[kictanet] Day 6 of 10: IG Discussions, Legal Issues
waudo siganga
emailsignet at mailcan.com
Mon Aug 18 12:38:42 EAT 2008
Hi Walu - IPR presents one of the greatest legal challenges on the
Internet. Expert is Bernard Sihanya. One of the learned friends to be
traced.
Waudo
On Sun, 17 Aug 2008 23:00:03 -0700 (PDT), "John Walubengo"
<jwalu at yahoo.com> said:
> Hi all,
>
> Hpe u had a good weekend. Today is day 6 of 10, but the theme is still
> on legal issues.
>
> I still cant believe the learned friends have not spoken and left
> everything to Alex and Mike. If any of you runs into Evelyn R., Kihanya
> J., Omo J. or Clara R. just to mention a few, ask them if they can give
> us a shout without us having to 'open a file'
>
> We have only today for this since tomorrow we move into the Economic
> Issues to be facilitated by a renowned IG expert to be unveiled in due
> course.
>
> walu.
>
> --- On Sat, 8/16/08, Alex Gakuru <alex.gakuru at yahoo.com> wrote:
>
> > From: Alex Gakuru <alex.gakuru at yahoo.com>
> > Subject: Re: [kictanet] Day 5 of 10: IG Discussions, Legal Issues
> > To: jwalu at yahoo.com
> > Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
> > Date: Saturday, August 16, 2008, 11:17 AM
> > G8 links!
> >
> > The introduction to this topic was on the presumption that
> > consumers were the criminals proceeding to outline law
> > enforcement challenges. The most convenient and common form
> > of misrepresenting cyber crimes and law -- first take away
> > all their rights then they struggle to regain one after the
> > other... It is good that Mike presents both sides of the
> > story.
> > Telecommunication companies hold massive data on all
> > individuals and they ensure that their on their "Terms
> > of Use" and contracts users are "guilty until
> > proven innocent" and the companies are at liberty to do
> > whatever they please with our personal data.
> >
> > Consider below extract from a local telecommunication
> > company's Terms of Use: -
> > ------------
> > 5. Use of your information
> >
> > (The Company) may hold and use information provided by you
> > for a number of purposes, which may include:
> >
> > (a) Carrying out any activity in connection with a legal,
> > governmental or regulatory requirement on (The Company) in
> > connection with legal proceedings or in respect of crime or
> > fraud prevention, detection or prosecution.
> >
> > (b) Monitoring or recording of your communications for (The
> > Company)’s business purposes such as marketing, quality
> > control and training, prevention of unauthorised use of
> > (The Company)’s telecommunications system and ensuring
> > effective systems operation in order to prevent or detect
> > crime.
> >
> > ---------
> >
> > "May include" does not mean "limited
> > to" - implying that they are allowed, for example, to
> > share, sell, etc private data to their partners... Exactly
> > what Mike points out to on the Business Week link.
> >
> > Framed in ways suggestive of company "law
> > enforcer" (illegal roles) onto "guilty"
> > users. Notice how "Intellectual Property" is
> > conveniently repeated. Or is it be assumed that consumers do
> > not have any "intellectual property" they would
> > wish protected? the companies should abide to also protect.
> > BTW, There is an IGF Dynamic Coalition movement calling for
> > a balance between Intellectual Property and development
> > which includes Access to Knwoledge
> > (A2K).<http://www.ipjustice.org>. Very resourceful!
> >
> >
> > Supposing earlier proposed M-Medicine went ahead in East
> > Africa? Sold ailments data to pharmaceutical companies, that
> > would hike medicines prices in outbreak zones at selected
> > locations... You go to a bank with a water-tight business
> > proposals and all bank turn you down. Reason? They have
> > shared your medical history and they think you will soon
> > "sleep in the shamba" your excellent business
> > proposals notwithstanding.
> >
> > In summary, unless Data Protection and Privacy Laws are
> > enacted, the default should be to deny all telecommunication
> > companies legal loophole to trade with personal information.
