Some wrong (and right) turns in cyberspace - HK & the PRC

Graham GreenleafNSWSCL AGM 2003

Random impressions … Privacy

HK’s not-so-smart card Not HK$1 in damages? Seven levels of surveillance in the PRC

Domain names Final and binding artbitration in HK Corrupting the DNS in the PRC

AustLII on the road … HKLII and WorldLII Shanghai & Cambodia in translation

HK’s not-so-smart card Existing ‘dumb’ ID card (doesn’t think, or

speak) has too few limits on use New ‘smart’ ID card = compulsory card + chip

+ biometrics (fingerprint template + digitised photo) + (‘voluntary’) digital signature

Function creep designed-in: (‘voluntary’) DigSig + driver’s licence + library card

No choice of DigSig - HKPost E-cert only Capacity, and intention, for expansion

HK’s not-so-smart card (2) Weak LegCo controls over system

expansion Would you test out the world’s most

advanced ID card in the PRC?

Not HK$1 in damages? Personal Data (Privacy) Ordinance s66 requires Court action for compensatory

damages - one case, $0 HK Privacy Commissioner can’t even formally

recommend damages Not HK$1 known to be paid in 5 years cf Australian PCO is (finally) publishing

complaint summaries - [2003] PrivCmrA 1 settled for A$7,000 damages

Remedies, and publication, are necessary

Seven levels of surveillance Q: How does the PRC balance popular Internet

access with political control? A: law + surveillance + uncertainty +

enforcement at multiple levels Every intermediary (ISPs, Internet cafes) must

enforce and keep logs on all users, or face liabilities themselves

Periodic severe enforcement: in 2001, about 30% of all Internet cafes were closed

Periodic prosecutions and jail sentences

Domain names Two approaches to control of a key part

of Internet architecture … the DNS

‘Final and binding artbitration’ .hkDNDRP Rules cl 3(b)(xi) "The Complainant, by

submitting the Complaint agrees to the settlement of the dispute, regarding the domain name … by final and binding arbitration ..."

Contrast ICANN UDRP cl 4(k) - recourse to the Courts before or after Panel resolution

Unresolved: would passing off still be available? .hkDNDRP has to some extent created a new

jurisdiction in cyberspace, based on control of a key aspect of architecture

PRC corrupts the DNS During 2002 web browsers in the PRC found

that www.google.com went to Chinese search engines instead.

Seems that domain name servers throughout PRC were changed to resolve that domain name to different DNS addresses

Semi-official corruption of the DNS What sort of Internet law is broken? Can a State break fundamental rules of Internet

governance with impunity?

AustLII on the road … HKLII www.hklii.org - AustLII + HKU = the first

Legal Information Institute in Asia …. may expand to other PRC jurisdictions

WorldLII www.worldlii.org - a collaboration between LIIs = 293 databases from 25 countries + the WorldLII Catalog/Websearch of 15,000 sites

In translation …. Shanghai - all municipal laws translated into

English and put on the web Cambodia - Deputy Commerce Minister

personally translated first 100, now into 3rd loose-leaf volume - going on WorldLII in English & Khymer

Law should be part of the global digital commons - Montreal Declaration of LIIs, 2002