The reason his honour Judge Peter Kidd issued the suppression order was simple. George Pell was facing another separate trial for child sexual abuse. Widely publicizing his conviction the first trial would have almost certainly swayed the jury in the second trial. When the prosecutor withdrew the charges in this second case, the judge lifted the order. Judging by the media frenzy that the lifting of the suppression order allowed, had the second trial been held, the jury would not have needed to hear any evidence, they simply would have taken George Pell out of the court and strung him up.
Suppression orders are far from perfect solutions to these sort of prejudicial events, the courts need to do something to attempt to provide some semblance of a fair trial.
You need to update the story to mention the second trial and the removal of the suppression order once the second set of charges were withdrawn.
Sorry Glyn, you've got it wrong. I doubt you read Chinese or are versed in Chinese law, so you have fallen for Susan Hennessey and Christopher Mirasola's panicked response to a very technical Chinese court document. Your article is typical of the poor reporting on China - few reporters speak Mandarin, fewer understand the political debates going on in China. They hear some gossip and promptly write and article that has serious errors.
The new regulations don't change or permit any new activities by Chinese law enforcement. Frankly, if a Chinese government whether it be at county, provincial or national level wants to hack you, then they are not going to be stopped by what is or is not admissible in a court of law.
What the new regulations do is specify how such evidence has to be handled. Specifically, if a litigant wishes to enter evidence obtained by hacking they have to identify it as having been obtained through hacking. So now hacking will be far more public than it was before and probably less likely to occur. at least if a trial is likely.
To understand what is going on, you need to understand the debate about the rule of law that is happening in China. In the west (be it the US, Britain, France, Germany etc), at least in principle, if the same case with the same evidence was heard by two different judges then approximately the same judgement should be rendered. Judges are constrained by the same legislation/civil code, the same precedents, the same interpretation rules. However in China this doesn't happen because while there is a common civil code (forked from the German civil code circa 1930), the interpretation and precedents aren't there. Chinese judges, like all judges, have the pick winners and losers. For these reasons (along with others) the general run of Chinese commercial justice is a bit of mess with with different outcomes depending on which court and which judge a case is heard before.
Senior judges and lawyers want to rectify this, but there is a problem. The "rule of law" is a highly political topic in China, with the CPC (Communist Party of China) holding that it's evil and bad, while lawyers in general quietly approve of it. Because of the political nature of the debate, the legal system is moving in a somewhat crab-wise direction to towards implementing the infrastructure which will allow the rule of law. This regulation is part of that movement. Don't misunderstand me - the Chinese legal system has a very long way to go before it approaches the rule of law, but this a good step in the right direction.
So, Glyn - you quoted a panicky analysis and haven't checked the original material. Go read Jeremy Daums' response (including the translation of the new regulation) and think again. What is actually happening is the opposite of what you are claiming.
1. Queensland Police arrested an Australian man who operated a child porn server, gaining control of the server 2. They moved the server so that it was physically located within Queensland 3. The server was modified such that to download child porn, the server would email a link to the video 4. If a perp opened the email and clicked on a link while *not* using TOR, their IP address was visible. A unique cookie was set as well. The email contained a link to real child porn.
So, no 'hacking' took place. No software was installed/modified on the target computer. If the suspect was located outside of Queensland, then the arrest and analysis of the computers was carried out by the appropriate local police - in USA it appears to be the FBI.
So, no hacking took place, just good police work. To be accused through this QP operation, a suspect had to have (a) a matching email address and an IP address matching the one used to download child porn; (b) the unique cookie installed during the download; and (c) probably one or more pieces of child porn on the computer.
There are two piles of evidence in this case. The first was gathered by the DOJ over a number of years and most notoriously includes many petabytes of Megauploads customers' data located in Virginia (hence the involvement of Neil MacBride, the US Attorney for the Eastern District of Virginia).
