of it is not verifiable, a possibility comes to arise a legitimate doubt that what came in Court might not be what has been found on the crime scene.

On this issue, Italian law n. 85/2009 that creates a local National DNA Database is very lazy. There is neither any explicit duty of guaranteing the chain of custody, nor a provision that prevent the use in Court of wrongly-handled biological samples.

This is the translation of an article I’ve written for Nova-IlSole24Ore. The Italian version is available here.

The new episode of the Pirate Bay war leads to think that something is changing in judges’ mind in re: ISP liability. In the recent Swedish preliminary order neither is the final user the final target of a legal action, nor the ISP. The focus is on the sole and only possible defendant: the one who actually shares illicit contents (apart from the merit of the specific TPB case.) The ISP who provided the housing service for TPB torrent search engine has been ordered to “disconnect” the machine from the network and not, as in the previous episodes, to hijack users’ attempts to reach The Pirate Bay.

It is important to remark that in this trial the ISP is not involved as (contributory) defendant, but only as subject whose cooperation is – de facto – necessary to obtain the compliance to a court order. Thus, we face a situation where:

• rights of innocent end users are not endangered by the activity of the copyright majors,
• ISP’s role is not portrayed as those of an accomplish, supporter, or contributory violator,
• the target of the legal action is focused on the (alleged) culprit.

Again, I don’t want to enter in the legal quarrel about TPB responsibility. What I want to stress is that – should the Swedish approach be confirmed – a step toward and actual respect of legal principles set by dir. 31/00/CE is made.

On June 30, 2009, the Italian Parliament finally passed Law No. 85 that ratifies the Prum Convention and forms the legal ground for the creation of an Italian National DNA Database (NDNAD.)

Although this law might have benefited from UK and USA court experience in the field of DNA forensics, the current text indicates that neither British nor American case law have been taken into consideration. Furthermore, the law is flawed by a foggy understanding of the technicalities behind DNA profiling and sloppy wording that certainly will not facilitate the work of lawyers, prosecutors or judges. Just to highlight a few of these inconsistencies, it must be noted that art. 8 (Attivita` del laboratorio centrale per la banca dati nazionale del DNA – Activity of NDNA Database Central Laboratory) lacks any general provision that would oblige all the responsible parties to adopt serious and adequate security measures against unauthorized access, data tampering, and illegal handling of data and information. Read the rest of this entry »

Among the measures to fight the economic crisis announced by the Italian Government, sect. 15 para 1 lett. c) of the Anti-Crisis decree deserves a special mention: to put it short, the provision asserts corporate liability (under legislative decree 231/01)  for copyright infringement committed by top management.

Although it may seems that the new law is of a little impact on corporate life (is highly unlikely that a top manager has time to waste doing file sharing) a second glance prove this first opinion not entirely correct.

The inclusion of copyright infringements into the list of crimes implying specific corporate liability forces a company to revise its (mandatory) prevention model to reflect new changes; thus – de facto – establishing a specific set of controls aimed at downloads, website surfing and file sharing. Failing to do so might lead some zealous prosecutor to think that the company actually allows copyright abuses.

A side effect of this regulation – when it will come into full force – is that workplace privacy will get another heavy blow. For the sake of copyright abuse prevention, indeed, all of employees’ Internet activity will be deeply inspected.

So long, Mr. Data Protection Commissioner…