The Australian, 29 March 2018, p.6:
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Tuesday 3 April 2018
NSW Bar Association: “As members of the legal profession, we know indigenous Australians, proportionately, are the most incarcerated on earth. This diminishes us as a nation.”
The Australian, 29 March 2018, p.6:
As members of the legal
profession, we know indigenous Australians, proportionately, are the most
incarcerated on earth. This diminishes us as a nation.
Sovereignty and
dispossession, recognition and representation of interests: they are different
facets of the same problem. It is something that we, as lawyers, have a duty to
help solve. It is because of this duty that the legal profession welcomed the government’s
reference to the Australian Law Reform Commission to examine, among other
issues, rates of incarceration for the indigenous.
The Pathways to Justice
report of the ALRC represents a comprehensive blueprint to address the shameful
over-representation of indigenous people in our prisons. Swift and decisive
action is required from commonwealth, state and territory governments to ensure
its recommendations are implemented.
ALRC recommendations
relating to sentencing and bail regimes, the repeal of mandatory sentencing
laws, an effective justice reinvestment framework, culturally appropriate
community-based sentencing options, and so on, are all aimed at how
substantive, not just formal, equality before the law can be achieved for
indigenous people. All recommendations are supported by the NSW Bar Association
as important initiatives which will contribute to addressing Aboriginal incarceration rates.
The NSW Bar is pleased
the ALRC supports establishment of indigenous sentencing courts including the
NSW Walama Court. The Walama Court is critical in reducing indigenous incarceration.
The model involves community participation and greater supervision, resulting
in reduced recidivism and increased compliance with court orders to better
protect the community. It is not a “soft on crime” initiative but rather a more
effective manner to supervise offenders post-sentence which would enhance
rehabilitation and prevent re-offending.
At this stage the NSW
government has not allocated funds to establish the Walama Court in the 2018-19
financial year, despite the fact it would have long-term economic cost savings
for NSW as fewer indigenous people will be imprisoned and rates of recidivism
would be reduced…..
Australian
Law Reform Commission (ALRC) Pathways
to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait
Islander Peoples (ALRC Report 133) Final Report, published on 28
March 2018.
ALRC "Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander P... by clarencegirl on Scribd
Sunday 1 April 2018
UNITED LAND COUNCILS IN THE NEWS AGAIN: Nicholas Petroulias appears before NSW Independent Commission Against Corruption and represents himself at hearings
*This post will be updated whenever additional information becomes available*
The NSW Independent Commission Against
Corruption (ICAC) began a public inquiry on 27 March 2018.
ICAC’s
media
release of 7 March 2018 stated in part:
“….as part of an
investigation it is conducting into allegations concerning the Awabakal Local
Aboriginal Land Council (LALC) (Operation Skyline).
The Commission is investigating whether any public official, being a Awabakal LALC Board director, acted dishonestly and/or in breach of their duty as a Board member in relation to a scheme involving proposals from 2014 to 2016 for the sale and development of properties (“the Sale and Development Scheme”) owned by the land council.
The Commission is also investigating whether any Awabakal LALC Board director acted dishonestly and/or in breach of their duty as a Board member in purporting to retain, or retaining, Knightsbridge North Lawyers or anyone else to act for the land council in respect of the Sale and Development Scheme.
Further, the ICAC is investigating whether any Awabakal LALC Board director: acted dishonestly and/or in breach of their duty as a Board member by participating in, or aiding or assisting any person in relation to, the Sale and Development Scheme including dealings with Sunshine Property Investment Group Pty Ltd, Sunshine Warners Pty Ltd, Solstice Property Corporation Pty Ltd and Advantage Property Experts Syndications Pty Ltd and/or Advantage Property Syndications Ltd; and whether they received any financial or other benefits as a reward or payment for their involvement in, or for their assistance or services rendered in relation to, the Sale and Development Scheme or any connected matter.
The Commission is also examining whether any person or persons encouraged or induced any Awabakal LALC Board director to dishonestly or partially exercise any of their official functions in respect of the Sale and Development Scheme and any other land council property, or otherwise engaged in conduct connected with corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988.