> > And it should be seen to be enforced.
> >
> > On a lighter note, should I sue a WiFi company for
> > trespassing when their signals enter my laptop, or should
> > they sue me for illegally access of their signal? Over to
> > Ben Shihanya.
> >
> > Thanks again Mike!
> >
> >
> > --- On Fri, 8/15/08, Mike Theuri
> > <mike.theuri at gmail.com> wrote:
> >
> > > From: Mike Theuri <mike.theuri at gmail.com>
> > > Subject: Re: [kictanet] Day 5 of 10: IG Discussions,
> > Legal Issues
> > > To: alex.gakuru at yahoo.com
> > > Cc: "KICTAnet ICT Policy Discussions"
> > <kictanet at lists.kictanet.or.ke>
> > > Date: Friday, August 15, 2008, 2:11 PM
> > > Not a legal opinion: It would be very difficult to
> > apply
> > > existing common law
> > > (analogous to jurisprudence) to electronic crimes
> > committed
> > > in a new era,
> > > atleast within the local context.
> > >
> > > For these reasons it is necessary to define the crimes
> > > under distinct and
> > > separate legislation. Due to the borderless nature of
> > the
> > > Internet (see
> > > shared link), it is necessary for such legislation to
> > take
> > > a broad
> > > approach into account.
> > >
> > > For instance there ought to be provisions that allow
> > local
> > > authorities to
> > > seek the arrest and extradition of foreign based
> > suspects
> > > from other
> > > jurisdictions for electronic crimes committed against
> > > citizens or local
> > > infrastructure owned by individuals or entities even
> > though
> > > the suspects at
> > > the time of commission of the crime were present in
> > other
> > > jurisdictions.
> > >
> > > The same provision can allow private parties to pursue
> > > civil remedies in a
> > > similar matter and give them the basis where possible
> > to
> > > enforce the
> > > judgement in the defendant's jurisdiction.
> > >
> > > This for example would close the possible
> > jurisdictional
> > > loophole
> > > of individuals crossing borders so as to commit
> > electronic
> > > crimes from a
> > > country that lacks electronic crime laws. Current law
> > is
> > > ill equipped in
> > > ensuring civil remedies, prosecution or arrest of
> > local or
> > > international
> > > cyber criminals, 419ers, lurers of minors, harassers,
> > > electronically
> > > transmitted or created threats (threats to a person,
> > > threats to
> > > infrastructure by way of viruses, malaware, DoS etc)
> > etc
> > > neither is it
> > > likely to be in a position to ensure serious
> > consequences
> > > or deterents for
> > > the same or allow for the definition of crimes as
> > > distinguished here for an
> > > international gang of culprits:
> > >
> > http://www.secretservice.gov/press/GPA15-08_CyberIndictments_Final.pdf
> > >
> > > It was recently reported that a bill or regulations to
> > > protect the data of
> > > consumers would be brought about as a means of
> > regulating
> > > the CRBs. This
> > > could be model legislation/regulations to adopt to
> > ensure
> > > that the public
> > > has a say in the manner in which their private
> > information
> > > is used.
> > >
> > > At the same time consumers ought to be able to
> > instruct
> > > companies with whom
> > > they have business relationships with not to share
> > that
> > > same information
> > > with 3rd parties without their prior consent (ie
> > > opt-in/out). This is only
> > > effective if there are laws or regulations to provide
> > for
> > > consequences when
> > > businesses violate the same.
> > >
> > > As CRBs take root, there will be a likelihood that
> > similar
> > > bureaus or
> > > entities will eventually start sharing information in
> > real
> > > time, for example
> > > an underwriter of an insurance policy might want to
> > check
> > > an individual's
> > > claim history across the industry to determine the
> > level of
> > > risk the insured
> > > poses in determining policy premiums. Similarly an
> > > organization may want to
> > > conduct background checks for prospective employees in
> > > privately maintained
> > > electronic databases.
