law | Paul Wallbank - Communications Professional

Clerks, Dying Videos and Culture Clashes: Links of the week

The race to rescue VHS tapes, how Ford lost Google and the fascinating world of London legal clerks are among last week’s interesting links.

London clerks

Inside the antiquated, but very lucrative, world of London barristers’ clerks. A fascinating a look at one aspect of the English legal profession where old traditions have conveniently merged with modern fees.

Saving VHS tapes

One of the banes of modern culture is shifting standards. As VHS tapes decay, researchers are racing to preserve the culture of the 1980s and 90s, reports US National Public Radio.

Google and Ford clash cultures

Joint ventures and business partnerships are often problematic, as Ford found in their abortive autonomous vehicle project with Google.

Liability and the Internet of Things

What happens when an internet connected device fails?

In The Australian today I have a piece discussing the legal risk of the IoT.

Lawyers warn that manufacturers, distributors and installers all face the possibility of damages should their devices malfunction or not perform as advertised.

This risk is compounded by the data analysis with Michael Stojanovic of international law firm Bird & Bird citing the example of a gas monitoring device accurately detecting and reporting a surge but a company being liable because they didn’t warn their customer something was amiss.

Equally there’s a risk with misreported or lost data. This in itself is presents a problem as many of the software vendors currently looking at supplying the IoT have a ‘best effort’ mentality where they don’t accept responsibility for service interruptions.

While that attitude may have stood up before courts over the last twenty years, it’s unlikely to get much sympathy from judges and juries when critical systems are affected.

Like everything else in life, the lawyers are coming for the IoT.

Who owns a smartcar’s smarts?

The question of software ownership in a smartcar opens a range of difficult questions about the internet of things.

Automakers Say You Don’t Really Own Your Car states the Electronic Frontiers Foundation.

In their campaign to amend the US Digital Millenium Copyright Act to give vehicle owners the right to access and modify their automobiles’ software the EFF raises an important point.

Should the software licensing model be applied to these devices then purchasers don’t really own them but rather have a license to use them until the vendor deems overwise.

Cars, of course, are not the only devices where this problem arises. The core of the entire Internet of Things lies in the software running intelligent equipment, not the hardware. If that software is proprietary and closed then no purchaser of a smart device truly owns it.

Locking down the smarthome

This raises problems in smarthomes, offices and businesses where the devices people come to depend upon are ‘black boxes’ that they aren’t allowed to peer into. It’s not hard to see how in industrial or agricultural applications that arrangement will often be at best unworkable.

Four years ago tech industry leader Marc Andreessen pointed out how software is eating the world; that most of the value in an information rich economy lies in the computer programs that processes the data, not the hardware which collects and distributes it.

That shift was flagged decades ago when the initial fights over software patents occurred in the 1980s and 90s and today we’re facing the consequences of poorly thought out laws, court decisions and patent approvals that now challenge the concepts of ownership as we know it.

Is ownership outdated?

However it may well be that ‘ownership’ itself is an outdated concept. We could be entering a period where most of our possessions are leased rather than owned.

If we are in a period where ownership is an antiquated concept then does it matter that our cars, fitness bands, kettles, smoke alarms and phones are in effect owned by a corporation incorporated in Delaware that pays most of its tax in the Dutch Antilles?

Who owns the smartcar’s data?

The next question of course is if the software in our smart devices is secret and untouchable then who owns the data they generate?

Ownership of a smartcar’s data could well be the biggest issue of all in the internet of things and the collection of Big Data. That promises to be a substantial battle.

In the meantime, it may not be a good idea to tinker too much with your car’s software or the data it generates.

How the Internet of Things could overtake the law

The internet of things is going to present challenges for governments and regulators.

Last March the Australian internet industry celebrated twenty years of commercial operations with the Rewind/Fast Forward conference that looked at the evolution of the online economy down under and its future.

Naturally the Internet of Things was an important part of the discussion looking at the internet’s future and one of the panels examined the effects of the IoT on industry and society.