The public inquiry will start at 10:00 am and will be held in the Commission's hearing room on Level 7, 255 Elizabeth Street, Sydney. Chief Commissioner the Hon Peter Hall QC will preside at the public inquiry, and Counsel Assisting the Commission will be Dr Nicholas Chen SC and Ms Juliet Curtin.
The inquiry is set down for approximately three weeks. A witness list for at least the first week of the proceedings will be published on the ICAC website prior to the commencement of the public inquiry.”
The Commission is investigating whether any public official, being a Awabakal LALC Board director, acted dishonestly and/or in breach of their duty as a Board member in relation to a scheme involving proposals from 2014 to 2016 for the sale and development of properties (“the Sale and Development Scheme”) owned by the land council.
The Commission is also investigating whether any Awabakal LALC Board director acted dishonestly and/or in breach of their duty as a Board member in purporting to retain, or retaining, Knightsbridge North Lawyers or anyone else to act for the land council in respect of the Sale and Development Scheme.
Further, the ICAC is investigating whether any Awabakal LALC Board director: acted dishonestly and/or in breach of their duty as a Board member by participating in, or aiding or assisting any person in relation to, the Sale and Development Scheme including dealings with Sunshine Property Investment Group Pty Ltd, Sunshine Warners Pty Ltd, Solstice Property Corporation Pty Ltd and Advantage Property Experts Syndications Pty Ltd and/or Advantage Property Syndications Ltd; and whether they received any financial or other benefits as a reward or payment for their involvement in, or for their assistance or services rendered in relation to, the Sale and Development Scheme or any connected matter.
The Commission is also examining whether any person or persons encouraged or induced any Awabakal LALC Board director to dishonestly or partially exercise any of their official functions in respect of the Sale and Development Scheme and any other land council property, or otherwise engaged in conduct connected with corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988.
The public inquiry will start at 10:00 am and will be held in the Commission's hearing room on Level 7, 255 Elizabeth Street, Sydney. Chief Commissioner the Hon Peter Hall QC will preside at the public inquiry, and Counsel Assisting the Commission will be Dr Nicholas Chen SC and Ms Juliet Curtin.
The inquiry is set down for approximately three weeks. A witness list for at least the first week of the proceedings will be published on the ICAC website prior to the commencement of the public inquiry.”
Transcripts of Operation Skyline public hearings can be found here.
Note: PURSUANT TO SECTION 112
OF THE ICAC ACT, A SUPPRESSION ORDER IS MADE PROTECTING AGAINST ANY
DISSEMINATION OF ANY PRIVATE EMAIL ADDRESSES, PRIVATE ADDRESSES OR PHONE
NUMBERS CONTAINED IN EACH OF THE EXHIBITS TO BE UPLOADED ONTO AND PUBLISHED ON
THE COMMISSION’S WEBSITE. I MAKE THAT ORDER SUBJECT TO ANY FURTHER ORDER OF THE
COMMISSION.
WEEK 1 WITNESS LIST
Tuesday 27 March
Terrence Henry Lawler - government appointed Administrator of the Awabakal Local Aboriginal Land Council.
Terrence Henry Lawler - government appointed Administrator of the Awabakal Local Aboriginal Land Council.
Wednesday 28 March
Terrence Henry Lawler - government appointed Administrator of the Awabakal Local Aboriginal Land Council.
Omar Bin Abdullah - building design consultant & sole director/shareholder Alamco Pty Ltd (currently under external administration)
Steven Mark Slee - former CEO Awabakal Local Aboriginal Land Council, former director
Awabakal Cooperative and Yarnteen College
Cyril Philemon Gabey - one of three directors at The Indigenous Business Union Pty Ltd (IBU) (deregistered 15/01/2017)
Thursday 29 MarchTerrence Henry Lawler - government appointed Administrator of the Awabakal Local Aboriginal Land Council.
