Bad news should travel faster - Google Mobile Sync

I'm a bit of a Google fanboy - I find many of its services very useful. The relationship is a commercial one, because in return for Google's services I give Google a set of eyeballs to look at advertisements. These services are not free services - either for Google or me.

One particular service makes my iPhone a useful gadget - Google Mobile Sync. This allows an iPhone to synchronise almost instantly with my contacts, email and calendar (all of which are Google services). This service is expressed to be in beta, although so was GMail for a long time and people relied on it.

Unfortunately, Google Mobile Sync has been flaky and unreliable for some months, and Google has, to the best of my knowledge, mentioned it ONCE on the Internet. This mention was on a support forum, and provided little information; in fact it was misleading as people had had the issue for many months before.

There was a semi-scheduled outage on 5 March 2010, but it's not clear if this has solved the problem.  Oddly enough, this issue nor the outage has been mentioned on the Official Google Australia Blog, the Apps Status Blog or any other blog that I'm aware of. I really can't understand why. An educated guess is that this has affected more than a million users, many of whom are expressing confusion as to what they've done wrong. Many, like me, have fiddled endlessly with our phones, trying to 'fix' them.

The lesson in all of this is that bad news should travel fast. If you're responsible for IT services then please don't hide your problems, hoping that no-one will notice. Tell your users that there's an issue, and if you can, tell them when it might be fixed. If you don't know, then tell them that too. Be up front so that users can make plans to work around the issue. If a user knows the expected outage time then he can either delay an activity or find another way to do it. He'll get really frustrated if he finds out too late, so that he is unable to achieve his goals some other way.

Update: Google in Italy

In March 2009 I wrote about a court case in Italy against four Google employees. I explained why I believed that the case was doomed, due to EU Directive 2000/31/EC, Articles 42-46.

In February 2010 the Court delivered its decision to convict three of the defendants, although it has not delivered the reasons for its decision. The conviction was for failure to comply with the Italian privacy code. As far as I can tell, Google complied with all its obligations under the Directive, so either Italian law is not in compliance with the Directive, or we're missing some important background information here.

Google has indicated it will assist the employees to appeal the decision as a matter of law, but it is also troubled about the policy implications that may flow. As I said in 2009 "If this case was successful then it would probably mean the end of user content on the Internet in Italy." Or, as Google said today:

If that principle is swept aside and sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them — every piece of text, every photo, every file, every video — then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.

Problems tethering your iPhone to a laptop?

I bought a Dell Inspiron Mini 1012 the other day - it's a nice netbook replacement for my much travelled eeePC 701. The Windows 7 Starter Edition upgraded nicely to Windows 7 Ultimate in a few minutes.

I have a data plan on my iPhone, and I thought I'd try the standard Bluetooth tether. Although the iPhone & Dell paired successfully, it wasn't quite right. The Dell wanted to install a driver for the iPhone, and it left the phone icon with a yellow exclamation point - it could not find a driver for the Bluetooth Peripheral Device.

The fix:

1. in the "View Devices and Printers", you should see the iPhone (after pairing). Right click on the phone and select "properties".

Click on Services tab.

Uncheck “Wireless iAP” (wireless internet access point).

That's it. If you want to use the iPhone as a modem, make sure tethering is turned on in the iPhone, and Bluetooth is turned on on both iPhone and computer, then right-click on the phone icon in Devices and Printers and select “connect using -> access point”.

You should now have an internet connection! The iPhone will show a blue bar at the top of the screen telling you the amount of data transfer. You can turn off the iPhone screen if you wish and you can keep using the connection.

Cyberspace March 2010

Sometimes politicians come up with funny ideas. You see, South Australia is having a state election in March, and Michael Atkinson, the SA Attorney General enacted a rather unusual law... s116(1) of the Electoral Act 1985 (SA). It provides (my paraphrase):

"A person must not, during an election period, publish material containing a commentary on any candidate or political party, or the issues being submitted to electors in a journal  published in electronic form on the Internet or by radio or television or broadcast on the Internet, unless the material contains a statement of the name and address (not being a post office box) of a person who takes responsibility for the publication of the material. This does not apply if the name and address is retained by the publisher for a period of 6 months after the election period."

"Journal" here means a "newspaper, magazine, or other periodical". This was aimed squarely at professional media, but it also purports to catch blogs and other online media. The fine is $1,250 for a natural person and $5,000 for a body corporate.

The SA government has announced that it will not enforce the law and it will be repealed after the election. Having a brand new law on the books that is worthless says a few things about the process that got it there, but the real issue is a reduction in the freedom to do certain things. It is true that people dishonestly put incorrect bylines on blogs and even in letters to the editor, but that's life.

Party electoral information has long been required to state specified matters. However, this was a step beyond that, affecting the general public. For that reason it's worth dissecting this section...

I assume the A-G was concerned about anonymous remarks (he's currently involved in defamation litigation). The problem is that this section causes a lot of new problems. Who "takes responsibility for the publication of the material"? Is it the newspaper, the editor, or the writer of the letter to the editor? If the material is in a comment to a blog, is it the blogger or the commenter? Careful reading leads to the curious inference that the person who takes responsibility for the publication of the material is not the publisher.

The definition of "journal" is another minefield. I think I understand what a "newspaper" is on the Internet as long as I read it narrowly to mean a Fairfax, Consolidated Press or similar mainstream publication, but why stop there? What about Crikey (http://www.crikey.com.au/)? I consider that most definitely a "news site", but it's not a newspaper. I would respectfully suggest its readership is far greater than the St George Leader (www.theleader.com.au) which is a Fairfax newspaper.

"Magazine" is a lot harder, as to me that means a glossy thing, but it also means to me something online like Slate (http://www.slate.com). "Other periodical" suggests that one-off publications are excluded from this law. But what is 'one-off' on the internet? Is it a new web page on a site, or a new web site? Perhaps it's just a new entry on a blog? What is a "periodical" in a world when a publication (a web site) is updated every few minutes or hours?

Finally, we see that the law applies to "commentary in written form... published by radio or television or broadcast on the Internet." There is a technical legal issue of "broadcast on the Internet" since the Broadcasting Services Act 1992 (Cwlth) provides that "programs available on demand on a point-to-point basis" are not a "broadcasting service." Then there's the obvious issue - how do you broadcast commentary in written form on the radio?

Film studios lose court case against Internet Service Provider in Australia

The first major case by film and media studios against an Internet Service Provider (ISP) has been won by the ISP. In Roadshow Films Pty Limited & Ors v iiNet Limited (No. 3) FCA 24 (4 February 2010), Justice Cowdroy of the Federal Court of Australia dealt with

... the question whether an internet service provider or ISP authorises the infringement of copyright of its users or subscribers when they download cinematograph films in a manner which infringes copyright. In Australian copyright law, a person who authorises the infringement of copyright is treated as if they themselves infringed copyright directly.

This turns on the question of authorisation in Australian copyright law. This is a well established area of law, and for example, catches web site operators who post links to copyright music hosted on other web sites. It doesn’t matter that you  don’t host the music files – it matters that you impliedly authorise other people to download them by linking to them.

This case is the start of an important series of proceedings (given that there no doubt will be appeals).

That this trial should have attracted such attention is unsurprising, given the subject matter. As far as I am aware, this trial, involving suit against an ISP claiming copyright infringement on its part due to alleged authorisation of the copyright infringement of its users or subscribers, is the first trial of its kind in the world to proceed to hearing and judgment. (para 5, judgement summary)

Of course, this case was run by the film studios for many reasons other than suing iiNet. From the studios’ point of view:

• If they won, then they would have a judgement to put the frighteners in every other ISP in Australia. They would be able to force ISPs to disconnect users who are said by the studios to be downloading copyright material;
   
• If they lost, then they will go to the Australian federal government and lobby for changes in copyright and associated laws to give them greater rights to interfere with Australian internet users without the oversight of the courts.

In other words, this case was always going to be a win for the studios if their lobbying of the government is successful. One can imagine that AFACT will have a prodigious government relations team who is going to relentlessly harass the federal government. Unfortunately, the ministers and mandarins in the Federal government seem to be firmly in the camp of business, rather than taking a balanced view for all Australians. We may well see more proposals and perhaps even law with ill-considered, unnecessarily restrictive and hostile provisions in it.