During the session chairman of the Communications Alliance industry association, John Stanton, raised an important point about how the IoT creates problems for existing laws and the regulators as a wave of connected devices are released onto the market place.

The risks are varied, and Stanton’s list isn’t exhaustive with a few other aspects such as liability not explored while some of the issues he raises are a problem for other internet based services like cloud computing and social media.

Roaming rules

Having fought many regulatory battles over roaming charges and access between networks, it’s not surprising Stanton and the Communications Alliance would raise this as an issue.

Dealing with roaming devices will probably be a big challenge for mobile Machine to Machine (M2M) technologies, particularly in the logistics, airline and travel industries. We can expect some bitter billing battles between clients and their providers before regulators start to step in.

Number schemes

Again this is more an issue for mobile M2M consumers. Currently every SIM card has its own phone number once the service is activated. It may be that regulators have to revise their numbering schemes or allow providers to use alternative addressing methods to contact devices.

Data sovereignty

Where data lives is going to continue to be a vexed issue for cloud computing consumers, particularly given the varied laws between nations.

Short of an international treaty, it’s difficult to see how this problem is going to be resolved beyond companies learning to manage the risks.

Identity management

Data integrity is essential for the IoT and accurately determining the identity of individuals and devices is going to be a challenge for those designing systems.

Over time we can expect to see some elegant and clever solutions to identity management in the IoT however masquerading as a legitimate device will always be a way malicious actors will try to hack systems.

Privacy

For domestic users, the privacy of what remains in data stores is going to be a major concern as domestic devices and wearables gather greater amounts of personal information. We can expect laws to be tightened on the duties and obligations of those collecting the data.

Access Security

Who can do what with a networked device is another problem, should a malicious player or a defective component get onto the system, the damage they can do needs to be minimised. What constitutes unlawful access to a computer network and the penalties needs to be carefully thought out.

Spectrum allocation and cost

Governments around the world have been reaping the rewards of selling licenses to network operators. As the need for reliable but low data usage IoT networks grows, the economics of many of the existing licenses changes which could present challenges for both the operators and governments.

Access to low cost and low data access networks

Following on from the economics of M2M networks, the question of mandating slicing of scarce spectrum for IoT applications or reserving some frequencies becomes a question. How such licenses are granted will cause much friction and many headaches between regulators and operators.

Commercial value of information

How much data is worth will always be a problem in an economy where information is power and money. This though may turn out to be more subtle as information is only valuable in the eyes of the beholder.

Where information becomes particularly valuable is in financial markets and highly competitive sectors so we can see the IoT becoming part of insider trading and unfair competition actions. These will, by definition, be complex.

Like any new set of technologies the internet of things raises a whole new range of legal issues as society adapts to new ways of doing business and communicating. What we’re going to see is a period of experimentation with laws as we try to figure out how the IoT fits into society.

Driverless cars outrun the law

Governments are going to face a number of challenges as autonomous vehicles become common on the road.

Tesla founder Elon Musk believes there will be driverless cars on US roads by the summer, the New York Times reports.

One of the key factors in whether Musk’s prediction comes to and driverless cars are on the road by the middle of the year is the law with most people assuming autonomous vehicles are currently illegal.

Some experts however believe current laws don’t prevent driverless cars, with the New York Times quoting one industry leader who suggests there’s no legal barrier to autonomous vehicles taking to the road.

Tesla is not alone in pushing the envelope. Chris Urmson, director of self-driving cars at Google, raised eyebrows at a January event in Detroit when he said Google did not believe there was currently a “regulatory block” that would prohibit self-driving cars, provided the vehicles themselves met crash-test and other safety standards.

This view raises an interesting legal argument, who is the recognised driver of an autonomous vehicle? In the event of an accident or dispute does liability rest with the owner, the manufacturer or the passengers?

What this debate over driverless vehicles illustrates is how laws specific to today’s society aren’t always applicable to tomorrow’s technologies; certainly many of the laws designed for the horse and buggy era became redundant as the motor car took over a hundred years ago.