Omar Bin Abdullah - building design consultant & sole director/shareholder Alamco Pty Ltd (currently under external administration)
Steven Mark Slee - former CEO Awabakal Local Aboriginal Land Council, former director
Awabakal Cooperative and Yarnteen College
Cyril Philemon Gabey - one of three directors at The Indigenous Business Union Pty Ltd (IBU) (deregistered 15/01/2017)
John Terry Hancock - former board member Awabakal Local Aboriginal Land Council Eleanor Swan - former board member Awabakal Local Aboriginal Land Council
WEEK 2 WITNESS LIST
Tuesday 3 April
Eleanor W Swan - former board member Awabakal Local Aboriginal Land Council
Deborah June Swan - former board member Awabakal Local Aboriginal Land Council
Larry Warren Slee - former board member Awabakal Local Aboriginal Land Council, father of Steven Mark SleeWednesday 4 April
Matthew Fisk - employee of Tony Zong first at Sunshine Property Investment Group and later at Luxeland Group
Tony Zong (Shuxin Zong) - sole director and shareholder of Sunshine Property Investment Group Pty Limited, a commercial fitout & building company
Diane "Dan Dan" Ren - property developer, co-director and co-shareholder of Luxeland Group Pty Ltd with Tony Zong *not questioned on the day*
Thursday 5 April
Tony Zong (Shuxin Zong) - sole director and shareholder of Sunshine Property Investment Group Pty Limited, a commercial fitout & building company
Nicole Steadman - former interim chair of Awabakal Local Aboriginal Land Council *not questioned on the day*
Friday 6 April
Tony Zong (Shuxin Zong) - sole director and shareholder of Sunshine Property Investment Group Pty Limited, a commercial fitout & building company
Larry Warren Slee - former board member Awabakal Local Aboriginal Land Council, father of Steven Mark Slee
Ronald Wayne Jordan - former board member Awabakal Local Aboriginal Land Council, employed by family business
Candy Towers - member Awabakal community, former employee Awabakal Local Aboriginal Land Council *not questioned on the day*
WEEK 3 WITNESS LIST
Monday 9 April
Larry Warren Slee - former board member Awabakal Local Aboriginal Land Council, father of Steven Mark Slee
Leonard James Quinlan - former board member Awabakal Local Aboriginal Land Council
Dr. Raymond Kelly - former board member Awabakal Local Aboriginal Land Council
Tuesday 10 April
Dr. Raymond Kelly - former board member Awabakal Local Aboriginal Land Council
Ronald Wayne Jordan - former board member Awabakal Local Aboriginal Land Council, employed by family business
WEEK 3 WITNESS LIST
Monday 9 April
Larry Warren Slee - former board member Awabakal Local Aboriginal Land Council, father of Steven Mark Slee
Leonard James Quinlan
Dr. Raymond Kelly - former board member Awabakal Local Aboriginal Land Council
Tuesday 10 April
Dr. Raymond Kelly - former board member Awabakal Local Aboriginal Land Council
Ronald Wayne Jordan - former board member Awabakal Local Aboriginal Land Council, employed by family business
Ian Sheriff - solicitor *not questioned on the day*
Wednesday 11 April
Keith Kang Rhee - co-director and one of two shareholders in of Keeju Pty Ltd a family sushi business
Sammy Sayed aka Sam Say - said to be in real estate/properties
Thursday 12 April
Sammy Sayed aka Sam Say - said to be in real estate/properties
Ian Sheriff - solicitor
Diane "Dan Dan" Ren - property developer, co-director and co-shareholder of Luxeland Group Pty Ltd with Tony Zong
Friday 13 April
Nicole Steadman - former interim chair of Awabakal Local Aboriginal
Land Council
Candy Towers - member Awabakal community, former employee Awabakal
Local Aboriginal Land Council
The
Sydney Morning Herald report
on Day One of the hearings, 27 March 2018:
Disgraced former
assistant tax commissioner Nick Petroulias has resurfaced at the centre of a
corruption probe into a series of deals to sell off up to $30 million worth of
Aboriginal land in the NSW Hunter region.
