Privacy-related legal concerns for Google

1. Italian Courts convicts Google for privacy violations in video uploads

An Italian court on 24 February found three Google executives guilty of privacy violations for allowing a video depicting bullying to be posted on its website. The court in Milan found that the three men, David Carl Drummond, George De Los Reyes, and Peter Fleitcher, violated the privacy rights of a young man with Down’s Syndrome when they allowed a video showing his classmates bullying him to remain on the Google Italy website from September to November 2006. All three men were given a suspended sentence, though prosecutors had asked for a one-year imprisonment.

The legal basis for the charges, following the prosecutor’s theory of the case, was that those executives failed to exercise a pre-emptive control over the contents published by Google final users. The consequence is that under this interpretation of data protection law, every Internet Service Provider is requested to infringe its user privacy, to do a prior check on the legitimacy of the action performed by the users themselves. This interpretation of the law means that Google is co-responsible for the legality of content containing the images of persons, before anyone has complained about the content.

It is noteworthy that European law protects internet providers from responsibility if they remove illicit content as soon as they are informed of its existence – which is what Google did.  According to EDRI:

The consequence is that under this (odd) interpretation of data protection law, every Internet Service Provider is requested to infringe its user privacy, to do a prior check on the legitimacy of the action performed by the users themselves.

A nice Catch 22, and a goodbye to network neutrality and online privacy !

Google’s Deputy General Counsel reacted to the news quickly, with a strongly-worded statement [Google Blog post] calling the decision an attack on “the very principles of freedom on which the Internet is built,” and promising to appeal the ruling.

More info here.

2. Google’s relationship with the NSA

Under an agreement that is still being finalized, the National Security Agency would help Google analyze a major corporate espionage attack that the firm said originated in China and targeted its computer networks, according to cybersecurity experts familiar with the matter. The objective is to better defend Google — and its users — from future attack.

The partnership strikes at the core of one of the most sensitive issues for the government and private industry in the evolving world of cybersecurity: how to balance privacy and national security interests. Director of National Intelligence Dennis C. Blair called the Google attacks, which the company acknowledged in January, a “wake-up call.” Cyberspace cannot be protected, he said, without a “collaborative effort that incorporates both the U.S. private sector and our international partners.”

The agreement will not permit the agency to have access to information belonging to Google users, but it still re-opens long-standing questions about the role of the agency.

The American Civil Liberties Union, among other civil liberties groups, is asking its members to contact Google executives and ask them not to work with the U.S. National Security Agency to investigate cyberattacks allegedly coming from China. Similarly, privacy advocacy group Electronic Privacy Information Center has filed a Freedom of Information Act (FOIA) request with the NSA asking for derails on the agency’s purported partnership with Google on cybersecurity issues.

3. Google’s relationship with China

In mid-December, Google detected a highly sophisticated and targeted attack on its corporate infrastructure originating from China that resulted in the theft of intellectual property. Google claims to have evidence to suggest that a primary goal of the attackers was accessing the Gmail accounts of Chinese human rights activists. The accounts of dozens of U.S.-, China- and Europe-based Gmail users who are advocates of human rights in China appear to have been routinely accessed by third parties.

The attack also targeted at least other 33 companies, from a wide range of businesses–including the Internet, finance, technology, media and chemical sectors.

American intelligence and law enforcement officials have been alerted in order to assemble powerful evidence that the masterminds of the attacks were on the Chinese mainland.

But while much of the evidence, including the sophistication of the attacks, strongly suggested an operation run by Chinese government agencies, or at least approved by them, company engineers could not definitively prove their case. Today that uncertainty, along with concerns about confronting the Chinese without strong evidence, has frozen the Obama administration’s response to the intrusion, one of the biggest cyberattacks of its kind, and to some extent the response of other targets, including some of the most prominent American companies.

As a result of the attack, Google posted a surprising message on its official company blog that raised the possibility the search engine may leave the Chinese market rather than continue operations under oppressive Chinese censorship laws.

