Botnet hosts strongly clustered around safe haven providers

Interesting survey of the connection between website hosts and botnet ‘command and control’ servers, which are used to direct networks of malware-infected clients:

For the first half of 2010, almost a quarter of botnet CnC servers were hosted by service providers in the US, with the top three countries (US - 23.9 per cent, Germany - 17.9 per cent and France - 8.6 per cent) hosting more than half of all CnC servers.

“Half of the servers used by cyber-criminals for the purpose of controlling their botnet empires are located in commercial hosting facilities within countries not traditionally associated with this kind of crime,” writes Gunter Ollmann, VP Research at Damballa.

Internet hosting firms 1&1 Internet AG in Germany and AT&T have unwittingly become favourite control points for cybercrooks, according to Damballa. 1&1 Internet alone accounts for more than one in 10 botnet command and control servers.

Government department blocks open government website

Today’s irony award goes to the Australian Customs and Border Protection Service, which last week blocked access to Open Australia, a website (modelled on They Work For You) which helps people track what their MPs say in Parliament. In fairness, the blockage occurred because a third party border proxy classified the content as a ‘blog’:

In an emailed response from Customs to [the website operator], it said that the site had been classified by its third-party internet filtering software as a blog.

“The website http://www.openaustralia.org and it’s [sic] charity foundation http://blog.openaustralia.org/foundation/ are classified by the filtering software … as ‘blogs’,” the department said.

It could not allow “general access” to websites classified as blogs “due to the threat websites within this category can pose to the security of the Australian Customs and Border Protection network”, the email said. …

Customs said that it was “important to note that the filter list is provided by a third-party” and that it “simply consumes this list”. “We do not make decisions on what category a website should be placed in,” it said.

Of course, exactly what threat such blogs pose to network security remains unclear. I wonder what the filter list provider’s responsibility for the blockage is — presumably, its terms of service disclaim all liability for false-positives.

Trespass by Light? Cricket Australia and Big Ben

For a few hours around midnight last Wednesday, Cricket Australia projected an image onto the Big Ben clock tower which contained the message “Don’t forget to pack the urn”, referring to the forthcoming Ashes series in Australia. (It was a clear allusion to the English Cricket Board’s projection in 2008 of a similar image onto Sydney Harbour Bridge.)

Now the Westminster City Council is considering legal action. But on what basis?

Westminster Council’s deputy leader, Robert Davis, told The Guardian: “The Palace of Westminster is part of a Unesco world heritage site, and it’s both inappropriate and insulting for this important location and its buildings to effectively be abused in this manner. It’s also a criminal offence.

“If an organisation wishes to display advertising on it, or any other building in Westminster for that matter, they should apply through the normal channels like any right-minded person with respect for the law.

An administrative fine is one thing, but any civil action (in trespass, or perhaps conversion) would surely fail — what’s the interference or appropriation?

US-Style Fair Use Coming to England?

David Cameron included this cryptic announcement in a speech about establishing a high-tech sector in East London:

The second new announcement I can make today is to do with intellectual property. The founders of Google have said they could never have started their company in Britain. The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States.

Over there, they have what are called “fair-use” provisions, which some people believe gives companies more breathing space to create new products and services. So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age. I want to encourage the sort of creative innovation that exists in America.

It’s interesting to see the connection being made between exceptions to infringement and ‘breathing space’ for innovation. Whether this review will amount to anything remains to be seen.

A Rock and an Island

When in doubt, refer to pop music lyrics: semantically illuminating and it demonstrates judicial hipness:

The Government argued that the Notty was in international waters or on the “high seas” because “Saint Vincent Rock is a rock. If it was an island, it would be called Saint Vincent Island, not Saint Vincent Rock.” Ultimately, we must determine whether it is a rock or an island according to the statutory definitions provided by the Archipelagic Act. We note in passing that for some purposes, the label is not altogether satisfying. Thus, for example, in the metaphysical sense, we can discern no reason why something could not be both a rock and an island at the same timeSee Paul Simon and Art Garfunkel, I am a Rock, on Sounds of Silence (Columbia 1966) (“A winter’s day, in a deep and dark December. I am alone, gazing from my window, to the streets below, on a freshly fallen silent shroud of snow. I am a rock, I am an island. I’ve built walls, a fortress deep and mighty, that none may penetrate. I have no need of friendship, friendship causes pain. It’s laughter and it’s loving I disdain. I am a rock, I am an island. Don’t talk of love. Well I’ve heard the word before. It’s sleeping in my memory. I won’t disturb the slumber of feelings that have died. If I never loved, I never would have cried. I am a rock, I am an island. I have my books and my poetry to protect me. I am shielded in my armor. Hiding in my room, safe within my womb, I touch no one and no one touches me. I am a rock, I am an island. And a rock feels no pain. And an island never cries.”). Of course, neither Simon nor Garfunkel has been identified as a nautical expert.

