Wednesday, October 10, 2007

To Catch An ID Thief (A Dateline Investigation)

I like watching Dateline reports regarding predators. While I was searching the web (using the youtube site) for episodes about predators, the video entitled "Chris Hansen - to catch an id thief 1" caught my eye. Somehow I had a feeling that the video would be interesting, even if I had no idea at first that the investigation was about a cyber crime.

Modern technology has made life easier for ordinary citizens. On the other hand, it has also made it easier for abusive people to commit crimes.

Let's take for example the crime of identity theft. In an investigation made by Dateline, it was emphasized how easy it is to have one's identity stolen over the internet. With the use of underground internet chatrooms, hackers sell information (including name, address, social security number, credit card number, etc). Identity thieves purchase these information in a matter of seconds after a hacker has posted the availability of such information.

Watching the first installment of the dateline investigation reminded me of what the professors stated during one lecture. It is very easy to get information from one's credit card especially if a credit card holder is fond of handing out his card to employees in establishments (such as waiters, cashiers, etc.). All the thief had to have is a credit card swiper and with just a swipe all information contained in the magnetic stripe are stolen.

A week ago, we had a guest speaker who talked about cyber crimes. One of the crimes discussed was fraud. It would be easy to commit fraud using the information purchased over the internet.

In fact going back to the Dateline investigation I'd watched, I was amazed at how the stolen credit cards were used to make purchases not only within one locality or country. Those cards were used to make purchases in almost all countries over the globe (the Philippines was even mentioned in the investigation).

I have never made an online purchase before and so I have only a general idea of how the clearing process goes with regard to purchases made with the use of credit cards. It really would be hard to find out about the fraud during the clearing process because most id thieves have the necessary information about the real credit card owners.

This phenomena just goes to show how powerful a tool the internet is. Internet users cannot rely merely on the laws enacted to protect rights of internet users because even though those laws exist it would still be hard to prosecute the thieves. Internet users, themselves, have to be vigilant in protecting information that may be used by identity thieves.

The Internet: subject of an international treaty?

The Internet is the technological tool most representative of the emerging “global community” due to its accessibility and its integration into everyday life. Hence, the international importance of the Internet may come to a point where there will be a need for an International Convention on the Internet (ICI).

Sounds far fetched? Not so. If there was such a thing as a TREATY ON PRINCIPLES GOVERNING THE ACTIVITIES OF STATES IN THE EXPLORATION AND USE OF OUTER SPACE, INCLUDING THE MOON AND OTHER CELESTIAL BODIES (entered into force on 10 October 1967), which seems relevant only to a very few technologically advanced States, all the more is there a need for an ICI with the deepening reliance on the Internet for global communication.

What are the possible areas of concern of an ICI? Here are a few:
1) jurisdiction concerning Internet crimes- I think the most challenging of all Internet-related legal problems
2) jurisdiction concerning Internet related claims for civil damages
3) allotment of Internet domain names and addresses
4) protection of the Internet against cyber-terrorism
5) arbitration procedures for Internet related claims

If the ICI will become a future reality, it will again prove what Holmes said: “The life of the law has not been logic. It has been experience.”

NEDA website defacement: a form of free speech?

Just last October 7, the NEDA website was found hacked and defaced enabling visitors to go to X-rated sites. The website front page was normal but when the “Past Events” link was clicked, users were led to a screen that listed pornographic ads instead of events. One of the links led readers to a site where it joked that Viagra was powering the high growth rate registered by the country’s GDP. The defacement came only one week after the ZTE-NBN controversy where former NEDA Director General Romulo Neri made an important testimony before the Senate hearings.

Judging from the time of occurrence of the defacement, it may have been a form of protest by the defacer. Hence, did the said defacement come under the aegis of the Constitutional right to free speech? I’ll answer this question with another question: can protesters throw Molotov bombs at a government building as a form of protest? If the answer to the latter is no, then defacement of government websites is also not under the aegis of free speech. Hence, how may one use the Internet to protest against government? Simple: bloggers unite!

Internet posting of embarrassing misrepresentations

Internet posting of embarrassing misrepresentations can be actionable under Article 26 of the Civil Code.

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. xxx

St. Louis Realty Corporation. v. CA is instructive though it does not involve the Internet. A newspaper ad by St. Louis had a heading “WHERE THE HEART IS” with a photograph of a residence and a write-up stating that the “hearts of MR. AND MRS. ARCADIO S. ARCADIO and their family have been captured by BROOKSIDE HILLS”. The residence actually belonged to Dr. Conrado Aramil and the ad was without his permission. Aramil wrote a protest letter to St. Louis, but to no avail. Hence, he sued for damages. The Court decided for Aramil holding that the latter’s private life was mistakenly and unnecessarily exposed.

There is a greater probability that what happened in St. Louis might occur on the Internet since it is accessible, cost-effective and free from editorial control. The potential plaintiff can argue that the Internet posting of embarrassing misrepresentations is actionable under Article 26, since his private life was mistakenly and unnecessarily exposed (citing St. Louis). Hence, be careful of what you post.