Unlike other companies like Yahoo! and MSN, Google was upfront to its Chinese users that the results were censored and did not move any of the infrastructure connected to email or personal information into the country, thereby shielding the data from Chinese laws. This compromise between profits and free speech protected the company from some of the fury human rights groups had for other American companies that kowtowed to Chinese business interests, but such protection was also limited to the conditions that Google had already laid down. The hack of the email accounts of human rights activists, information that Google went at lengths to protect from Chinese laws and officials, appears to be the final straw for Google.

4. Google Buzz privacy concerns

The new networking service issued by Google company called Google Buzz has met criticism and confusion from its users who complained that a list of people they frequently email or chat with has appeared on their profile.

Google moved quickly over the weekend to try to contain mounting criticism of Buzz, its social network, apologizing to users for features that were widely seen as endangering privacy and announcing product changes to address those concerns.

But Marc Rotenberg, executive director of the Electronic Privacy Information Center, said his organization still intended to file a complaint with the Federal Trade Commission this week pending its review of Google’s changes.

“Even with these changes, there is still the concern that Gmail users are being driven into a social networking service that they didn’t sign up for,” Mr. Rotenberg said.

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Italy ponders registration requirement to upload videos

The Italian Government intends to introduce a new decree that would require people who upload videos onto the Internet to get authorization from the Communications Ministry just like television broadcasters. Article 4 of the draft decree specifies that a ministerial authorisation is required for the dissemination over the Internet “of moving pictures, whether or not accompanied by sound.” This will affect sites of newspapers, IPTV and mobile TV, as well as any person who wants to upload a video on a video-sharing website.

A press conference was held by the opposition in the Parliament on 14 January 2010 who consider the proposed decree as a threat to freedom of expression.

The European Commission has also reacted, following complaints from  Italian Associations. “The Commission services will launch an infringement procedure for non-notification against Italy,” an EU official told EurActiv.com. He also added “the E-Commerce Directive provides that there is no general monitoring obligation for Internet service providers”, which the Italian new decree is contradicting. Moreover, the official made clear that “pure video-sharing platforms do not meet the definition of an audiovisual media service,” and therefore should not be covered by national laws “as far as they do not exercise editorial decisions”.

Judge: Italy’s secret service knew of CIA rendition

An Italian judge said on Monday that Italy’s secret services knew about the CIA’s kidnapping of a terrorism suspect in Milan seven years ago, despite Prime Minister Silvio Berlusconi’s denial of any Italian involvement.

Judge Oscar Magi, who in November sentenced 23 Americans in absentia to up to eight years in prison for the 2003 kidnapping, said in an explanation of his landmark ruling that Italian spy chiefs were informed of, and possibly complicit in, the abduction of Egyptian-born cleric Hassan Mustafa Osama Nasr.

“The authorization to act on national territory by the highest level of U.S. intelligence leads one to presume this was carried out with the knowledge (and perhaps the complicity) of their Italian equivalents,” Magi said in his ruling, which was only released on Monday under Italian legal practices.

The judge, who was forced to drop charges against five former Italian spies under state secrecy rules, said secret services should not be shielded from responsibility for crimes simply because of the involvement of foreign governments.

In his reasoning, Magi was direct in his criticism of the use of state secrecy, saying it created “a logical and judicial paradox” when it came to evaluating the potential roles of Italian military intelligence in the kidnapping of Osama Moustafa Hassan Nasr, also known as Abu Omar, on Feb. 17, 2003, from a Milan street.

The judge said that the Constitutional Court’s decision to impose state secrecy rules in the case had drawn a “black veil” over the activities of the Italian secret service.

In response to the ruling, Public Prosecutor Armando Spataro said he was considering whether to appeal against the dismissal of the case against the five Italians and three American defendants, who enjoyed diplomatic immunity.

“This could reopen the case … It could force the arrest of important people whose names have been protected by state secret,” he said.

