Intellect or Insanity, Jonathan Klinger's Blog

0.
A few months ago, Russia’s president, Vladimir Putin, arrived to Israeli for a brief visit. The President, who receives embarrassing support from Israel’s minister of foreign affair, Avigdor Liberman and almost magical admiration from Knesset member Anastasia Michaeli, also received a warm warm hug from the Israeli government’s leaders, and first and foremost, Benyamin Netanyahu. Actually, there’s no place for doubt that there is a strong link between the two states. However, another embarrassing affair that Putin had to face recently may show that Putin is the one admiring Israel, and not vice versa.

1.
Israel is known for times where its legal system falls victim to political constraints from left to right, and just in not the higher courts, but the magistrate courts as well. Sometimes, indictments are colored more politically than usual, and are attached with circumstances that cannot allow acquittal. The stories of Jonathan Pollack, who was convicted for riding his bicycle slowly in a demonstration against the Cast Lead Operation and was sentenced for three months in prison, and of Rahamim Nasimi who blocked a road during anti-disengagement protests and received the same penalty show that there’s a problem in the method. The problem is that not once demonstrations are meant to disrupt the public order, offend, hurt and show the government that there is criticism and it’s not nice: but these have to be the rules of the game. Protesters are allowed to be rude, disgusting and violate the public order : The police, on the other hand, cannot be brutal and it has to respect the political expression, since if it will not do so, we will live in the “Ok State”.

2.
And that’s the case of Pussy Riot; a Russian feminist band that decided sometime in February to organize and demonstrate in a spontaneous way to protest against Putin. During the last weekend, three members were sentenced to two years in prison after being charged with harming the public order with religious circumstances; of course, that there was not relation to the content of the expression, but to the deed itself: the members of Pussy Riot organized in a public place, offended the public, and tried to protest against the current situation. If they had protested where they are allowed to, in their homes, then no one will have heard about Pussy Riot.

3.
It is quite doubtful that this could be perceived as a just trial, even though the Russian public supports it; but that is the case: when the political hooligans are indicted, the content of the speech is not mentioned, and therefore not discussed in court. They say “he was a hooligan, and we don’t care if it’s left or right, if it was a toothpaste advertisement or a protest against a mayor. What offends us is the breaking of the public order”. In this case, you cannot put up a defense that says “look at the content and not the form”, because the content is indisputable. So, the architecture of the trial prevents justice.

4.
In this is how Israel is so close to Putin’s dictatorship: even here there is hard work to limit the protest; and of course it’s not political at all: a simple policy of requiring a license for every activity of public expression is perceived by the court as a way to preserve public order (AA 6095-07-12 Hatzav v. Tel-Aviv). It’s not just a saying: the Tel-Aviv municipality issued an administrative order stating that “festivities and any other activity to express an idea, opinion, value, demonstration, meeting, ceremony, solidarity, fund raising, belief or world view – which is not made in cooperation with the municipality”
has to obtain its consent. Meaning that if I sat down with a friend in Rotschild boulevard to discuss my opinion about the country’s financial status or the street’s garbage, I have to approach the municipality’s CEO, fill out the proper forms and obtain a permit.

These procedures are not only unlawful, but they make Putin ovulate from joy. the resemblance, the inspiration, maybe he should receive royalties for it.

5.
And in the meantime? Israel does not have a local Pussy Riot. And maybe its for the better; their music is not so soothing. But until we have one, we all have to admire King Bibi.

[Originally In Hebrew]

0. Abstract
Could a state with no secrets function better when protecting national security than a state that keeps information away from the general public? In this brief article, we will inspect the reasons for keeping classified information, what they are meant to protect and how they protect national security. We will present the method used by Israel, which is similar to most states. Israel’s approach, which is to keep all the information from the public, failed in general and caused nothing but costs on privacy, freedom of expression and national budgets.

Following our review, we will compare the classified information model to a model in information security, called Security through Obscurity and present how this model was perceived as flawed. Against it, we will present the Open Source Model, which creates transparency towards the general public, allowing it to inspect the security flaws, and therefore creates stronger protection.

Our conclusion would be that better national security could be reached by removing all classified information and disclosing all information to the general public. We believe that by making the information public, the cost of the censorship apparatus will be eliminated. We also believe that by adopting a ‘no classified information’ approach, governments may improve physical security when they rely on the foundations of open source security as detailed herein.

In my brief argumentation I will use the Israeli law, but provide some examples from other cases.

1. Classified Information and what it Protects.
Every state has its secrets. States choose, in certain cases to classify information from the general public. Classifying information goes back as far as Greek times, and goes under the standard four categories: Top Secret, Secret, Confidential and Restricted. Israel has four apparatuses which are in charge of Confidential information: The Information Security Department, whose goal is to prevent classified information from leaking from the army, The Military Censorship, which operates under the Defense Ordinance (Time of Emergency), 1945, that controls media publication and telecommunication, and has authority to refuse the publication of any information that has any relation to national security, the General Security Service (Shin Bet) that acts according to the General Security Service Act of 2002, where clause 7(2) allows the service to classify documents and determine how to handle such documents and the Director of Security of the Defense Establishment, which is in charge of security in military industries, research facilities and other national security industries.