Analysis of the judgement

9. The critical issue in this proceeding was whether iiNet, by failing to take any steps to stop infringing conduct, authorised the copyright infringement of certain iiNet users.

The Court found that a number of iiNet users had infringed copyright. However, that  number was significantly fewer than the number alleged by the studios.  This was based on the Court's understanding of BitTorrent, and that a person would make available a film only once. I'm not sure about that, but we'll see.

The critical part of the judgement summary is (with my emphasis):

11. The next question was whether iiNet authorised those infringements. While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users. I have reached that conclusion for three primary reasons which I now refer to.

12. Firstly, in the law of authorisation, there is a distinction to be drawn between the provision of the ‘means’ of infringement compared to the provision of a precondition to infringement occurring. The decisions in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the ‘means’ of infringement. But, unlike those decisions, I find that the mere provision of access to the internet is not the ‘means’ of infringement. There does not appear to be any way to infringe the applicants’ copyright from the mere use of the internet. Rather, the ‘means’ by which the applicants’ copyright is infringed is an iiNet user’s use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.

13. Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to s 101(1A)(c) of the Copyright Act. The reason for this finding is complicated and lengthy, and is not suitable for reduction to a short summary for present purposes so I shall refrain from attempting to do so.

14. Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.

15. Consequently, I find that the applicants’ Amended Application before me must fail. However, for the sake of completeness, I have considered all the issues argued before me.

So the Court found that some people did engage in infringement of the studios' copyright. It found that the number was less than that alleged by the studios. It found that iiNet did not authorise infringement of the studios' copyright.

The difference between this case and Kazaa is that Kazaa provided software - the 'means' of infringement; using Kazaa was inherently infringing. iiNet merely provided internet access; it didn't control software or the BitTorrent system.

The Court also found that disconnecting customers is not an appropriate or reasonable response.

Finally, the Court found that iiNet simply did not approve copyright infringement - there was no evidence that iiNet did anything more than provide internet access. It did not structure its systems or network to facilitate or encourage copyright infringement.

An interesting conclusiong by His Honour was:

Finally, I find that iiNet did have a repeat infringer policy which was reasonably implemented and that iiNet would therefore have been entitled to take advantage of the safe harbour provisions in Division 2AA of Part V of the Copyright Act if it needed to do so.

This is what we lawyers call obiter, since a decision didn't need to be made in this particular case on this point, but it remains instructive.

So, a good result for iiNet, and we'll watch the rest in the halls of justice and the halls of politicians' offices.

FTI Consulting has build a data centre in Sydney

US firm FTI Consulting has built a local data centre in a bid to cash in on the increasing costs of producing and reviewing data and paperwork in high-end litigation and investigation.

David Bowie, local MD for FTI (who I remember as a young fellow at Gilbert + Tobin many years ago)  is quoted as saying it will handle thousands of users.

Although there are many very secure data centres in Australia, this might appeal strongly to the legal sector, given its legal focus. A smart move by FTI, I'd say.

Cyberspace February 2010

Terms

I recently advised on the formation of contracts via web sites, noting that it is clear in NSW that it can be done. In Smythe v Thomas [2007] NSWSC 844 the court made it clear that a contract for the sale of goods was entered into by the parties via eBay. However, recently a Missouri woman claimed in Major v McCallister and ServiceMagic (Missouri Court of Appeals SD29871) that she could not be bound by a website's terms and conditions because the site had not forced her to look at a page containing the conditions. Instead, there was a link next to the "submit" button which took the user, if they clicked on it, to the terms of use. The court said it should "still apply traditional principles of contract law and focus on whether the plaintiff had reasonable notice of and manifested assent to the online agreement." It also noted that the courts routinely enforce clickwraps.

However this case was about a 'browsewrap' where one need not click to accept the website terms - use of the site itself constitutes acceptance of its terms of service. Earlier cases had not enforced such agreements where it was not immediately noticeable, but in this case there was "immediately visible notice of the existence of license terms." The court held that the terms applied. The moral? You might draft great terms, but you also need to test your clients' sites to make sure they are visible (eg: without scrolling, or hidden behind other buttons or links).

Friends

Sites such as MySpace, FaceBook and LinkedIn allow users to post information about themselves with a view to networking with people they know or meeting new contacts. Once you 'connect' or 'friend' a person you can easily share photos or text either individually or with all your friends. So should a person exercising judicial office have "friends" in the profession? The Florida Judicial Ethics Advisory Committee doesn't think so. The question 'Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."' was answered "no". On the other hand, the South Carolina Judicial Department reached the conclusion that "A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate."

Costs

The Seventh Circuit of the US District Court has decided to tackle the "reform of the civil justice pretrial discovery process... to try to take action to reduce the rising burden and cost of discovery... brought on primarily by the use of electronically stored information". It produced a set of principles to assist parties to focus on "indentifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce." The principles include: cooperation by the parties; proportionality of discovery; targeted, clear and specific requests for preservation; early conferences by the parties to identify scope, potential for reducing costs and burden, and formats for production; use of 'e-discovery liaisons' who may be lawyers or laymen and will attend conferences and hearing; and, agreed keywords and filters of electronic data.

These principles, if enforced by the court, are likely to go some way to reduction of costs in many matters. In particular, the concepts of proportionality and targeted requests are likely to bear fruit. However, many lawyers may not voluntarily respond, and it will be up to the courts to make it happen.

Some intelligent commentary on airport security

This article in the Sydney Morning Herald points out the absolute hopelessness of current airport security gates. I find them annoying and obviously worthless. I wonder if the people who work at airports carrying out security checks feel just at worthless?

Airport security is a charade - miming a thing without actually doing the thing. It assumes that bad people only use obvious weapons, such as knives, nail clippers, small bottles of perfume, machine guns and brass knuckles. It also assumes that they obey lots of rules while preparing for mass murder, like sitting down when told, or not using the bathroom in the last hour of flight.

Obviously [sarcasm warning] a potential killer won't do bad  things like ripping hard plastic shrouds off the windows and using the splintered brittle plastic as a stabbing implement. They won't use any of the dozens or possibly hundreds of other things found on an aircraft that can equally be used for mayhem.

The article mentioned is correct in that a better approach is to consider the passenger - not his or her goods. Taking nail clippers off an Australian couple with two kids flying from Sydney to Melbourne in the school holidays is only going to make them angry and reinforce the farce that is airport security at Sydney airport.

Our security agencies spend a lot of taxpayer money identifying threats - both individual and general types. It's about time that they used this profiling information to carefully identify those who may threaten security, whether at the airport or anywhere else. In fact, it seems that it's only at the airport that we don't use the sort of intelligence that ASIO and other bodies gather.

Making your iPhone better

The iPhone has some missing features, such as a simple external indicator that you have email/SMS/Calendar reminder. Switching between applications is also very clunky, particularly when your application shuts down and you want to check something and then go back to it.

The answer is to jailbreak a iPhone (or iPod Touch for that matter). This lets one install applications that are not approved by Apple. While some people have difficulties doing this, many people find it straightforward on a iPhone 3GS with OS 3.1.2 (current at time of writing).

• Go to http://blackra1n.com/ and choose the Macintosh or Windows application. 
• Read and follow instructions
• Be patient at each step

The user is then are prompted to install Rock or Cydia. These are, essentially, application stores just like iTunes. One can install free or paid applications, and some paid applications have a trial period (you usually don't see this on iTunes - only "lite" versions).

Popular applications are:

• Categories - group your apps into folders
  
• Kirikae - background and switch to any app. eg: I don't have to quit the Tom Tom GPS to check mail
• iPhone Tool - turns on and off "Flight Mode" automatically each day (good at night)
  
• MyWi - turns your iPhone into a modem by BlueTooth, USB or WiFi
  
• Backgrounder - helps with the backgrounding of applications.
  