Company Spamming: remedies?

Spam mail for an individual user is a minor irritation that can be remedied by the trash bin. But if it hobbles the operation of an Internet company-it becomes suit worth. Any remedies?
CompuServe, Inc. v. Cyber Promotions, Inc (a US District court case) illustrates one remedy. In this case: a) CompuServe did not ask for damages but for injunctive relief against the defendants and b) CompuServe’s basis for an injunctive relief was the common law principle of “trespass to personal property”.

The US District Court granted injunctive relief to CompuServe since it has demonstrated that the defendants' intrusions into their computer system harm plaintiff's business reputation and goodwill. Though CompuServe Inc. was decided on the common law principle of “trespass to personal property”, it can be used by an Internet company, in our jurisdiction, to argue that spamming harms its business reputation and goodwill. It can the contend that harming the reputation and goodwill of its business is contrary to public policy under Article 21 of the Civil Code.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Hence, spamming becomes actionable.

Monday, October 8, 2007

Cyber-education and Silicon Snake Oil

At the height of the NBN Controversy, the Cyber-education component was often an afterthought, although it was probably every bit as wasteful and overpriced. Public statements of officials supporting the project seem to assume that slapping computer technology onto the classroom setting automatically translates into a better learning experience.

Clifford Stoll, (yes, computer security expert and hacker-buster Clifford Stoll) has been warning us of technology overhype and misapplication for years. His thoughts (compressed below) on computers and education, culled from experience in US schools, are particularly apt:

  1. Computers and related equipments tend to get stolen. Unlike workbooks, these equipments have considerable value, and public schools are difficult to secure.
  2. Some lessons (i.e. handwriting) require the kind of contact and commitment that remote links just can't inspire.
  3. Discipline is difficult to implement.
  4. Answers culled from databases or the World Wide Web are too simplistic, and tend to limit capacity for independent critical thought
  5. Computers are expensive, and quickly become obsolete.
  6. Computers break down in ways that neither teacher nor student can fix on the spot.
  7. When computers do work, they're tough to teach with (try talking to students who have computers on their desks, competing for their attention)
  8. Just because the children enjoy it, doesn't mean it engages their mind.


 

In short: our schools face serious problems like overcrowded classrooms, teacher incompetence, and lack of security. Computers address none of these problems, and buying more of them could drain the budget which could be better used for books, teacher training, and more classrooms. In the end, there's no substitute for a good, fired-up teacher who's there.

Sunday, October 7, 2007

e-Commerce Act: its application so far

How has the penal aspect of the e-commerce act fared so far?

Joint operatives of the Philippine Air Force, the Bureau of Immigration and the police arrested eight members of a cyber crime syndicate that specializes in hacking corporate telecommunications systems. In a joint statement, the military and the Immigration Bureau said the suspects broke into corporate private automatic branch exchange systems and used these for illegal call-selling. In a separate statement, the PLDT said the hackers caused the company P197M in losses and the government some 19.7 million pesos in tax revenues. The telecom giant said it has received numerous complaints from subscribers about long distance calls that were charged to them, but which they said they never made. The suspects will be charged for violating Republic Act 8792 or the Electronic Commerce Act.

The first Philippine hacking case to have ended in a conviction is that of JJ Maria Giner. He pleaded guilty at the Metropolitan Trial Court in Manila to hacking government websites (including the government portal "gov.ph."). He was sentenced to one to two years of imprisonment and to a fine of 100,000 pesos.

So far, so good I think.

Internet Posting of nude photos: actionable?

In 2005, cybercrime investigators arrested a Filipino for allegedly using the nude photos of young boys to solicit money from unsuspecting gay victims on the Internet. They arrested the suspect for violating section 9 of the Special Protection of Children Against Abuse, Exploitation and Discrimination Act. Can the young boys sue the suspect for damages for the Internet posting of their nude photos? I think so, invoking Article 21 of the Civil Code.

In Patricio v. Leviste, the Court held that the reason underlying an award of damages under Article 21 of the Civil Code is to compensate the injured party for the moral injury caused upon his person. The minors can invoke Patricio to argue that they suffered moral injury when their nude photos were posted on the Internet. In Grand Union Supermarket v Espino Jr., the Court also held that it is against morals, good customs and public policy to humiliate, embarrass and degrade the dignity of a person. In the same vein, the minors can argue that the Internet posting of their nude photos humiliated, embarrassed and degraded their dignity. Hence, our Civil Code is malleable enough to resolve such case.

Can we apply our Civil Code ‘tort’ provisions to Internet related wrongs?

With the increase of Internet use in Philippine society, comes the resulting increase in the Internet’s potential use for mischievous ends. Therefore, can we apply our Civil Code ‘tort’ provisions to Internet related wrongs?

