BILETA 2007 Conference, 16-17 April 2007
2007-09-15 17:50 Category: Conference | IT-law
BILETA 2007, Annual Conference at the University of Hertfordshire, UK, 16-17 April 2007
(EN) In his keynote speech Stephen Mason addressed issues on electronic evidence. The output of a device that is evidence is analogue even if the device is digital. Digital device cannot be touched or felt, therefore e.g. a mobile phone is the primary evidence, while the secondary evidence is the print-out. Mason stressed the importance of knowing how to analyse evidence, as most evidence in courts is being submitted electronically at the moment.
(EN) In his keynote speech Stephen Mason addressed issues on electronic evidence. The output of a device that is evidence is analogue even if the device is digital. Digital device cannot be touched or felt, therefore e.g. a mobile phone is the primary evidence, while the secondary evidence is the print-out. Mason stressed the importance of knowing how to analyse evidence, as most evidence in courts is being submitted electronically at the moment.
There is no concept as such on original when it comes to electronic evidence. Authenticity is often not challenged. In the US documents put in front of the court have to be authenticated (2005 banking case, Vini?) in order to prove data came from the source one claims it came from. Enough evidence from a technical and organisational point of view is required in order to prove that evidence is trustworthy.
Admissibility is not such a problem. Weight to evidence vs burden of proof. For authenticity weight of evidence is important.
Judges make certain presumptions on life, things you do not have to prove. Prof Tapper argues against the presumption that all computers work properly. On the other hand there is trusted computing. The computer can work to your expectations, but if somebody hacked in, the computer cannot be trusted anymore.
Some issues concerning digital evidence include.
- dependency on machine
- dependency on software
- mediation of technology (long-time archiving, problem for digital evidence)
- volume and replication
- meta-data (case in book on Greenpeace confidential e-mail)
- one cannot delete data, maybe expunge it
- falsification data (lawyers argue in court that digital evidence should not be admissible as it could be falsified)
When Mason asked the auditorium how many use electronic signatures he answered that all emails and a pin for internet banking constitute the use of electronic signatures.
Judith Rauhofer talked about Blowing the whistle on Sarbanes-Oxley: Anonymous hotlines and the historical stigma of denunciation in modern Germany. (Paper as pdf) Due to the Enron scandal the Sarbanes-Oxley Act was introduced containing an ethics code. This ethics code contains regulation on whistle-blowing S 301(4) and on the protection of whistleblowers S 806.
What happens when the legal obligation of the Data protection Directive) has to be weight against Sarbanes-Oxley? According to the Opinion of Art 29 Working Party a legal obligation by a foreign state is not possible. One could, however, discuss a legitimate interest in complying with US law and ensuring the financial markets. This leads to the question of a balance of interests. (An interesting case in this respect is the Wal-Mart decision in Germany.)
The recommendations of Art 29 Working Party include:
- limit persons eligible for reporting as well as who might be incriminated
- allow confidentiality, not anonymity (anonymous to accused, but not to authority)
During the stream on Horizon Scanning, chaired by Lilian Edwards, Long, L & Khong, D University of Manchester spoke about Avatars as separate legal entities. They argued that legal fiction is nothing new to the legal field, companies as separate legal entity are a good example. Long and Khong asked the question if avatars could be seen as separate legal entities? This could give rise to fundamental rights and obligations, as well as contractual rights and obligations (such as e.g. World of Warcraft, right to kill).
After lunch the stream Technological Challenges for the Legal Profession took place and was chaired by Euan Cameron. First Al-Majid, W, Lancaster University, talked about Electronic Agents and Legal Personality: Time to Treat them as Human Beings. (Paper as pdf) When it comes to legal personality electronic agents have no liability, as they do not have any assets. This could be solved either by bank accounts or by insurance for them.
De Mulder, R, Erasmus University, Rotterdam, spoke about Anomalies in Internet Law. (Paper as pdf) According to De Mulder law does not keep up with technology. What if it would though? The attempts to keep law updated often lead to phantom regulations. They seem to solve a problem or solve something that seems to be a problem.
For example, the authenticity of documents not a legal question, but rather a matter of fact. Encryption enables authenticity. The EU, however, thought authenticity is a problem. This lead to the 1999 e-signature directive and the sentence “electronic authentication methods that can ensure authentication can be used for authentication".