Some authorities in classifying information do not appear to exist in laws, and some operate under the vague and broad exemption added in the Freedom of Information Act, 1998. Clause 9 to the Israeli FOIA exempts disclosure of any information which may harm national security, foreign relations, public safety or a person’s well-being. Even in cases where classified information was disclosed, the courts still allowed the security agencies broad discretion as to what to blur out (HCJ 258/07 Zehava Galon v. The Governmental Committee for Inspecting the Battles in Lebanon 2006)

But what constitutes as confidential information? There are no actual guidelines for applying what is confidential and how confidential specific documents are, and every document that contains ‘information’ as defined in the Israeli Penal Code, in part II, chapter 7, the Penal code provides a broad definition, inflicting legal sanctions on disclosing any information to an enemy where it might be useful to him (clause 111). Confidential Information is defined as any information where national security requires keeping it secret, or information relating to any matter that the government, with the consent of the parliament committee for foreign relations and security, declared as confidential. Critics to this arrangement offered an amendment, but following the Parliament’s research center’s comments, these amendments were not implemented.

The burden of proving what constitutes non-confidential information lays on the defendants in cases (see, for example, CC 1055/01 State v. Yacov), in Yacov, the court explained that while “the military censor is qualified to strike out information which is most-likely about to severely damage national security”; the penal code is wider, and applies to cases where national security requires keeping it secret.

In another interesting case, the widow of a person who worked in the nuclear research facility requested to receive the results of an epidemiological survey between the facility’s workers which the facility took. The State declined to provide the information by explaining that it relates to national security. However, when the court rejected the state claims, it expressed criticism over the state’s conduct: “the state wiggles in its arguments and cannot point to a normative authority where it draws the classification of the information. It is, according to the state, basic foundations, but these basic foundations have to be applied by the General Security Service Act, 2002, and the rules according to it (which are classified, so the state cannot disclose them to the court, but as a graceful act the state is willing to summarize them)” (CA (Tel-Aviv) 2571/01 Hanna Hizi v. State ); the court itself explained that it cannot understand classification, and the state has to acknowledge the differences between confidentiality and classification. Classification does not create basis for exclusion of evidence, and unless the state decides to exclude an evidence by means of national security according to the Evidence Act, 1971. However, in cases where the court finds the evidence may have had something to assist the party who wishes to submit the evidence, then the state shall default (OCR 2489/09 Zeev Braude v. State).

The Israeli Supreme Court deal with the question of what constitutes classified information in Vanunu (CA 172/88 Mordechai Vanunu v. State); in Vanunu, a former worker of the nuclear research facility was charged for espionage when he disclosed information regarding Israel’s nuclear activity to press agents in the UK. The supreme court decided to convict Vanunu for collecting and disseminating information to the enemy. The court analyzed this clause and explained that “He who provides information to the enemy; meaning, any information, even if it is public information arising from the press, his activities fall into clause 111”. Therefore eliminating classification need at all.

What Does Classified Information Protect? The question of what classified information protects is a difficult one to answer. Some claim that the purpose of classifying information is withholding it from foreign agents, and explain that when many people have access to certain information, it harms national security. Classifying information makes it harder for counter intelligence and foreign military forces to obtain information regarding a state’s forces, and allows it to operate where the other party does not know its rules of engagement, its powers, officers, or even defense mechanisms.

But the real question is how much this information, used by foreign intelligence,  endangers national security , and does the burden of protecting this information overcome the value of keeping it secret or not.

When the classified information is the actual secret (e.g the actual location or time of a specific operation) then it is assumed (though not significant) that information about the operation that becomes available to hostile forces may lead to less successful results, at least. There are specific sets of information that are considered confidential and are not pieces of information that have (statistically insignificant) connection to current, ongoing operations or other information that if leaked may cause damage to national security.

For example, the actual existence of a specific weapon or the location where a missile fell after an air-strike cannot be considered a state secret for several reasons: the first is that it is not kept away from the public; as what the general public sees cannot be considered national secrets. For example, during the 2006 war, the military censorship requested Tapuz, Israel’s largest forum operator, to censor posts made by civilians about where Hizbullah missiles fell. Another case  where information that is in the public’s plain view was considered confidential was when Parliament Member Yossi Sarid threatened that he may disclose information about weapons used by the IAF after the IAF killed and wounded dozens of Palestinians, including civilians, in weapons that were allegedly in plain view.

Another case where public plain viewed information was considered confidential was when Israel denied using phosphorous during the Cast Lead Operation of 2009, where the evidence was left in the Gaza Strip, which allowed the Goldstone committee, which inspected Israel’s activity following the operation, to find that Israel’s denial was false. So, in this case, how could the use of phosphorous be considered confidential information where there is evidence in plain view regarding the use?

Therefore, confidential information could be considered confidential as long as no public information regarding it exists. For example, the location of specific military or nuclear facilities that are located close by to cities and have road signs directing to them, could not be considered confidential information. Israeli Blogger Ido Kenan points out that Israel has a policy of withholding this confidential information in road signs presented in Arabic, and leave the confidential information only in Hebrew and English.