The second pile of evidence is that siezed by the NZ Police, acting of a request from the US DOJ. This includes 150TB of disks containing Megaupload corporate data and emails. It is this second pile of evidence which Judge Harvey ordered the NZ Crown Prosecutor to copy and make available to Kim Dotcom and his defence team. While there is an assumption that the NZ prosecutors are acting as sock puppets for the US DOJ, the court orders do not name or apply to any US entity.
So, it is pretty rich for the US DOJ to claim that a defendant before a NZ court should not have access to evidence seized and located in NZ until the defendants surrender to the jurisdiction of a US court.
Now I guessing, but I am assuming that the DOJ did not have access to most (if any) of that data before it filed the case against Megaupload. The DOJ has said that the among the 150TB of seized data is "10 million emails and a large amount of financial data". So clearly, it would like enough time to enhance (or perhaps prepare?) its' case using those emails and financial data while at the same time stopping Megaupload from preparing its defence.
The role of judges is to pick winners and losers, and help winners win while making losers lose. However, most judges have a strong commitment to fairness and due process. They also have have open minds. So even for a certain winner (the vast, vast majority of extradition cases are approved), if they are caught placing a fat greasy thumb on the scales of justice, the Judge may decide to make them a loser.
While this review may look promising on the surface, in fact the results of the ALRC's report have been largely dictated by it's terms of reference.
Big content has succeeded in preventing the ALRC from examining any of the following:
* unauthorised distribution of copyright materials using peer-to-peer networks;
* the scope of the safe harbour scheme for ISPs;
* a review of exceptions in relation to technological protection measures; and
* increased access to copyright works for blind and visually impaired people.
There are other existing reviews which cover these topics, and these reviews are not open to public comment. Big content has won big time in the ALRC's review before it has even begun.
The only thing to regret here is that LightSquared is run by idiots who should have known better, were undoubtedly told multiple times by their own engineers that this was impossible, but they continued to forge ahead anyway.
LightSquared is run by really, really smart people who were/are intent on gaming the system and making a few billion dollars. They were allocated some satellite spectrum, which is cheap, and wanted to exploit a loophole which allowed them to repurpose it as terrestial which is very, very expensive. Essentially, LightSquared was engaged in spectrum arbitrage, where they could make a great deal of money by ripping off the US taxpayer. LightSquared management was completely uninterested in any tedious parts of reality which got in the way of making all that lovely money.
Nice article Richard. You've dug up most of the pieces, but you haven't quite put them together properly. Carrier IQ is only the tip of the data mining iceberg. They are probably one of the more benign players, in that they seem only interested in technical issues. The telcos as well as Apple and Google are gathering enormous amounts of user info from smart phone in order to, directly or indirectly, serve targeted ads.
While it is nice to see that AFACT is actually an MPAA sock-puppet confirmed, the important point is that the Judge worked this out during the trial. He considered throwing the case out, but decided that that would just duck the issue - so he dealt with it.
"AFACT is an organisation set up for the purposes of benefiting its members. The exact nature of the relationship between the applicants and AFACT is not clear. Mr Gane, the Executive Director of AFACT, suggested that there was no formal membership process by which one can become a member of AFACT, whether by application or agreement. The Motion Picture Association (?MPA?) and the Motion Picture Association of America (?MPAA?) have a membership of the major American film studios. They are not associated with AFACT by any formal written agreement. However, AFACT does report to the regional branch office of the MPA which is based in Singapore. In respect of operations in the Asian region, the Singapore office of the MPA prepares a business plan or budget for AFACT which is approved by the Los Angeles head office of the MPA. [...] [I]t must be remembered that the applicants were not the entities making the allegations of copyright infringement in the lead up to these proceedings: rather, AFACT was doing so. [T]he exact relationship between AFACT and the actual copyright owners (the applicants) is, at best, unclear."
Mike, usually I find your articles informative, insightful and interesting, but this one is not to your usual standard. In fact, it's rubbish.
A few facts:
1. The PS3 jail break uses a USB key. There is no hardware modification.
2. Australian law allows mod-chips. The reasoning is important - mod-chips may allow legal activity (region coding is a restrictive trade practice) and even when it facilitates copying, it's secondary since the copying is real infringement.