Mr Petroulias was one of
the country's most senior public servants before his high-profile jailing in
2008 for corrupt conduct and unauthorised publication of Commonwealth documents.
The first day of public
inquiry by the Independent Commission against Corruption (ICAC) has heard that
Mr Petroulias played a "central role" in three deals - and one
attempted deal - to sell off land belonging to the Awabakal Local Aboriginal Land
Council.
In one of the more
extraordinary allegations, Mr Petroulias was accused of signing a 2014 deal on
behalf of a company director who was already dead at the time he was appointed.
The deals took place
between 2014 and 2016, with the most lucrative worth $30 million, the inquiry
heard.
In his opening address,
counsel assisting Nicholas Chen SC alleged that Mr Petroulias used a "two
dollar company" he controlled - known as Gows Heat - to obtain purchase
rights over several parcels of Awabakal land.
"Mr Petroulias at
that time had recently been made a bankrupt," Mr Chen told the inquiry.
"Neither Gows Heat nor Mr Petroulias paid any money to the land council to
secure this 'right'."
It was alleged Mr
Petroulias on-sold the purchase rights to a new buyer and then attempted to
on-sell the rights again to another buyer, while both remained unaware of the
other's existence.
"Gows Heat and Mr
Petroulias secured a significant windfall: he sold this "right",
around six months later, and received around $1.1 million as a result," Mr
Chen said.
Whether Awabakal's board
was aware of these deals - and how the deals could go ahead without disclosure
to the board - will be investigated by the inquiry.
The inquiry will also
examine the actions of two former Awabakal board members involved in the
transactions - Richard Green and Debbie Dates - and a lawyer who executed the
deals on the land council's behalf.
That solicitor, Despina
Bakis, was the sole director of Sydney firm Knightsbridge North Lawyers. Mr
Chen noted that she had been in what could be described as an "on-again,
off-again" relationship with Mr Petroulias for about 20 years.
Mr Chen noted that
neither Ms Bakis or Mr Petroulias were Indigenous and Ms Bakis had "no
relevant experience" in undertaking the kind of work she was tasked to do
by the land council.
The inquiry heard Mr
Petroulias has adopted a string of aliases, including Nick or Nicholas Piers;
Nick or Nicholas Pearson and Nick or Nicholas Petersen.
A number of corporate
entities with links to Mr Petroulias had been created using the identities of
people that knew nothing of their involvement, Mr Chen alleged.
Mr Lawler has
reported the matters to police....
Mr Chen described Ms Bakis’ appointment as “more than a little curious”, given that the land council had been making use of a “highly experienced” commercial and property lawyer.
The
Newcastle Herald
reporting on Day One, 28 March 2018:
The land council's
administrator, Terry Lawler, took to the witness box on Tuesday afternoon,
testifying that he found no copies of any agreements to sell Awabakal land when
he was installed by the state government in 2016.
Mr Petroulias,
representing himself, grilled Mr Lawler over what he told Awabakal members
before they voted on one of the land deals.
"Did you mention
that I was a criminal to the membership of the meeting?," he asked.
Mr Lawler responded that
a solicitor acting for him may have, but added “fact’s facts”.
When he put the issue to
a vote, there was a "sea of hands" against the proposal, Mr
Lawler said.
“One of the members
actually said: ‘are you a comedian?’,” he recalled.
Mr Lawler told the
inquiry that when he was first made aware of the deal, involving a company
called Advantage Property Experts Syndications, he “didn’t have any
information” about whether it was a good or bad deal.
However he was stunned
at proposals relating to the post office.
“The thing that did
really strike me, and I remember thinking ‘this bloke’s delusional’, is that he
said to me ‘part and parcel of this is we're going to do up the post
office and hand it back to the NSW state government so as they’ll provide us
with a strategic state development approval for the development of Hillsborough
Road,” Mr Lawler told the inquiry.
“I found that an
interesting statement, because that's just not the way things work.”
Mr Lawler also noticed a
number of typos within the agreement.