In conclusion, classified information in Israel is defined in an overbroad manner, containing information that may be considered in plain view and known to the general public. By acknowledging this flaw, we may understand the basis of information security and examine the weak points of such method of information security.

We believe that there has to be a difference between the classification of security mechanisms by themselves and information (data) which relates to specific, mission critical, information that is classified. The difference is between information regarding the existence and functions of a specific unit, its weapons , its history, and current plans regarding  an operation.

2. Security By Obscurity, A Problem
2.1 Security By Obscurity
When trying to protect information in a digital environment, there are two popular methods used by Information Security experts. The first is Security through Obscurity: this method, which is quite similar to the Israeli Classified Information method or approach, hides all information related to security from plain view and classified it as confidential; by using this method, “a system relying on security through obscurity may have theoretical or actual security vulnerabilities, but its owners or designers believe that the flaws are not known, and that attackers are unlikely to find them”. The model bases itself on the fact that others are unaware of the activities taken and that most confidential activities could be disguised from plain view.

However, the flaws of this model are that the secrecy of the information is exactly what lets security flaws to remain secret as well. For example, GSM encryption was hacked during 2003, and again during 2009. These hacks were published to the public because they were a part of academic researches; however, in certain cases the hacker may not be so eager to publish its research. In some cases, employees or contractors may sell known exploits which were not taken care of and criminals may sell unknown exploits either to other criminals or to the company itself. Moreover, relying on a sole provider to fix the security breach could sometimes cause more problems.

The main disadvantages of Security through Obscurity may be summed up to: (1) few people inspect the system for flaws, and sometimes actually inspecting the system may be considered illegal; (2) hostile entities reviewing the security of the system do not disclose their results; (3) dependency on one vendor/provider to review and fix security breaches.

2.2 The Open Source Model.
In contrast to Security through Obscurity, Open Source advocates rely heavily on Security Through Transparency, using this method, the algorithms and software used to encrypt or protect information are known to the public, providing the public an efficient way to report security vulnerabilities, and even to propose bug-fixes. The more people have the chance to inspect the security mechanism, the safer they will be.

For example, Security firm Secunia found that more security flaws were found in the Open Sourced Firefox than in proprietary code browsers, but the number of Zero-Day unpatched flaws was significantly lower and so was the time that it took to fix any flaw. By making all of its information public, a software vendor may create better security and allow any researcher to discover flaws. Moreover, transparent security mechanisms may also deter hackers from looking how to circumvent zero day flaws in fear of being caught (See aso, David Wheeler, “Is Open Source Good for Security?”).

The Open Source Model does not ignore the basic concepts of information security, but it acknowledges their flaws and attempts to build better models.

3. Could Building a Transparent State Solve National Security?
Could we imagine a state where all public information could be deemed as non-confidential, security mechanisms would be public and open for scrutiny and confidential information would be reduced to a minimum? We believe so.

Currently, a state like Israel has to operate counter intelligence just to solve the problem of collection of plain-view information and to protect from hostile action. When operating an open source model, counter-intelligence could be abandoned and replaced with crowd sourced models, which will help to build stronger mechanisms of protection.

Moreover, removing the ambiguity relating at-least to nuclear weapons in Israel would assist deterrence and strengthen national security. Weak points  in Israeli theoretical protection would be visible to the public and could be fixed quickly; moreover, the actual items that require protection could receive the needed funds and resources to protect them.

3.1 What is there to lose from revealing all classified information?
While we do not necessarily wish to reveal all information, certain information relating to means of operation and security regulations have to be declassified. For example, both the General Security Services Act and the recent Inclusion of Biometric Information and Data in Identification Documents and Database Act of 2009 state that all regulation and orders will be classified, as well as any information regarding security breaches. Moreover, when discussing the act in Parliament, security experts raised concerns over the database possible flaws, and the Minister of Interior, Eli Yishai, ordered to open the security protocols for discussion, but such discussion was never made. Keeping the database, as well as security guidelines and notifications of security breaches secret seems good in the eye of a person who thinks that an enemy may abuse such faults; however in the eyes of a security researcher, these allow zero day flaws and known vulnerabilities to be used against the database  (see, for example) and allows a false feeling of security.

The only thing that may be lost when protocols, orders or regulations that remain secret are disclosed is the misconduct of an authority or its acts against the law; for example, as a result of Israel’s Freedom of Information Movement’s appeal, it was revealed that the cellular companies were required to adhere to secret regulation regarding cooperation with intelligence agencies and disclose subscriber information.

Therefore, when the governmental default approach is that there is no need for privacy unless a person has something to hide from the government (which seems to be the default approach when discussing the Israeli government, as the Biometric Database Act, the Criminal Order (Submission of Metadata) Act of 2007, and other statutes turning Israel into a surveillance state) then the default approach towards the government should be that all its secrets are meant to cover up unlawful activities.