Looking at the 18 articles of our ‘tort’ provisions in the Civil Code’s Chapter 2 on the Preliminary Title on Human Relations, there are no references to technology. What we can conclude from all this? Our Civil Code’s ‘tort’ provisions are technology neutral. As can be gleamed from the Report of the Code Commission, the crux of Chapter 2 is to serve as guides for human conduct. Since the focus is on human conduct, the main focus of Chapter 2 is on the act of the alleged tort-feasor. The technology or thing by which the alleged tort-feasor accomplishes the act is only incidental. Hence, Chapter 2 must be technology neutral for it to be versatile as a guide. So, can we apply our Civil Code ‘tort’-provisions to Internet related wrongs? You bet.

ICT companies as the Main Threat to Individual Privacy

The high economic premium given to information in the era of the information-driven economy will result in a phenomenon where the main threat to an individual’s right to privacy will not come from the State, as classically perceived, but from ICT companies. Why?

In an information-driven economy, information is money. Hence, there is a big profit motive for ICT companies to hoard personal information from individuals. Example? Call Center companies highly value their costumer databases. Because of this profit motive, information given by individuals to a corporation for a specific purpose, may be used by that corporation for other purposes. Hence, ICT companies are more efficient dossier-gatherers than the State due to the competitive environment in an information-driven economy.

How will this affect Philippine ICT policy? As Philippine society fully integrates into this information-driven economy, there will be a need to pass laws to protect the personal information divulged by Filipinos to ICT companies. These laws should deal with restrictions on how these ICT companies may use the personal information of individuals and liabilities for violating such. Hence, in the future, beware of ICT companies.

4 Lessons from naga.gov.ph and Naga City

naga.gov.ph
Visit it. It’s the official website of the Naga City government, recipient of various international awards. It’s the e-governance component of the Naga City i-government program. We can learn four things from naga.gv.ph.

First, the Internet is a tool for effective governance. naga.gov.ph is the portal for people and businesses wanting to transact with the Naga city government. Hence, it serves as a check on how the city government is effectively serving the community.

Second, the Internet needs of an LGU can be locally sourced. naga.gv.ph. was set-up without foreign funding or technical assistance. It makes sense since the community itself knows its peculiar needs and hence, how to design its website to address these needs.

Third, the Internet’s effectivity as a tool for good governance only goes as far as real-life good governance. No matter how good an LGU website is, if there is no feedback from the concerned city agency, such website is nothing more but a digital white elephant.

Fourth, the national government should learn from Naga City and naga.gv.ph. But with the recent NBN scandal, the opposite is happening. It still all boils down to one thing: integrity.

Do we still need teachers, with the Internet?

Have you ever realized that an average college graduate knows more Physics than Galileo Galilee? The Physics of projectile motion (throw anything sturdy into the air-that’s it) is well-known to college students. During Galileo’s time, explaining projectile motion was the most advanced scientific research! Now, a college graduate knows Kinematics, Dynamics, Thermodynamics, Fluid Mechanics and Atomic theory.

Suppose an average college graduate exchange places with Galileo and enters 16th century Pisa, while Galileo, with his very basic knowledge of Physics, enters the 21st century. Who will make more original research breakthroughs? I think Galileo will!

What’s my point? Though the Internet gives easy access to information, it never gives easy access to one thing: how to think. That’s Galileo’s advantage. Hence, if the government wants to use the Internet as an educational tool, the DepEd must ensure a change in teaching paradigm. Teaching in the Internet-era should focus less on information and more on thinking. It should focus less on facts and more on fact-analysis, less on what I know and more on what I do with what I know. Achieving this, then perhaps we can make greater discoveries than Galileo had.

Friday, October 5, 2007

Virtual Worlds, Real Money

A recent study shows that over $1 billion in REAL CASH has been invested in virtual worlds companies in the past 12 months.
http://www.gamesindustry.biz/content_page.php?aid=29249

Wow.

-People_powered

Love Online

http://news.bbc.co.uk/2/hi/technology/6976167.stm

It's been around for quite awhile, but the practice of couples meeting up in-game leading to real life relationships has only recently boomed. Dati sa chatroom pa nga lang (I met my ex over MIRC by the way). Today, games offer a level of personal interaction that, while some people may argue is lacking because you don't really get to know anything about the person you're interacting with, provide a deeper look at a person's qualities which are hard to gauge in real life.

Oh, by the way, I'm talking about games like World Of Warcraft, not games like Red Light Center, a Massively Multiplayer Online Virtual Sex Game (MMOVSG).

Red Light Center - http://www.redlightcenter.com

-People_powered

Woman in UK forced to pay $222,000 for file-sharing

http://news.bbc.co.uk/2/hi/technology/7029229.stm

Most people who have cases filed against them for downloading/sharing music settle out of court. This woman, who lived from paycheck to paycheck, now has one-fourth of salary garnished for the next 20 years or so (by my estimate).

Kawawa naman to. Kung software engineer lang ako, gagawa ako ng file sharing software that won't track and keep records of the sharing people do, hehehehe. Para walang ebidensiya.

-People_powered

WiFi helps rural villages get eye checkups

Residents in remote villages in India now have access to doctors in a large hospital, thanks to the high quality video conferencing system developed by researchers at the University of California, Berkeley and at Intel Corporation in collaboration with the Indian hospital.
http://news.bbc.co.uk/2/hi/technology/7029942.stm

Siguro kung may National Broadband Network, something like this could be done with regard to providing education and medical attention to rural places.

