February 22, 2008 10:03 AM PST

Judge on privacy: Computer code trumps the law

Australian High Court Judge Justice Kirby says computer code is more potent than the law--and that legislators are powerless to do anything about it.

Technology has outpaced the legal system's ability to regulate its use in matters of privacy and fair use rights, said Kirby, speaking Thursday night at an Internet Industry Association (IIA) event.

Kirby said the judicial system has faced difficulties in coping with changes the Internet and computing have brought.

While the soon-to-be-reviewed Privacy Act has incorporated key privacy principles such as "usage limitation"--which states that data collected about an individual cannot be used for other purposes, except by the approval of the law or the person's consent--Google and Yahoo have rendered that principle defunct, Kirby said.

"It was a good moral and ethical principle to keep people's control over the usage that was made of the information...And then along came Google and Yahoo," said Kirby.

"And when the new technology came, there was a massive capacity to range through vast amounts of information. The notion that you could control this was a conundrum," he said, adding that because the technology is considered so useful, privacy concerns have been cast aside.

The challenges that technology present continue to beat even the best legal minds in the world, Kirby said.

Despite this, lawmakers should attempt to implement checks and balances. Without them, corporations pose an even graver problem for humanity.

"To do nothing is to make a decision to let others go and take technology where they will. There are even more acute questions arising in biotechnology and informatics, such as the hybridization of the human species and other species. Points of no return can be reached," he said.

However, technology has already allowed corporations to beat the legal system, said Kirby, citing the case Sony brought against Australian businessman, Eddy Stevens, in 2005 for modifying Sony PlayStations.

Despite the High Court ruling in favor of Stevens, the decision was later overturned by the government after the U.S. government pressed it to make legislative amendments to protect Sony's right to restrict where consumers buy its software from.

"We are moving to a point in the world where more and more law will be expressed in its effective way, not in terms of statutes solidly enacted by the parliament...but in the technology itself--code," said Kirby.

Liam Tung of ZDNet Australia reported from Sydney.

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8 comments

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Vigilantes Disunite
A world in which code is law over the decisions of the body elected to represent the people is a world that will give rise to vigilante code as the means of justice.

Means get meaner.
Posted by Len Bullard (454 comments )
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Utter Bull
While code can sneak around the law, the law sets the framework for which software and more importantly the people who write it must operate within.

If the law demands privacy then so be it.
Posted by Renegade Knight (13748 comments )
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Utter Bull is Utter Bull
Renegade Knight, you're an idiot. Justice Michael Kirby IS one of those top legal minds in the world. If he says there's a problem, then you can bet your ass there's a problem.
Posted by silenzisgolden (2 comments )
Link Flag
Really? Lets see...
Sony puts rootkits on hundreds of thousands of computers. That's a felony. Did anybody go to jail?
Sony lied and said there was no rootkit. then they said it did no harm. Then they said it didn't phone home. Then they said the DMCA gave them the power to put rootkits that do harm and phone home on your computer, even if you click NO on the EULA. Then they said they had posted a removal tool. Then the removal tool was found to install more evil code! instead of removing anything. Anyone get charged with a criminal act? No. Sony was hit with a few nuisance class actions, and gave everyone a free CD.

Where's your Law?

Just last month it was found that Sears KMart had duped many people into downloading software that tracks their computers everywhere it goes on the internet, including your banking site, your e-mail, etc. No class actions that I've heard, but they did have to change the wording of the EULA that nobody reads.

Where is your law?

Utter Bull?
That's udder, and if it has one, it's no bull!

Lampie The Clown
Posted by lampietheclown (73 comments )
Link Flag
errr nice but
er the law is there, but the enforcement isn't
Posted by ggrs34 (25 comments )
Reply Link Flag
What else is new?
There is a problem and the problem is legal fiction gets to be more protected than real persons... Code, Sony, online vigilantism are just pieces of the emerging corporate state. If you ever played Syndicate you'll get the picture, only there'll be no graphic violence, only muffled victims, i.e., you & me, the underdogs. Welcome to the american nightmare!
Posted by MichaGato (25 comments )
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