Another consequence of autonomous vehicles are the changes to occupations supporting the motor industry; it’s obvious that panel beaters and insurance lawyers may have their jobs at risk but Jay Zagorsky in The Conversation suggests nearly half of US police numbers would be redundant if there are no more car drivers.

Given how the funds local and state governments raise from traffic offences, a shift to driverless technologies could even have an effect on city budgets.

The motor car was the most far reaching technology of the Twentieth Century in the way it changed the economy and society over those years, it’s hardly surprising that we are only just beginning to comprehend how a shift to driverless vehicles may change our lives this century.

King Canute and Google: When the algorithm is wrong

As society and business drown in big data we’re relying on algorithms and computer programs to helps us wade through the masses of information, could that be a weakness?

As society and business drown in big data we’re relying on algorithms and computer programs to helps us wade through a flood of information, could that reliance be a weakness?

British Archeology site Digital Digging discusses how Google displays Manchester United winger Ryan Giggs in the results search for Cnut, the ancient king of Denmark better known in the English speaking world as King Canute.

Apparently Giggs appears in the search results for Canute because of the footballer’s futile attempt to hold back a tide of information about his love life.

While Google’s algorithm seems to have made a mistake, it’s only doing what it’s been programmed to do. A lot of trusted websites have used the term ‘Canute’ or ‘Cnut’ in relation to Giggs so the machine presents his picture as being relevant to the search.

Confusing Ryan Giggs and King Canute is mildly amusing until we consider how critical algorithms like Google Search have become to decision making, there are no shortage of stories about people being wrongly billed, detained or even gaoled on the basis of bad information from computers.

The stakes in making mistakes based on bad information are being raised all the time as processes become more automated, a chilling technology roadmap for the US military in Vice Magazine describes the future of ‘autonomous warfare’.

By the end 2021, just eight years away, the Pentagon sees “autonomous missions worldwide” as being one of their objectives.

Autonomous missions means local commanders and drones being able to make decisions to kill people or attack communities based on the what their computers tell them. The consequences of a bad result from a computer algorithm suddenly become very stark indeed.

While most decisions based on algorithms may not have the life or death consequences that a computer ordered drone strike on a family picnic might have, mistakes could cost businesses money and individuals much inconvenience.

So it’s worthwhile considering how we build the cultural and technological checks and balances into how we use big data and the algorithms necessary to analyze it so that we minimise mistakes.

Contrary to legend, King Canute didn’t try to order the tide not to come in. He was trying to demonstrate to obsequious court that he was fallible and a subject to the laws of nature and god as any other man.

Like the court of King Canute, we should be aware of the foibles and weaknesses of the technologies that increasingly guides us. The computer isn’t always right.

Are bloggers immune from the law?

Bloggers and social media users don’t have the resources of newspapers and broadcasters. Does this give them a legal advantage?

Last week Lord Justice Leveson of the British inquiry into the culture, practice and ethics of the press gave his first public speech since handing down his report to the UK Parliament.

In this speech, Lord Leveson claimed that bloggers and social media users have an advantage over traditional media channels because they don’t respect the law. This is nonsense and detracts from the importance of the UK inquiry.

Speaking to the Communications Law Centre in Sydney last Friday, Lord Leveson gave his perspectives on how privacy is evolving as the media struggles with a 24 hour news cycle and the rise of the Internet.

One particular point he made was how the differing economics of traditional media and internet channels affected moral judgements.

“online bloggers or tweeters are not subject to the financial incentives which affect the print media, and which would persuade the press not to overstep society’s values and ethical standards.”

This view seems flawed – the reason for the UK inquiry into the ethics of the press was because the reporters at some of the nation’s top selling newspapers were overstepping society’s standards. They were doing this in the pursuit of profit.

At the other end of the scale, Leveson’s implication is that because most bloggers and social media users aren’t making money from their operations this makes them more prone to flaunting the community’s laws and morals.

What that view overlooks is that those bloggers, Facebook posters and Twitterers don’t live in magical castles sipping the fragrant, rainbow coloured milk of bejewelled unicorns – they have day jobs that pay for their online activities which often makes them far more aware of societal norms than those locked in the hyper-competitive and insular world of professional journalism.

