[At-Large] US v John Doe 1 & Others [Defendants]

[Salanieta T. Tamanikaiwaimaro]

>
>
>
> The jurisdictional issue is fascinating, but it's also worth asking why
> RIPE had to be ordered to work with ISC and the multinational law
> enforcement effort aimed at shutting this down.
>
>     Bret
>
>
I was reading up on the effect of international law and European law, I
> came across this:
>
> “In the famous Costa-Enel case (6/64) the Court of Justice of the European
> Community has ruled that European law is an integral part of the national
> legal system of the EC member countries and takes precedence over national
> law. Therefore one cannot fully ascertain the applicable law without
> researching the relevant European law”. See:
> http://www.llrx.com/features/dutch2.htm
>
>
>
> *European Ministerial Declaration on the Management of the Internet
> Protocol Address Resources in the Public Interest*
>
> Firstly, Declaration of the Committee of Ministers on the management of
> the Internet protocol address resources in the public interest (Adopted
> by the Committee of Ministers on 29 September 2010
> at the 1094th meeting of the Ministers' Deputies) is available via
> https://wcd.coe.int/ViewDoc.jsp?id=1678299&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383
>
>
>
> I would invite you to pay particular attention to para 11 of the
> Ministerial Text where the Committee of Ministers, therefore, declares the
> following:-
>
> *- Internet protocol address resources should be regarded as shared**
> public resources and allocated and managed in the public interest by the
> entities entrusted with these tasks, taking into account the present and
> future needs of Internet users;
>
> - timely and effective deployment of IPv6 in the public sector should be
> ensured and swift preparations for migration to and deployment of IPv6
> in the private sector should be encouraged and promoted;
>
> - as appropriate, identification features incorporated into Internet
> protocol addresses that are assigned to Internet users or devices
> connected to the Internet should be regarded and treated as personal
> data.***
>
> M. Mueller, M. V. Eeten and B Kuerbis  in their blog post that was posted
> in the original thread of this discussion stated the following, “So not
> only did the Order come from a foreign jurisdiction but, ironically,
> RIPE-NCC, which is run by people who insist that IP addresses are not
> property, was served with a legal order that seems to classify addresses as
> property” did not consider the Ministerial Text above where at least for
> the Europeans IP address resources should be regarded as shared “public
> resources”.
>
> To read other Declarations and recommendations, visit:
> http://www.coe.int/t/dghl/standardsetting/media/Doc/CM_en.asp
>
> *Prioritisation of Rights*
>
> *European Court of Justice*
>
> There are some interesting developments by the European Court of Justice
> on the prioritisation of rights, which James S Tyre had alerted the At
> Large List  (during the debate on the thick Whois vrs thin Whois
> discussions/debates) where EU law precludes the imposition of an injunction
> by a national court which requires an Internet Service Provider (ISP) to
> install a filtering system with a view to preventing the illegal
> downloading of files, see the Press Release:
> http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-11/cp110126en.pdf The
> actual Judgment that was just released on the 24th November, 2011 is
> available here:
> http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=Submit&numaff=C-70/10
>
>
>
>  Actually the significance of this Judgment is in relation to how they
> dealt with the prioritisation of rights, that is the rights if intellectual
> property owners, the rights of ISPs to conduct their business freely, the
> freedom to receive and impart information and the rights of consumers to
> privacy. "The injunction requiring installation of the contested filtering
> system involve a systematic analysis of all content, [ISPs cannot afford
> this and at the end of the day, this cost would be borne by customers
> somehow] and the collection and identification of users' IP addresses
> from which unlawful content on the network is sent. Those addresses are
> protected personal data because they allow those users to be precisely
> identified". (Highlighted portion is mine)
>
>
>
> The consideration in how the Judges arrived at their decision is on [para
> 52, 53] where there is no guarantee that lawful content would not be
> blocked. After considering all the rights stemming from the Directives
> listed in para 55, the courts held in favour of "privacy" of consumers that
> is fundamental rights trumping when reading all of the Directives together.
> Although the European Court of Justice recommended that harmonization take
> place.
>
>
>
> *European Court of Human Rights*
>
> Two interesting cases from the European Court of Human Rights are:
>
> Case of Klass and Others v. Germany (a leading case, 1978) see:
>
> http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695387&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649
>
>
> Case of the Association for European Integration and Human Rights and
> Ekimdzhiev V. Bulgaria, see:
>
> http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=bulgaria%20%7C%208%20%7C%20surveillance&sessionid=74457679&skin=hudoc-en
>
> The following fact sheet / summary provides an overview of Article 8 case
> law:
>
> http://www.echr.coe.int/NR/rdonlyres/4FCF8133-AD91-4F7B-86F0-A448429BC2CC/0/FICHES_Protection_des_données_EN.pdf
>
-- 
Salanieta Tamanikaiwaimaro aka Sala

Tweeter: @SalanietaT
Skype:Salanieta.Tamanikaiwaimaro
Cell: +679 998 2851