• IntelliScreen - a great home screen, showing email, diary and more while locked
  
• AnyRing - make anything a ringtone
  

Caveats? You might find yourself using more data and exceeding limits; you might reduce battery life; you might have trouble during the jailbreak. But then again, you might not. You might even be breaching the license Apple granted you to use the iPhone software. You may even be breaching copyright legislation.

Software license: Apple believes that it is a breach of the iPhone Software License Agreement, and therefore your license to use your iPhone (well strictly speaking, the software in it) is immediately revoked.

Legislation: It also seems that Apple thinks it violates the USA Digital Millenium Copyright Act 1998.

Apple might also think that Blackra1n defeats a "technological protection measure" under the Australian Copyright Act 1968 but the language is very different to the DMCA. However that alone is only part of any argument. Further, any argument may require understanding how Blackra1n works. In Blackrain's favour, it may be that s 47D of the Copyright Act relating to making interoperable products may come into play. Of course, s 47D directly contradicts Apple's ISLA, which attempts to remove the user's rights to make an adaptation of the iPhone software.

Why would Apple care about you hacking your iPhone? It's sold you the hardware and made a dollar, so shouldn't it be happy?  Publicly stated reasons are a bit too altruistic or don't hold water. I can think of three reasons:

1. Could it lose money? Well, you can still purchase from the iTunes Store, but if you purchase from Rock or Cydia then Apple will not earn the cut it gets from the iTunes Store. This seems to be the real reason that sets this situation apart from, say, Sony's PlayStation. You can install Linux on a PS3, and it becomes a powerful, potentially multi-node computer. There are 'supercomputers' made out of clusters of PS3s, and Sony actually explicitly permits this and even used this fact in its marketing.

2. Another reason Apple might be against jailbreaking is that jailbreaking can allow a user to remove the carrier lock from an iPhone, allowing them to use the phone on any GSM carrier. You can buy unlocked phones in several countries, including Australia, but you pay a lot for them. In the USA you can only use AT&T, and the purchase price is heavily subsidised by the money you'll pay during your two year contract. AT&T and Apple are understandably concerned by users buying a subsidised phone and then moving to another carrier - both companies lose. However, if you buy an unlocked phone then this reason doesn't apply.

3. Applications obtained through the iTunes Store are vetted by Apple. This is a somewhat impenetrable process, but is said by Apple to be an effort to ensure that malicious applications are not distributed, thereby harming Apple's reputation. Unfortunately the vetting process seems very uneven, sometimes slow, and there are many instances of applications copying data off iPhones and sending that data back to the developer. So again, this doesn't seem to be the protection that Apple claims.

One day I might do a more thorough analysis of this.

RE: Official Google Australia Blog: Our views on Mandatory ISP Filtering

Google Australia has released a note about its view on the Australian Labor Party introducing mandatory ISP filtering of internet content in Australia. Google shares my view that the Australian Government should not be introducing a country-wide form of censorship in Australia in this manner.

I censor things all the time. I censor my personal use of the internet, my television watching and what I see and read. I censor my daughter's use of the internet, and I set controls and standards on what she can and cannot do.

However, this is not what Stephen Conroy is talking about. He is talking about "protecting" people from a specified list of content, at least some of which is probably illegal in Australia anyway.

The goverment conducted "testing" using various tiny ISPs, but also apparently included Optus (my ISP). I'm interested that Optus didn't notify me that they were filtering their services.

The testing regime was pretty hilarious. One test was to block the sites listed in the ACMA blacklist. Wow, that must have been really hard... I can actually do that myself with my $100 router at home. However, router-based blocking is relatively crude, and other systems such as pass-by filters or proxies are more sophisticated.  Most enterprises do it today with systems such as Webmarshall, Websense, Surfcontrol, M86, Sonicwall and even open source products.

The type of information filtered was the sort that you would have to try very hard to access. When a version of the blacklist was leaked in 2009 it was clear that the sites listed were "way out there" and no ordinary user would ever go near them. So what exactly is Stupid Senator Conroy trying to do except grandstand on a point that sounds great but has no substance at all? Nothing.

The best filtering is the filtering we do as adults exercising judgement, and as adults supervising our children. If an adult wants to exercise poor judgement then he will bypass these filters easily.

Telstra did not test circumvention, because it considers that filtering can be circumvented by a technically competent user. report

What we are left with something quite dangerous - a system that achieves absolutely nothing, but provides a framework for something very sinister - a filter system that by its nature will be secret. The ALP won't tell you what's on the filter list on the basis that that would be giving away a list of sites that undesirables would use.

So what was tested? Two things: a blacklist, which is a list of sites to block. This is technically easy, and most problems in the test arose from the format of the site list provided to the ISPs. The second was a category based filter, similar to that used by most enterprise filtering systems. I've used a few of them, and some are hilariously bad, but some are reasonable. However, filtering my access at work for legitimate occupational health & safety reasons, or anti-harrassment reasons, is a very different activity to filtering my access as a citizen. Some of these filtering products are absolutely hopeless, but you'll be stuck with whatever your ISP has to chose.

Enex Pty Limited said in their report:

A small number of customers indicated they experienced some over-blocking and/or under-blocking of content during the pilot. These events were considered relatively minor and occurred only once or twice. A small number of customers also reported slow network speeds as a result of the service which filtered additional categories of content.

So, if this system goes live, can you actually image contacting, say, Optus or BigPond, reporting that you've been falsely blocked, and them actually fixing it (either within 24 hours or at all?). That is hysterical.

Customers expressed the view that it was important for there to be mechanisms for self-management of the filter settings and improved visibility of the filter in action.

What are the chances of Stupid Senator Conroy taking this piece of the report and putting it into action? No he won't, because that would actually be hard work. No, he just wants to look good to the largely uninformed sector of the public who doesn't understand that this filter is a fraud.



Official Google Australia Blog: Our views on Mandatory ISP Filtering

Strategic Legal Technology :: Staffing the Law Firm of the Future

I read this article on strategic staff planning - Strategic Legal Technology :: Staffing the Law Firm of the Future
- with interest.

His analysis of the thinking (or lack thereof) by large firms behind redundancies in 2009 is very likely to be completely correct - what I saw in Australia was largely "emergency cost cutting, not a conscious organisational re-design." These redundancies didn't flow from a measured consideration of workload, fit for need or organisational value. The proof of this is in that some firms ended up withdrawing redundancy terminations or rehiring the same staff shortly thereafter. The personal cost to the individuals, their colleagues and families was huge, yet it was caused by thoughtless decisions.

Large law firms still struggle with the place of the non-lawyer in the organisation. Most have come to grips with marketing or business development specialists (although I'm not sure that that many firms have hired really well in that area). However, the use of project managers and professionally qualified business analysts is in its infancy. One of the most useful courses I ever did was a week long course on IT project management. Naturally it only scratched the surface, but it introduced me to concepts of professional project management that I wasn't aware even existed. I believe that all lawyers should receive at least two weeks of professional project management training.

Client matters are a type of project, with a start, end, budget, timeline, milestones and strategy. Projects require some analysis for a business before they are approved and commenced. If a lawyer sat down with a client to build a business case for why that client should proceed with the legal matter, he may find that often there is no case for it.

I'm the owner of a project at the moment with a budget of well in excess of AUD$2 million. I ran a Request for Proposal process, I spent weeks writing a business case, I developed a strategy and vision, I have a project team of professionals in business analysis, project management, training and change management to name a few. However, the legal profession in Sydney today alone will have many client matters where the costs are or will be well in excess of AUD$3 million with nothing like the same professional attention and rigour. Instead, lawyers just put their head down and beaver away. This Dilbert cartoon says it all.

Lawyers don't understand that there are professional disciplines around projects; even something as simple as a Change Request for, say, budgeting, is not dealt with rigour. I must say that some lawyers do unconsciously do some of these things (telling an insurer client that you are recommending a change to the reserve now usually has rigour and rules), but it's more good luck rather than good management.

Pathetic Australian Labor Government

The Australian Labor Party has decided that Australians cannot decide for themselves what is or is not appropriate to view on the internet.