3.2 What is there to gain from revealing all classified information?
First and foremost, the Israeli Government may regain public trust by disclosing all activities. The Israeli public, for example, strongly believes that the Biometric Database will leak, mostly due to the fact that quite a lot of sensitive data has  already leaked from Government databases and that 70% of the general public does not trust database protection in Israel. A different survey by Symantec found that 60% of the people do not trust the government with their private or personal information.

The feeling of misused trust may be healed and cured when disclosing information regarding data breaches and information security to the public. But more than that, apart from public trust, the government may gain better protection of its classified information. The Israeli government may adopt what computer giants like Google and 3Com already did, and that is to pay for every security breach found.

Currently Israel has many unknown security flaws, which remain confidential until a hacker gets caught. For example, Israeli white-hat hacker Moshe Halevi (Halemo) was charged for hacking when he used a pre-paid credit card to show that the Israeli Fines and Fees Center had a bug in the URL handler that allowed resetting a person’s fines. In a detailed case (C 9497/08 State v. Moshe Halevi) Judge Avraham Tenenbaum explains why Halemo’s activity was not hacking, but was solely security checking (a similar case, CA 8333/03 State v. Mizrachi, explains that port-scanning cannot be criminal if done for a cause of security inspection). Therefore, we can argue that the state has a compelling interest to discover flaws.

3.3 The state’s approach to security flaws.
However, we see that in most cases the state prefers to withhold information from the public regarding security flaws and to litigate against persons discovering such flaws. Moreover, when flaws are found, usually adopting the Security through Obscurity approach shows that the way the state fixes the vulnerability is not only insufficient, but negligent.

In one case, white-hat hacker Halemo discovered that the Israeli Court System’s website discloses Judge’s ID Numbers (equivalent to Social Security numbers). The way it disclosed them was that the URL Source of the Judge’s page in the website was his ID number. After the flaw was exposed, the state went to fix the flaw, and replaced the ID with a Base-64 representation of the number.

However, if we require the state to disclose its means of security it would have to disclose how the judges ID numbers were encrypted or protected, and therefore every person would have understood that neither plain-text nor base-64 are good enough mechanisms to protect sensitive information.

4. Applying Software Solutions to State Secrets: A Conclusion.
We believe that not all information has to be public. There are things that are better off secret. However, if we learn from information security methods, we must acknowledge that better security could be achieved when disclosing more information to the public. Applying the open source model of information security allows transparency in decision-making, better algorithms, less resources on counter-intelligence and more resources to allocate to what is mission critical information.

Moreover, better trust could be gained between governments and citizens, reinforcing the social contract and allowing better results in political participation.

Currently, governments over trust security through obscurity when operating mission critical processes, and therefore, when flawed, the flaws and results are enormous. Utilizing open source models could prevent mishaps such as Israel’s phosphorous use, George Bush’s Weapons of Mass Destruction lie and Israel’s racial profiling in Airports as a mean of security.

Israeli racial profiling is such a great example, as it is highly efficient nowadays and even better than the US TSA guidelines but bases itself mostly on the assumption that Jewish nationals may not be considered a threat to national security but Arabs may (HCJ 4797/07 The Israeli Association of Civil Rights v. The Terminal Security Authority, Pending decision). As long as the security guidelines were secret, it seemed amazing that no security flaw occurred. However, now, that the guidelines are known and understood, it is easier to design a mechanism to circumvent them. Therefore, even adopting new guidelines will be useless, as they are inefficient (unless based, again, on racial profiling).

Therefore, in order to regain national security, Israel will have to change its approach to the Open Source Model before a major security event occurs that will make it understand that this is the only option. Staying in a Security through Obscurity approach could protect confidential information, but it cannot protect national security.

The Israeli Supreme Court ruled on February that the clause in the Israeli Criminal Procedure Act which allows ex-parte court hearings for suspects in terror or national security crimes was unconstitutional and void (OCR 8823/07 Doe v. State). In the same case, the supreme court balanced between the burden of a democratic state has to face when facing terror within and due process and ruled that a suspect’s right for due process prevails as it is what makes Israel a democratic state:

Harming those who can’t defend from their arrest either by personal appearance or by ‘representative educated appearance’ is a material violation of human rights. it may annul the process and make the legal process void. … When an attorney did not meet the suspect, and the court is prevented as well from asking the suspect and inquiring about matters that need clearing, there is an actual burden on the possibility of exercising efficient and fair legal review. The court, in fact, relies on the statements of one party only. This result is grave in regards to the character of the legal due process and the matter is discussion – limiting a person’s freedom”.

In a same manner, clause 34 to the criminal procedure act states that the right to consult an attorney is one of the basics of due process; without decent representation a person will not have actual knowledge of his rights, will not have his day in court and therefore, any violation of this right, even if indirect, may cause damages to the legal process itself (and see, for this matter, HCJ 1548/07 Israel Bar v. Minister of Homeland Security which discusses the right to consult an attorney via video conference). However, foreign sources report that Israel has, again, not only violated the law, but kept covering it up. According to foreign sources, The Israeli-Arab author Ameer Makhoul was arrested in suspicion of committing crimes against national security and was prevented from meeting his attorney (and thanks to Yossi Gurvitz from Friends of George who referred me to this story). According to the reports, Makoul was prohibited from leaving Israel a month ago by the Minister of Interior Affairs, Eli Yishai, and that was against specific stipulations in Israel’s Basic Statute of Freedom and Dignity which states that “every person is free to exist Israel”.

