November 2007 Archives

A further example of the abuse of tasers by police in the United States.  This CNN article has video of police officers throwing an 'agitated' pregnant woman (who was apparently trying to leave the police station, but was not under arrest or otherwise in custody) to the ground, pin her to the ground by lying on her back, and then tasering her in the back of the neck.

The officer involved hasn't even been suspended from duty.

Earlier this year I blogged about an incident involving a mobile phone with a lewd and lascivious 'moan tone' ringtone going off in the Ipswich Magistrates Court.  It seems that at least one Judge in the United States has a different attitude to ringing mobile phones, orgasmic or otherwise.

Judge Robert M. Restaino has been removed from office by the New York State Commission on Judicial Conduct, because of an incident which would be funny if not for the egregious abuse of authority involved.  Quoting from the press release:

In a determination dated November 13, 2007, the Commission found that Judge Restaino engaged "an egregious and unprecedented abuse of judicial power" in March 2005 by committing 46 defendants into police custody after no one took responsibility for a ringing cell phone in the courtroom.

As found by the Commission, Judge Restaino, who was presiding in a domestic violence part, acted "without any semblance of a lawful basis," "out of pique and frustration." After questioning each defendant individually about the ringing phone, he reinstated bail or set additional bail for a total of 46 defendants, who were taken into custody and moved to holding cells. The 14 defendants who were unable to post bail were transported to the County Jail. Those defendants remained in custody for seven hours, until the judge released them after learning that the press was inquiring into his actions.

Stating that the judge's conduct "transcended poor judgment," the Commission found "no mitigating circumstances" for the judge's "shocking" behavior. The Commission concluded that the judge behaved like "a petty tyrant" whose behavior constituted "a gross deviation from the proper role of a judge."

The Sydney Morning Herald has an article on this event.

It seems that the recent rains in Brisbane have gotten somewhere that they shouldn't -- specifically, into the cable between here and the Telstra exchange.  My home phone line is having all kinds of funky problems at the moment, and my ADSL is badly affected also.

[Update 28/11/2007: No word from Telstra, but the problem appears to be fixed.  The dialtone is back, and the ADSL appears stable.]

The Daily Telegraph reports that the UN Committee against Torture have weighed in on the Taser debate, saying that 'The use of these weapons [i.e. Tasers] causes acute pain, constituting a form of torture'

Nic Suzor has been giving Taser incidents a lot of coverage on his blog of late, there's not a lot that I can usefully add to what he's written at this point in time.

It's good news, but it's not all good news.  The Coalition are out, and not before time.  Ding, dong, the witch is dead, and so forth.

Howard may or may not lose his own seat -- the latest numbers from the AEC show Howard with 32,283 first preference votes, McKew with 32,852.  On a two-party preferred, McKew is ~3000 votes in front, so it looks like that seat will be decided by preferences, and particularly the Green preferences.

The bad news: The Democrats got pounded even harder than the Coalition.  Last night, Andrew Bartlett was remaining positive and expecting a long wait, today he seems to be conceding defeat.  He blogs about this here. This is truly a tragedy for reasoned consideration of legislation in the upper house.  It's also a tragedy that more people voted for each of Pauline bloody Hanson or Family First than the Democrats.

The ABC are predicting the Senate numbers thusly:

Coalition	37
Labor	32
Greens	5
Family First	1
"Other"	1

If accurate, Labor will need the support of the Greens and both Family First Senator Steve Fielding and new independent senator Nick Xenophon to pass legislation opposed by the Coalition.

As Nic Suzor points out, this will leave us particularly vulnerable to extremist hold-outs in the Senate.  We could see a repeat of the Harradine years, where ill-conceived Internet censorship legislation was enacted to buy his support in other areas.

The Sydney Morning Herald is reporting that Australian TV stations are using their copyright over programming information (i.e. what shows will be on, and when) to demand concessions from manufacturers of digital video recorders.

The TV stations' representative group Free TV Australia sent a letter to the representative group for DVR manufacturers, saying that:

Broadcasters are not authorising the use of the programs listing data in PVRs where 'ad-skip' functionality goes beyond a maximum fast forward speed of x60; broadcasters reserve their rights with respect to those suppliers

and that

In addition, the PVR's [sic] which display the EPG [Electronic Program Guide] must employ adequate copy protection measures to prevent the redistribution of free to air content outside the home or on the internet... Broadcasters reserve their rights subject to the Commonwealth Copyright Act 1968, to take legal action at any time for copyright infringement where program listings are used in contravention of these terms.

There you have it.  If you want the program data, you have to nobble the fast-forward ability of your products, and use DRM, or they sue you.