-People_powered

Eve Online Economics

Some massively multiplayer online games, such as Eve-online, use very sophisticated and real world economic principles in running their virtual economies. Eve's economy is so complex that it takes into account the market value and production output of basic minerals, the production and destruction of ships, availability of blueprints and laboratories/workstations for ship building, etc. All the while, "corporations" are at war with each other, battling for territory 24/7.

A few months ago, the developers of Eve-online even hired a real economist, with a real Ph.D., to do analysis on their online economy. Here's a sample of one of his papers: http://myeve.eve-online.com/devblog.asp?a=blog&bid=505

And in case you don't believe me, here's his bio:
http://myeve.eve-online.com/devblog.asp?a=blog&bid=481

Some of these games reflect real world economics so much that they would make great teaching tools, or could be used to simulate and experiment with the effects on market conditions.

-People_powered

I Heart TV (Links)

The Internet is evil. It feeds all my obsessions. When I want a totally guilty dish, it gives me the recipe. When I want fastfood, it gives me the delivery order sheet. When I have more important things to do with my money, it offers me irresistible bargains. And, when I have extra time to study because there's nothing good on tv, it gives me the latest episode of Grey's Anatomy. Oh yes, the Internet is evil. I love it.

Virtual Clubbing

Second Life offers what most people might think is the perfect night out without actually going out. With its musical performances and virtual clubs, you can meet new people, hang-out with your friends and enjoy a few laughs and casual flirtations in your pajamas. It eliminates all the fuss that comes with a night out, especially if you're a girl. You won't have to shave your legs, put on make-up, agonize over what outfit to wear, do your hair or endure a painful night in stilettos. What it doesn't eliminate though is the entrance fee as you will still be charged upon entrance. Another downside, if your a person who actually likes to go through all the fuss of getting dolled up, like me, it takes away a chunk of the night out experience. Like the many things available online now, such as email, online music performances and clubs may prove to lack the charm and the thrill of the real thing.

Japan's Third Life

Japan chooses not to takeover, this time. The Japanese are purportedly not that happy with the free-spirited environment of Second Life and would much rather prefer a more predictable and secure virtual environment where there is no pornography, profanity and no death (due to guns). "Meet-me," an online interactive virtual Tokyo, is set to open in the near future to provide Japanese with a virtual world that is much closer to their real world and culture. In "meet me", the avatars, or computer-generated alter-egos, are rounder and softer, much like anime characters. The avatars also ride trains or other vehicles or walk or run to get around a city whose streets and buildings look much like real Tokyo's. The sun rises and sets in Tokyo time. The creators of "meet me" are probably counting on drawing the Japanese patrons of Second Life who comprise about 8 percent of the 561,000 active users.

It's ironic that while the internet is supposed to make a person's world bigger with access to different cultures, peoples and places, some struggle to make it smaller by restricting it to the confines of their comfort zones.

Record companies sue single mom for illegal file-sharing--and win (and other thoughts on P2P)

Is this the beginning of the end of file-sharing? Last Thursday, record companies Sony BMG, Arista Records LLC, Interscope Records, UMG Recordings Inc., Capitol Records Inc. and Warner Bros. Records Inc. won a lawsuit against a 30-year-old single mom Jammie Thomas, from Minessotta for illegal file-sharing of copyrighted music files through Kazaa. Read the rest of the article here.

The ruling is significant because “It was the first time one of the industry's lawsuits against individual downloaders had gone to trial. Many other defendants have settled by paying the companies a few thousand dollars, but Thomas decided she would take them on and maintained she had done nothing wrong.”

“The record companies accused Thomas of downloading the songs without permission and offering them online through a Kazaa file-sharing account. Thomas denied wrongdoing and testified that she didn't have a Kazaa account.

“Since 2003, record companies have filed some 26,000 lawsuits over file-sharing, which has hurt sales because it allows people to get music for free instead of paying for recordings in stores.

“Thomas was ordered to pay the six record companies that sued her $9,250 for each of 24 songs they focused on in the case. They had alleged she shared 1,702 songs in all.”

So that’s $222,000 all in all. Ouch. Since the days of Napster, which began back in 1999, the record industry had been waging legal wars against P2P file sharing networks. At first, the targets of their wrath were the P2P software developers and file-sharing administrators, hoping to nip the problem in the bud. That didn’t go so well. The latest US Supreme Court decision on P2P, namely the 2005 case of MGM v. Grokster, held, “[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” The ruling implies that, as long as P2P software developers and network administrators do not “take affirmative steps to foster infringement” or, in other words, actively foster online piracy, then they are okay. Thus, P2P continues to flourish to this date. This did not sit well with the record industry, who continue to lose oodles of cash as potential earnings, or so they claim, thanks to the wonders of Internet and the proliferation of P2P. But it seems, they are not yet done with their fight with P2P, and this time they are targetting individual consumers. I wonder if the record industry will eventually win in their battle. But it will be a difficult one, since the battlefield is not just the USA but the entire planet. Keep in mind, file sharing is not illegal in all countries (i.e. Sweden). Not yet, anyway.