Two problems come to mind when thinking about this, if it were actually true; the first is that now no one knows what Makhoul is a suspect of. his disappearance by the security services was not reported in the press, and we were not given any information, as a public, as to what he is suspected of. What actually happened is that the public trust that if it were taken by the dead of night for now reason, his friends, acquaintances, family and attorneys would know about it was lost due to the serial disappearance drawn by the government for dissidents. The graver danger in these cases, and cases such as deprevation of Jack Titel‘s right to consult an attorney, is that the damages to the due process would be irreversible. Not only that the public trust would be gone, but a person would not be able to evaluate in an educated manner what to do and sometimes is willing to do anything just to make the torture go away (and see RT 3032/99 Baranes v. State and HCJ 5100/94 Public Committee Against Torture v. Government).

The seconds problem is the gag orders; if in the Anat Kamm affair there were confused bloggers who couldn’t understand how to deal with unknown gag orders, when they understood that the Israeli Police does not want to enforce the gag order on Facebook since its servers are outside of Israel (and that’s in spite of the decision in OR 90861//7 Carlton v. State which ruled that “hiding under the veil that the company operates and runs outside of Israel, its servers are not in the state, does not exempt the appellant and the company he heads from the Israeli criminal law”). But it seems that the police and secret services do not wish for gag orders to become a dead letter and will just ignore the bloggers, and let the farce play in the national media.

No matter how you look at it, the arrest of dissidents and their disappearance does not fit Israel’s character as a Jewish-Democratic state.

Whilst I, as an Israeli citizen and national, cannot discuss what is known throughout the globe as the Israel’s censorship scandal, I can at least say that we can learn that Israel is not alone. Israeli courts, apparently, issued a gag order against reporting on a case relating to security measures, but that’s all I might have been allowed to state had the gag order was available to my hand.

However, Israel learned from it’s greatest friend: The United States was quite militant in fighting Wikileaks, a website dedicated to unveil corruption and unjustice, which was already involved in discovering money laundering schemes and (was taken off the web in a court order on Julius Bael v. Wilileaks). There was a reason why the US wanted Wikileaks off the web, as it is now known that Wikileaks published a video showing the US military forces in Iraq killing journalists (Available here).

But there are a few more similarities between the US and Israel. Israel also, as detailed in Uri Blau’s report from November 2008, was killing wanted Hamas militants instead of arresting them, against the supreme court’s decision and in contradiction to the law. However, the Israeli generals who disobeyed the Israeli law will never be brought to justice.

Around a month ago I went to court to discuss a case which I counsel with another attorney. The case was quite simple: The plaintiff claimed that the defendant, which we represented, took from its website the technical specifications of a gadget and copied it alongside a phrase describing the gadget. Altogether we represented three defendants which were sought by the same plaintiff (and there was a total of 20 defendants) for 100,000 ILS (~30,000 US$) each.

When arriving to the pre-trail, the plaintiff’s counsel explained to us (and to another counsel sitting on behalf of another defendant) that he is willing to settle, and there is a ongoing rate for settlement. The Judge, which was sympathetic for our interesting legal claims, that copyright could not be asserted on technical specifications, facts or ideas (PCA 8304/09 Bezeq v. Dapei Zahav, C 37759/07 Elisha Shochat v. Maariv), and that the phrase itself was lacking originality and too short to be copyrightable (Hebrew post of copyrighted tweets, CA (TA) 178/79 Hallinger v. Estheron, DR, 1980(2) 45) offered that we settle anyway. She claimed, righteously, that the settlement offer was low enough that it justifies settlement in order to avoid litigation.

And the judge was right: settling the case was lower than the cost of the lawyers in the process and would have been also lower than if it turned out that our clients were right and would have been granted attorney’s fees pursuant to dismissal of the case. Meaning that the copyright bully won: it won a nice sum for something he isn’t entitled to, just because the litigation cost was lower.

But this case is not rare when you look into copyrights: around once a week I’m addressed by persons who received notice due to publication of copyrighted images in their website (usually the same plaintiff by different attorneys), even though some of the cases were fair use, and others lacked any commercial value, the attorneys ask for sums which are a hundred times greater than the sum paid for the image in the free market. For example, Tess Scheflan sought Ynet, Israel’s biggest website (C 58032/07 Tess Scheflan v. Yedioth Internet) for publishing images she published originally on PicShare and was awarded 28,000 ILS, even though the image would have been bought, legally, for no more than a few hundred ILS.

And why was all this required as an introduction? In order to explain why The RIAA offer to Jammie Thomas to diminish their awards granted by half was a strategic move made to hurt users. Thomas is a single mother who was sought by the RIAA for publication of 17 songs through Kaaza. The court first decided that Thomas should pay 9,250$ per song as the jury of her peers found that Thomas made several songs available to the public and infringed the RIAA’s copyrights; but Thomas appealed the ruling.

