TOC Don't tell. Midas has donkey ears. Your Turn

A few weeks ago (12/05/06 fillip), I identified authority as one of the three sources for truth. Since one gains authority because people have faith in one's declarations, authority implies trust and trust confers authority.

Trust is the term used by Michael Swaine in his thoughtful essay on "Web 2.0 and the Engineering of Trust" (*). In his own words, "trust is important in business but basic to web 2.0", the loosely defined concept behind some of the most successful community-oriented sites in the recent past. What Michael Swaine really means is that web 2.0 community members are more trusting than users engaged in a business transaction, making a breach of trust potentially more damaging on web 2.0 sites. Ultimately the difference is minimal as recommendation mechanisms (12/05/06, 10/10/06, 9/12/06 fillips) appear to be the common solution to build trust and uncover liars and schemers.

Trust however cannot be reduced to authority. For one does not have to tell lies and propagate calumnies to break the trust of others. One can also be a tattletale. We have already encountered this slimy sort at the Hewlett Packard board during last September's saga (9/12/06 fillip). Once again Internet provides a wonderful medium for leaking secrets.

Legend has it that some fellow got hold of King Midas' secret (1). Not how to turn all what he touched into gold, the fact that his lacking the correct political touch had gotten him a pair of donkey ears. Bursting with the need to unload the secret, the fellow buried it in a field. Lo and behold, reeds promptly grew from the spot and their rustling started to propagate the secret to every passer by.

Granted those reeds were but a very crude anticipation of modern fiber optics and microcomputers but one gets the idea. Once out it was difficult for King Midas to suppress the story and undo the damage to his reputation. Yet this is what a judge is trying to do. According to "Documents Borne by Winds of Free Speech" by Tom Zeller Jr. (**), a New-York judge wants to compell a lawyer to recall some sealed information he has already leaked, thereby threatening the image and the interests of a large pharmaceutical company. Possession in good faith does not prevent museums and wealthy owners from having to restitute stolen art, whether to the country or the person originally despoiled. Immaterial, information escapes from such control. Eradicating all the reeds did not grant effective relief to Midas.

A better solution has been found by a French lower court. According to Isabelle Potier and Alain Bensoussan (***), an Internet user had been rightfully accused of piracy by organizations entrusted with music copyright management. The damning proof came from the explicit link made by the plaintiffs between the defendant's downloads, his IP address and his identity. Another example of the heavy hand of justice falling upon a proven poacher? Hardly! The defendant walked out fully exonerated in view of the fact that the plaintiffs had gathered their evidence without proper authorization according to French law. In effect the plaintiffs had committed breaking and entering by violating the privacy of the defendant.

First one must rejoice at this rare case of individual data rights enforcement (5/23/06 fillip). I am not by any means extolling piracy. Data rights ought to be equally protected, whether corporate or individual. But the decision has true potential. Take bundled opt-in, the practice of forcing any commercial transaction to include an explicit authorization to send spam as required by European law. Why not assimilate it to extortion? Companies which indulge in such practices such as do so on a massive scale and could be prosecuted along the line of the piracy case.

But the most important lesson should not be lost. One way to counter some information theft is simply to nullify its legal standing. Take the case of the large pharmaceutical company. No doubt lawyers for future plaintiffs will be glad to wring maximum gain from those ertswhile confidential company documents. But what if any use whatsoever to be made of them, whether direct or indirect, was a cause for dismissal in view of tainted evidence? When the stolen information is used for monetary profit, another way would be to take a leaf from the prosecution of insider trading. The penalty in the instance is not to reverse past trades but to make the culprit disgorge his or her ill-gotten rewards and distribute them to the victims.

Here I am, showing lawyers how to come to the defense of individual data rights even though I had earlier vilipended them for their role in attacking eprivacy. They must have the Midas touch.

Philippe Coueignoux

  • (*) ....Web 2.0 and the Engineering of Trust, by Michael Swaine (Dr. Dobb's Journal) - January 2007
  • (**) .. Documents Borne by Winds of Free Speech, by Tom Zeller Jr. (New-York Times) - January 15, 2007
  • (***) TÚlÚchargement illicite et violation du domicile, by Isabelle Pottier et Alain Bensoussan (Les Echos) - January 22, 2007
  • (1) see Midas in the Wikipedia
January 2007
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