The release of Magi’s reasoning gives both sides 45 days to appeal the verdicts.

UN experts conclude major study into use of secret detention in the fight against terrorism

Despite the fact that international law clearly prohibits secret detention, the practice is widespread and “reinvigorated” by the so-called global war on terror, several independent United Nations experts stated, outlining a series of steps aimed at curbing this human rights violation. In a 222-page study which will be presented to the United Nations Human Rights Council in March, the experts conclude that: “If resorted to in a widespread or systematic manner, secret detention might reach the threshold of a crime against humanity.” Read the unedited advance version here.

The study, which took almost a year to complete, involves responses from 44 States to a detailed questionnaire, as well as interviews with 30 individuals – or their family members or their legal counsel – who were victims of secret detention, and in many cases may also have been subjected to torture.

It provides an historical overview of the use of secret detention, noting that it is not a new phenomenon in the context of counter-terrorism. From the Nazi regime to the former USSR with its Gulag system of forced labour camps, States have often resorted to secret detention to silence opposition, according to the report.

The study goes on to address the use of secret detention in the context of the ‘global war on terror’ following the events of 11 September 2001, describing “the progressive and determined elaboration of a comprehensive and coordinated system of secret detention” of persons suspected of terrorism, involving not only United States authorities, but also other States in almost all regions of the world. The study says, inter alia,

143.Given the prevailing secrecy regarding the CIA’s rendition programme, exact figures regarding the numbers of prisoners transferred to the custody of other governments by the CIA without spending any time in CIA facilities are difficult to ascertain. Equally, little is known about the amount of detainees who have been held at the request of other States such as the United Kingdom and Canada.While several of these allegations cannot be backed up by other sources, the Experts wish to underscore that the consistency of many of the detailed allegations provided separately by the detainees adds weight to the inclusion of Jordan, Egypt, Morocco, the Syrian Arab Republic, Pakistan, Ethiopia and Djibouti as proxy detention facilities where detainees have been held on behalf of the CIA. Serious concerns also exist about the role of Uzbekistan as a proxy detention site.

It also highlights that secret detention in connection with counter-terrorism policies remains a serious problem on a global scale, either through the use of secret detention facilities; through declarations of a state of emergency, which allow prolonged secret detention; or through forms of “administrative detention,” which also allow prolonged secret detention.

The study was issued by the Special Rapporteur on the promotion and protection of human rights while countering terrorism, Martin Scheinin; Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention (represented by its Vice-Chairperson, Shaheen Sardar Ali); and the Working Group on Enforced or Involuntary Disappearances (represented by its Chairperson, Jeremy Sarkin).

Historic Abu Omar rendition trial ends with conviction of CIA officers for abduction

Robert Lady, the former head of the CIA in Milan, has been given an eight-year jail sentence for kidnapping at the end of the first trial anywhere in the world in which CIA officials were sentenced for the practice of extraordinary rendition.Lady was tried in his absence and convicted of helping to organise the seizure of Osama Moustafa Hassan Nasr, known as Abu Omar, from a Milan street in February 2003. His superior, Jeff Castelli, the head of the CIA in Italy at the time, was acquitted on the grounds that he was covered by diplomatic immunity. Most of the other 23 alleged CIA operatives on trial were given five-year jail sentences in their absence.

Judge Magi ruled that those convicted should paid 1 million euros in damages to Nasr, better known as Abu Omar, and 500,000 euros to his wife.

The judge ruled that neither the former head of Italian military intelligence, Nicolo Pollari, nor his deputy could be convicted because the evidence against them was subject to official secrecy restrictions. Two other Italian intelligence officials were given three years’ jail.

The CIA declined to comment on the case or appoint lawyers on behalf of the accused, who are considered fugitives under Italian law.

As all the American citizens were tried in absentia, they are now considered fugitives. They will be arrested only in Europe where the European Arrest Warrant is valid, not in the rest of the world because the Italian government refused to send to Interpol or to US authorities the Prosecutor’s request  to arrest and to extradite the fugitives.