E-Commerce Needs Competitive Parcel Service

I think that for E-Commerce to truly thrive in the Philippines, we should have a price and quality competitve postal and parcel service. This is because the entire point of E-Commerce is to minimize unnecessary face-to-face transactions, and have the products delivered on time, in the proper condition and at the lowest freight cost possible. While it is true that we now have an abundance of professional courier and parcel companies (LBC, Air 21, JRS, etc), I think that if PhilPost itself would be able to bring down prices and bring up quality and reliability, we would all be for the better.

Professor Alampay's experience with a prospective book buyer from abroad backing out because of the prohibitive freight cost (I remember Philpost rate at $25 and FedEx at $35 for a book that costs $25) is the best example of why E-Commerce in our country will not really thrive without a cost-efficient delivery system.

From my own experience, I use eBay all the time to buy and import rare trading card sets from the US. As it stands, I'm amazed at the relatively low cost of shipping, for example, 800-900 trading cards, around 1.5kg with the protective packaging, at only $13 via the US Postal Service. On the other hand, if I were to export the same amount of material to the US, it would cost me double, at around $26! Ergo, its cheaper to import than export!

Litigants Lacking Big Tech Bucks Can Still Play Ball

Many litigants can't afford the high price tags required by computer-generated animation as evidence. To keep smaller firms from losing trials in costly clouds of technology, law professor Edward J. Imwinkelried explains some available strategies to guarantee a level playing field.

Litigants Lacking Big Tech Bucks Can Still Play Ball

By Edward J. Imwinkelried
The National Law Journal
October 5, 2007

The use of expert testimony at trial is expanding. In one study of California trials, Rand Corp. researchers found that experts appeared in 86 percent of the trials, and that on average, there were 3.3 experts per trial. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1119.
However, such testimony can be expensive. A 15-second, computer-generated animation may cost $20,000 and, likewise, DNA testimony can be quite costly. Some litigants simply cannot afford such evidence. Thus, the increased use of expert evidence can place poorer litigants at a distinct disadvantage. That imbalance of resources is especially problematic in an adversary system of litigation.

PROVIDE THE POOR LITIGANT WITH EXPERT SERVICES
Of course, one way to level the evidentiary playing field is to provide the poor litigant with expert services. Under Ake v. Oklahoma, 470 U.S. 68 (1985), the Constitution sometimes compels the appointment of an expert for an indigent accused. An appointment for an indigent accused is also possible under the Criminal Justice Act. However, in practice, such appointments are few and far between. See generally Giannelli, "Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert World," 89 Cornell L. Rev. 1305 (2004). Moreover, neither Ake nor the Criminal Justice Act provides any relief for impoverished civil litigants.
Another way to level the playing field is to exclude expert testimony from wealthier litigants. In a 2006 decision, Commonwealth v. Serge, 586 Pa. 671, 896 A.2d 1170, cert. denied, 127 S. Ct. 275, 166 L. Ed. 2d 211 (2006), in dictum, several members of the Pennsylvania Supreme Court expressed the view that when the opponent cannot afford rebuttal testimony, that state's Rule 403 sometimes authorizes the trial judge to bar the proponent's testimony. Pennsylvania's Rule 403 is identical to Federal Rule of Evidence 403. Rule 403 is the statute that authorizes trial judges to exclude otherwise admissible evidence when the incidental probative dangers outstrip the probative value of the evidence.

The statute reads: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

In a survey, several federal district court judges also opined that Rule 403 permits the trial judge to bar the proponent's expert testimony when the opponent lacks the wherewithal to afford a rebuttal expert. Savikas & Silverman, "Making the Poverty Objection: Parties Without Fancy Exhibits Could Claim Unfair Prejudice, But Not All Judges Would Agree," NLJ, July 26, 1999, at C1.

Is it proper to invoke Rule 403 in that fashion? On the one hand, Rule 403 does not embody any egalitarian objective. Neither the text of the statute, the accompanying advisory committee note, nor any passages in the congressional deliberations over Rule 403 indicate that the drafters intended judges to resort to Rule 403 to compensate for an imbalance of financial resources between the litigants.

As quoted above, Rule 403 lists a number of probative dangers. Several other federal rules provisions contain lists. For example, Rule 404(b) lists some of the recognized noncharacter theories of logical relevance of uncharged misconduct. Likewise, Rule 407 enumerates several permissible purposes for introducing evidence of subsequent remedial measures.
However, rules 404 and 407 differ fundamentally from Rule 403. The former statutes preface their lists with "such as" to signal that the lists are illustrative, not exhaustive. Rule 403 does not include any comparable prefatory language, and the accompanying advisory committee note states that 403's list of probative dangers is exclusive.

Thus, Rule 403 does not authorize the judge to exclude the proponent's testimony simply because the jury is likely to find the testimony impressive and the opponent cannot afford to hire a rebuttal witness.