Stupid Senator Conroy apparently said (from the Sydney Morning Herald)

"Most Australians acknowledge that there is some internet material which is not acceptable in any civilised society,"

Umm. Yes. Quite correct. However Stupid Senator Conroy, that is an enormous leap to say that you should be qualified to censor information in Australia. We have already seen that you have censored information about abortion.

About half of the sites on the list were not related to child porn and included a slew of online poker sites, YouTube links, regular gay and straight porn sites, Wikipedia entries, euthanasia sites, websites of fringe religions such as satanic sites, fetish sites, Christian sites, the website of a tour operator and even a Queensland dentist.

This censoring proposal is so stupid that it's hard to argue with. When the basic premise is just wrong then there's no argument other than "you're just stupid, Senator Conroy."

Problems with streaming audio and Firefox?

I have now purchased a couple of digital radios (a Revo and a Kogan) that have the ability to stream internet streams as well as play DAB (Digital Audio Broadcasts). While I was setting them up for internet streams at http://www.wifiradio-frontier.com I found that Firefox wouldn't let me preview .3mu files - all I got was "Waiting for video". It turned out that VLC, a very versatile media player, had installed a plug-in in Firefox that caused the problem. Just disable that plug-in and you can then select your desired player (eg Windows Media Player).

Nathan Rees' best speech

Thank you Sydney Morning Herald

Fifteen months ago, I was called upon by my party to take the leadership in difficult circumstances.
I did so knowing that my experience in public life was limited and that I did not hail from the factional group that had traditionally supplied leaders of the state parliamentary Labor Party.
But I accepted the call to serve and was elected to the leadership without dissent.
Others had the chance to stand.
But no one did.
As a result, I was chosen by my party, at that time unanimously.

...

I will not hand the government of NSW over to Obeid, Tripodi or Sartor.
Under my leadership, there will be no going back.
The old regime will never again dictate the fortunes of our party, nor will they regain the levers of control.

Unfortunately Mr Rees had no opportunity - he didn't "hand it over" - it was taken from him.

Welcome to more of the same, New South Wales

Geoffrey McDonald liquidator no longer able to act

THE Sydney liquidator Geoffrey McDonald has lost his official registration for two years for becoming involved in the external administration of an engineering company that had a prior professional relationship with the firm where he was a partner, Hall Chadwick.

Sydney Morning Herald 3 Dec 2009

A short note on VoIP and 3G

I was asked the other day about using Skype over 3G wireless in Australia. Here's what I said...

I have done some research on how well Skype works over a 3G modem. The result is that it can work satisfactorily in many cases, but may not work in others. It all depends on the 3G reception at your location.

You should seek a plan where there is a trial period so that you can return the modem and cancel the plan if it doesn?t work out for you at your desired location.

You will likely need a 1 to 5 GB plan if you make more than a few calls per week, as it uses 0.5 MB of data per minute. If you find you don?t go near your monthly limit you might be able to downgrade to a cheaper plan.

You will also want to make sure that you get a plan that doesn?t charge exorbitant fees if you should go over your monthly limit.

Telstra, Optus, 3 and others all offer post-paid plans, and Optus at least offers pre-paid so you aren?t locked into a plan. However, you usually have to buy the modem (around $100). 3 also offers a mobile phone that includes Skype usage ? that might work out for you once you take into account the other issues I?ve raised here.

There are other providers who may be significantly cheaper but use the Telstra or Optus infrastructure. Examples are Exetel and Virgin. However, you will will still need to test the coverage issue.

Cyberspace December 2009

Electronic discovery

Electronic discovery is a very expensive process, both in preparation as well as inspection if not carried out carefully. It also changes the dynamics and initial cost burden in a matter; traditional discovery put the burden of copying documents on the inspecting party, whereas that shifts during electronic discovery (of course, the final burden may shift after costs orders).

Einstein J discussed these and other issues in Richard Crookes Constructions Pty Limited v F Hannan (Properties) Pty Limited [2009] NSWSC 142 (6 March 2009). He said "the reference to cost effectiveness ... in the practice note is appropriately construed as a reference to overall cost efficiency of the discovery process, including the benefits to be gained i nthe later progress of the trial." I have seen many affidavits opposing electronic discovery based solely on the cost of the discovery process, ignoring the "overall cost efficiency" that can (but not always) arise.

The process does tend to accelerate the expenditure of costs. His Honour said "The contention is that the mere fact that the incurring of costs is accelerated to the time when discovery is given as opposed to the time of inspection would not be an influential, let alone decisive, factor in favour of refusing the order for electronic discovery . That is especially so, it is contended, if the overall costs are likely to be lower. In my view there is substance in each of those contentions... an electronic data base of discovered documents is likely to be productive of greater flexibility, efficiency and utility in the proceedings... the trial is likely to run more quickly and efficiently as new issues arise or old issues are refined or modified, requiring the compilation of documents in new ways or the production of newly significant documents."

The Cloud

The USA's Fourth Amendment says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This only applies to the US governemnt, but the also US has legislation that gives subjects "fourth amendment-like rights" in relation to data held by private companies, so even Google
or Microsoft can't read US subjects' email even though they store them, nor release them without a warrant.

Recently the USA government wanted to search the contents of an email account that was held "in the cloud" (like your ISP, or Hotmail and GMail); i.e. stored online rather in a home or business. An application for a search warrant was made, and it ended up in the USA District Court, District of Oregon, Nos. 08-9131-MC, 08-9147-MC. The Court held that notice of the warrant did not have to be given to the consumer - only to the email company, overruling an earlier magistrate's decison. It was likened to seizing a package from a courier - only the courier receives the warrant; not the sender or recipient.

Now, if the rozzers come into my house with a warrant I will probably notice them and therefore be aware of the warrant. However, if they issue the warrant to Google in relation to my email account I won't know about it and therefore can't try and get an injunction.

Prudent non-disclosure agreements have clauses requiring each party to notify the other of any warrants or other judicially required disclosure so that injunction applications can be made. However, if you store your data in the cloud or with a third party you had better make sure that you have the same rights - although one wonders what a suitable remedy for breach would be.

Calvin World

Today the publisher (Labor et Fides) sent me copies of Calvin World. Quarante Portraits Sur Cinq Continents, by Pierre Grosjean and Nicolas Righetti. My daughter and I were interviewed and photographed for the book.

Apart from the fact I have a great face for radio, the book is a delight. The design and layout are very smart, and Nicolas' photography is exceptional. My slow-growing French skills are slowing my appreciation of the text, but I look forward to getting into it.

Links: Amazon, My lovely daughter

Windows 7, iTunes, Windows Media Center

Big tip: If you are an iTunes user DO NOT RUN WINDOWS MEDIA CENTER. It will change permissions and make iTunes unusable if you allow it to access any of your media libraries.

Think of the children - don't do it!

Oh, and it broke synching with my iPhone - iTunes now says it doesn't have enough permissions to synch.

The issues:

If you point WMC at your iTunes library it will try to reorganise things, and then iTunes will try to fix things, and if you backup your music you will backup both versions, and it all ends in tears.

So you decide to remove your iTunes music, photos and other media from WMC's libraries. Under Windows 7 this removes those folders from your Windows 7 libraries, and iTunes gives its unhelpful error message.

The fix:

Once you've gone into services.msc and disabled all the Media Center services, go into your photos and music folders in the Start menu - you may find they're empty. Add in your actual folders (and optionally check permissions) and you're good to go in iTunes again.

Oh, and iTunes is such a bad application - it locks your PC while it tries to talk to your devices, it's slow...

Sale of CCH Workflow

CCH Workflow is being sold by Wolters Kluwer Asia Pacific to e-law.

CCH Workflow Solutions was originally Diskcovery, a litigation support company. Wolters Kluwer bought them out some years ago and brought them under the CCH banner. However, to most industry players this was an 'interesting' play, because litigation support wasn't really part of CCH's core functions of professional services information provision.

So, somewhat unsurprisingly it hasn't really worked out for Wolters Kluwer, and is probably a good acquisition for e-law. However, a lot of CCH Workflow customers would also have been customers of e-law, so the buying price may not have been too high!

The first retrenchments have been announced.