3. The USB key allows not only bypassing region encoding and playing copied games, but also copying games.
4. It's the ability to copy games which (probably) violates Australian law.
China is usually given as the bogey man in cyberwar scenarios. What most people in the west don't understand is how vulnerable China is to a cyberwar.
Ninety percent on all PC's in China - whether personal, academic, corporate or government PC's - have pirated copies of MS Windows, which means that these PC's cannot run Windows Update. The vast majority of PC's in China have unpatched vulnerabilities - many are actually already infected with malware.
China is running its' own cyberwar scare campaign - there are many articles in the Chinese press about various research institutions has PC's hacked and secrets stolen. China is extremely vulnerable to cyber attacks and they are very aware of it. The Chinese government has a program in place to remove MS-based software from all government computers. It would appear that this program has a long way to go - with vastly more than 50%, possibly as much as 90% of government PC's still running Windows.
The last thing on the Chinese governments' mind at the moment is starting a cyberwar. They'd lose it and they know it.
The only reason that the Australian government is pursuing is domestic politics. They need the vote of Senator Steve Fielding (from the right-wing Family First party) to get their legislative program through the Senate. The government has promised the internet filter in return for his vote on most matters. This requires that they maintain a credible plan to introduce the filter. So they have run trials, held conferences and now have a implementation forum. However, do you notice how the implementation keeps on slipping? How it's now delayed until after the next election (due at the end of 2010).
I'll let you into a political secret. Steve Fielding is up for re-election and his chances are zero, nada, nil. He was only ever elected in the first place because back-room operators for the two main parties - Labour and the Liberals (actually Conservatives) - got together to horse-trade and game the electoral system. Steve got elected by accident with only around 9000 primary votes. He was elected because he got both Labour and Liberal preferences and that's not going to happen again.
So, expect the internet filter to die quietly after the election. It will die because there was never any serious political will to implement it, not because of the protests and outrage
Techdirt has not posted any stories submitted by PapaFox.
Omitted facts
The reason his honour Judge Peter Kidd issued the suppression order was simple. George Pell was facing another separate trial for child sexual abuse. Widely publicizing his conviction the first trial would have almost certainly swayed the jury in the second trial. When the prosecutor withdrew the charges in this second case, the judge lifted the order. Judging by the media frenzy that the lifting of the suppression order allowed, had the second trial been held, the jury would not have needed to hear any evidence, they simply would have taken George Pell out of the court and strung him up.
Suppression orders are far from perfect solutions to these sort of prejudicial events, the courts need to do something to attempt to provide some semblance of a fair trial.
You need to update the story to mention the second trial and the removal of the suppression order once the second set of charges were withdrawn.
Rubbish - get a good translation
Sorry Glyn, you've got it wrong. I doubt you read Chinese or are versed in Chinese law, so you have fallen for Susan Hennessey and Christopher Mirasola's panicked response to a very technical Chinese court document. Your article is typical of the poor reporting on China - few reporters speak Mandarin, fewer understand the political debates going on in China. They hear some gossip and promptly write and article that has serious errors.
A reasoned response "Sometimes a rule of evidence is just a rule of evidence" has been written by Jeremy Daum.
The new regulations don't change or permit any new activities by Chinese law enforcement. Frankly, if a Chinese government whether it be at county, provincial or national level wants to hack you, then they are not going to be stopped by what is or is not admissible in a court of law.
What the new regulations do is specify how such evidence has to be handled. Specifically, if a litigant wishes to enter evidence obtained by hacking they have to identify it as having been obtained through hacking. So now hacking will be far more public than it was before and probably less likely to occur. at least if a trial is likely.