Prosecutor Spataro said:

At last I want to underline our greatest respect for the Judge Oscar Magi, even when he didn’t accept all our requests. He led a very difficult trial and demonstrated great independence and professionalism.   Of course, we will wait  until we have read the explanation of his ruling, but it’s probable that we’ll appeal the verdicts of Castelli, Medero, Russomando, as we don’t think they are covered by diplomatic immunity.

One closing comment: the message of this important ruling – to the States, Governments, Institutions, Secret Service etc. – is that we cannot use illegal instruments in our effort against the terrorism. Our democracies, otherwise, would betray their principles. It’s also the new road – I think – of the Obama administration.

Human Rights Watch said earlier that

The Italian justice system’s vigorous prosecution of abusive CIA rendition operations stands in stark contrast to the inactivity of the US Department of Justice. Although the Obama administration has opened a preliminary investigation of CIA interrogation abuses, the review is narrowly focused and does not cover CIA renditions or senior Bush administration officials most responsible for abuses.

“There should be dozens of CIA rendition cases in the US courts, but unfortunately there are none,” said Joanne Mariner, Terrorism and Counterterrorism program director at Human Rights Watch. “By meticulously investigating the facts and surmounting formidable obstacles, Italian prosecutors have set an example that US prosecutors should follow.”

“The CIA’s rendition program should be on trial in the United States,” Mariner said. “It’s not too late for the Obama administration to follow the Italian prosecutors’ lead and launch serious criminal investigations.”

 

Prison sought for 26 Americans in extraordinary rendition case of Abu Omar

In his closing speech of the Abu Omar trial prosecutor Armando Spataro asked a Milan Court yesterday to sentence 26 Americans to jail terms ranging from 10 to 13 years for the abduction of Abu Omar. Spataro argued that a guilty verdict and strong sentence for the defendants, most of them CIA agents, would help restore confidence in Western democracies eroded by tactics employed in the fight against terrorism.

Spataro said the fact alone that four cell phones used by the kidnappers later turned up in use at the U.S. Embassy in Rome with different SIM cards “shows the grave responsibility of the CIA.”

Spataro requested the top sentence of 13 years for Jeffrey Castelli, the former Rome CIA station chief, who he said coordinated the 2003 kidnapping with the former head of Italian military intelligence Nicolo Pollari. He also sought 13 years for Pollari.

The prosecutor requested 12 years each for Robert Seldon Lady, former Milan station chief, and Sabrina de Sousa, who was in the Rome Embassy and whom prosecutors say worked closely with Lady. Spataro is seeking sentences of 10 or 11 years for the remaining Americans. He asked for a sentence of 10 years for Pollari’s former deputy, Marco Mancini, for his role in the kidnapping. He is seeking three years for two other Italian defendants on lesser charges of aiding and abetting and asked the court to dismiss the case against three others, citing a constitutional court ruling that limited access to evidence protected as classified for reasons of national security.

In Italy, kidnapping carries a maximum penalty of 10 years if carried out by a public officer, an aggravating circumstance applied to all of the U.S. defendants and the main Italian defendants in Spataro’s request. He also added aggravating circumstances of a conspiracy involving more than five people, and another extra penalty for Castelli and Pollari as organizers.

Nearly a dozen defence lawyers must now make their case. A verdict is expected possibly by early November.

Italy expels Tunisian terrorist defying a ruling of the European Court of Human Rights

Ali Toumi, who is married to an Italian and has three children, had been fighting extradition for fear of torture in Tunisia. The Tunisian had been sentenced to six years in prison in 2003 for trying to recruit volunteers for operations in Iraq. He had served his sentence and had since May 18 been in a holding centre pending his extradition. The European Court of Human Rights has on three occasions asked the Italian authorities not to proceed with Toumi’s expulsion before deciding on his asylum request.