Cyberspace November 2009

Extending the browser

I rarely use Internet Explorer as my web browser; I mainly use Firefox 3.5 because of Firefox's superior and extensive range of "Add-ons" (http://addons.mozilla.org/). These add-ons, or extensions, extend Firefox's abilities and you only need to install the ones you need. Here are a few I regularly use...

Research Do you regularly do research on the internet, especially in relation to useful parts of cases and legislation from sites such as AustLII (http://www.austlii.edu.au) or the NSW legislation site (http://www.legislation.nsw.gov.au/)? I regularly copy and paste information into a new document and track the url where I found it. Microsoft OneNote is good at that, but requires Internet Explorer, so I've tried a few other ways and have settled on iCyte (http://www.icyte.com). It's a Firefox add-on that lets you select and clip parts of web pages, saving the selection, url, tags and notes in one step into logical collections. I very quickly found it enormously time-saving, and a great way to do any kind of internet research. It even works on large Intranets.

Passwords I go to hundreds of web sites that require a login of some sort. I have a couple of low security passwords that I regularly use, but I require a number of complex one-time passwords for several important sites. I just can't remember those passwords, much less which one I used at a given site. Roboform (http://www.roboform.com) and lastpass (https://lastpass.com/) are both excellent password managers, but I'm a longtime Roboform user and prefer it. Lastpass is free and almost as good.

Favourites Bookmarks or favourites are great to have, but by default they only exist on one computer. If you go home or change computers you don't have access to your other bookmarks. There are many solutions to this problem, but I prefer Delicious (http://delicious.com/) which is owned by Yahoo! You can store and categorise and even share your bookmarks, and the Firefox plug-in is quite powerful. You can also access your bookmarks if you are using someone else's computer or at an internet cafe.

Switching While Firefox is a better web browser than Internet Explorer, there are times when you need IE. The add-on IE Tab solves this by allowing you to stay in Firefox but use the IE rendering engine either on a custom basis or permanently for selected sites.

Task management Outlook's task management is pretty crude, and I've found that RTM (http://rememberthemilk.com) provides far greater ease of use, it's not bound to one computer or system, and plugs into GMail and iGoogle. Creating a new task by typing "Tomorrow at 9:30 ring James" or "Get haircut every three weeks" is pretty intuitive, and repeating tasks can be made to reset when the previous task is actually done, not when it was scheduled to be done (useful for haircuts).

Speeding up the browser While advertisements help fund a lot of internet sites they are often obtrusive and particularly slow to load, which makes the whole page slower. Adblock Plus comes with a preconfigured list of sites that supply advertising copy, and it prevents data and images from those sites loading. You'll be amazed how much it cleans up a page and speeds things up. However, sometimes you will miss content because some suppliers provide both content and advertising from the same system.

Snapshots of web pages If you practice in intellectual property you may need to grab screen shots of web pages at points in time. One way is to use Adobe Acrobat, but FireShot is free and flexible.

Consumer VoIP

I've been using VoIP at home for a while now, and it has been great value. A landline to mobile (cell) phone call on an Optus $49 cap for 9 minutes would cost AUD$7.55, but on my VoIP plan with www.pennytel.com it is AUD$1.00.

I found out recently that Pennytel is also a Virtual Mobile Operator, reselling Optus SIMs. I subscribed to one of these at $8 per month and set up their 'smart dials' which leverage a few tricks, and that $7.55 call cost me $0.14! I'm still amazed.

NB: the Optus call was calculated using their published rates of 0.35 flag fall plus 9 x $0.80 per minute.

Why copyright is abused by booksellers

The Sydney Morning Herald reported on 12 October 2009:

Australian Kindle users will have to pay about 40 per cent more than Americans for books on the Amazon e-book readers and the local publishing industry has expressed serious reservations about supporting the gizmo.

Given that the USD is worth less than 10% more than the AUD, one has to wonder why... The article quotes Amazon as saying that 'operating costs are higher outside the USA'. Is Amazon really trying to say it costs AUD$4 more to deliver a $10 book over an automatic purchase and delivery system? Oh please.

The Australian Society of Authors is advising members not to deal with Amazon on rather reasonable grounds though - apparently the deal to the authors and publishers is worse than the print version.

But there are still 'territorial lockouts' so Australians may not be able to buy books freely available overseas.

The final picture is that most of the players are shooting themselves firmly in the foot:

1. Amazon is going to lose market share due to the poor deals it offers to the content creators and publishers;
2. The market for other e-book readers is consequently wide open;
3. Australian publishers are going to simply miss out on extra sales - the Kindle with wireless purchasing and delivery means that impulse purchases are easily made;
4. Australian copyright law continues to block freedom of choice and create artificially high prices for Australians.
   

Gouging airlines

The week before last I had tickets with Australia's Jetstar (a subsidiary of Qantas) to New Zealand. Because of work I had to let the ticket to New Zealand go, and I bought a frequent flyer ticket to travel a few days later.

A week later when returning to Australia my partner & I checked in. Now, remember, Jetstar had my money already for the ticket over, without the inconvenience of actually flying me.

During check in I wanted to check my bag. Jetstar asked me to pay $160. The return journey ticket cost me me $220! I should have got a seat for the bag.

Lara explained that she inquired before we left and were told that checked baggage was $40 per person per leg (which added up to $160). But no, they wanted to charge 1 person for 1 leg that $160.

So it gets worse all over the world. Ryanair only allows online check in, but you have to pay 5 pounds to check in. Why not just add it to the cost of the ticket? If you turn up having forgotten to print your ticket it will cost you 40 pounds to ask them to print it! That is clearly not a true pre-estimate of the cost of this activity, when you consider 40 pounds will get you around a lot of the country in a taxi, paying for a driver, fuel and the cost of the taxi. How does that compare to a sheet of paper and a laser printer?

British Airways aren't to be forgotten either... If you want to actually fly with your husband/wife/child/partner then you have to pay a minimum of 10 pounds to guarantee the privilege (and I bet there is still no guarantee).

Weak-kneed NSW Labor Governement

I'm all for locking up prisoners, but a valid government needs to have a process for reintegration of prisoners into the community.

The NSW Labor Government, led by Nathan Rees, has buckled under to vigilantes and passed a NSW law for one man to summarily terminate his valid lease.

It's pretty sad when a government can't find a public policy to assist in rehabilitating ex-prisoners. It's not like it's a new problem...

Why Apple has a small market share

I decided today that I should probably pony up and try an iPhone, so tonight I went to the Apple Store in George Street, Sydney. I went in and stood there for a few minutes, looking for a sales assistant. No sales assistant. I asked a security guard what I should do, and he sent me upstairs (for no obvious reason). I went upstairs and saw about 100 people and two sales staff. Most of the people seemed to be backpackers using the free internet access. I stood there for a while as well, but no sales staff within 20 m of me.

So, I went downstairs to the two staff at the cash register - seemed like a good idea. One wandered off, and I eventually got to the counter. "Hi, I'd like to buy an unlocked 32 GB iPhone." Answer? "Sorry, you have to go upstairs. I can't sell it to you here." My response? "Umm, I know what I want, and this is the till, isn't it?"

Apple fanboy: "No, you'll need to go upstairs."

Before the sentence was finished I was heading to the door... I know Apple won't suffer for losing my AUD$1,100, but it makes you wonder how they do make a living.

Cyberspace October 2009

Outsourcing

Most litigation today involving a business will require the analysis of documents. These are often printed out, but perhaps you want or need to deal with them in electronic form? Many firms simply don't have adequate IT systems to absorb client's discovery data and manage the investigative process.

It might be fine to get a hard disc from your client, but you need to make sure it's backed up in your hands, and you need to duplicate data into a form that you can provide to your opponent or regulatory body. Suddenly you need to store at least four times the amount of data your client gave you, and you just don't have the IT sophistication.

There are a number of bureaus that can assist, although many are in the USA. An example is DOAR (http://www.doar.com/about-doar/news-and-events/press-release-detail.asp?id=91) which allows you to inspect and manage documents stored on a third party server. If you need to do some work in electronic discovery you would be well advised to start with a reputable bureau and use their software as a service (SaaS).