Later in his speech Leveson expanded on this theme with a comment about the jurisdiction of bloggers and their servers.

The established media broadly conforms to the law and when they do not they are potentially liable under the law. In so far as the internet is concerned there has been and, for many, there remains a perception that actions do not have legal consequences. Bloggers rejoice in placing their servers outside the jurisdiction where different laws apply. the writ of the law is said not to run. It is believed therefore that the shadow of the law is unable to play the same role it has played with the established media.

This view is clearly at odds with reality as again it was the widespread failure of the ‘established media’ in conforming to UK law made Leveson’s inquiry necessary.

Bloggers and other internet users being somehow immune to legal consequences is a clearly not the case.

A good example of this are the various British computer hackers and webmasters who’ve found themselves facing extradition to the US for actions which are either not illegal in the UK or would face minor penalties.

Probably the best example of Internet users facing the full force of the law is the persecution of Paul Chambers who was prosecuted and convicted for making threats against an airport in an innocuous tweet that the local police and airport management thought was irrelevant.

The force of the law that was thrown against Mr Chambers was impressive compared to the somewhat reluctant efforts of bringing charges against the dozens of journalists, editors and crooked policemen exposed by the Leveson inquiry.

At the heart of the difference between the traditional media and the online communities is a power and economic imbalance. Despite the declining fortunes of newspapers, they are still politically powerful, influential and well resourced. Which is a good reason why prosecutors, police and politicians are reluctant to hold them account for their excesses.

On the other hand the vast bulk of bloggers are not; they don’t have a masthead to hide behind or a large, well funded legal team to defend them which actually makes them an easier target for litigation and criminal charges.

Some bloggers may believe they are immune from the law, but the reason for that is because they are ignorant of the legal system’s reach. Some of them will pay for that ignorance.

The idea though that bloggers and social media users have some legal advantage over traditional media outlets because of their comparative poverty and location of their servers is simply wrong.

If anything the advantage is firmly in favour of those working for big business. This is the real lesson of the UK media scandals of the past two years.

Risk free fallacies

Can we really build a risk free world?

One of the conceits of the late Twentieth Century was that we can engineer risk out of our lives.

Derivatives like Collateral Debt Obligations were thought to overcome financial risks, think contracts would eliminate business risks and wise central banks would massage the economic cycle to banish the risks of economic crises.

In schoolyards, the kids are banned from doing cartwheels and playing ball games – in response to a recent edict prohibiting physical activity at a local school an education department spokesman said the ban was to prevent, and not in response to, playground injuries.

So nothing’s happened to provoke a ban, just someone decided there was risk and the first reaction is to eliminate it rather than manage it.

In a litigious society where a culture of blame has developed this reaction is understandable. If a kid gets hurt in the playground then the parents might blame the teacher and one should be under no illusion that in the NSW state education system, the industrial concerns of teachers will always trump the welfare of students.

So the cartwheels must stop.

The strange thing with our culture of blame is that when something goes seriously wrong, such as the implosion of the banking system due to greed and misunderstanding of risk, no-one is held responsible.

For lawyers, this culture is understandable. After all, their job is to warn clients of legal risks and it’s true that every time we walk down the street or jump in our car we might make a mistake that could see us in court.

But we learn to manage that risk and we accept the odds every time we choose to drive down to the supermarket.

The danger in believing we can eliminate risk is that removing one element of risk often results in unexpected consequences – they are even more unexpected when you don’t understand the risks in the first place. CDOs and the shadow banking system are a good example of this.

Government seek to pass laws eliminating risks and in doing so create new risks, particularly when the Acts they pass are poorly written and badly thought out.

There is always the question of what risk we are addressing – in the modern corporatist political system, the PR risk to a government always takes priority over a real risk to citizens. Passing a law to protect the minister’s backside might make life more risky for others.

As helicopter parents, always hovering over our children and blaming teachers, schools, neighbours and other parents when something goes wrong, we’re creating a whole set of risks we don’t understand.