“To be frank some of the
agreements I found extremely difficult to read, understand, there
were differing parties … one party on the cover sheet another party in the
agreement, there were references to agreements even then that I hadn’t seen,”
he said.
Mr Lawler claimed he has
since been the target of abusive, defamatory and inaccurate letters
and a “slanderous” social media campaign.
He alleged a businessman
associated with Advantage and two other people stood outside a recent Awabakal
meeting, handing out flyers making similar allegations.
“My local residential
area was letter-boxed with those flyers that same evening and it’s clear from
the Facebook post from Advantage that I’m being stalked,” he said.
“There are quite a lot
of photos that are nothing other than me just going about my business.”
Mr Chen described Ms Bakis’ appointment as “more than a little curious”, given that the land council had been making use of a “highly experienced” commercial and property lawyer.
He further alleged that
Ms Bakis was appointed by Mr Green without the board’s authority until a motion
to ratify her appointment more than a year later.
It’s understood that Ms
Bakis will argue that she was always given to understand her appointment was
authorised.
Mr Lawler told the
hearing that when he was installed he did not find any records relating to
Ms Bakis’ appointment and when he asked for them, it triggered a “flow” of
abusive material.
“Abuse, complaints,
accusations and being told that she’s not my secretary and that I’m a thief, it
just goes on,” he said.
“I have never
experienced – let alone from a professional person – I’ve never
experienced the style in which Ms Bakis writes … clearly [she was] an
angry little ant.”
The
Newcastle Herald reporting
on Day Two, 28 March 2018:
A corruption
inquiry has been told board minutes of the Awabakal land council appear to have
been falsified to show it voted in favour of selling land to a company tied to
disgraced former assistant tax commissioner Nick Petroulias.
It came as a Sydney
developer told the Independent Commission against Corruption (ICAC) he did not
understand how a reference to the same company – Gows Heat Pty Ltd – ended up
in documentation he prepared on the development of the land….
Mr Petroulias was a
“common feature” in all of the deals and Gows Heat a shelf company he
controlled, it has been alleged.
In the witness box on
Wednesday was Omar Abdullah, a building designer and new home specialist based
in Sydney.
He made an overture to
the land council in late 2014, after he was informed by a business contact it
had property ripe for development.
Mr Abdullah told the
inquiry he was given an opportunity to meet with Awabakal’s board and present
it with discussion material on potential developments.
He felt the presentation
was met with a “positive reaction”, but Mr Abdullah did not pursue
a deal when he got “nothing formal back” from the board.
The inquiry previously
heard a “critical matter” will be an allegation from Mr Petroulias that the
presentation was made jointly with Gows Heat.
When asked if he had
ever heard of Gows, Mr Abdullah replied “absolutely not”.
Mr Abdullah was then
shown a document that appeared to be identical to the one he circulated during
the presentation, but included a reference to Gows Heat.
“I’ve never seen this
document,” he said.
The land council’s chief
executive at the time, Steven Slee, was questioned over his recollection
events.
Mr Slee told the inquiry
the board resolved to contact Mr Abdullah to pursue the land proposal, a
resolution reflected in typed and signed minutes and a “running list” of
resolutions kept at the land council’s offices.
Council assisting
Nicholas Chen SC tendered those documents as evidence, before presenting Mr
Slee with an additional book containing handwritten minutes.
Mr Slee agreed it
appeared someone had written extra words around the resolution.
He was unable to
decipher what they said, but observed they started with the letters
“Go”.
Mr Slee was then shown a
different resolution that appeared to have been stapled into the minute book,
recording a decision to push ahead with the sale of the land to Gows
Heat.
“Mr Slee, whilst you
were CEO was it the practice of the board to staple resolutions into minute
books?” Mr Chen asked.
“No,” Mr Slee responded,
agreeing it appeared someone had tampered with the minutes. He was unable to
pinpoint who it might be.
The
Newcastle Herald reporting on Day Five, 5 April 2018:
As an experienced
property developer and qualified valuer based in Sydney, Matthew Fisk knew his
way around a land deal.