Digital Rights Management means protection of intellectual rights at the cost of ordinary property (you cannot do everything anymore with the devices). Copyright protection does not work, therefore technical protection used, but does not work, and this leads to legal protection for the technical protection.
The statement "data is intangible" is not correct. It can be measured, looked at with
microscope.
De Mulder concluded as follows:
- anomaly detection software might be necessary
- existing legal concepts are fairly robust
- better education of lawyers: technology, law & economics
- better monitoring of initiating, ratification and implementation of regulations (monitoring-power as 4th power)
- impact assessment of regulations
The European Network for Better Regulation (http://www.enbr.org/) is a good initiative that tries to assess efficiency of regulation.
After De Mulder, I discussed Paper and stone: How technology has not changed the retrieval of legal information, yet. (Paper as pdf)
In the keynote address Bill Thompson talked about The Breaking Wave: what will the wired generation want from the law? Core technologies vanish from our view. You notice people talking on mobile phones, but not anymore people working with their laptops. We use things, but do not see them anymore.
Some of Thompson’s views:
- pervasive internet (wherever, on whatever device)
- democratising media (citizen journalism, user-generated content, "we media", guardian primary on web, paper only second)
- evolving forms of social interaction (speciation and new forms of life. survival of the fit. and the lucky.)
Times are changing (Marx). The economic base has shifted. Social, political and cultural superstructure follows.
Innovation is hard, especially for incumbents (always too late to adopt disruptive solutions, leave the ground to new entrants). This is not just true for the industry. Also forms of social interaction shift. Media, government and law are all subject to change.
Tomorrow's tools
- technologies are in the hands of the young
- they use them differently (prefer IM to email)
- they perceive them differently (boundaries are absent, not important what technology used, young people do not care)
- they shape their expectations
Knowledge is transferred horizontally (not between teachers/parents and kids, but with other friends) and the formal system is not keeping pace. Kids are being naive towards being critical to information. Because they are kids, this will solve itself with time. Curators turn from editor to telling us what to read and what not.
Those who do not understand the past are condemned to repeat it. (Santyana)
Those who do not create the futures are condemned to live in someone else's. (Bill Thompson)
In the stream on Virtual Communities: From the Suburbs to the metropolis chaired by Marina Hamilton, George, C & Scerri, J, Middlesex University & WH Law Advocates, Malta, talked about User-Generated Content Online: Legitimate power or the Wild West? (Paper as pdf)
The legal concerns in web 2.0 are copyright, privacy and defamation & hate speech. The limitations of law lie in discovering user's identity (IP address does not always help), jurisdiction & applicable law, regulation of "undesirable content" and practical issues of instituting a lawsuit.
The role of intermediaries changes:
- easier target for legal action but safeguarded by the law
- Section 230 US Communications & Decency Act: immunity was expanded to (Barrett v Rosenthal), anyone who is not the actual user, negligence (Doe v MySpace),
- contracts - a valid form of control (identity verification, creating awareness - clickwrap agreements not sufficient for the purposes of awareness)
Within the stream on Intellectual Property, chaired by Ronan Deazley, Jondet, N, University of Edinburgh (http://french-law.net/) talked about La France v. Apple: who’s the dadvsi in DRMs? (Paper as pdf)
The legal basis for the interoperability requirement is absent in the relevant Directive. The lawmakers point to the obsolescence of the international text. Does it matter? The recitals to the rescue are 48 and 54.
According to Art L 331-5 paragraph 4 TPMs "must not result in the prevention of the effective application of interoperability..". This means the providers must ..?
In her presentation Edwards, L, University of Southampton discussed From Censorship to Cartelisations?: ISPs and their management of undesirable content. Art 14 E Commerce Directive talks about give notice and takedown, if an ISP follows that, no immunity. If they take down content that was eligible, their terms and conditions of the contract with user often include that they can take down content for whatsoever reason.
Edwards referred to the AHRC Survey and the Oxford PCMLP study "Mystery Shopper". It is not really the users who contact ISP to take down content, but BPI. The focus is on copyright and pornographic material.
IWF Blacklist may lead from private censorship to "enrolled censorship" (co-regulation).
Deazley, R, University of Birmingham, talked about Judges, Judgments and the Jacobean Press: Ownership and control of judicial opinions in the twenty-first century. (http://www.copyrighthistory.org) (Paper as pdf)
Henry VIII issued printing privileges on laws, royal prerogative. Elisabeth initiated a strategic national policy, strategically monopolistic, at the end of 16th century. 1988 crown copyright on laws, judgements. The question can be asked if publishers should have copyright on published cases?
