Britain is a signatory to a number of international instruments concerned with Human Rights (although I am not aware of one called the "International Treaty on Human Rights"). The point is, however, that treaties are not, in general, enforceable and especially not by individuals (in order to have standing in public international law you have to be a country or (possibly) an international institution such as the UN or EU). One important exception is the European Convention on Human Rights which is directly enforeceable against signatory states. However, as previously pointed out, this treaty has important national security exemptions which probably apply in this case.
Engaging in industrial espionage might get the UK government in political hot water if proven (the European Parliament seems to be taking an interest in this area) but that wouldn't necessarily stop them doing it. Companies would have the option of pulling out of the UK -they always have that option - but there have been very few (if any) cases of companies giving up a market for such reasons.
It is very unlikely that the WTO would become involved. I am unaware of any section of the General Agreement on Tariffs and Trade (GATT) or it's side agreements which prohibits industrial espionage (and yes, I have studied them). In fact the GATT has a national security exemption so one can probably forget that too.
OK, this is an attempt to respond to a number of the threads which have sprung forth from the question about the status of non-British people's email and British intelligence organisations.
First, in the UK as well as the countries that more or less inherited their constitutional structures from it, the doctrine of crown immunity means that it is not, in general, possible to sue the executive government. There is legislation specifically allowing many sorts of legal action against governments in all the relevant jurisdictions however I would be very surprised if the UK Government has passed legislation permitting the intelligence services to be sued - this would be very out of character in the home of the Official Secrets Act and oversight-free intelligence organisations.
Second, even assuming that the UK Government may be sued for the actions of the Security Service (commonly referred to as MI5), they would have to have done something illegal, and the illegality would have to be proven. Given that the Security Service can get warrants to read people's email, the whole process would presumably be above board. Even assuming the action was illegal (ie the proper permissions had not been sought) given the high level of secrecy surrounding Security Service operations, one probably have the greatest of difficulty proving anything useful.
Third, you can forget about going to court and complaining that the legislation is unconstitutional or otherwise beyond the power of parliament - this is a concept foreign to the UK constitutional arrangement. The parliament has power to pass any law. The only check on this might be an appeal to the European Court of Human Rights. If you are not from a Council of Europe country I don't think you have standing before that court and, even then, the court does not have a record of intervening in areas of "National Security".
On the issue of the right of the British Government to listen to the communications of non-Brits outside Britain, the British government has always maintained that the Royal Prerogative of the Security of the Realm (or national security - the name changes) permits it to operate overseas intelligence services. This right is also claimed by other countries. While it doesn't legalise under the local law anything that the SIS may do outside Britain, it does mean that the electronic spying done by GCHQ and this new outfit from within the UK is unassailable under UK law and, since it occurs in Britain, not covered by anyone else's law.
Re:Depends on Governing Law
on
Fighting UCITA
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· Score: 1
Bob (TM) wrote:
The excluding its choice of law rules is their out for allowing them to choose which the law, your state or California, that's the most favorable to SGI.
With all due respect, BULLSHIT. Every jurisdiction has what are called "choice of law" rules (also "conflict of laws") to determine which rules should apply in a dispute which for some reason crosses jurisdiction. The exclusion of choice of law rules, which is standard practice in contract law, is to make it unambiguously clear that the coice of law applies to the substantive law of the contract. In the case cited, it is to specify that the substantive law of California is to apply to the contract rather than that the choice of law rules of California are to be applied to determine which substantive law will apply.
The company concerned could not choose another jurisdiction (although choice of law clauses are not the only relevant factor in determining which law will apply so it is not certain that Californian law would apply).
OK, I'm going to have a Crack (sic) at responding to this one. I am not (yet) a Lawyer, nor am I an American. I am a law student (completed three out of four years) in Australia and I have studied criminal law and some international law so I can claim to know something about the area but if you get nicked I recommend you talk to a lawyer in your jurisdiction.
The short answer is US law does not apply to those of us in the rest of the world. The long answer is that many countries do claim the right to legislate extra-territorially and those countries' own courts will presumably conduct cases and mae orders on this basis. Normally this power is used to regulate the behaviour of one's own citizens in another country. For example Australia and many other countries have legislation which prevents their own nationals buying sex from children overseas and the US (i believe) has or had laws preventing US Nationals travelling to Cuba. The US also has legislation such as the infamous Helms-Burton (sp?) Act which applies to overseas complanies investing in Cuba and other countries have occasionally tried similar tricks.
The key point, however, is what a country (eg the US) can do about nationals of another country who are not in that country (and own no property that could be seized in the first country). In the first instance it must be noted that in general one country's court orders are not recognised in another country by either the judiciary or the executive (The EU is an important but currently irrelevant exception). This leaves two options, getting your country's law enforced in the second country by that country's courts or having the person you're after extradited to your country. The first is essentially impossible: although it is possible to use choice of law clauses or even the default conflict of laws rules to come to the conclusion that a contract is to be adjudicated in (for example) Sydney by French law, this sort of thing realy only applies to contracts. In non-voluntary areas of the law (subjecting oneself to contract law is always voluntary - you don't have to enter the contract) I am unaware of any case of a court admitting that another country's law applies on its home country's territory and such a ruling would be very surprising.