Mobile discovery

When the ACCC (Australian Competition and Consumer Commission) comes calling or discovery looms, we tend to think about paper documents, emails, and documents on file servers. However, there are plenty of places that documents exist and are hard to manage. You or your clients might have some fairly common mobile phones, or iPhones or perhaps even BlackBerries. Discovery or regulatory obligations usually include all mobile devices, so it's important to take an 'enterprise approach' to managing mobile devices. In Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009) a number of discovery arguments arose, and the court examined the defendant and its staff use of BlackBerry devices. It found that the BlackBerries had been wiped of data, despite forensic evidence that they had been used for data.

The judgement is interesting, but the real issue is that these BlackBerries were not managed in an 'enterprise' fashion. The users could do more or less what they wanted to them, without any centralised backup, synchronisation or reconciliation of the information on them. So while the defendant company put effort into complying with preservation orders, the individual users did not maintain the same discipline.

I'm often asked why big companies do IT in a sluggish, behemoth fashion, with everything locked down. There are really good reasons why. A 'small' change can affect thousands of users. That 'quick reboot late at night' might badly affect staff travelling in other time zones. Any machine needs to have a professionial backup regime. Any server needs to be duplicated at a disaster recovery centre. Any hardware purchased needs to be the same or similar as existing hardware so that staff can support them. Any hardware or software needs to be manageable using enterprise management and monitoring software. Any IT system needs to be able to scale in case the system usage or the company grows. All mobile systems must be capable of remote backup, wiping and disabling. Every new desktop model requires days of testing for compatibility with existing systems. I could go on and on.

So it might be cool to hand out an iPhone or any other phone to your staff, but how is it backed up? What about that crucial SMS that a client sent? What system is in place to automatically capture that information? You need to do it automatically or it won't happen. As your firm or your clients grow you need to use enterprise grade systems. The reason that RIM made it big with the BlackBerry is that it thought about these issues and found some answers. If I lost my BlackBerry my IT team could turn it into a cold lump of useless plastic in a few minutes. Frankly, I don't need to locate or find it - I just need it disabled completely. I understand that there is an enterprise kit for iPhones, but without direct experience I can't say that it has the fundamental systems behind it - backup of SMS, remote wipe, and disabling of private email. Think twice before handing out that glossy device.

My VoIP life

I've been using voice over internet protocol (VoIP) for a while now. What it means is that I don't use my phone line to talk to people.

So how do I dial my friends? I have cable internet, and I bought a little box (a Linksys 3102) for $AUD65. My normal phone connects to the box, as does an ethernet cable from my router. A picture would be better, but it's actually pretty simple.

Tonight I rang my partner who is on holidays in New Zealand (I'm meant to be there too, but work interfered). I spoke to her for 18 minutes, and it cost me $AUD0.45. Yes, less than half a dollar, and the quality was that of a normal phone line. If I'd been on a different plan with my VoIP provider it would have cost AUD0.08. Really.

There are a bunch of providers who can do this for you. I use www.pennytel.com, but you can use a number of others, including www.skype.com. All I know is that my call costs have dropped from $50 per month to $7.

In-house counsel briefing out

In an interesting interview by Law.com of Ken Massaroni, General Counsel at Seagate, Massaroni says:

Q: Other than IP litigation, what other kinds of matters do you typically send to outside counsel?

A: Pretty much all of our litigation -- including HR matters and commercial contract disputes -- goes to outside counsel.

Q: Approximately how big is Seagate's corporate law department? Has there been a recent trend in terms of either reducing or expanding the size of the law department?

A: Our department numbers approximately 50, including both lawyers and non-lawyer staff. Seagate has recently gone through some reductions, and the legal department was affected by that.

Q: What kinds of matters that you deal with are more efficiently and effectively handled in-house rather than by outside counsel?

A: There are a whole host of activities that I think are better handled by inside attorneys and that are also accomplished on a more cost-efficient basis. Those would include all of the counseling on HR matters, all general corporate matters and the negotiation of commercial contracts, to name just a few. These are the kinds of things where inside attorneys can work closely with our clients to the point where we understand the issues to a degree that would be impossible for outside counsel to achieve on anything like a cost-effective basis.

I see several reasons for briefing out:

• too much work and not enough lawyers
• insufficient expertise internally
  
• doing the work would be a poor utilisation of in-house lawyers

In-house counsel are uniquely placed to spend time getting to know the company's real business. Law firms will tell you they can do the same thing, but they can't. It follows that in-house counsel should do the work that requires that intimate knowledge, and it's only the other work that might be a candidate to send out.

Briefing out litigation is a good example of the last point - litigation is rarely part of core business (even if you're an insurance company) and your in-house lawyers have been hired on the basis of how they fit core business needs.

Litigation is also an example of the second point - a property company doesn't need to employ experienced litigators, because litigation is (hopefully) infrequent.

As for the first point, it seems that many large organsiations brief out about 60% of their legal work. That implies that the working hours of in-house lawyers are largely of their own choosing, since they could easily double their workload (and hours) and still not get all the legal work done. Therefore an in-house lawyer needs to decide what is an appropriate workload for his or her life.

Cyberspace September 2009

Watch out

I recently received a letter from "Domain Renewal Group" inviting me to renew my domain name with them. However, my registrar is a completely different company. On closer inspection it was actually an invitation to switch to them as my registrar and renew for $45 pa. However, I actually use GoDaddy, and I pay $12.75 pa. The letter also invited me to purchase a related .info domain for $75 for 2 years. GoDaddy sells .info domains for around $1. DRG is well known across the internet for these sorts of letters, and the letters are vaugely similar to those sent in 2003 by Domain Names Australia, for which it was sued by the ACCC (FCA v 926 of 2003). Moral of the story? Read the fine print (speaking of which, was literally 1mm high on the back of the letter).

Windows 7

As a Microsoft Technet subscriber I am now using Microsoft's latest operating system, Windows 7 on my main computer. It works well, even with old programs, seems to be as fast as Windows XP, and offers more security against malicious attacks. But should you upgrade when it's released in October? Don't upgrade existing business systems running Windows XP. Wait until you need to refresh your hardware and your new systems will have 7 pre-installed. Having said that, make sure you test all your software and confirm with your suppliers that they will support their software under Windows 7. Windows Vista users might be more interested in upgrading, as it is very likely that anything that runs on Vista will run on 7, and 7 is faster than Vista on the same hardware. The same warning about testing applies though.

Working online

I recently wrote about ways to save a lot of cash and use better systems when setting up a new office by using software (and telephony) as a service, rather than installing and maintaining your own software and hardware. I've also written about online wordprocessing using Google Docs or Zoho. Microsoft has just announced it is going to offer a similar online system which will allow you to access your Word, Excel, PowerPoint and OneNote files from anywhere. You'll be able to use the full Office applications (and this will be the main way you use it in the office), as well as less powerful versions in the web browser and on mobile phones and other devices. There will be a free but advert-laden version and a paid subscription. The latter may even be sufficient for many small businesses who don't use the complex features in Office.

Around the courts

Remedies, particularly in Trade Practices cases, can be inventive. In ACCC v Harvey Fresh (1994) Limited [2009] FCA 853 the Court ordered that the unsuccessful respondent publish a specified statement on its home page that was viewable immediately upon accessing the web site, include its logo and be at least 40% of the "images on the screen."

In Sands V Channel Seven Adelaide Pty Ltd & Anor [2009] SASC 215 the court considered the defamation common law defence of fair and accurate report where the publication ocurred on the Internet. This was an important point, as at the time South Australian legislation provided no statutory protection. The court held that the common law defence did apply to the Internet. Another interesting remark was that:

There is no presumption of law that there has been substantial publication in respect of an internet publication. It is for the plaintiff to prove that the material in question was accessed and downloaded. In this case there has been no “platform of facts” proved by the plaintiff from which an inference can be drawn that substantial publication of the website article occurred within South Australia.

The moral? Don't forget to subpoena or seek discovery of the web server logs!