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Citation: 336 F 3d 1269 (11th Cir, 2003)

The decline of intermediary immunity under EU law

Out-Law has an interesting op-ed piece about the decline of intermediary safe harbours under the E-Commerce Directive. The basic premise of the article is that a combination of factors — the increasingly broad meaning given to constructive knowledge, liability for repeat uploads, duties to monitor for infringement — means that the notice-and-takedown system is providing far less meaningful protection for hosts, ISPs and web services than it once did. From the article:

[hosts and service providers operating in Europe] have none of the clarity that Judge Louis Stanton’s Google and Viacom ruling gives to their position in US law. It is not true to say that hosts’ rights have been completely eroded. What these various cases mean, in the absence of a precedent-setting ruling on constructive knowledge, is that there is doubt about exactly what hosts’ rights are. And where there is doubt and uncertainty, there should be caution. It is impractical for ISPs, search engines, hosts and other service providers to monitor all use of their services, but without a clear signal from the courts on what their liabilities are, such companies will have to be more vigilant about the use of their services in Europe than in the US.

To this list, I’d add the fact that the E-Commerce Directive safe harbours are drafted in such a way that they often apply only to a small subset of intermediaries’ services: ‘mere’ transmission or storage, without more. In an age of content-driven business models, suggested search queries, deep search and user-generated content, this makes their application to web application providers far from uncertain.

Physical activity

His Honour is not a sportsman, evidently:

“Whilst all reasonable people know that any form of physical activity is both unpleasant and dangerous, and probably unhealthy as well; and whilst sport, which is communal physical activity, suffers the added feature of exposing its participants to the perils of tribal barbarism; nonetheless the law has never regarded the playing of sport as contrary to public policy or even unreasonable, and therefore the mere participation in sport cannot of itself constitute contributory negligence. …”

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Citation: Trevali Pty Ltd v Hadad (1989) Aust Torts Rep 80-286
Source: see attachment

Business broadband more important than water or gas: UK report

According to a report by English ISP XLN Telecom, access to broadband internet services is more important to small and medium-sized businesses than gas, water and other essential services.

The survey, which contacted 657 small UK business owners, found that 77 per cent of respondents listed telephones as ‘essential to the running of their company, while 76 per cent listed electricity. In third place: business broadband (67 per cent), with water and gas trailing on 39 per cent and 19 per cent, respectively. 76 per cent indicated that broadband was an ‘essential tool’, up from 11 per cent a decade ago.

This suggests that businesses facing disconnection under the reserve powers created by the Digital Economy Act 2010 (UK) will incur a substantial burden — which raises the question whether the burden is disproportionate to the harm. Meanwhile, residential users report broadband more important than food. Hmmm.

A summary of the ACS:Law data leak

On 24 September 2010, an archive of emails from London-based law firm ACS:Law was leaked onto the internet. The archive was unencrypted, and had been obtained as part of an ongoing campaign by internet activists to expose the firm’s copyright enforcement practices. The emails contained a great deal of personal information — which I won’t repeat here — but suffice it to say, this information was of a highly personal nature (IP addresses, filenames, names, postal addresses). ISPs were quick to respond:

“Our first concern is with our customers but we have been obliged to respond to court orders requiring that we disclose customer data. However, there is increasing evidence that there are deep concerns regarding the integrity of the process being used by rights holders to obtain customer data from ISPs for pursuing alleged copyright infringements.

We need to have further confidence that the initial information gathered by rights holders is robust and that our customers will not be treated unfairly. We are urgently exploring how this can be assured, including through the assistance of the courts.”  Read more »

Alice in Wonderland Interpretations

With admirable concision and characteristic literary flair, Lord Atkin describes his reasons for dissent in Liversidge v Anderson [1942] AC 206:

I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’” (Through the Looking Glass, c vi) After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.

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Citation: Liversidge v Anderson [1942] AC 206
Source: Westlaw