On the other hand, given the opponent's inability to afford a rebuttal expert, on occasion a trial judge would be justified in barring the proponent's testimony under Rule 403. Rule 403 tasks the trial judge to balance the probative value of the evidence against its incidental probative dangers.

One of those dangers is the risk that the jury will attach excessive weight to the testimony. Lempert, "Modeling Relevance," 75 Mich. L. Rev. 1021, 1027 (1977). An item of evidence is "prejudicial" under Rule 403 if there's a significant risk that the jury will be tempted to assign undue weight to the evidence and thereby commit inferential error. Gold, "Limiting Judicial Discretion to Exclude Prejudicial Evidence," 18 U.C. Davis L.Rev. 59, 68-69, 83 (1984).
In the case of expert testimony, that risk is acute when three factors concur: The proponent's expert has impressive credentials, the expert's analytic technique doesn't include an objective decisional criterion and there are no data as to the error rate for the technique.
If the witness has genuine stature in the specialty field, that stature can incline the jury to resolve doubt in favor of accepting the expert's testimony.

When the expert's analysis is governed by an objective decisional rule -- such as the standard that the length of DNA fragments must be within 2 percent of each other -- it's easier for the jurors themselves to decide whether the expert has arrived at a correct conclusion. In contrast, in Chief Justice William H. Rehnquist's words in General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), when the standard is essentially subjective, the expert invites the jury to accept his or her conclusion as "ipse dixit."

The Daubert court pointed out that the availability of data as to the technique's error rate is a pertinent factor in admissibility analysis. 509 U.S. at 594. When that date can be submitted to the jury, it's in a much better position to intelligently determine how much significance to attach to the expert's opinion. Absent such data, there's a grave risk that the jury will make an unwarranted act of faith in an expert with impressive credentials.

To be sure, in many cases, the trial judge has other tools -- the invocation of the learned treatise hearsay exception, judicial notice and cautionary instructions -- to minimize that risk.
Standard texts in the field may contain passages identifying the element of subjectivity in the expert's technique or that there's a significant or unascertainable error margin. If the proponent's expert is cooperative and acknowledges the authoritative status of the texts, the opponent can invoke the learned treatise hearsay exception codified in Federal Rule of Evidence 803(18). The opponent can use the texts to dissuade the jury from assigning excessive weight to the proponent's expert's conclusion.

Suppose that it's well-settled in the expert's specialty that the technique in question suffers from a particular limitation. In that event, the existence of the weakness may be judicially noticeable under Federal Rule 201(b). 1 Gianelli & Imwinkelried, Scientific Evidence, § 1-2 (4th ed. 2007).

If so, under Rule 201(g), the judge can instruct the jury about the limitation in the technique or theory. If the judge tells the jury point blank that the expert's technique is subject to that weakness, the jury is likely to take heed. Dumbroff, "Jury Instructions Can Be Crucial in the Trial Process," Legal Times, Feb. 25, 1985, at 26.

JUDGE MAY BE ABLE TO USE CAUTIONARY INSTRUCTION
Further, the judge may be able to administer a cautionary instruction about the expert's testimony to the jury. In Serge, the trial judge gave the jury a cautionary instruction about the proponent's computer-generated animation. 896 A.2d at 1186-87. In Daubert, Justice Harry Blackmun mentioned instructions as one of the tools that a trial judge can employ to assist the jury in evaluating expert testimony. Since Daubert, there has been an incipient trend toward the expanded use of such instructions. "Expert Witness: Cautionary Instructions," NLJ, July 31, 2006, at 12.

In a case in which all three tools come into play, the judge can effectively minimize the risk of the jury's overvaluation of the testimony by the proponent's expert. The outright exclusion of evidence under Rule 403 should be a last resort. Petruzzi's IGA Supermarkets v. Darling-Delaware, 998 F.2d 1224 (3d Cir.), cert.denied, 510 U.S. 994 (1993).
However, in an extreme case when the three factors concur and these tools are unavailable to the judge, the drastic step of exclusion under Rule 403 may be warranted.
The opponent may be unable to resort to the learned treatise exception. Unless the judge is willing to judicially notice the text's authoritative status, the opponent must rely on the proponent's expert to establish that the text qualifies as a learned treatise. The proponent's expert might adamantly refuse to do so.

Even if the judge is willing to judicially notice the scientific proposition, the instruction to the jury may have to be worded weakly. While under 201(g) the judge may give a mandatory judicial instruction in a civil suit, in a criminal case the instruction must be worded in mere permissive terms. A weakly worded instruction may be an ineffective counter to forceful testimony by the proponent's expert.

In most states, trial judges have lost the common-law power to comment on the weight of the evidence. Kalven & Zeisel, The American Jury, 420-22 (1966). It has been argued that absent previous approval of an instruction by an appellate court, the trial judge's delivery of a cautionary instruction violates the "no comment" rule. Morris, "The Empirical, Historical Case, and Legal Case Against the Cautionary Instruction: A Call for Legislative Reform," 1988 Duke L.J. 154, 170.