It's a pity that Australia doesn't have a doctrine of copyright misuse.  We do however have a statutory prohibition against misuse of market power -- perhaps the TV stations should read up on the Magill case?

'ReputationDefender' offer a service to, amongst other things, 'find out everything that's being said about you online and get rid of the content you don't like.'

Pity that it's a scam.

'Powered by Search & Destroy', their service 'scour[s] the internet to dig up every possible piece of information about you, and then we present it to you in an interactive monthly report,' and '[n]ext we DESTROY. You can select the content from your report that you don't like. This is where we go to work for you.  Our trained and expert online reputation specialists use an array of techniques developed in-house to correct and/or completely remove the selected unwanted content from the web.'  (Emphasis added)

Their services are based on a false premise - that it's possible for them to 'destroy' content posted on third-party websites. Their website is deliberately vague on how they supposedly do this, but it's not at all clear to me how they can 'destroy' other people's content without criminal computer crime being involved.

It's possible that their 'destroy' service really just consists of sending out nastygrams threatening to sue the pants of everyone saying anything that their clients 'don't like.'  In which case, their marketing-speak contains a stack of likely contraventions of s 52, 53, and 55A of the Trade Practices Act 1974 (Cth).

A novel interpretation of s 60 might mean that their nastygram campaigns, in and of themselves, contravene the TPA.  If the service they supply their customers consists of using 'undue harassment or coercion' against third parties, I think this is quite arguably 'in connection with the supply or possible supply of goods or services to a consumer', in contravention of s 60.  The section doesn't say the 'undue harassment or coercion' has to be used against the customer.  A bit of a stretch, granted, but hey, I said it was a novel interpretation.

Articles such as this one tend to suggest that rather than 'destroying' content that their clients want to disappear, they setup new sites containing more positive information, and use SEO techniques to ensure that the 'positive' material appears in search results before the 'negative' material.  Still, this isn't 'destroying' the negative content in any way, shape or form.

The marketing for their services are based on another false premise - that you can or should be able to 'get rid of the content you don't like' on the Internet. I notice that on their FAQ they claim to respect the First Amendment, and so they don't go after the media or the government.  They seem to have forgotten that the First Amendment applies to everybody in America - not just organizations with money and lawyers.  Everybody else -- including but not limited to me -- is presumably fair game.

People have a right to engage in lawful speech on the Internet without organisations such as ReputationDefender threatening to sue them for saying things that their clients 'don't like'.

Their marketing to parents -- eg 'Don't let the internet ruin your child's reputation' -- seems to be little more than scaremongering.  They're relying on parents' fear and ignorance about the Internet to promote an expensive (US $29.95 per "destroy") for-profit service that can't legally do what it claims to do.

Then again, I probably shouldn't criticise them.  If they decide this posting harms their reputation, they'll probably just 'destroy' it.

In May, the Federal Court made a default judgment against Nuera Health Pty Ltd, a number of other 'Nuera' companies, as well as Paul Rana and his sons Christopher Rana, and Michael Rana -- Australian Competition and Consumer Commission v Nuera Health Pty Ltd (In Liquidation) [2007] FCA 695.

The clan Rana and a number of companies involved with them had been engaging in what is probably one of the most contemptible examples of misleading and deceptive, unconscionable, and just plain odious conduct to come before the courts in Australia.  The Ranas, through their companies, invented a 'system' of pseudo-medical quackery (including coffee enemas, colonic irrigation, vitamin treatments, fruit juice diets, devices called 'Zen-Chi Massagers', 'Zambroza with mangosteen' and Himalayan Goji juice) which they claimed could cure cancer.

They then sold their alleged 'system' to the families of people who were suffering terminal cancer for tens of thousands of dollars.  At least four of their victims died before the court gave its judgment.

It now seems that the Ranas have been harassing the families of their victims who were witnesses against them in these proceedings.  To quote Heery J in Australian Competition and Consumer Commission v Nuera Health Pty Ltd (No 2) [2007] FCA 1756:

Since [the earlier proceedings] the respondents have persistently harassed the witnesses by sending them strange documents couched in pseudo-legal medieval language, including demands for some $294 million. Understandably, this has caused great distress to the witnesses and has revived their tragic memories.

Have these people no shame?

In the Today Tonight v The Chaser saga that I blogged about previously, Channel 7 obtained an interim injunction to prevent the broadcast of The Chaser's footage filmed on Channel 7's premises.

