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David Vaile Cyberspace Law and Policy Centre, UNSW Law Faculty

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Presentation on theme: "David Vaile Cyberspace Law and Policy Centre, UNSW Law Faculty"— Presentation transcript:

1 David Vaile Cyberspace Law and Policy Centre, UNSW Law Faculty d.vaile@unsw.edu.auwww.cyberlawcentre.org

2 BackgroundExamples  Background  Technological changes ◦ Web versions  Legal disconnects ◦ Common carriers mutate  Censorship and ‘filtering’ ◦ The urge to monitor  Privacy and the cloud  Surveillance/uber-veillance  Malware and the RBN ◦ Is there any line in the sand?  Copyright balance  iiNet: Disenfranchisement without trial?  Getup: Enfranchisement without a party?

3 Tech changes Legal changes

4  Offline world was nice and simple, for regulators  Web 1.0: global publication, old media/publish models  Web 2.0: social networking, user generated content ◦ Convergence of producer and consumer, + distributor  Web 3.0?: mass personalisation, semantic web ◦ It’s not just your friends who know you and what you mean  Attack of the killer toddlers – we are so old ◦ Hackers retire at 15, kids turning filter tables on parents, slash

5 Publisher Block here? ReaderViewerListenerProducer Importer Block here?

6 Producer Publisher Reader ISPs: the new block point

7  Cyberlibertarian fantasies still delude and excite  Reality: Jurisdiction out of control, hyper liability (for you) ◦ Intensification not escape from jurisdiction (revenge of the States)  Or: no care, and no responsibility? (for the cloud) ◦ Your data and business go offshore, but not legal protection  The rise of the sub-human: minors at the frontier ◦ Deficit in ‘consequences’ cognitive development: paternalism? ◦ ‘Under the age of 18 or appears to be under 18’  The fall of the ‘common carrier’: ISPs’ change masters? ◦ Agents of a foreign power, or a hostile litigant interest? ◦ Enforced discipline of their customers, on pain of sharing liability.

8 It’s not censorship, Won’t somebody think of the children?

9  1,000 items in 1,000,000,000,000, no checking  10 billion change per month  Appalling spin and shifting goals for the magic box  Appeasing the swinging fundamentalists?  Real child protectors: What risks? Does filtering work?  Parents want to be rescued: Panic Button is for them  Cargo cult mentality, denial, and hope of a saviour  Does not address real problems: resilience, detection of criminals, communication with techno kids  Sexting, ‘slash’ fiction and innocents on the loose

10  Surely it is censorship?  Offline model: centralised distribution, choke points  Web 1.0: more distributors, easier importation  Web 2.0: everyone is a creator, (re)-publisher, exporter  Web 3.0: the cloud knows what you like, and makes it?  Encryption and roll-your-own protocols already in use  The long cyber-war: endless arms race between the straiteners and those seeking to avoid the blocks?  When is publication not publication?  Chinese solution: you never know: the Panopticon: (no-one is home, but you self censor)

11 At risk?

12  Review of privacy law – ALRC 108  Sudden emergence of the cloud – ‘It’s inevitable’!?  Failure to target cross border controls in PPs  Conflicting business models: your money or your data?  Failure of robust regulation: sleeping watchdogs? WiFi  Kids at risk: Consequences hidden, cost/benefit fail  Exposure to foreign powers, litigants, and villains  Not just US – Cybercrime Convention and the EU  Stumbling into a surveillance state? Lack of will?  A ‘jurisdiction bit’? Snowy Cloud farm with local law?

13 Exceptional to routine?

14  The Four Horsemen of the Apocalypse: ◦ You, your mate, YouTube and FaceBook ◦ The evil data mongers of cyber-Russia ◦ Businesses who just want to know you ◦ Government agencies who just need to catch you  One law to rule them all?  Will our current apathy become as unfashionable as climate change denial when consequences realised?  Or are privacy advocates just old paranoid whingers?

15  Perfect free copy tools provoke evidence gathering  Marketers demand right to ‘behavioural targeting’  Data aggregators prefer not to discuss it  Law enforcement assumes we’ll be safer if we forfeit centuries of protections against strong states  Data retention obligations coming in from offshore  Data heading offshore, scant restraint or redress  Filtering logs look awfully tempting …  Data breach notifications? Or ‘Informed consent’ FAIL?  All supported by invisibility, and the cult of exposure

16 Cybercrime goes invisible

17  Dare not speak its name; researchers threatened  Bad guys based in former SU lift off into cyberspace  You’ll never know where they came from or went  Malware and the failure of IT perimiter security  Social engineering: the new computer infection  Recombinant undetectable malware evolution  All your dataz are belong to us: zombie networks  Leave no clues  Losing the war?

