When a judge makes a good decision, it shouldn't be news. But, in this case, it's very good news indeed. This week New York Magistrate Judge Gary Brown for the United States District Court for the Eastern District of New York filed a 26-page ruling pointing out that the person listed as an Internet account holder is often not the person using the account.
"It is no more likely that the subscriber to an IP address carried out a particular computer function–here the purported illegal downloading of a single pornographic film–than to say an individual who pays the telephone bill made a specific telephone call," Brown said in his Order & Report & Recommendation, filed May 1.
"An IP address merely identifies the location where a certain activity occurred", Brown noted. A computer in a household is usually shared, which means a child, a boyfriend, or any other visitor, is just as likely to be using the computer. Brown also noted that many households now have a wireless network. If the network is not secured, many people, including neighbors and strangers, can be sharing that IP address without the original account holder's knowledge.
"Considering the weak relationship between an IP address and personal identity, it's likely copyright holders were accusing the wrong people of violating copyright", Brown noted. Mass-BitTorrent lawsuits relying entirely on IP addresses to identify copyright infringers were a "waste of judicial resources," he wrote.
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I confess, though I consider myself a spiritual person, I'm not very religious. People born of a particular faith have all kinds of excuses for their lack of observance. But, usually, it just boils down to a matter of convenience. That's not my problem. I take my kids to religious school every week. I Facebook with a rabbi, a minister, a Jogye, a couple Hasidim, and members of an entire profession that most modern religions have determined to be Satan's disciples. I have plenty of opportunity, and ample reason, to pray and ask for forgiveness.
But, for those of you still searching for excuses, here's one less: If you happen to be Catholic, you no longer have to schlep your tuchas to the confessional. Now the "Jesus Phone" will bring the power of the confessional to the palm of your hand. What's more, this app not only received the coveted blessing of St. Jobs himself, but it even got the Pope's blessing for goodness sake. Which is impressive and shows great benevolence on the part of the church, considering that this app clearly duplicates existing ecclesiastical functionality.
I'm impressed that the Vatican is willing to embrace technology with open arms. Science, after all, is not their strong subject. The only question I have is, should one's iPhone become an item of evidence in a legal context, is it possible that this app will confess your sins to the police as well?
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What is the world coming to when our leaders use scare tactics to get what they want? (Rhetorical question, of course.) But that's exactly what happened when backers of the so-called "Internet Kill Switch" evoked images of foreign hackers opening flood gates and drowning citizens.
“We are very concerned about an electronic control system that could cause the floodgates to come open at the Hoover Dam and kill thousands of people in the process,” said Brandon Milhorn, staff director of the Senate Homeland Security and Governmental Affairs Committee. ”That’s a significant concern.”
Not only is that not a significant concern, it turns out not even to be an insignificant concern. But the false information was no insignificant matter to the Bureau of Reclamation, which runs the power-generating facility on the Arizona-Nevada border.
“I’d like to point out that this is not a factual example, because Hoover Dam and important facilities like it are not connected to the internet,” Peter Soeth, a spokesman for the bureau, said in an e-mail. “These types of facilities are protected by multiple layers of security, including physical separation from the internet, that are in place because of multiple security mandates and good business practices.”
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In a statement issued this week, Senators' Joseph Lieberman (I-Conn.), Susan Collins (R-Maine), and Tom Carper (D-Del.) said that their intent was to allow the president "to protect the U.S. from external cyber attacks," not to shut down the Internet.
Aside from the obvious civil liberties concerns, the problem I see is largely a mechanical one, and it demonstrates the Senators' lack of fundamental understanding when it comes to the world in which they legislate: By the time a cyber attack is apparent, it's no longer likely an "external" threat. The most effective attacks known today are distributed amongst a multitude of machines in various locations, making it impossible to protect citizens without shutting down the Internet -- if such a thing could even be accomplished in this country.
The U.S. network infrastructure is much more complex and diverse than that of Egypt. In part, that has to do with the shear differences in scale. But, perhaps surprisingly, it also has to do with the age of our network. Parts of our interconnected network go back five decades. Some interconnected networks predate the Internet itself. And these are interconnected with new infrastructure being added every day without the need for government knowledge or consent.
Most importantly, when the Advanced Research Projects Agency Network (ARPANET) was conceived, it was specifically designed to survive and reroute against an outage. That means, depending on the final draft, the law would likely be either ineffective, dangerous, or both.
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Where do I begin? Even before (maybe especially before) storage devices were portable, they were still vulnerable to theft, due more to their high resale value than the questionable value of their contents. Today, the market value of even a brand-new desktop computer may not be worth the potential consequences of being caught. But, the lucrative identity theft trade has given rise to an entirely different motive for computer, tablet, and cellphone theft. In this case, the device is simply a means to an end.