Wilson, C & Onishi, H, University of Southampton presented The online persona: Hikikomori, avatars and Japanese property law. “Manga” characters do not lead to any economic rights, though they do have moral rights.
Other interesting papers included A quantitative analysis of legal word use by Van Noortwijk, Kees and De Mulder, Richard (paper as pdf). The conference web site can be found at http://www.bileta2007.co.uk/
BILETA stands for The British and Irish Law, Education and Technology Association.
Admissibility is not such a problem. Weight to evidence vs burden of proof. For authenticity weight of evidence is important.
Judges make certain presumptions on life, things you do not have to prove. Prof Tapper argues against the presumption that all computers work properly. On the other hand there is trusted computing. The computer can work to your expectations, but if somebody hacked in, the computer cannot be trusted anymore.
Some issues concerning digital evidence include.
- dependency on machine
- dependency on software
- mediation of technology (long-time archiving, problem for digital evidence)
- volume and replication
- meta-data (case in book on Greenpeace confidential e-mail)
- one cannot delete data, maybe expunge it
- falsification data (lawyers argue in court that digital evidence should not be admissible as it could be falsified)
When Mason asked the auditorium how many use electronic signatures he answered that all emails and a pin for internet banking constitute the use of electronic signatures.
Judith Rauhofer talked about Blowing the whistle on Sarbanes-Oxley: Anonymous hotlines and the historical stigma of denunciation in modern Germany. (Paper as pdf) Due to the Enron scandal the Sarbanes-Oxley Act was introduced containing an ethics code. This ethics code contains regulation on whistle-blowing S 301(4) and on the protection of whistleblowers S 806.
What happens when the legal obligation of the Data protection Directive) has to be weight against Sarbanes-Oxley? According to the Opinion of Art 29 Working Party a legal obligation by a foreign state is not possible. One could, however, discuss a legitimate interest in complying with US law and ensuring the financial markets. This leads to the question of a balance of interests. (An interesting case in this respect is the Wal-Mart decision in Germany.)
The recommendations of Art 29 Working Party include:
- limit persons eligible for reporting as well as who might be incriminated
- allow confidentiality, not anonymity (anonymous to accused, but not to authority)
During the stream on Horizon Scanning, chaired by Lilian Edwards, Long, L & Khong, D University of Manchester spoke about Avatars as separate legal entities. They argued that legal fiction is nothing new to the legal field, companies as separate legal entity are a good example. Long and Khong asked the question if avatars could be seen as separate legal entities? This could give rise to fundamental rights and obligations, as well as contractual rights and obligations (such as e.g. World of Warcraft, right to kill).
After lunch the stream Technological Challenges for the Legal Profession took place and was chaired by Euan Cameron. First Al-Majid, W, Lancaster University, talked about Electronic Agents and Legal Personality: Time to Treat them as Human Beings. (Paper as pdf) When it comes to legal personality electronic agents have no liability, as they do not have any assets. This could be solved either by bank accounts or by insurance for them.
De Mulder, R, Erasmus University, Rotterdam, spoke about Anomalies in Internet Law. (Paper as pdf) According to De Mulder law does not keep up with technology. What if it would though? The attempts to keep law updated often lead to phantom regulations. They seem to solve a problem or solve something that seems to be a problem.
For example, the authenticity of documents not a legal question, but rather a matter of fact. Encryption enables authenticity. The EU, however, thought authenticity is a problem. This lead to the 1999 e-signature directive and the sentence “electronic authentication methods that can ensure authentication can be used for authentication".
Digital Rights Management means protection of intellectual rights at the cost of ordinary property (you cannot do everything anymore with the devices). Copyright protection does not work, therefore technical protection used, but does not work, and this leads to legal protection for the technical protection.
The statement "data is intangible" is not correct. It can be measured, looked at with
microscope.
De Mulder concluded as follows:
- anomaly detection software might be necessary
- existing legal concepts are fairly robust
- better education of lawyers: technology, law & economics
- better monitoring of initiating, ratification and implementation of regulations (monitoring-power as 4th power)
- impact assessment of regulations
The European Network for Better Regulation (http://www.enbr.org/) is a good initiative that tries to assess efficiency of regulation.