18  The business of business is business: how dare you interfere with my marketing – adware detector defeated  Spam Act (Cth) v CAN-SPAM Act (US): opt-in or opt-out? ◦ Opt-out: The very model of a doomed and futile gesture ◦ No clear distinction between respectful and crook  Everyone is a sales agent: freebies for viral promotion? ◦ Who’s responsible for the lies or the pitch?  No clear line? Incentive for opportunists to creep to bad ◦ There should be no room on the fence, just pointy splinters ◦ Unrestrained submission to entrepreneurial instinct blurs any lines between ethical and desparate: race to bottom

19 Old business models fail? Unlocking IP project: new models for sharing and trading IP iPod legalised and no-one noticed

20  New models for Trading and Sharing IP  Open Content, Open Source, Open Standards  ARC Linkage project 2005-2009  UNSW CLPC, Linux, IBM, Bakers, OSIA, AESN  Emergence of Creative Commons and FFE  Now mainstream  Not absolutist, hybrid business models  Screenrights: $1m for free lesson plans = cash flow positive  Statutory and other licences

21  Belated consideration of user improvements  Rejected ‘Fair Use’ proposals – abandonment of FTA aim of real ‘Harmonisation’ with US copyright law  Format Shifting  Time shifting  Very narrow: rendering CD to iPod arguably still illegal if kept in AIFF format  Controversial, Bill amndt in parliament, relatively rare  Not technologically neutral

22  No one noticed; sky did not fall, controversy evaporated  Loss of opportunity to ‘tax’ blank media  Incremental improvement of consumer position  iPods and TiVo now legal  Minor improvements in compliance, attitudes  Safe for elsewhere? CI interest  Challenges not addressed – old tech focus, last war  What of next wars: iPad, smartphones, mixups, YouTube, mass aggregation? Apple’s struggle to re-monetise net?  The revenge of the maximalist IP-aware signal chain: – your TV is not your agent

23 Administrative defenestration from the cyber tower

24  Allegations of copyright infringement, P2P file sharing  A smaller ISP targeted, not Telstra or Optus  Assertions, repeated, render carrier liable for load?  Death of the common carrier?  Earlier take down notices: 30,000 at once to Verizon  ISP loses ‘safe harbour’ protection when aware: no trial necessary before they must act against client  ‘Three strikes’ rule pushed: disconnect on 3 claims  Result: excluded from the Internet on mere assertion of breach of private right?

25  First Fed Ct hearing: Hollywood FAIL spectacularly  Second Fed Ct Full Ct appeal: FAIL, but win a few  HCA case due 1 December – watch it  Intervener or amicus applications by APF, CA, ADA  Secret negotiations between owners and ISPs  Failure in iiNet litigation should matter  Stand over by AGD – threat to change law if HCA FAIL  Bungled consultation on “streamlined” handover of data  Wikileaks revealed in 2008 Hollywood scared of exposure

26 Online litigant and policy campaign engine

27  340,000 recipients cf. 10,000 party membership  Poll recipients: should we go to HCA re poll closure?  Instant litigation funding base, security for costs may be less of an impediment (cf taxpayer: business, ligiled)  Remarkable successes in re-enfranchisment actions  Ban on recommending candidates  Campaigning on policy alone?  Opposite to modern parties: policies optional?  Challenge to legal policy development?  (Senate Online: problems of constituency)

28 Deliberate and systematic imbalance in cost/risk analysis by young people – failures invisible, training not to care about protecting personal information security of ‘friends’, or yourself

29  10m members in Oz, no phone, minimal presence  Hiding in the cloud – lurking outside legal reach  Unwilling even to enforce own rules – Senate U13 Q  Already lead to collapse of undercover policing?  Used now by police and others to gather evidence  Disasters from over exposure often occur several steps away in time, and in social and real space  Capacity to identify potential consequences is weakest at time of initial addiction  Encourages culture of not caring about risk. But reality...

30 http://cyberlawcentre.org/2011/talks/uts.pptx


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