But as he bargained with
the Awabakal Local Aboriginal Land Council over land it owned at Warners Bay,
there were aspects of the negotiations that struck him as strange.
One of the more
“unusual” elements, Mr Fisk told an Independent Commission against Corruption
inquiry, was the role of disgraced former assistant tax commissioner Nick
Petroulias and an instance where Mr Petroulias allegedly “scribbled out” a
figure in a contract….
Mr Zong later took
– and dropped – legal action against the land council, claiming he
was not informed the deal did not have proper authorisation.
Mr Zong’s involvement
began in 2015, when he attended a meeting at Warners Bay McDonalds over a
potential land deal.
Mr Fisk told the inquiry
he accompanied Mr Zong to the meeting, also attended by Mr Green and Mr
Petroulias.
The parties
were allegedly brought together by a former inmate who served time
with Mr Petroulias at Silverwater jail – Sammy Say – who was
acquainted with a contact of Mr Zong.
Mr Fisk recalled one of
the third parties introducing Mr Petroulias as a lawyer acting for the
land council.
So he was
surprised – at the end of a tour – when he was informed that Mr
Petroulias had a “larger interest”.
“I believe it was Sammy
Say that had used words to the effect that Nick has already put the deal
together,” Mr Fisk recalled. “Then Nick proceeded with he already has an
option to acquire these five parcels of land and it would be, in fact, us
… acquiring Nick’s option moving forward.”
An option is where a
potential buyer pays a vendor for the right to purchase their property at
a fixed price at a later time. The vendor can not sell the property to a third
party in that period.
Council assisting
Nicholas Chen asked Mr Fisk if he thought it unusual that the land council’s
lawyer would have an option over its land.
“I thought it was quite
unusual, particularly that when I asked what the purchase price was I was told
that it was to be subject to valuation,” Mr Fisk said.
According to Mr Fisk,
another odd twist came as a contract was being signed with the amount
to be paid out to Gows Heat.
“After Mr Zong had
signed the document Mr Petroulias then lent over, scribbled out $250,000, wrote
$673,000 and then initialled it,” Mr Fisk said.
“Tony [Zong] said, look,
he said to Nick, ‘what are you doing?’ I don’t recall the response that was
given but I found it very unusual.”
Other media reports on Operation Skyline hearings:
North Coast Voices’ readers might recall that Nick Petroulias (using the name Nicholas Peterson) and Richard Green gave sworn evidence before the NSW Legislative Council General Purpose
Standing Committee No. 6 INQUIRY
INTO CROWN LAND, as
part of United Land Councils' lobbying for the potentially environmentally destructive Yamba Mega
Port proposal.
Before Operation Skyline’s public hearing began,
one of those named in the inquiry began short-lived and unsuccessful proceedings in Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption.
The matter of
the proposed Awabakal land sales was also before the NSW Supreme Court in 2017….
The
Newcastle Herald,
21 October 2017:
The matter is the
subject of a Supreme Court legal battle that veteran lawyers have described as
one of the most extraordinary cases they have seen in their careers.
Labelled by a lawyer
familiar with the case as a real-life version of “Alice in Wonderland”, its
cast of characters includes an international fugitive known as Robbie Rocket, a
convicted drug dealer and a dead company director who somehow continued signing
agreements a year after he was cremated in a Sydney cemetery.
The existence of an
international money laundering syndicate and a karaoke junket intended as a
bribery attempt are among the other sensational allegations contained within
thousands of pages of evidence that have been tendered to the court.
Last year in an unrelated matter Mr. Petroulias was the defendant in Director
of Public Prosecutions (Cth) v Petroulias [2017] NSWSC 1290 (28 September 2017), excerpts:
When this matter came on
for hearing before me there was no appearance on behalf of the defendant. The
defendant now goes by the name Michael Felson. For abundant caution both of his
names were called outside court three times….
During the hearing I was
informed that the defendant is an undischarged bankrupt. He was declared
bankrupt by a sequestration order made by the Federal Circuit Court on 23
October 2014. His statement of affairs was filed on 10 March 2015. He will thus
be eligible to be discharged from bankruptcy on 10 March 2018.