For politicians, managers and leaders their main responsibility is to manage risk, not pretend it’s been eliminated by the latest memo, law or silly schoolyard ban.

When tails wag dogs

Have essential functions taken over business?

A recent Business Insider examination of how patent “aggregator” Intellectual Ventures works is a good example of one of the problems in modern business – essential ancillary processes have overtaken doing business itself.

Intellectual property rights are an important part of doing business, however what should be an adjunct to doing business has consumed many enterprises.

As the Business Insider article point out, Intellectual Ventures has become some sort of modern day privateer, extracting loot from hapless companies that cross its path.

This problem with intellectual property is part of a larger problem with lawyers, where they have been given too important a role in business.

In any civilised society lawyers are essential and carry out an important role but in western society over the last fifty the scope of the legal system has expanded so dramatically that now the legal tail wags the business dog.

Today company directors, business owners and entrepreneurs live under the shadow of breaching some obscure law that they had no inkling existed. Of course, the lawyers can help with this.

A similar thing has happened in the financial world, accountants have also moved from being an essential adjunct of business into being at the centre of most enterprises.

Much of this explosion in lawyering and accounting has been due to the increased role of government in our lives; each time a new law or regulation is enacted it makes it harder for the average person, or business owner, to understand the system.

A cynic can argue this is by design but most government actions are intended to address some injustice or flaw in society. The problem is there are always unintended consequences.

One can also argue that the increased growth in business overheads like lawyers, accountants and patent attorneys is because of fat, prosperous business conditions.

So maybe what western business has seen in the last fifty years has been because of a favorable market place; politicians have introduced a morass of often contradictory financial and legal rules because they know business, and society, can afford it.

Now times have changed and both business and society can’t afford unnecessary overheads it will be interesting to see exactly how our laws and regulations evolve to respond.

Maybe they won’t and we’ll see a black economy develop where whole groups of society ignore the rules, dispense with lawyers and accountants and hope for the best. This would not be good.

Possibly we’ll see legislatures and courts winding back and reigning in some of the more silly and egregious excesses as they recognise society can’t carry the burden and remain productive.

Whatever happens we can be sure the lawyers, accountants and people like Intellectual Ventures will fight hard against any change that reduces their status and income.

What’s a Twitterer worth?

How business can put a value on social media

$2.50 per month is what Phone Dog think a Twitter follower is worth in their lawsuit against a former employee.

As nebulous and ambiguous as Phone Dog’s claim seems to be it appears some price is being created on the business value of social media users.

To date we’ve seen services like Empire Avenue, Klout and Kred try to measure social media users’ real influence on the different web platforms which in turn allows businesses to allocate some sort of value.

As social media and the web mature, we’ll see businesses spend more time understand where the value lies online.

Each platform is going to have a different value to a business. Depending on the market, one person may be worth more on Twitter than on Facebook and similarly a business may put more value on members of a specific LinkedIn group or industry forum.

What we shouldn’t confuse “value” with is how the services themselves make money. For Facebook, the value comes from the marketing opportunities presented by people sharing their lives while for LinkedIn it’s largely coming from employment related advertising and search.

Other social media platforms are finding other ways to make money and each will have a different attraction to users, businesses and advertisers. All of which will affect their perceived value.

That perceived value is the most important part of social media. If users don’t think a site adds something to their lives, then that service has no value to anyone.

It’s tempting to think that people will object to having a “value” placed on their heads as users, but most folk understand the commercial TV and radio that does pretty much the same thing.

The real question of how much people are prepared to share online will come when they understand the value of the data they are giving the social media platforms. When users start to understand this, they may ask for more service from these companies.

What a Twitter user is worth right now is probably different to what they will be worth this time next year, but there’s no doubt we’ll all have a better idea.

Dealing with a telco dispute

ten ways to resolve a phone company or Internet problem

Once again, Australian telcos find themselves being criticised by regulators and consumer groups for their poor performance. This time over poor service, complexity of bills and overcharging on “freecall” numbers.

The frustrating thing with all of these complaint is they are nothing new, as shown by an earlier version of this article in 2007.