Edward J. Imwinkelried is the Edward L. Barrett Jr. Professor of Law at the University of California, Davis.

From: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1191488595223

The Terrible Risk of Tiny IT Devices

"The smaller the computer device, the bigger the risk that it might be lost, stolen or left behind, resulting in the loss or theft of confidential information. Courts and law firms are developing policies and procedures to safeguard data by removing it from the device or encrypting it. "

See: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1191315789771

I think that this is part of the price we have to pay for convenience small IT devices. We simply have to be careful of them, like the way we are with jewelry, I suppose.

Computer Date Thievery on the Rise

This article by Tresa Baldas discusses the growing problem of corporate computer data thievery.

"Departing employees who steal company secrets on their way out are a growing problem for corporate America, prompting employers to step up legal actions against computer data thieves.
Labor and employment attorneys say that given the highly competitive nature of today's business world and a more fluid work force, corporate espionage has become a growing threat for employers.

The culprits, they say, range from employees who steal information to start their own business to those who leave to work for a competitor and want to take patented formulas, strategies or customer lists with them. "

Full article at: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1191488593123

I suppose that this problem will soon become a central one for developing countries as soon as our IT dependence becomes more pronounced.

Protecting Data With an Ancient Remedy

The old ways are sometimes, still the best...

Little did William the Conqueror know, when he won the Battle of Hastings in 1066, it would have ramifications for protecting computer data. That victory established a civil remedy that has recently emerged as a potential key legal theory in the fight against computer crime.

See the whole article at: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1191315790288

Exerpts:

The Norman Conquest established a system for addressing the theft of chattels that evolved to the present-day cause of action for conversion. This ancient common law civil remedy has recently emerged as a potential key legal theory in the fight against computer crime. Conversion "is the civil analog of the criminal actions of robbery and larceny," which has long provided victims redress against the "unlawful taking or retention of tangible personal property" as opposed to intangible computer data. In re Robert R. Fox, 370 B.R. 104, 121 (B.A.P. 6th Cir. 2007). Since computer data have been viewed as intangible property, their theft has not been traditionally viewed as conversion. See e.g. Slim CD Inc. v. Heartland Payment Systems Inc., No. 06-2256, 2007 WL 2459349, at *12 (D.N.J. Aug. 24, 2007).

When company data is stolen or maliciously destroyed, the modern cause of action is the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030, a criminal statute that expressly provides for a civil action for damages and injunctive relief for anyone "who suffers damage or loss by reason of a violation of" the statute. 18 U.S.C. 1030(g). The CFAA was intended to provide law enforcement and private litigants with updated tools to combat criminal activity directed at computers. Pacific Aerospace & Electronics Inc. v. Taylor, 295 F. Supp. 2d 1188, 1194-95 (E.D. Wash. 2003). Based on the CFAA, a company is empowered to file a federal suit to recover its stolen computer data, seek an injunction to prevent their use and dissemination, and recover damages for stolen and destroyed data.

Warning

There should be several warnings before a person does anything online. One of them should be- THE INTERNET IS HAZARDOUS TO YOUR FINANCIAL HEALTH.

For people who love to shop, the Internet poses a grave threat to their budgets. As if it isn't enough that almost anywhere you go there's a mall or two, there has to be this thing that puts the most unbelievable items right at your fingertips, literally. On the bright side, the Internet, especially sites like multiply and myspace, provide a free venue for young entrepreneurs to launch their fashion lines consisting of shoes, belts, bags, accessories and clothes. These sites are perfect to showcase and sell these items because of the great number of pictures you can publish and the accessibility of the site to the target market. They're also proving to be quite profitable as indicated by the number of sites which are being put up nowadays. A downside though is that these sites do not provide the minimum safety features that sites such as ebay has so one has to be extra cautious and discerning.

Ning


I read about this new site in Marc Andreessen's blog, blog.pmarc.com.

Ning is a site where one can create one's own kind of social network. It provides users with a platform for maybe, creating one's own kind of MySpace, Friendster, or Facebook (although he laments the comparisons some people have made of Ning and these social networking sites.) By using Ning, one is not constrained by the limits these other social networking sites have. This goes to show that social networking on the internet has really gone a long way. I am wondering though why Friendster did not take off the way MySpace did. What is very interesting about this whole phenomenon is that, the internet makes people from all walks of life (even pedophiles) to freely interact with each other, and yet not really interact at all. In this environment, one gets to project to the world whatever aspect of one's personality. Newsweek had this for a cover feature.

The underlying notion that I see from the ventures of Marc Andreessen seems to be that the Internet is for everyone, and truly it is the best model for a democracy. He has always blazed the trail for innovations on the net, and through his ventures, makes it more accessible to everyone.

The question that props up to mind now is the question of regulation. Burma tried to do it recently. China has the Great Wall of the Internet. But can we really regulate the net? Would it be easier to make it self-regulating? To some extent some sites do, like YouTube and Wikipedia. The problem will always be those people who are on the margins, those who choose not to follow the laws, the ethics, or the self-imposed rules with regard to the net. And those are the people, we future lawyers will be trying to fight for or to fight against. And the results of those battles will shape the future of the Internet.