To understand what is going on, you need to understand the debate about the rule of law that is happening in China. In the west (be it the US, Britain, France, Germany etc), at least in principle, if the same case with the same evidence was heard by two different judges then approximately the same judgement should be rendered. Judges are constrained by the same legislation/civil code, the same precedents, the same interpretation rules. However in China this doesn't happen because while there is a common civil code (forked from the German civil code circa 1930), the interpretation and precedents aren't there. Chinese judges, like all judges, have the pick winners and losers. For these reasons (along with others) the general run of Chinese commercial justice is a bit of mess with with different outcomes depending on which court and which judge a case is heard before.
Senior judges and lawyers want to rectify this, but there is a problem. The "rule of law" is a highly political topic in China, with the CPC (Communist Party of China) holding that it's evil and bad, while lawyers in general quietly approve of it. Because of the political nature of the debate, the legal system is moving in a somewhat crab-wise direction to towards implementing the infrastructure which will allow the rule of law. This regulation is part of that movement. Don't misunderstand me - the Chinese legal system has a very long way to go before it approaches the rule of law, but this a good step in the right direction.
So, Glyn - you quoted a panicky analysis and haven't checked the original material. Go read Jeremy Daums' response (including the translation of the new regulation) and think again. What is actually happening is the opposite of what you are claiming.
No hacking, just good police work
Just a few facts...
1. Queensland Police arrested an Australian man who operated a child porn server, gaining control of the server
2. They moved the server so that it was physically located within Queensland
3. The server was modified such that to download child porn, the server would email a link to the video
4. If a perp opened the email and clicked on a link while *not* using TOR, their IP address was visible. A unique cookie was set as well. The email contained a link to real child porn.
So, no 'hacking' took place. No software was installed/modified on the target computer. If the suspect was located outside of Queensland, then the arrest and analysis of the computers was carried out by the appropriate local police - in USA it appears to be the FBI.
So, no hacking took place, just good police work. To be accused through this QP operation, a suspect had to have (a) a matching email address and an IP address matching the one used to download child porn; (b) the unique cookie installed during the download; and (c) probably one or more pieces of child porn on the computer.
Understand exactly what the DOJ is appealing
There are two piles of evidence in this case. The first was gathered by the DOJ over a number of years and most notoriously includes many petabytes of Megauploads customers' data located in Virginia (hence the involvement of Neil MacBride, the US Attorney for the Eastern District of Virginia).
The second pile of evidence is that siezed by the NZ Police, acting of a request from the US DOJ. This includes 150TB of disks containing Megaupload corporate data and emails. It is this second pile of evidence which Judge Harvey ordered the NZ Crown Prosecutor to copy and make available to Kim Dotcom and his defence team. While there is an assumption that the NZ prosecutors are acting as sock puppets for the US DOJ, the court orders do not name or apply to any US entity.
So, it is pretty rich for the US DOJ to claim that a defendant before a NZ court should not have access to evidence seized and located in NZ until the defendants surrender to the jurisdiction of a US court.
Now I guessing, but I am assuming that the DOJ did not have access to most (if any) of that data before it filed the case against Megaupload. The DOJ has said that the among the 150TB of seized data is "10 million emails and a large amount of financial data". So clearly, it would like enough time to enhance (or perhaps prepare?) its' case using those emails and financial data while at the same time stopping Megaupload from preparing its defence.
The role of judges is to pick winners and losers, and help winners win while making losers lose. However, most judges have a strong commitment to fairness and due process. They also have have open minds. So even for a certain winner (the vast, vast majority of extradition cases are approved), if they are caught placing a fat greasy thumb on the scales of justice, the Judge may decide to make them a loser.
The term of reference - big content has already nobbled the review
While this review may look promising on the surface, in fact the results of the ALRC's report have been largely dictated by it's terms of reference.
Big content has succeeded in preventing the ALRC from examining any of the following:
* unauthorised distribution of copyright materials using peer-to-peer networks;
* the scope of the safe harbour scheme for ISPs;
* a review of exceptions in relation to technological protection measures; and
* increased access to copyright works for blind and visually impaired people.
There are other existing reviews which cover these topics, and these reviews are not open to public comment. Big content has won big time in the ALRC's review before it has even begun.