Cyberspace August 2009

Learn it or lose it

The USA (land of the free, home of the armed) has a lot of case law in relation to electronic discovery. A large proportion of that relates to costs, and the recent case of Chen v Dougherty (USDC No. C04-987 MJP http://www.ediscoverylaw.com/uploads/file/Westlaw_Document_Chen.doc) is interesting because a lawyer had her costs reduced to USD$200/hour "for certain time spent on discovery... (as her) inhibited ability to participate meaningfully in electronic discovery tells the Court she has novice skills in this area and cannot command the rate of experienced counsel." On one level that is a fairly obvious conclusion - a junior lawyer or someone operating outside his area of expertise can't claim high rates, but "inhibited ability to participate meaningfully" suggests that the modern lawyer needs to engage in understanding technology just as much as the law.

Portability

Netbooks are very popular at the moment, and for good reason. This column is being written on my original Asus eeePC 701 (7" screen) which provided sterling performance around Asia and Europe last year. A member of the senior bar also contacted me and recently took his around Greece and Bulgaria. We both used Skype (http://www.skype.com) over Wi-Fi to make phone calls on it cheaply and easily. I'm convinced that these netbook computers have a long term place in computing history, due to the portability of the device (under 1kg) together with cheap 3G within Australia and wireless when overseas. Not only was it a very cheap phone using Skype, it also offered storage for our camera cards, listening to ABC streamed radio, Google maps, ticket purchasing, tourist attraction research, hotel bookings and more. Many of the more recent netbooks have a 10.1" screen together with more storage, power and battery life making them easier to use. However, I think that they won't be as useful unless they can remain comparable in size and weight. The 3G data option, using a dedicated card or USB device, is a good one as you can buy 1GB of data per month for under $14 if you look around. Sitting up the back of a lengthy Registrar's list might become a lot more productive.

An even more portable device I have come to appreciate is the iPod Touch (http://www.apple.com/au/ipodtouch/). With a headset or clip on microphone (http://www.macally.com/EN/Product/ArticleShow.asp?ArticleID=171) it becomes a VoIP phone using Fring or provider-specific applications such as Skype or Pennytel. It offers very good phone call quality on a wi-fi connection. If your computing needs are light, you could just travel with the Touch as it offers email, calendar, contacts, Google Maps, web browsing and entertainment whenever you have a Wi-Fi connection. I'll be in NZ shortly, and I suspect the Touch will be enough rather than my eeePC.

Maintaining lists

Managing lists of things is often a problem, because doing it in Microsoft Excel or Word is cumbersome and inherently single-user. Microsoft SharePoint (an add-on to Windows Server - http://sharepoint.microsoft.com) might be a solution for you. Although I recently wrote a blog post about why I don't think SharePoint is a viable document management system, I do think that SharePoint is great at maintaining lists. My company maintains a number of lists such as those for document executions, bank guarantees, and safe custody. SharePoint has improved the way we do that, and we are gradually moving more data over to it. Benefits over Excel include multi-user, drop down menus for data consistency, avoidance of accidental changes, sorting and filtering. Since it's web-based you don't need to have any extra applications on the PC, including Microsoft Office.

Cyberspace July 2009

On 17 February 2009 the Federal government released a document "An Australian Consumer Law. Fair markets - Confident consumers" (http://www.treasury.gov.au/documents/1484/PDF/An_Australian_Consumer_Law.pdf). In May it released "The Australian Consumer Law – Consultation on Draft Provisions on Unfair Contract Terms" These, together with a recent agreement by all State & Federal governments to have one national consumer affairs law, signal impending major changes in consumer law.

The February report notes

"Unfair terms are more likely to be found in standard form contracts, presented to consumers as a 'take it or leave it' offer... such contracts are increasingly used in relation to online services."

How does this affect technology? If you've ever read an End User Licence Agreement from Apple, Microsoft, EBay, and many other technology companies you will see that they contain some outrageous terms. But, if you want the product or service then you simply must agree to it. For example, I'm going to pick on Apple. The iTunes Store Terms & Conditions (http://www.apple.com/legal/itunes/au/terms.html#SALES) is a rather fragmented document which states in the Terms of Sale:

"IF YOU DO NOT AGREE TO THESE TERMS... DO NOT USE THE SERVICE... YOU MUST ACCEPT AND ABIDE BY THESE TERMS AS PRESENTED TO YOU;"

"CANCELLATION POLICY All Sales and rentals (as applicable) are final... you will not have a right to cancel your contract once the service commences."

That's it. Bad luck if the software is buggy, or the music is poorly recorded. The term may also be contrary to Div 2 Part V of the Trade Practices Act or the Fair Trading Act. Buried much further down in another agreement (Terms of Service) in 19 c is a term which deals explicitly with the TPA. However, the"cancellation policy" appears in the first few centimetres of the Terms of Sale agreement and the TPA clause is a long way down and only refers to the Terms of Service, not the Terms of Sale!

And there's more:

"Termination by iTunes. If ... iTunes suspects that you have failed to comply with any of the provisions of this Agreement ... iTunes, at its sole discretion... may... terminate... your account."

"iTunes reserves the right to change the terms and conditions of sale at the iTunes Store at any time."

The proposed Australian Consumer Law will introduce a national unfair contract terms provision which will apply to standard form contracts. The law can be invoked even if there is only significant likelihood that detriment will occur. The paper notes a number of types of terms that "are likely to cause consumer detriment", including some familiar(!) ones:

• clauses that attempt to exclude implied terms for consumer goods and services.
• clauses that prevent the consumer from cancelling a contract.
• clauses that permit the supplier to unilaterally determine whether a breach of the contract has occurred.
• clauses that permit the supplier to unilaterally vary the terms of the contract.

Remedies will be available where a claimant or class shows actual or substantial likelihood of detriment, not limited to financial detriment. Non-financial detriment could arguably include the inability to purchase and use the software or service. Civil penalties will be able to be imposed (distinct from the now largely criminal) as well as compensation claims on behalf of consumers. Disqualification orders can ban or restrict individuals from participating in organisations for a time without the need for a criminal conviction. An interesting reform is the ability for a consumer regulator to issue a Substantiation Notice requiring a supplier to substantiate claims it makes in relation to goods and services.

Vendors do need to protect their rights. However, these standard form contracts have swung so far in their favour that we now need legislation to remedy it. The Consumer Law may commence on 1 January 2010, so now might be a good time to help your clients draft better agreements, or perhaps dust off your class action skills.

Apple stealing from iTunes accounts?

I had an interesting experience the other day (3 June 2009). Apple Inc reduced my iTunes account balance to zero and disabled my account. The explanation included:

Your account was disabled because the purchaser of an iTunes Gift Certificate redeemed to your account has refuted the charges with his or her credit card company.

When charges are reported as unauthorized, any remaining iTunes Store credit from the disputed purchase is considered unauthorized and is removed from the account.

Now, I purchased some gift certificates several years ago from an online vendor. Given that was literally years ago I doubt that that is the problem. If it is then Apple has some serious problems with its fraud detection systems.

If that isn't the problem, then Apple obviously has some serious problems with its fraud detection systems anyway! But the problem remains that I have had a couple of hundred dollars removed from my account unilaterally and without notice. The email I received from "Support" (ironic) didn't tell me anything about the "problem gift card", such as the amount, date redeemed, vendor etc. Naturally I have asked for this but I doubt I will receive a response.

This is likely to be an interesting journey. Apple's Terms of Service won't assist them here as it doesn't directly deal with the problem. Therefore a simple small claims court action for a liquidated sum should get me a default judgement against Apple fairly easily. I say this because I suspect they will ignore me until I start judgement debt recovery procedures. Ah, it's fun being a lawyer...

A law firm who thinks about why it has a web presence

Pinsent Masons has published an interesting short article on the philosophy behind its Out-Law web site. Worth a read here http://www.out-law.com//default.aspx?page=10000

Cyberspace June 2009

Censorship in Australia

Australian governments have a history of introducing knee-jerk regulation and it appears that the regulators are following suit. Electronic Frontiers Australia recently stated it received a Final Link Deletion Notice (http://tinyurl.com/psbo5b) from ACMA (http://acma.gov.au) in relation to a link to a web page that contained a set of images of aborted foetuses. The page is on a site that is anti-abortion, but my argument here is about freedom of information.