This leaves extradition. First, extradition is only legally possible if there is a treaty in place allowing it between the two countries in question. The vast majority of such agreements are bilateral and hence the precise conditions under which extradition is possible vary with each pair of countries considered and there are big holes in the system (for many years Britain had no functioning agreement with Spain causing the latter to become something of a haven for Britishfugitives). However, there are some principles of law which are almost universal and are worthy of mention: *A country has jurisdiction over crimes commmitted on its territory. *A country may sometimes have jurisdiction over its own nationals even if they are not in its own territory (this area can be quite limited and is not universally agreed upon). *A country does not have jurisdiction merely because the victim of a crime was its national (the US does not accept this position but it is pretty much alone on this).
It should be pretty apparent that for the sorts of offence material to the discussion, norma extradition arrangements will not cover the situation. This leaves Aos's suggestion that the US will just ask for the person to be handed over and because "US de facto rules the world" most countries would comply. Despite the plain inaccuaracy of the assertion that the US rules the world (one might cite some examples of policy the US really doesn't like and has not succeeded in changing, the Common Agricultural Policy springs to mind) this assumes that the governments of other countries will be willing or able to act illegally and in many cases in breach of their own constitution by effectively kidnapping their own nationals and handing them over to a foreign government. I suggest that one would have to go a long way to find a country whos executive officers would be prepared to risk the loss of office or imprisonment just to take the prbably very unpopular step of handing over someone to the US for using a perfectly legal (in that country) computer program.
Firstly I should like to debunk this idea that students are customers. At least for those of us fortunate enough to live in social democracies we are not customers because we do not (union fees aside) pay our university any money. We in Australia like students in the UK (the UK system was copied from here) do pay the government a contribution towards our education but not the university. After all the government is the one who pays for it all.
At this university, at least, for both undergrads and postgrads our intellectual property is, in general, our own. The exceptions are only in cases where either university staff are also entitled to IP (such as joint projects) or where extra university resources above those normally available to students have been provided specifically for the production of that IP.
The Australian National University's IP policy is here the relevant section for students is s5.
I quite agree although I personally think that it is not unreasonable to charge for access, especially outside the university. Currently my university's policy for Halls and Colleges is that they can only access the outside world via http and can only download text. The reason for this is alledgedly the cost. Since the digital phone network does not allow the hall and college residents have a dialup account elsewhere this esentially means that most hall and college residents have very restricted home (ie from their room) access. Unfortunately the clowns^H^H^H^H^H^H ladies and gentlemen who run our net access have decided that making a user pays system sufficiently secure is too hard so the college people can't buy what those of us who live off campus routinely buy. To address the arguement of free access for study purposes - remember that those who live off campus don't get free home access for study purposes and that (here at least) all students regardless of where they live can come onto the campus and use a lab for free although even here the access is somewhat limited. Translation note for speakers of American: college != university college ~= hall ~= dorm
Since this appauling legislation is now raising its head again, I'd like to point any interested slashdotters to a paper I wrote last year (1999) on internet regulation which focuses particularly on this law. A particular point to note is that the Australian Government's own laboratories feel that the proposed legislation is unimplimentable at least with regard to content hosted outside Australia.
I should highlight that this is a legal rather than a technical essay. I should also point out that although the paper was submitted to a university in Sweden, I am an Australian on exchange at that university.
Finally, the traditional disclaimer: IAOALS (I am only a law Student).
Slashdot Mirror
Engaging in industrial espionage might get the UK government in political hot water if proven (the European Parliament seems to be taking an interest in this area) but that wouldn't necessarily stop them doing it. Companies would have the option of pulling out of the UK -they always have that option - but there have been very few (if any) cases of companies giving up a market for such reasons.
It is very unlikely that the WTO would become involved. I am unaware of any section of the General Agreement on Tariffs and Trade (GATT) or it's side agreements which prohibits industrial espionage (and yes, I have studied them). In fact the GATT has a national security exemption so one can probably forget that too.
First, in the UK as well as the countries that more or less inherited their constitutional structures from it, the doctrine of crown immunity means that it is not, in general, possible to sue the executive government. There is legislation specifically allowing many sorts of legal action against governments in all the relevant jurisdictions however I would be very surprised if the UK Government has passed legislation permitting the intelligence services to be sued - this would be very out of character in the home of the Official Secrets Act and oversight-free intelligence organisations.
Second, even assuming that the UK Government may be sued for the actions of the Security Service (commonly referred to as MI5), they would have to have done something illegal, and the illegality would have to be proven. Given that the Security Service can get warrants to read people's email, the whole process would presumably be above board. Even assuming the action was illegal (ie the proper permissions had not been sought) given the high level of secrecy surrounding Security Service operations, one probably have the greatest of difficulty proving anything useful.