But theft and the obvious concern over losing such easily and commonly misplaced devices as thumb drives are far from the only reason to encrypt hard drive data. Today, for instance, international travelers may be subject to the copy and search of their hard drives, as authorized by the Department of Homeland Security's U.S. Customs and Border Enforcement's "Policy Regarding Border Search of Information" (July 16, 2008), which, among other things, allows Customs Agents broad discretion to detain "electronic devices, or copies thereof, for a reasonable period of time to perform a thorough border search." Regardless of your motivation, encrypting mobile data storage should be high on your list of priorities. Like my AmericanExpress card, I never leave home with out it.
Note to attorneys, medical professionals, or anyone with a fiduciary responsibility: Unlike most professionals, you may have a legal, if not ethical, responsibility to protect your clients' data. Even if a standard for "reasonableness" has previously been applied to "locks" and other 20th century security practices, it may not apply to devices removed from a secure space. Check with your respective associations and/or licensing boards for more information. ... CONTINUE READING »
Last month the US Federal Trade Commission testified before Congress in order to establish "Do Not Track" legislation, challenging companies to either self-regulate, or face potentially stiff laws prohibiting the tracking of Internet users. This week the US Department of Justice testified before congress to establish regulations requiring data retention for the purposes of investigation and prosecution.
"Data retention is fundamental to the department's work in investigating and prosecuting almost every type of crime," US deputy assistant attorney general Jason Weinstein told a congressional subcommittee on Tuesday. "In some ways, the problem of investigations being stymied by a lack of data retention is growing worse." Weinstein acknowledged that greater data retention requirements raise legitimate privacy concerns but "any privacy concerns about data retention should be balanced against the needs of law enforcement to keep the public safe."
Emphasizing the vast disparity between the testimony of these two Federal organizations is the following statement from the FTC's own prepared statement to Congress expressing a principal of "reasonable security and limited retention for consumer data" among companies collecting sensitive data.
"A key to protecting privacy is to minimize the amount of data collected and held by ISPs and online companies in the first place," according to John Morris, general counsel at the non-profit Center for Democracy & Technology. "Mandatory data retention laws would require companies to maintain large databases of subscribers' personal information, which would be vulnerable to hackers, accidental disclosure, and government or other third party access."
The DOJ's request would require "an entire industry to retain billions of discrete electronic records due to the possibility that a tiny percentage of them might contain evidence related to a crime," says Kate Dean, executive director of the Internet Service Provider Association. "We think that it is important to weigh that potential value against the impact on the millions of innocent Internet users' privacy."
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A byproduct of life in the 21st Century is that many of the perks of a post-centennial lifestyle require the abdication of a fair bit of privacy to cyberspace. That means that the paper records that once required a search warrant to read (and maybe the forceful extraction from your cold-dead-hands), are now in the possession of companies who don't. Of course there's Facebook and Twitter. Those didn't exist in the 20th. Century. But, what about your phone records and email? While your phone company has long been subject to a warrant or subpoena, in the 21st. Century new "self-service" tools have been developed to help telcos manage the onslaught of requests made particularly attractive by the fact that most of us carry what amounts to a homing-beacon in our pockets. Similarly, while email has always been an attractive source of discovery, until recently most of it resided on each correspondent's physical, and virtual, desktop waiting to get written-over by something more current. Today, it's more likely been put out to pasture in a seemingly-endless "server farm", waiting to be picked by a custodian of records.
Even our personal computers, which have always required a search warrant, and often require a cascading series of search warrants covering various regions of storage space and categories of searches, are rapidly being replaced by windows to the web -- sleek sheets of glass and sculpted-aluminum that act as a portal to your virtual existence. Like a supermodel, these tablets are thin and beautiful, but two-dimensional, with very little substance inside. What makes these devices a reality today is a combination of near-ubiquitous Internet connectivity and access to your personal online data once it's established. Even the notion of "backing up" is becoming a thing of the past, because the data you see, isn't really here. It's somewhere else, presumably safe from destruction, but not necessarily from dissemination. Like many things in life, it's a trade-off.
But, not when it comes to fighting crime. The shift of discovery from physical space to cyberspace is a decided advantage for law enforcement. In fact, Google reports that it responded to more than 4200 discovery requests in the first-half of 2010 alone. One of the reasons these requests have become so popular is that online data is easier seize than a laptop, and often much more useful. Much of what can be had requires no search warrant at all, and thanks to online tools, can be had without even so much as contacting the service provider. Why? Because, unlike the data on your hard drive, you don't necessarily own your data when it's stored in cyberspace.
The Electronic Communications Privacy Act was enacted by Congress in 1986 -- long before most people had access to the Internet, email, or a cellphone. When Mark Zuckerberg's only friends were his stuffed animals. Mind you, it was revolutionary for it's time -- enacted to extend government restrictions on wire taps from telephone calls to also include transmissions of electronic data by computer. But, it doesn't address current evolution. Today, far more can be gleaned from a historical records search than any telephone wiretap. Perhaps that's why last year the Department of Justice argued in favor of warantless email searches. Or why in the same year the DOJ argued that cellphone users had abdicated any expectation of privacy by using a service that stores location data.
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