See this article for further details.
Re: We should regret LightSquared's failure to grasp the laws of physics?
LightSquared is run by really, really smart people who were/are intent on gaming the system and making a few billion dollars. They were allocated some satellite spectrum, which is cheap, and wanted to exploit a loophole which allowed them to repurpose it as terrestial which is very, very expensive. Essentially, LightSquared was engaged in spectrum arbitrage, where they could make a great deal of money by ripping off the US taxpayer. LightSquared management was completely uninterested in any tedious parts of reality which got in the way of making all that lovely money.
John Hempton has an analysis of the games which Phil Falcone and LightSquared were playing.
Read Lawrence Latifs' Analysis
Nice article Richard. You've dug up most of the pieces, but you haven't quite put them together properly. Carrier IQ is only the tip of the data mining iceberg. They are probably one of the more benign players, in that they seem only interested in technical issues. The telcos as well as Apple and Google are gathering enormous amounts of user info from smart phone in order to, directly or indirectly, serve targeted ads.
Reputable retailers blacklisted as well
I notice www.jbhifi.com.au is blacklisted by Monster. JB HiFi is a large Australian electronics retailer. It's also a publicly listed company.
Maybe they annoyed Monster by pointing out that there were cheaper cables which were better than Monsters?
The Judge worked it out
While it is nice to see that AFACT is actually an MPAA sock-puppet confirmed, the important point is that the Judge worked this out during the trial. He considered throwing the case out, but decided that that would just duck the issue - so he dealt with it.
To quote Justice Cowdroy from Roadshow Films v iiNet:
Facts?? Who cares about facts
Mike, usually I find your articles informative, insightful and interesting, but this one is not to your usual standard. In fact, it's rubbish.
A few facts:
1. The PS3 jail break uses a USB key. There is no hardware modification.
2. Australian law allows mod-chips. The reasoning is important - mod-chips may allow legal activity (region coding is a restrictive trade practice) and even when it facilitates copying, it's secondary since the copying is real infringement.
3. The USB key allows not only bypassing region encoding and playing copied games, but also copying games.
4. It's the ability to copy games which (probably) violates Australian law.
China is equally afraid
China is usually given as the bogey man in cyberwar scenarios. What most people in the west don't understand is how vulnerable China is to a cyberwar.
Ninety percent on all PC's in China - whether personal, academic, corporate or government PC's - have pirated copies of MS Windows, which means that these PC's cannot run Windows Update. The vast majority of PC's in China have unpatched vulnerabilities - many are actually already infected with malware.
China is running its' own cyberwar scare campaign - there are many articles in the Chinese press about various research institutions has PC's hacked and secrets stolen. China is extremely vulnerable to cyber attacks and they are very aware of it. The Chinese government has a program in place to remove MS-based software from all government computers. It would appear that this program has a long way to go - with vastly more than 50%, possibly as much as 90% of government PC's still running Windows.
The last thing on the Chinese governments' mind at the moment is starting a cyberwar. They'd lose it and they know it.
It's domestic politics
The only reason that the Australian government is pursuing is domestic politics. They need the vote of Senator Steve Fielding (from the right-wing Family First party) to get their legislative program through the Senate. The government has promised the internet filter in return for his vote on most matters. This requires that they maintain a credible plan to introduce the filter. So they have run trials, held conferences and now have a implementation forum. However, do you notice how the implementation keeps on slipping? How it's now delayed until after the next election (due at the end of 2010).
I'll let you into a political secret. Steve Fielding is up for re-election and his chances are zero, nada, nil. He was only ever elected in the first place because back-room operators for the two main parties - Labour and the Liberals (actually Conservatives) - got together to horse-trade and game the electoral system. Steve got elected by accident with only around 9000 primary votes. He was elected because he got both Labour and Liberal preferences and that's not going to happen again.
So, expect the internet filter to die quietly after the election. It will die because there was never any serious political will to implement it, not because of the protests and outrage