Wednesday 28 March 2018
Turns out that Facebook Inc is the biggest baddie of all on the Internet
“The
FTC is firmly and fully committed to using all of its tools to protect the
privacy of consumers. Foremost among these tools is enforcement action against
companies that fail to honor their privacy promises, including to comply with
Privacy Shield, or that engage in unfair acts that cause substantial injury to
consumers in violation of the FTC Act. Companies who have settled previous FTC
actions must also comply with FTC order provisions imposing privacy and data
security requirements. Accordingly, the FTC takes very seriously recent press
reports raising substantial concerns about the privacy practices of Facebook.
Today, the FTC is confirming that it has an open non-public investigation into
these practices.” [US Federal Trade Commission (FTC), Statement,
26 March 2018]
It may have been the Cambridge Analytica-Facebook situation as first set out by Carole Cadwalladr at The Guardian & The Observer (UK) that recently alerted the average Internet user to the issue of digital privacy on social media and, it was certainly the situation which caught the eye of the US Federal Trade Commission which is now investigating.
The story of that data harvest so far.....
The
Guardian UK,
25 March 2018:
The story of how those
data made the journey from Facebook’s servers to Cambridge Analytica’s is now
widely known. But it is also widely misunderstood. (Many people were puzzled,
for example, by Facebook’s vehement insistence that the exfiltration of a huge
trove of users’ data was not a “breach”.) The shorthand
version of what happened – that “a slug of Facebook data on 50 million
Americans was sucked down by a UK academic named Aleksandr Kogan, and wrongly
sold to Cambridge Analytica” – misses an important point, which is that in
acquiring the data in the first place Kogan was acting with Facebook’s
full knowledge and approval.
In 2013, he wrote an app
called “Thisisyourdigitallife” which offered users an online personality test,
describing itself as “a research
app used by psychologists”.
Approximately 270,000 people downloaded it and
in doing so gave their consent for Kogan to access information such as the city
they set on their profile, or content they had liked, as well as more limited
information about friends who had their privacy settings set to allow it. This
drew more than 50 million unsuspecting Facebook users into Kogan’s net.
The key point is that
all of this was allowed by the terms and conditions under which he was
operating. Thousands of other Facebook apps were also operating under similar
T&Cs – and had been since 2007, when the company turned its social
networking service into an application platform.
So Kogan was only a bit
player in the data-hoovering game: apps such as the insanely popular Candy
Crush, for example, were
also able to collect players’ public profiles, friends lists and email
addresses. And Facebook seemed blissfully indifferent to this open door because
it was central to its commercial strategy: the more apps there were on its
platform the more powerful the network effects would be and the more personal
data there would be to monetise.
That’s why the bigger
story behind the current controversy is the fact that what Cambridge
Analytica claimed to have accomplished would not have been possible
without Facebook. Which means that, in the end, Facebook poses the problem that
democracies will have to solve. [my yellow highlighting]
Now we find out that Facebook Inc is scraping information from Android devices such as mobile phones and adding phone logs to its Big Brother database.
Global
News, 25
March 2018:
In the same week Facebook found itself in
the middle of a massive data scandal, recent reports indicate that the social
media giant has also scraped records of phone calls and SMS data from its users
with Android devices without explicit permission.
New Zealand-based
software developer Dylan McKay tweeted earlier this week that upon downloading
his Facebook data in zip file (which is
an option for all users) he claims to have discovered records of phone
calls and a historical data of every contact on his phone., including contacts
he no longer had, from a period between 2016 and 2017.
Downloaded my facebook data as a ZIP file— Dylan McKay (@dylanmckaynz) March 21, 2018
Somehow it has my entire call history with my partner's mum pic.twitter.com/CIRUguf4vD
After he made the
discovery, McKay set up a Google poll to gather evidence from other users who’ve
been affected.
So far, just under 900
people have responded to the poll, and more than 20 per cent confirmed they
found call records and/or text metadata in their Facebook data archive. Another
74 people responded to the poll saying that MMS data was collected, 106 people
responded saying that SMS data was collected, and 104 responded saying that
cellular calls were collected.