In the Appeal the District Court ruled that making a work available to the public is not copyright infringement (06-1496 Thomas v. Capitol) and returned the case to the federal court for retrial. In the retrial, the jury ruled that Thomas actually was involved in wilful infringement and awarded the RIAA a sum of 1,920,000$ (04-CV-1497 Capitol v. Thomas).

Thomas appealed this ruling (again) and the district court ruled that the awards granted were unconscionable and exceed any sum a reasonable jury may award (04-cv-1497 Virgin Records of America v. Thomas). The District court conclusion was that the awards should be reduced from 80,000US$ per song to 2,250US$, three times the minimum damages to be awarded by a court; as as the damage was unclear, high awards aren’t adequate.

Even though the court ruled 54,000US$ in damages, the RIAA generously offered Thomas an offer she can’t refuse: remove and revoke the appeal, and we’ll request lower damages, to be donated to a worthy cause.

And why would Thomas decline the offer? she was in a similar situation like the defendants I represented; Her personal interest may rise substantially had she refrain from creating a precedent which will hurt copyright holders (and this isn’t the first time Thomas refused to settle). Thomas knows what we all knew: the RIAA sends threatening letters where they scare innocent file sharers with millions of dollars in damages, as in the case of Joel Tenenbaum who lost a case against the RIAA and as to pay 675,000$.

Now, you must understand that there are law offices which send pre-suit notices and take the same strategy; where claims for fair use, lack of liability, criticism and others arise, they’ll refuse to answer but will leave silently, just in order to avoid a precedent saying they cannot threat others and request outrageous sums for using images in blogs. We need public defendants, people who will go to court just for the sake of not bending when a copyright troll comes in and say the truth: we are facing bullies.

[Published in Hebrew]

During the last few weeks I’ve been actively lobbying against the Biometric Database bill in the Knesset (Israeli Parliament). I participated in the hearing held in the Knesset’s Science Committee (participated by only one parliament member, Meir Sheetrit, the bill’s drafter) and tried to talk sense to the Ministry of Interior and the Parliament Member. However, it seems that if no drastic steps will be made, Israel will pass the biometric database bill next Monday.

A central biometric database, allowing access to the police and “other” authorities, including not only fingerprints but also facial scans (not just hashes) will allow CCTV monitoring and de-anonymization of most Israelies.

Should the database, somewhat leak, like Israel’s national census, it would be a target for criminals, terrorists and corporations, who now collect their own databases. The database itself may be a great danger to personal freedom, as the Israeli Public Defender states: “This kind of database, which would include identifying information about the general population, is unprecedented both in its existence and in its ramifications… No democracy has such a database, with the sole exception of Hong Kong.”

However, a recent finding by an Israeli Blogger and Lawyer, Effi Fuks, possibly links between the much too eager parliament member, Sheetrit and On Track Innovation (OTI), a company participating in  the Tender. According to Fuks’ findings, OTI has already won a tenderless project to operate public transportation smart-cards, when Sheetrit was the minister of transportation (and also promote his wife’s PR firm clients in teners) after his predecessor issued a tender for smart-cards. This alone would not suffice as a thread for corruption, however, OTI’s former VP of R&D, Sivan Yechieli, is a member of Sheetrit’s Party, Kadima, and now acts as the Mayor of Kfar Vradim.

Does that suffice? Sheetrit’s eagerness, banning photography and refusal for interviews all construct one logic: There must be something inherently wrong with the bill. Had Sheetrit had any previous connection to OTI, he must have stated so. Also, as Yechieli was elected as a mayor when Sheetrit was the minister of Interior, it is quite difficult not to have any knowledge about his previous employement and business. OTI spoke after the discussion ended, and only after it ended, and did not participate, unlike other participants, in the actual discussion, which seemed strange.

Yesterday, in the last discussion, after it was finalised that all authorities (including tax, immigration, health etcetera) will receive access to the photodatabase (a new non-biometric database of all citizen photos) I asked whether there’s a need for both fingerprints and photos, as one suffices in reaching the law’s purpose of identifying all Israelies and preventing false identities. The ministry of interior answered positively, but Sheetrit explained that The Law Must Go On.

Written with Adv. Effi Fuks, LL.B. for the International conference on Online Dispute Resolution taking place at Haifa University today.

Abstract: The Israeli Legal system suffers from great burden and lengthy processes. While initiatives try to narrow the Israeli supreme court’s authority and open new courts, the Israeli courts have tried to implement a”paperless court” solutions but have yet to succeed in implementing its solutions in the legal community. This Paper presents the problems facing today’s legal community and its digital divide, while inspecting the ability and incentives in moving to a paperless solution.