In that judgment (Seven Network (Operations) Pty Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289), Barrett J says:

[14] It has been conceded by Channel 7 that there was a plan to put to air tomorrow a program about today's incident in which the Chaser team visited the Channel 7 premises. Channel 7 would, in that program, use footage taken by Channel 7 itself when the Chaser team were at the premises. I was concerned about that aspect and communicated that concern to counsel for Channel 7 who, during a short adjournment, obtained instructions to offer to court an undertaking by Channel 7, the plaintiff, to continue to take immediate steps to do what it can to withdraw the 15 second promotional broadcast for a story on the incident and also that, until determination of these proceedings, Channel 7 will not broadcast that story.
...
[18] Upon the plaintiff by its counsel giving to the court the usual undertaking as to damages and an undertaking to continue to take immediate steps to do what it can to withdraw the 15 second promotional broadcast for a story on the incident the subject of these proceedings and that until determination of these proceedings it will not broadcast that story, I order that the defendants and each of them, whether by themselves, their servants or agents or otherwise, be restrained up to and including 15 November 2007 from making a copy of (except as permitted by these orders), communicating to the public or causing to be seen in public (a) the film or any part of it taken by the defendants or any of them or at the direction of any of them at the premises of the plaintiff at about 2.15 pm today and (b) any film which includes any part of that film.

I'm reliably informed by one of my 'known associates', and a news story seems to confirm, that Channel 7 did in fact broadcast the story that they undertook not to broadcast.  The Daily Telegraph have video of the story that was aired online.

I wonder if the ABC will apply to have Channel 7 held in contempt?

News.com.au reports on an interesting copyright twist in the recent catfight between Channel 7 and The Chaser over footage that The Chaser filmed in 7's studios in Sydney after apparently sneaking in uninvited.  Apparently 7 believes that sending camera crews onto private property, uninvited, ambushing people, filming them, and broadcasting the footage is morally objectionable.  I guess they'll be cancelling Today Tonight forthwith, in that case.  Pot, kettle, black.

Anyhow, although the judgment doesn't mention copyright issues -- Seven Network (Operations) Pty Ltd v Australian Broadcasting Corporation [2007] NSWSC 1289 -- the news.com.au report says that:

In an expensive bid to stop the skit via a Supreme Court injunction, Seven's lawyer Dauid Sibtain stated Coren's involvement as a "performer" meant the ABC would be breaking copyright laws if they reproduced her image without her employer's consent.

I don't know whether the news report is somewhat garbled, or whether 7's understanding of copyright is somewhat garbled.  Perhaps they think Ms Coren qualifies as an 'artistic work', the communication to the public of which would infringe the copyright that subsists in Coren?

The Sydney Morning Herald and other outlets are reporting that the Sydney man who made a 'bootleg' recording of the Simpsons movie with his mobile phone, uploaded it to the Internet, and was subsequently charged with two criminal offences for so doing, has pled guilty and been fined $1000.

It's a bit of a joke really -- not because his punishment was so low, but because it shows up all the claims that the government was making about the copyright infringement notice scheme as a low-cost, low-hassle alternative to the 'traditional' methods of charging people and bringing them before a court.

This guy was fined $1000.  If, instead of being charged with two copyright offences, he was given two infringement notices, he would have had to pay 12 penalty units for each one, with a penalty unit being worth $110, for a total of $2640.

That's right -- this villainous scourge of the motion picture industry, whose Crimes Against Hollywood were so great so as to cause the Attorney-General to weigh in, saying how good Australia's copyright laws were, and how seriously we take these issues, went to court the 'traditional' way and paid less than half of what he would have paid if he'd been given infringement notices.

This really gives the lie to the government claims that the fines associated with infringement notices would be less than if people took the matter to court.

It won't be long before MIPI, AFACT, and their ilk start bleating about Australia being a 'banana republic'.  Again.

Many news outlets are reporting that a 'terrorist' prosecution in NSW has fallen on its arse because the court ruled evidence obtained in certain interrogations to be inadmissible, because of 'misconduct' by ASIO and the AFP.  But it's only when you read the judgment -- R v Al-Haque [2007] NSWSC 1251 -- that you find out exactly how egregious the conduct of the ASIO officers was.

