[LINK] It's Queensland - (sorry to Qlders)

[Tom Koltai]

> -----Original Message-----
> From: link-bounces at mailman.anu.edu.au 
> [mailto:link-bounces at mailman.anu.edu.au] On Behalf Of Ash Nallawalla
> Sent: Wednesday, 18 May 2011 3:29 PM
> To: link at anu.edu.au
> Subject: Re: [LINK] It's Queensland - (sorry to Qlders)
> 
> 
> If the Queensland Police continue to think in that vein, then 
> anyone watching a YouTube video taken from a copyright source 
> is likely to be arrested. They should be cutting their teeth 
> checking out the $5 big-brand software sold at swap meets 
> across the country, where the buyers are "knowingly" 
> receiving stolen goods.
> 
> Ash
> 
<SNIP>
The social networking, IM and global aspect of the internet combined, is
in fact reducing crimes against persons, and crimes against property.
Crime is on the way down. Unless the Police find new crimes to
prosecute, they'll be out of business. Therefore even if they don't find
Ben Grubb guilty of anything, there will be a precedent somewhere in
there that they can use elsewhere to justify increases in funding and
expansion of powers.

This is the truism first defined by Darwin.
Police forces are no different to any other organism.
They have to survive and grow, or else shrivel and die.
Whilst we are at the moment experiencing a dramatic drop in the actual
real crime... There is a valid argument that unless Police can be
integrated into the new IT economy they will not be there when actually
needed.

In 2009, QLD police were involved in training on P2P interception
methods [TOR/Onion] with the FBI in an attempt to be able to track
undesirables. Unless we allow themn to play with journalists and
Facebook privacy, they'll want to play with other toys like AUSCERT.
Actually, there is an argument that a new breed of policeman needs to be
trained in IT. 
The policeman that won't stand by idly when a pishing attack is
occurring, or when questionable content is discovered and reported by a
member of the public.

I think Ben is the "lucky" chosen one because his case, as ridiculous as
it is will obtain a ton of publicity resulting in eventual retasking
requiring training and additional funding.

The case may also force policy makers to address such issues as Facebook
Servers located overseas and breach of privacy (threat) to Australian
nationals caused by persons or organisations not resident in Australia.

The concept of "stealing" a photo that was posted to a Facebook account
is fascinating. Zuckerberg has about faced a number of times on Privacy
issues and Private Friends Only flag has been treated rather
haphazardly, therefore I would suggest that Ben's defence would be that
at some time in the past all Facebook content was in the Public Domain
and that Mark Zuckerberg is at fault.

On that basis, I guess it would then be incumbent on the QLD police to
obtain a determination through proceedings in a court. [See  55A below.]
Which of course may even result in a penalty of some sort for Mark
Zuckerberg for breaching the provisions of the privacy act.

http://www.austlii.edu.au/au/legis/cth/consol_act/pa1988108/
Quote/
PART III--INFORMATION PRIVACY
13.     Interferences with privacy  
13A.    Interferences with privacy by organisations  
13B.    Related bodies corporate 
13D.    Overseas act required by foreign law  

And

Division 3--Enforcement

54.     Application of Division  
55.     Obligations of respondent organisation  
55A.    Proceedings in the Federal Court or Federal Magistrates Court to
enforce a determination  

And

PART VI--PUBLIC INTEREST DETERMINATIONS AND TEMPORARY PUBLIC INTEREST
DETERMINATIONS

Division 1--Public interest determinations

71.     Interpretation  
72.     Power to make, and effect of, determinations  
73.     Application by agency or organisation  
/Quote
And

http://www.alrc.gov.au/publications/59.%20Access%20and%20Correction,%20C
omplaint%20Handling%20and%20Penalties/penalties
Quote/
Discussion Paper proposals

59.165 In DP 72, the ALRC proposed that the Privacy Act be amended to
allow a civil penalty to be imposed where there is a serious or repeated
interference with the privacy of an individual. The ALRC also proposed
that the OPC develop and publish enforcement guidelines setting out the
criteria upon which a decision to pursue a civil penalty is made.[194]
...

59.171 The ALRC understands that no prosecutions have ever been launched
under the credit reporting offence provisions. At least some of the
relevant conduct is covered, in any case, by other offences under
Commonwealth legislation. The Criminal Code, for example, creates an
offence in respect to unauthorised access to, or modification of, data
held in a computer to which access is restricted.[201]

59.172 Since the enactment of the credit reporting provisions, civil
penalty regimes have become a more common means to enforce consumer
protection laws including, for example, under the financial services
civil penalty provisions of the Corporations Act[202] and the uniform
Consumer Credit Code.[203] The ALRC considers that a civil penalty
regime is a more appropriate enforcement mechanism for breaches of
credit reporting regulation than the suite of criminal offences
currently provided for in the Act.

59.173 In Chapter 54, the ALRC recommends that credit reporting agencies
and credit providers, in consultation with consumer groups and
regulators, including the OPC, develop a credit reporting code.[204] It
may be desirable for this code to provide for penalties, imposed by
contract, for breach of the regulations or the code itself. Sanctions
for non-compliance, such as suspension or expulsion from the credit
reporting system, may raise competition issues and require authorisation
by the Australian Competition and Consumer Commission.

Recommendation 59-9 The Privacy Act should be amended to remove the
credit reporting offences and allow a civil penalty to be imposed as
provided for by Recommendation 50-2. /Quote

An intereseting precedent creating incident.

/body