> > >
> > > It is important that instead of regulations or laws
> > being
> > > formed for sectors
> > > of the economy, that national data privacy laws and
> > > regulations be defined
> > > (or ammended) and on that basis refinement of specific
> > > regulations/laws
> > > could be made for sectors that require specific data
> > > requirements. Such
> > > regulatory foresight can reduce or avert the occurence
> > of
> > > issues such as
> > > those seen here:
> > >
> > http://www.businessweek.com/magazine/content/08_31/b4094000643943.htm?campaign_id=rss_null
> > >
> > >
> > > On Fri, Aug 15, 2008 at 12:21 AM, John Walubengo
> > > <jwalu at yahoo.com> wrote:
> > >
> > > > Mornings,
> > > >
> > > > Today and next Monday, we intend to thrash out
> > the
> > > legal dimensions of
> > > > Internet Governance. The typical issues revolve
> > > around:
> > > > -Jurisdiction & Arbitration (who resolves
> > > e-disputes)
> > > > -Copyright & IPR (are they pro or
> > > anti-development?)
> > > > -Privacy and Data Protection (how is the
> > e-Citizens
> > > data abused/protected?)
> > > >
> > > > I do hope the 'learned' friends will chip
> > in
> > > since I cannot pretend to be
> > > > an expert here as I introduce the general legal
> > > principals. Basically,
> > > > dispute resolutions can be done through,
> > > > · Legislation;
> > > > · Social norms (customs);
> > > > · Self-regulation;
> > > > · Regulation through code (software
> > solution);
> > > > · Jurisprudence (court decisions);
> > > > · International law.
> > > >
> > > > There is however two broad conflicting schools of
> > > thought when it comes to
> > > > resolving disputes occasioned by the Internet.
> > One
> > > group claims that
> > > > whatever happens online does have an equivalent
> > > 'off-line' characteristics
> > > > and as such existing laws can easily be applied.
> > E.g
> > > stealing money
> > > > electronically is no different from stealing
> > money
> > > physically and so Robbery
> > > > charges and subsequent jurisdictional procedures
> > could
> > > apply. However, the
> > > > second group feels that electronic crimes have a
> > > totally different context
> > > > and must have a separate and totally new set of
> > > legislation or methodologies
> > > > for resolutions.
> > > >
> > > > The borderless nature of the Internet brings to
> > fore
> > > the Challenges of
> > > > Jurisdiction and Arbitration as in
> > yesterday's
> > > example, where content in one
> > > > country may be illegal but is legal in another.
> > > Copyright and Intellectual
> > > > Property Rights issues are also explosive as
> > > demonstrated by the Napster
> > > > Case, where some young software engineers created
> > > software that facilitated
> > > > sharing of (SONY) Music files across the
> > Internet.
> > > Also related was the case
> > > > of Amazon.com trying to Patent the
> > > 'single-click' method of buying goods
> > > > online.
> > > >
> > > > Other cases touch on Data Privacy where Business
> > > Companies have been known
> > > > to sell customer records to Marketing firms
> > without
> > > express authority from
> > > > the Customers. Other times customer data is
> > simply
> > > hacked into and
> > > > Businesses are unable to own up (going public) to
> > the
> > > detriment of the
> > > > Customer.
> > > >
> > > > Most of these issues are under discussion
> > > internationally at the Internet
> > > > Governance Forum (IGF), World Intellectual
> > Property
> > > Organization (WIPO)
> > > > amongst other fora. They present emerging legal
> > > challenges and it would be
> > > > interesting to know if stakeholders in the East
> > > African region are/should be
> > > > involved in shaping the outcomes of any of these
> > > issues.
> > > >
> > > > 2days on this one, today and next Monday and feel
> > free
> > > to belatedly respond
> > > > to Day 1 through Day 5 issues.
> > > >
> > > > References:
> > > > http://www.diplomacy.edu/ISL/IG/
> > > > http://en.wikipedia.org/wiki/Napster
> > > >
> > > >
> > > >
> > > >
> > > >
> > > > _______________________________________________
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