I encourage you to read the judgment in full.  The high points are that three ASIO officers:

• Had no warrant for the arrest of the accused, or any lawful authority to detain him;
• Confronted the accused (a 21 year old) in the car park of a train station at night;
• Told him:
• that he 'was in serious trouble' and that 'you need to talk to us and need to talk to us now';
• that they 'were doing a very serious terrorism related investigation' and that 'we require your full cooperation';
• that they were taking him 'somewhere to have a private discussion';
• Then took the accused by car to a public park (as opposed to, say, a police station!);
• Told him:
• 'you're in a substantial amount of trouble. We are conducting a very serious terrorist investigation at the moment and that investigation has lead us to you. We have many means of investigation and we hold considerable information about you. What we now require from you is your full co-operation with ASIO in resolving the matter by being honest with us';
• 'we can do this the easy way or we can do this the hard way. Either you should co-operate with us or there'll be consequences for you, and it's in your own benefit that you keep talking to us'
  

The list goes on.  Adams J criticised (at [52]-[54]) the evidence of one of the ASIO officers involved as evasive and dishonest.  His Honour found that:

• The ASIO officers deliberately used language that suggested they had lawful authority to detain the accused and to require him to answer their questions; (at [34])
• The accused 'was intentionally given to understand that he was under an obligation to accompany the ASIO officers and answer their questions'; (at [27])
  
• The ASIO officers in fact detained the accused, although they knew they had no authority to do so; (at [35])
• The accused 'believed he was under arrest and that if he did not comply with what the officers asked him that they would either use physical violence or take him to a more sinister place for interrogation or otherwise do something else to his family or him'; (at [35])
• The ASIO officers committed the common-law misdemenour (or the tort) of false imprisonment, and the common-law crime of kidnapping, as well as trespass (for other conduct not described above); (at [57]-[60] and [62])
  
• The ASIO officers knew that their conduct was unlawful and 'were perfectly well aware that they were not entitled to detain [the accused]' and that '[t]heir conduct was grossly improper and constituted an unjustified and unlawful interference with the personal liberty of the accused'; (at [61])
• 'The impropriety of B15 and B16 was intentional and calculated to produce the very admissions that were made. It was grave. There is no suggestion that the officers acted contrary to ASIO protocols and good reason for thinking that they did not.' (at [105])
  

The gallant men and women saving us all from terrorism just can't get a break these days.  First the Victorian Court of Appeal quashed the convictions of 'Jihad' Jack Thomas, because overseas officials and a mysterious American (whom he believed to be a CIA agent) had threatened him with being shipped off to Afghanistan to be tortured by having his testicles twisted, or threatening to send people to Australia to rape his wife.

And then Mohamed Haneef gets off the hook because they had no evidence against him.  Not that that little fact stopped them from telling the courts otherwise.  And you never know -- maybe if they'd kept him locked up without trial for a few years, he might have confessed anyhow and saved the government the hassle of that whole 'burden of proof' and 'beyond reasonable doubt' stuff.  It worked for David Hicks!

And now this.  Adams J even had the gall to quote (at [60]) the judgment of that pinko commie Kirby J in Ruddock v Taylor [2005] HCA 48: ([137]-[139])

[The tort of false imprisonment] reflects the fundamental interest of the common law in protecting individual liberty and freedom of movement.  As Fullagar J observed in Trobridge v Hardy:

The mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights.

This concern is especially significant in respect of a claim for wrongful imprisonment made against members or officers of the Executive Government. It is a fundamental principle of Australia's constitutional law that the executive may not interfere with the liberty of an individual without valid authorisation. In Re Bolton; Ex parte Beane, Deane J explained:

The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. ... It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.

When will these pesky judges realise that the rules have changed, and that all pre-11/09/2001 authorities on the rights of individuals against the government are no longer good law?  We're at war, people!  Sacrifices need to be made.  Civil liberties are an outdated concept, and a tyrannical surveillance state is preferable to a risk of being killed in a terrorist incident which is statistically about the same as the risk of being killed by lightning.

Maybe once Peter Faris QC has his way and the use of torture is legalised, they'll be able to get confessions from all these innocent people and make them stick.  Then we can all feel safer.

(For the avoidance of doubt, the above several paragraphs are, of course, sarcasm)

I hope that Ul-Haque sues the government, and the agents who kidnapped him.  I also hope that ASIO and the AFP once and for all get the message that coercing confessions is morally and legally wrong and the courts will slap them down where they do it.

But I doubt they will.

... and thank Zeus for that.  Unfortunately, I'm rather ill at the moment, so blogging is still far down the to-do list :\

Due to exams later this week, blogging is rather far down my to-do list at the moment.  Next week, things will be back to normal, and will hopefully include a Special Feature...

The people at news.com.au should pay a little bit more attention when they're recycling old photographs...  On their front page today, they use a picture of Oscar the cat in connection with a story on the DNA-sequencing of an unrelated cat:

I apologise for today's outage of Defending Scoundrels.  One of the advantages of hosting this blog on my own server is that I don't have to pay for hosting, and can generally play god with the server config.  One of the disadvantages is that when the power goes out for a prolonged period, so does the server.  My UPS isn't quite long enough to keep ticking throughout a eight-hour power outage.