Our solution to the problem, using the current legislation and based partially on the current unpopular and costly arbitration process, shall include implementing an Internet based arbitration mechanism. this mechanism might bridge the digital divide and allow parties to inspect prior decisions and experience of arbitrators,  thus opening the process for public inspection and allowing precedent-based decisions while allowing all parties access to relevant decisions and documents, it may lower negotiation costs and shorten the legal process dramatically. Based on an open source platform, we enable institutions to install, adapt and modify the solution and to conduct hearings, processes and arbitration.

persons will be able to overview the legal proceeding and inquire witnesses via existing technologies and at minimal costs, while keeping a video archive of witness questioning and a written archive of affidavits to allow litigants future use of the archive in writing their closing arguments. The system itself shall be configured to allow quick dispute resolution when there is no or little dispute, while relying on documents only (similar to the procedural fast-track).

—

—
Bibliography

Engert, A., Norms, Rationality, and Communication: A Reputation Theory of Social Norms, 2002, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=323020

Guadamuz, A., eBay Law: The Legal Implications of the C2C Electronic Commerce Model, 2003, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=569102

Katsh, E., Online Dispute Resolution: The Next Phase, 2002, http://www.lex-electronica.org/docs/articles_140.htm

Reports:
Israeli Bar Association, Satisfaction survey on Net-Courts, 2008, http://www.israelbar.org.il/UpLoadFiles/net_hamishpat_survey_of_satisfaction_june_2008.pdf

Israeli Court System: Half-Yearly Report for 01.07.2008 – 31.12.2008, http://elyon1.court.gov.il/heb/haba/7-12_2008.pdf

Solciano-Kenan, R., Reichman, A. & Vigoda-Gadot, E., The Burden on Legal Systems : Comparative Analysis of 17 Countries, available on the Israeli Court webite, http://elyon1.court.gov.il/heb/haba/Courts_burden_Final_report_5.07.pdf

Shtrassberg-Cohen, T., Special Report: Mid 2008, http://www.justice.gov.il/NR/rdonlyres/3F953362-234F-4597-9F58-00519527690C/11474/final.pdf

Shtrassberg-Cohen, T., 2006 Report, http://www.justice.gov.il/NR/rdonlyres/73417BCA-947E-4524-B9A0-CB54BCF5E716/7882/1100.pdf

Press:
Fogel, R., Ness,  IBM and Taldor will pay for the hassle in courts, http://it.themarker.com/tmit/article/2962

Leibowitz-Dar, S., Quick, Expensive and Elegant Ruling, Haaretz, 10.09.2003, http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=338851

Magen, H., They will eat flies, Globes, 29.09.2003, http://www.globes.co.il/news/home.aspx?fid=2&did=727824&nagish=1

Raz, H., Courts are privatized: a new company will provide court services for people interested in legal fast tracks, TheMarker, 23.01.2008, http://law.themarker.com/tmc/article.jhtml?ElementId=skira20080123_58733&layer=hp&layer2=&layer3=law

Roeh, A., Sharon’s Trial against Ha’aretz: No Settlement, the appeal will be heard, Ynet, 02.05.2001, http://www.ynet.co.il/articles/1,7340,L-711988,00.html

Sharvit, N., The Israeli Bar Association: We’ll recommend not to use Net-Courts, Globes, 30.06.2008, http://www.globes.co.il/news/home.aspx?fid=829&did=1000356820

Yoaz, Y., The Computerisation of Courts will begin in November, It will allow filing of claims and appeals over the web, Haaretz, 12.07.2005, http://www.haaretz.co.il/hasite/pages/ShArt.jhtml?itemNo=598945

Sometimes, we prefer to lose our privacy in exchange for comfort; we do so when we store our contacts on a cellular phone or when we print business cards which we exchange with strangers; the social interaction itself is a difficult and dangerous transaction. However, the real danger lies where privacy and comfort decide to interact, in involuntary exchange of information.

Today’s, Techonomy, a conference about the interaction between technology and economy, was held in Tel-Aviv. The winners of the Start-up competition were face.com. face.com provides a face recognition platform for social networks (in the meantime) which locates images of you and your friends in other users’ tagged photos. face.com’s face recognition is quite amazing and has the ability to find you even when you’re in the background or wearing sunglasses. They are currently in closed alpha, and I had the pleasure to play with it for a few minutes before writing this blogpost (which was sufficient to know that it’s quite efficient).

However, my main concern comes from face.com’s database. face.com can recognise faces of your facebook contacts even though they are not in your albums, but in friends’ albums. This means that by cross indexing a relatively small amount of facebook connectors, face could retain (or store) the facial recognition of a high percentage of users.

Here comes the privacy issue from the privacy freak; however. Now, take Israel’s new attempt to establish a biometric and face database and their recent attempts for installing cctvs and imagine the hypothetical scenario where our benevolent dictator comes and asks face.com’s database in order to examine a suspect in terrorism or issues a warrant to require face.com to search for a specific missing/suspected person in social networks and/or cctvs. Can face.com actually refuse such generous offer?