Thursday, October 4, 2007

RIAA Lawyer: Ripping CD's You Bought is "Stealing"

Jennifer Pariser, the head of litigation for Sony BMG took the stand in the ground breaking trial on P2P filesharing - Capitol Records, et al v. Jammie Thomas.*

Ms. Pariser testified that she considered ripping CD's into your musical device - even those that you legitimately bought - is stealing from the poor, helpless recording companies:

Pariser has a very broad definition of "stealing." When questioned by Richard Gabriel, lead counsel for the record labels, Pariser suggested that what millions of music fans do is actually theft. The dirty deed? Ripping your own CDs or downloading songs you already own.

Gabriel asked if it was wrong for consumers to make copies of music which they have purchased, even just one copy. Pariser replied, "When an individual makes a copy of a song for himself, I suppose we can say he stole a song." Making "a copy" of a purchased song is just "a nice way of saying 'steals just one copy'," she said.

The problem with fair use is that all it really is, is a right to an attorney. You really can't count on content owners to voluntarily cede a margin of property rights for fairness.

* There are literally thousands of factually similar lawsuits filed by the Recording Industry Association of America.

Wednesday, October 3, 2007

Cell phone helps Japanese stay fit

http://tech.yahoo.com/news/nm/japan_mobile_fit_tech_dc

Now even cellphones are being designed to make people change the way they live. NTT DoCoMo's Fitness Phone is equipped with devices to measure your pulse, the amount of steps you've taken in a day and dispenses heath advice after you've punched in statistics such as gender, age and weight.

It'll even tell you if your breath stinks :D

-Posted by People_powered

Techie Cupid

Peter Fraenkel, Ph.D., has one piece of advice for couples: "Don't try to schedule time together. Schedules are more work. And you don't need any more work." Instead, Fraenkel, the director of the Center for Time, Work, and the Family at the Ackerman Institute for the Family, in New York City, tells couples to come up with a list of things they can enjoy together that can be done in less than a minute: telling a joke, one long kiss, etc. A techie gadget like a blackberry or a cellphone is one of the best ways to do these 60-second pleasure points. Talk about cupid getting all hi-tech.

Tuesday, October 2, 2007

Hail to the Thief!

Check this out.

Radiohead is the best. This will really open a whole can of worms for a lot of people. This is like the Pandora's Box in the world of music, and even the world of selling content. You are given a choice to pay or not, and if one wants to pay, one chooses how much value one assigns to a particular content. I bet this would break the door wide open on the whole music business. Hail Radiohead!

Monday, October 1, 2007

Myanmar Cuts Off the Internet

The Internet gets a bad rep as a big time waster and a constant smut-fest.  But if there's one thing I really like about it, is that it's usually bad news for repressive governments. 

Over the last few weeks, the world was made aware of the widespread protests in Myanmar/Burma. Pictures and videos made it to newspapers and television broadcasts, taken with cellphones and other consumer electronics and smuggled through the 
Internet.

It comes as no surprise that part of the military junta's iron-fisted response was to "lock down" the Internet. It's not as easy as it sounds. 
Sites have shut down, but some have managed to press on

Optical technology to replace IP

Here's something related to a previous post.

By November, a research group to be set up in Japan will strive to develop optical technology, which would replace the internet protocol.

The aim of the project is to develop and commercialize the technology at around the year 2015. The target is to develop a technology that will be 10 times faster than the next-generation network to be launched in Japan this year.

The estimated cost of the research is $260 million over the next five years.

In the United States and Europe, similar projects are already under way.

One advantage of the optical network is that it would allow as many as 100 billion devices to access it simultaneously and still enjoy extremely fast data-transfer speeds.

Another reported advantage is that the technology would offer stable, high-speed wireless access even on moving high-speed trains.

Your Printer May Be Hazardous To Your Health


Aside from this article, I've already heard that the components in laser printer toner cartridges may be a health risk. This article says that, "not all of that stuff can stick to the paper, and if you've ever spilled toner you know there's no way it can be good for your lungs."

From the article, I learned that there's also a controlled study that confirms the information, that 30 percent of all laser printers tested emit dangerous particles described as "causing lasting damage on the scale of inhaled cigarette smoke." These tiny particles lodge deep in the lungs and can lead to anything from lung irritation to full-on cancer.

I wonder if anyone (perhaps any of the respondents in the controlled study) has already sued the leading printer companies, specifically HP (whose printers were tested in the study) for damages.

Online Gambling Law Challenged


A gambling industry group argued in federal court Wednesday that a new federal law against transmitting online bets outside the United States violates people's right to gamble in the privacy of their own homes.

The group's lawyers said that, because filtering technology already exists to make sure children and compulsive gamblers cannot access offshore betting sites, the Unlawful Internet Gambling Enforcement Act serves only to stifle gambling companies.


(click here for the entire story)