ACMA stated the content was classified R18+ which includes "depictions of simulated sexual activity, material containing strong, realistic violence and other material dealing with intense adult
themes."

"Violence"? Let's assume that these photos were of the results of medical procedures; one camp will argue that violence occurred while others will argue it was a medical procedure. "Adult themes" might get them across the line, but unfortunately not everyone who gets pregnant is an adult.

Should ACMA censor the material that Australians can view? There are very persuasive arguments for blocking anything that either is a crime or can very directly lead to a crime. However, that's not what we're talking about here - this is a legal activity in Australia. This has removed material that can assist Australians to form opinions about a very serious topic. You might not like the photos, but a heart operation is pretty grisly too.

ACMA can get it strangely wrong. In relation to the ACMA black lists, the ABC reported (http://tinyurl.com/d7hez9) Senator Stephen Conroy (who is responsible for ACMA) to have said in relation to errors:

"... the Henson website was a "technical error" by an ACMA official, and the other two were the result of Russian mafia infiltrating the websites' servers and planting child pornography there."

The Russian Mafia?

Finally, the ABC reported:

"He says the internet filter - which is only in a trial phase - will not limit political content as many critics have said."

"If something is refused classification - if it promotes rape, promotes incest, or similar - it makes it onto the blacklist... The Government makes no apologies for that. No political contentwill be blocked, that is not the intention and in fact the law would have to be changed in order for that to happen."

At an industry conference he was reported to have said

"There is no political content banned in the existing Broadcasting Services Act," he said. "We are not building the Great Wall of China. We are going after the filth - like child pornography. Its been done around the world and it can be done here." (http://tinyurl.com/d8ese5)

Ok, Senator, in the light of that, explain why the anti-abortion site was blocked? And what else are you blocking not in the category of "promotes rape, promotes incest, or similar"?

This leads us to the current filtering controversy. Having worked in two large well-funded enterprises I can say that the filtering software I have seen is rubbish. They rely on combinations of manual indexing of sites (unfeasible and inaccurate anyway), and automatic filters, which get it wrong all the time. These tools are meant to be aids to safe surfing, not the arbiter of what I can and can't look at. The judge is me, not the software.

Self-control is fundamental to adulthood, at a personal and State level. On a personal level, my kitchen is full of knives, and it's only one step from that to a stabbing. On a State level, alcohol sale is not heavily restricted in, say, France, unlike Australia yet they are a world power.

Mr Controy, let us exercise self control in relation to what we consume, and let us teach our kids to do the same. We'll be better adults for it.

Cyberspace May 2009

Discovery

I've recently been trawling discovery-related cases in the USA and there is now a great deal of case law on the subject. The law in Australia and the USA frequently converges, but the issue of preservation of documents after litigation is anticipated is not one of those areas. Forest Labs., Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. Apr. 14, 2009) discussed the issue of backup tapes that are used purely for disaster recovery (rather than archiving) and are regularly overwritten. In Australia one would normally immediately advise your client to stop rotation of tapes if relevant may be on them. However, in Forest the court discussed Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) which stated

"that litigation hold does not apply to inaccessible backup tapes (e.g.,
those typically maintained solely for the purpose of disaster
recovery), which may continue to be recycled on the schedule set forth
in the company's policy".

While there are nuances to this position, such as acting in bad faith, it seems likely that valuable evidence could be easily destroyed.

I recently discussed document retention and destruction, and the importance of established business rules. When establishing business practices, whether your own or your clients, you might bear in mind the following from Phillip M. Adams & Assoc., LLC v. Dell, Inc., 2009 WL 910801 (D. Utah Mar. 30, 2009)

"The culpability in this case appears at this time to be founded in ASUS' questionable information management practices. A court--and more importantly, a litigant--is not required to simply accept whatever information management practices a party may have. A practice may be unreasonable, given responsibilities to third parties. While a party may design its information management practices to suit its business purposes, one of those business purposes must be accountability to third parties... [U]tilizing a system of record-keeping which conceals rather than discloses relevant records, or makes it unduly difficult to identify or locate them, [renders] the production of the documents an excessively burdensome and costly expedition. To allow a defendant whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules."

Another case highlights the problems arising from the practice of not providing electronic discovery in its native form. Some firms seem to think that they can produce PDF versions of, say, emails rather than the email itself - a position I have successfully opposed on several occasions. In White v. Graceland Coll. Ctr. 2009 WL 722056 (D. Kan. Mar. 18, 2009) the defendant produced PDF versions of emails, which inherently obscured some information. The plaintiff applied for an order for production of native emails and was successful.

Producing only relevant email from a mailbox that may contain tens of thousands of emails can be difficult and extremely costly. The only practical answer may be to use search tools to find relevant information. However, the search terms themselves need to be agreed between the parties. In William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009) the court said

"While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-know limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge... Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented."

Stephen Conroy - getting dumber?

So an Australian Senator comments on an active civil case before the Federal Court of Australia... The man not only doesn't have a policy, he also doesn't have any discretion. Why is this man in the Australian Parliament?

Conroy admits blacklist error, blames "Russian mob"

The [Australian Federal] Communications Minister, Stephen Conroy, has admitted that Bill Henson images were added to the communications regulator's list of prohibited websites in error, while blaming the addition of a dentist's site to the blacklist on the "Russian mob".

Meanwhile, the website of the Federal Government's censorship body, the Classification Board, was hacked last night and defaced with an anti-censorship screed.

The admission by Senator Conroy on ABC television's Q&A program last night casts significant doubt on the Government's ability to filter the internet without inadvertently blocking legitimate websites.

Q&A was inundated with 2000 questions from the public about the Government's hugely unpopular policy, and the audience last night ridiculed Senator Conroy by laughing at a number of his responses.

Near Blois, France

Travelling along the Loire River is a pretty nice experience...

Cyberspace March 2009

It's not easy being a lawyer sometimes. Peter Fleischer, Google's Privacy Counsel, was recently picked up by the Polizia when he went to Italy to deliver a speech. He and three other Google staff have been charged with defamation over the posting of a YouTube video in September 2006. The video showed taunting of a teenager by four others, was up for a month and taken down the same day a take-down notice was received. The perpertrators were eventually prosecuted and Google Italia assisted in investigations leading to the prosecution.

If this case was successful then it would probably mean the end of user content on the Internet in Italy - no comments on blogs or newspaper articles, YouTube would withdraw, social networking sites would block Italian users and so on. They would need to do this because they would have to vet every single contribution from the public, and in YouTube's case it would involve watching 200,000 videos a day.

Luckily for Google, EU Directive 2000/31/EC dealt with this issue in Article 42, which provides an exemption from liability where the service provider's "activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored." Fortunately for Google Italy transposed that Directive into local law in 2003. Although we'll consider the EU version here, my rough Italian translation suggests the transposed Legislative Decree is even more favourable to Google.

There are a few arguable issues here, since Google does have control in the sense it can take down a video, but Articles 43-44 put things in context.

(43) A service provider can benefit from the exemptions for "mere conduit" and for "caching" when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits...

"(44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of "mere conduit" or "caching" and as a result cannot benefit from the liability exemptions established for these activities."

So Article 44 provides a test of "collaboration", and there is no suggestion of anything of the sort by Google. However, the final shot to the collective Polizia foot is Article 46:

"(46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned..." which Google actually did.

This matters to us how? There are a few reasons... Australia has some laws relating to the protection of ISPs and other service providers, but there is little case law yet. In relation to copyright law Roadshow Films Pty Ltd & Ors v iiNet Ltd (FCA NSD1802/2008) will probably change that. People have been posting bad things on the Internet for many years, but the ability for search engines to crawl comments, blogs and even audio and video now means others are more likely to find and read that information. And we need to think ahead - the bulk of information on the Internet is no older than 15 years. By the time I die there will be (I hope) 55 years or more of searchable data... and we think there's a lot there now! What will have been said about me in that immense amount of data? It seems likely that information laws will continue to be drafted with an eye to internationalisation, and APEC and treaties will see harmonisation of laws such as these "safe harbour" provisions.