When face.com only indexes my own photos, and only tags me if I gave my consent (and not opted out) then it’s all yet consensual waiver of privacy; privacy in exchange for comfort, what we usually do. However, when it’s other’s faces, without their consent or knowledge, such a database might be extremely dangerous. I’d love to inspect the guts of face.com’s database and see how can they protect users’ privacy without limiting this application, but if they manage to do that, well, let them sell it to our government

0.
Sometimes, when discussing the US-Israeli relations, we need to see the broader picture. Things like the Palestinian conflict are just a minor issue in relation to the economy. As most of the English Readers of this blog [this was originally posted in Hebrew, sorry for Hebrew links, but use Google Translate] may not know. Israel had a major crisis around 1985, banks collapsed and were bought by the government. Then, in order to save the economy, our late minister of treasury, Yitzhak Modaey, along with the former prime minister, Shimon Peres, had an initiative. Their plan was to save the economy by a what the former Attorney General (and supreme court justice) Yitzhak Zamir called a historic mistake. Our Omnibus Statute was meant to save the economy by amending a few statutes and giving the government a way to deal with the crisis. The statute was a mean to implement emergency policies in order to save the economy. Along the years, though, the government used the omnibus law, which passed from year to year, as a mean to implement reforms and force economic policies without a real debate about them.

1.
When time came, a petition against the law was submitted to the supreme court as the “Quantity became Quality” (playing on justice Aharon Barak‘s words in HCJ 3267/97 Rubinstein v. The Poultry Farmers Union). The Poultry Farmers petitioned to the supreme court, stating, amongst other things, that there was no real discussion and debate about the Omnibus Statute that year, and while justice Dorit Beinish refrained from striking the statute, she warned the parliament before the quantity becomes quality:

Indeed, this is a legislation process that makes a sufficient and deep discussion hard, and which tempers the decisionmakers in parliament and government ability to gather an established opinion. Let us remind that one of the purposes in the Parliament’s regulation about legislation processes is to allow the parliament members to gather their opinion about every legislation that stands against them (…) and it’s hard to see how the legislation process in the Omnibus Statute allows that purpose” (HCJ 4899/03 Poultry Farmers Union v. The Israeli Government)

2.
Twenty-three years later, and our big Uncle Sam has the same issues. Because of historic mistakes that were caused by a capitalist policy to encourage consuming, Mortgage Banks collapsed since they incenticised high risk loans, as a chain reaction, the US stock indices fell and billions of theoretical dollars were lost. Not too much later, the US Government decided to nationalise several banks and an FBI inquiry regarding AIG’s conduct began.

3.
Right, Israel’s bank crisis of 1985 began because banks loaned people money in order to purchase the ever rising bank shares, which drove the bank shares even higher, until one day people understood that it was worth nothing. Billions of theoretical Shekels were lost. But the same mistake was made in t he US in the mortgage market. Allowing bubbled loans and leverage of real-estate was what made the real estate market bloom, till it exploded.

4.
Well, like in Israel, fast legislation processes were needed. However, the Congress first rejected the Wall-Street Bailout, which caused a major decline in stock indices. Therefore, gently, the government formalised a more serious plan that imploded from the original three pages to one hundred and ten, and then to four hundred and fifty one. 451 pages of tax reforms that most likely will never be read and will cause tax exemption for wooden arrows for children.

5.
And if we’re still with the great Uncle Sam, I am quite troubled by the great endeavours burned in order to assist the Israeli government implement Biometric Identification. This time, our minister of internal affairs Meir Sheetrit, claims that Israeli citizens will not be required a US visa if the biometric database will be approved. The subtext, of course is “if the biometric database will be approved and conveyed to the US authorities”, since without that, the US government has no mean to confirm their identity. What Sheetrit forgot to tell us, being a minister with formal micro-biology education (which the government thought was relevant when they approved his offer for biometric IDs), is that Biometric Passports are easy to fake or copying in a manner that allows Identity theft.

7.
But Sheetrit won’t be blurred by the facts when he will be speaking in front of the Knesset about the biometric identity statute. He’ll explain to the parliament members that the government already signed an agreement with HP to issue the IDs and that the US insists that we have such a database. Our Knesset Members, being so reasonable and have to consider every proposal, will do the right thing and vote seriously, of course. And that’s only if the Omnibus statute won’t be the statute that approves the Biometric Database.

The kidnapped soldiers Eldad Regev and Ehud Goldwasser came home in a coffin. not that it wasn’t expected or something, but the real question is when did the state of Israel stopped telling the truth. I mean, Yossi Gurvitz raised a few questions in his post showing that there were preliminary signs that the government knew that we were dealing with bodies. One may conclude, at least fromThis morning’s Ynet article that at 06:43 they knew that we are trading bodies, otherwise the logic that “In 09:00 Eldad Regev and Ehud Goldwasser will arrive to Rosh Hanikra, shortly afterwards the identification process will take place and may take several hours” doesn’t really apply here. Yesterday, when our beloved president, Shimon Peres signed Samir Kuntar‘s release, we were told that this is probational: “His signature will come into effect after positive identification of the Israeli soldiers, Regev and Goldwasser”, Keshet’s site told us. NRG-Maariv reported yesterday at 20:30 that the Rabinite began the identification process.

So when did you lose faith in your government?

[Originally in Hebrew, Sorry for all Hebrew links]