So the problems with phone and Internet companies remain and many customers, both consumers and businesses, are forced to go through the time wasting dance of dealing with call centres, complex contracts and often finishing with consumer protection organisations like the Telecommunications Industry Ombudsman or other state and Federal authorities.

However there are ways of reducing the problems and improving your chances of resolving issues quickly and on your terms;

Call them

The first step when you realise you have a problem is to call them. This is the quickest and easiest way to resolve things. If you can solve the problem at this point, you will save a lot of time, money and frustration.

When dealing with any call centre, there are a few important things to remember. You must remain polite, you must never make threats and you should note everything. A lot of this can be easier said than done.

Take notes

From the first call, you must take notes. Every time you speak to the call centre you must note the date and time you have made the call, the time they answered, the name of the person you spoke to, what you discussed, what was agreed (if anything) and the time the call ended. Any important discussions should be confirmed in writing.

Be Calm and Polite

At every stage of the process you must stay cool and polite. Do not lose your temper and do not abuse people. If you find the person you are dealing with is rude or provocative, or if find your blood pressure rising, then politely finish the conversation and call back later later.

Don’t Make Threats

Making threats will hurt your argument and draw the process out. Threatening people only makes their attitude harder or locks them into a position where they cannot negotiate with you.

Suing the ISP, complaining to the TIO, going to the media or calling consumer affairs are all options you have available should everything else fail but the aim is to settle the matter quickly and amicably without going to the time and expense of complaining to other authorities.

Do it in writing

It is important to confirm everything in writing. All too often people believe a matter has been settled only to find it is still a problem months or years later. Follow up any important conversations with a letter confirming the details including the time, date and person you discussed the issue with.

This is very important if you have reached an agreement settling a billing dispute. Confirm the details and the agreement in a letter sent by registered post to the organisation, any faxes or emails should be followed up by a letter.

Any emails about the matter should be printed out. Despite the claims of a paperless world, the only thing that really matters in disputes is what is written on paper.

Make sure you keep the full story in writing and this includes printing out emails and web pages.

Follow the ISPs complaint procedure

You may need to start a formal complaint within the organisation’s internal complaints or appeals procedures, the ISP or telco support line should be able to tell you how to do this. For smaller ISPs there may not be any formal procedures. A letter to the senior management may be necessary to get the right person to respond.

Contact the ISPs management

If the ISP doesn’t have a formal dispute procedure, or if it doesn’t respond, forward your complaints with copies of all the supporting documentation to the directors and Managing Director or CEO of the company concerned.

Generally directors and senior managers hate this and will make their displeasure known to the people responsible within their organisation. Again, be polite and respectful, make no threats and express your desire to settle the matter quickly and amicably.

Pay the bill

Some ISPs have a habit of calling in the debt collectors at an early stage. This complicates the matter and can also affect your credit record. Generally, it’s a good idea to pay any disputed amounts and then continue arguing about the facts of the dispute.

If you have direct debits with the ISP it may be necessary to stop these to avoid further disputed debits to your account. Do this in writing to the both the ISP and your bank with a cover letter informing them the direct debit has stopped. If you do this, make sure you are within your contract and you have a backup Internet service as the ISP will almost certainly stop your service immediately.

Complain to the TIO

If you are still unhappy, complain to the Telecommunications Industry Ombudsman. They like you fill in their web complaint form but they will accept phone calls and written complaints.

Keep in mind they will not help you unless you’ve already tried to resolve the problem with the provider, they also won’t assist if you’ve complained to other organisations which is another reason not to make threats earlier in the process.

Further complaints

Despite all of the above, it’s still possible not to have resolved the problem with an ISP. The next step is to complain to your state consumer affairs department or the ACCC. You can also seek advice from your solicitor or local community legal centre.

The aim with any dispute is to settle it quickly and amicably. The important thing is to contact your provider quickly if you have a problem. Internet providers can be difficult to deal with but with a combination of patience, persistence, good record keeping and a cool temper, you can resolve most problems on your terms.