After De Mulder, I discussed Paper and stone: How technology has not changed the retrieval of legal information, yet. (Paper as pdf)
In the keynote address Bill Thompson talked about The Breaking Wave: what will the wired generation want from the law? Core technologies vanish from our view. You notice people talking on mobile phones, but not anymore people working with their laptops. We use things, but do not see them anymore.
Some of Thompson’s views:
- pervasive internet (wherever, on whatever device)
- democratising media (citizen journalism, user-generated content, "we media", guardian primary on web, paper only second)
- evolving forms of social interaction (speciation and new forms of life. survival of the fit. and the lucky.)
Times are changing (Marx). The economic base has shifted. Social, political and cultural superstructure follows.
Innovation is hard, especially for incumbents (always too late to adopt disruptive solutions, leave the ground to new entrants). This is not just true for the industry. Also forms of social interaction shift. Media, government and law are all subject to change.
Tomorrow's tools
- technologies are in the hands of the young
- they use them differently (prefer IM to email)
- they perceive them differently (boundaries are absent, not important what technology used, young people do not care)
- they shape their expectations
Knowledge is transferred horizontally (not between teachers/parents and kids, but with other friends) and the formal system is not keeping pace. Kids are being naive towards being critical to information. Because they are kids, this will solve itself with time. Curators turn from editor to telling us what to read and what not.
Those who do not understand the past are condemned to repeat it. (Santyana)
Those who do not create the futures are condemned to live in someone else's. (Bill Thompson)
In the stream on Virtual Communities: From the Suburbs to the metropolis chaired by Marina Hamilton, George, C & Scerri, J, Middlesex University & WH Law Advocates, Malta, talked about User-Generated Content Online: Legitimate power or the Wild West? (Paper as pdf)
The legal concerns in web 2.0 are copyright, privacy and defamation & hate speech. The limitations of law lie in discovering user's identity (IP address does not always help), jurisdiction & applicable law, regulation of "undesirable content" and practical issues of instituting a lawsuit.
The role of intermediaries changes:
- easier target for legal action but safeguarded by the law
- Section 230 US Communications & Decency Act: immunity was expanded to (Barrett v Rosenthal), anyone who is not the actual user, negligence (Doe v MySpace),
- contracts - a valid form of control (identity verification, creating awareness - clickwrap agreements not sufficient for the purposes of awareness)
Within the stream on Intellectual Property, chaired by Ronan Deazley, Jondet, N, University of Edinburgh (http://french-law.net/) talked about La France v. Apple: who’s the dadvsi in DRMs? (Paper as pdf)
The legal basis for the interoperability requirement is absent in the relevant Directive. The lawmakers point to the obsolescence of the international text. Does it matter? The recitals to the rescue are 48 and 54.
According to Art L 331-5 paragraph 4 TPMs "must not result in the prevention of the effective application of interoperability..". This means the providers must ..?
In her presentation Edwards, L, University of Southampton discussed From Censorship to Cartelisations?: ISPs and their management of undesirable content. Art 14 E Commerce Directive talks about give notice and takedown, if an ISP follows that, no immunity. If they take down content that was eligible, their terms and conditions of the contract with user often include that they can take down content for whatsoever reason.
Edwards referred to the AHRC Survey and the Oxford PCMLP study "Mystery Shopper". It is not really the users who contact ISP to take down content, but BPI. The focus is on copyright and pornographic material.
IWF Blacklist may lead from private censorship to "enrolled censorship" (co-regulation).
Deazley, R, University of Birmingham, talked about Judges, Judgments and the Jacobean Press: Ownership and control of judicial opinions in the twenty-first century. (http://www.copyrighthistory.org) (Paper as pdf)
Henry VIII issued printing privileges on laws, royal prerogative. Elisabeth initiated a strategic national policy, strategically monopolistic, at the end of 16th century. 1988 crown copyright on laws, judgements. The question can be asked if publishers should have copyright on published cases?
Wilson, C & Onishi, H, University of Southampton presented The online persona: Hikikomori, avatars and Japanese property law. “Manga” characters do not lead to any economic rights, though they do have moral rights.
Other interesting papers included A quantitative analysis of legal word use by Van Noortwijk, Kees and De Mulder, Richard (paper as pdf). The conference web site can be found at http://www.bileta2007.co.uk/
BILETA stands for The British and Irish Law, Education and Technology Association.