Third, you can forget about going to court and complaining that the legislation is unconstitutional or otherwise beyond the power of parliament - this is a concept foreign to the UK constitutional arrangement. The parliament has power to pass any law. The only check on this might be an appeal to the European Court of Human Rights. If you are not from a Council of Europe country I don't think you have standing before that court and, even then, the court does not have a record of intervening in areas of "National Security".
On the issue of the right of the British Government to listen to the communications of non-Brits outside Britain, the British government has always maintained that the Royal Prerogative of the Security of the Realm (or national security - the name changes) permits it to operate overseas intelligence services. This right is also claimed by other countries. While it doesn't legalise under the local law anything that the SIS may do outside Britain, it does mean that the electronic spying done by GCHQ and this new outfit from within the UK is unassailable under UK law and, since it occurs in Britain, not covered by anyone else's law.
The company concerned could not choose another jurisdiction (although choice of law clauses are not the only relevant factor in determining which law will apply so it is not certain that Californian law would apply).
Usual disclaimer - I am only a Law Student.
The short answer is US law does not apply to those of us in the rest of the world. The long answer is that many countries do claim the right to legislate extra-territorially and those countries' own courts will presumably conduct cases and mae orders on this basis. Normally this power is used to regulate the behaviour of one's own citizens in another country. For example Australia and many other countries have legislation which prevents their own nationals buying sex from children overseas and the US (i believe) has or had laws preventing US Nationals travelling to Cuba. The US also has legislation such as the infamous Helms-Burton (sp?) Act which applies to overseas complanies investing in Cuba and other countries have occasionally tried similar tricks.
The key point, however, is what a country (eg the US) can do about nationals of another country who are not in that country (and own no property that could be seized in the first country). In the first instance it must be noted that in general one country's court orders are not recognised in another country by either the judiciary or the executive (The EU is an important but currently irrelevant exception). This leaves two options, getting your country's law enforced in the second country by that country's courts or having the person you're after extradited to your country. The first is essentially impossible: although it is possible to use choice of law clauses or even the default conflict of laws rules to come to the conclusion that a contract is to be adjudicated in (for example) Sydney by French law, this sort of thing realy only applies to contracts. In non-voluntary areas of the law (subjecting oneself to contract law is always voluntary - you don't have to enter the contract) I am unaware of any case of a court admitting that another country's law applies on its home country's territory and such a ruling would be very surprising.
This leaves extradition. First, extradition is only legally possible if there is a treaty in place allowing it between the two countries in question. The vast majority of such agreements are bilateral and hence the precise conditions under which extradition is possible vary with each pair of countries considered and there are big holes in the system (for many years Britain had no functioning agreement with Spain causing the latter to become something of a haven for Britishfugitives). However, there are some principles of law which are almost universal and are worthy of mention:
*A country has jurisdiction over crimes commmitted on its territory.
*A country may sometimes have jurisdiction over its own nationals even if they are not in its own territory (this area can be quite limited and is not universally agreed upon).
*A country does not have jurisdiction merely because the victim of a crime was its national (the US does not accept this position but it is pretty much alone on this).
It should be pretty apparent that for the sorts of offence material to the discussion, norma extradition arrangements will not cover the situation. This leaves Aos's suggestion that the US will just ask for the person to be handed over and because "US de facto rules the world" most countries would comply. Despite the plain inaccuaracy of the assertion that the US rules the world (one might cite some examples of policy the US really doesn't like and has not succeeded in changing, the Common Agricultural Policy springs to mind) this assumes that the governments of other countries will be willing or able to act illegally and in many cases in breach of their own constitution by effectively kidnapping their own nationals and handing them over to a foreign government. I suggest that one would have to go a long way to find a country whos executive officers would be prepared to risk the loss of office or imprisonment just to take the prbably very unpopular step of handing over someone to the US for using a perfectly legal (in that country) computer program.
At this university, at least, for both undergrads and postgrads our intellectual property is, in general, our own. The exceptions are only in cases where either university staff are also entitled to IP (such as joint projects) or where extra university resources above those normally available to students have been provided specifically for the production of that IP.
The Australian National University's IP policy is here the relevant section for students is s5.
The last three lines should read:
Translation note for speakers of American:
college != university
college or hall ~= dorm
I quite agree although I personally think that it is not unreasonable to charge for access, especially outside the university. Currently my university's policy for Halls and Colleges is that they can only access the outside world via http and can only download text. The reason for this is alledgedly the cost. Since the digital phone network does not allow the hall and college residents have a dialup account elsewhere this esentially means that most hall and college residents have very restricted home (ie from their room) access. Unfortunately the clowns^H^H^H^H^H^H ladies and gentlemen who run our net access have decided that making a user pays system sufficiently secure is too hard so the college people can't buy what those of us who live off campus routinely buy. To address the arguement of free access for study purposes - remember that those who live off campus don't get free home access for study purposes and that (here at least) all students regardless of where they live can come onto the campus and use a lab for free although even here the access is somewhat limited. Translation note for speakers of American: college != university college ~= hall ~= dorm
I should highlight that this is a legal rather than a technical essay. I should also point out that although the paper was submitted to a university in Sweden, I am an Australian on exchange at that university.
Finally, the traditional disclaimer: IAOALS (I am only a law Student).