Metadata Warrants at What Point Should there be Control?

Recently the federal Attorney-General has declared that Australian law enforcement “would grind to a halt” if the police and other law enforcement authorities were compelled to apply for a search warrant every time they wanted or required access to the telecommunications data of Australians (see article published in delimeter.com.au).

Figures released in the federal Budget Estimates hearing sessions recently (Monday 27 May to Friday 7 June 2013) indicate that the Australian Federal Police made more than 40,000 internal requests for telecommunications ‘metadata’ (being defined as data pertaining to the numbers, email addresses, time, length and date involved in phone calls or emails, but not the content) in the past financial year. At present no warrant is required to support these requests.

Given this increasing access to metadata by Australian law enforcement it is no surprise that civil liberties groups and political groups have sought to have such activity controlled and called for he introduction of laws to control this.

Adding to the debate in recent times has been the fact that the US spy agency the NSA (National Security Agency) has been reported to have gained backdoor access to the data servers of major technology companies like Apple, Google and Microsoft - raising concerns among many of what might be made of such information and how it might be used. To this might also be added he use hat might be made of such information by media outlets who, if the News of the World scandal is any indication, seem to be able to obtain this information at will.

This issue of access to the mountains of collateral data produced by the Internet is one that has been attracting more attention and firing debate. It catches my attention because I constantly marvel at how all free societies argue vociferously against a "big brother" like totalitarianism yet seem uncannily to find ways to create it or empower it. The issue of law enforcement and metadata warrants seems to be yet another instance of where unintentionally, even unknowingly we could be delivering information to government which could easily be abused by a government minded to do so at some point in the future.

Google's High Price of Success

Sometimes it is possible to be too successful? So much so that it actually makes you a target for legal proceedings. Google in recent times appears to have been a major bulls-eye for lawyers and their clients.

In the case of Milorad Trkulja, Google was forced to cough up more than $200,000 in damages to an Australian man who brought his search results to court. Trkulja a Melbourne resident was at a restaurant with his mother in the summer of 2004 when he got shot in the back by an unidentified hitman. The 62-year old music promoter Trkulja survived the attack but a Google search now showed his online reputation didn’t have the same luck. A search for his name on "Google Images" bought up a Who’s Who of Melbourne’s Most Wanted. Results including alleged murderers, drug traffickers and even mob bosses. Even though the only link Trkulja actually had to Melbourne’s underworld was being a victim of an unsolved crime. As a result of Google's search logic (the algorithm that drives its search engine) he was showing up in the same results as were the less than savoury characters accused of shooting him.

Arguing this to be an assault on his reputation and determined to see it end Trkulja launched
his action in the Victorian Courts and succeed in getting damages.

A similar case has arisen where a Port Macquarie surgeon is now suing Google in the USA (in he California District Court) for defamation over an auto-complete search suggestion that he and his lawyers argue has cost him clients. It is claimed that when Google is searched for the surgeon’s name the search also displays the word “bankrupt” and that this association of words is affecting his reputation as a surgeon.

The expected response from Google as it has been in the past when such cases arise is that auto-complete is "a reflection of the search activity of all web users and the content of web pages indexed by Google", essentially arguing that the processes is automated and is not controlled by Google.

Similar cases appear to be arising around the world, for example, the “French court [who] fined Google $65,000 because the search engine's auto-complete function prompted the French word for "crook" when users typed the name of an insurance company”. In another Australian case, the ACCC has taken action in the High Court of Australia where it is claiming that Google should be held responsible for its AdWords rankings and placements. A decision in that case is expected soon.

It will be interesting to see how the standard Google defence that it is just using automatic algorithms and is not acting like a newspaper publishing a story holds up. Certainly as indicated in the press the courts are and will be looking at Google more closely in the future as will many eager legal advisers sensing the opportunity to take big sums in damages from one of the worlds leading technology companies. Sounds like the high price of success?

Guilt by Association Can Get You Sued: Google and Defamation

An Australian jury has found Google liable for damages following on a successful defamation action by a Melbourne man who argued that he had been defamed by the Search engine after it linked him wrongly to gangland crime. The man aged 62 claimed Google’s web and image search results had caused damage to his reputation such as to give rise to his action. The 62 year old  had already won a related case against Yahoo.

The facts giving rise to the case occurred in 2004, when the man was shot in the back by a man wearing a balaclava (a crime which was never solved). As a result of the attack a Google search for the man brings up images of other people who appeared in news reports and the man claims the pictures show murderers and a drug trafficker which could lead users to believe he was a criminal and could injure his reputation.

As a result of the suit Google was forced to cough up more than $200,000 in damages.

This case is certainly an interesting development and could open many other plausible assaults on the Google and other search engine providers, especially in these days when the first place people seek information about you is in a search engine like Google, Yahoo, Seek or even social media sites like Facebook and Linked Inn.

It becomes interesting to consider at what point in the context of the internet is the individual responsible for his fate and at what point does the Internet Service, Search Engine or Service become liable.

There is No Such Thing as a Private Remark

"What these continual eruptions are doing is they are putting people on notice that there is no such thing as a private remark anymore."

The above is a quote from a comment by Media Expert Jane Caro on the backlash that has recently been heaped on shock jock Alan Jones when he went too far even for him and the residents of Sydney or "Jones Town" reacted mostly through social media to let him know that his trashing of the female Prime Minister had gone to far.

The point is that people who make a public living out of public speaking need to realize that no matter how small the audience no matter how partisan the crowd it is no longer as easy or possible to brush off or play down what is or might have been said. Now by way of a smart phone all present at such speaking events have access to a camera and a recording device and the means to upload and make such supposedly "private comments" making them matters of publicly recorded fact in minutes,

In other words the days when the shock jock or the politician was the only one with access to the ability to publish are long gone. As Mitt Romney the US Republican Candidate recently discovered you may think you are talking to a room where you think none of the 47% you consider don't care for your views are not listening but you can be very certain they will hear about it these days.

People often talk about greater accountability for social media but in my view social media in a way is promoting greater accountability, It is requiring people in the public eye to exercise greater caution not through fear of inane industry regulation but through fear of public opinion and social retribution through posts to Twitter, Facebook and more and more places evolving on the web. It will be interesting to see how these trends develop.