The story was first
published by the tech news website Ars
Technica on Saturday, who interviewed several Facebook users, and had
a member of its staff download their Facebook data archive. Following, this,
the site could confirm that the data file downloaded by the staff member
contained call logs from a device that individual used between 2015 and 2016,
as well as SMS and MMS message data.
Several Global News
staff members also requested their data archives as well in the preparation of
this story and some found that the contact lists from their mobile devices were
recorded in the file. No one noted any text message or call logs in the data
files they downloaded.
Ars Technica reached out to Facebook for comment before the publication of its story, who said that the practice was a common one among social networking and messaging apps.
“The most important part
of apps and services that help you make connections is to make it easy to find
the people you want to connect with. So, the first time you sign in on your
phone to a messaging or social app, it’s a widely used practice to begin by
uploading your phone contacts.”
Following McKay’s
tweets, other users came out on social media expressing similar concerns about
what they discovered after downloading their data archives.
Oh wow my deleted Facebook Zip file contains info on every single phone cellphone call and text I made for about a year- cool totally not creepy.— Mat Johnson (@mat_johnson) March 23, 2018
I’ve just looked at the data files I requested from Facebook and they had every single phone number in my contacts. They had every single social event I went to, a list of all my friends (and their birthdays) and a list of every text I’ve sent.— Emma Kennedy (@EmmaKennedy) March 25, 2018
…In recent years, the
company has updated this process to clarify that when requesting access to your
contact list, it intends to access all call logs and SMS text messages as well,
but Android users in the past may have unknowingly given Facebook access to
this data. [my yellow highlighting]
It is also wise to remember that even Internet users who do not have a Facebook account have their PC or other digital device scanned for information each time they click on a link to Facebook.
Facebook image via ZDNet, 3 January 2014
ZDNet on 3 January 2014: By "content"
Facebook means “anything you or other users post on Facebook”. By
"information" Facebook means “facts and other information about you,
including actions taken by users and non-users who interact with Facebook”. [my yellow highlighting]
Nor should we ignore this report about Facebook's surreptitious activities.......
Law360
(March 2, 2018, 7:02 PM EST) -- A California federal judge held Friday that
Facebook can’t shake a proposed class action over its allegedly unlawful
collection and storage of non-users’ facial scans, declining to toss the matter
for lack of standing, just as he recently did in a related suit involving users
of the site.
U.S. District Judge James Donato rejected Facebook Inc.’s renewed motion to dismiss litigation led by Frederick William Gullen for lack of subject-matter jurisdiction, pointing to his Feb. 26 decision in a related proposed class action accusing the social media... [my yellow highlighting]
Then there is the lobbying to discourage federal regulation of Facebook.......
U.S. District Judge James Donato rejected Facebook Inc.’s renewed motion to dismiss litigation led by Frederick William Gullen for lack of subject-matter jurisdiction, pointing to his Feb. 26 decision in a related proposed class action accusing the social media...
Then there is the lobbying to discourage federal regulation of Facebook.......
According to SOCIAL MEDIA CASEROUNDUP (selected cases) in April 2015, by 2013 Facebook Inc had spent more than US$1 million on lobbying efforts to water down the US Children's
Online Privacy Protection Act (COPPA). It was particularly concerned about any change of status of third party "add ons"/"plug-ins" which might by default make platforms like Facebook legally liable for any harm to a minor/s which occurred, as well asbeing resistant to any increase in general protections for minors or any expanded definition of protected "personal information" being included in the Act.
Quartz, 22 March 2018:
Facebook
CEO Mark Zuckerberg said yesterday that the
company welcomes more regulation, particularly to bring transparency
to political advertising online. But in recent months, Facebook has been
quietly fighting lawmakers to keep them from passing an act that does exactly
that, campaign transparency advocates and Congressional staff tell Quartz.
The Honest Ads Act was introduced
last October to close a loophole that has existed since politicians
started advertising on the internet, and was expected by many to sail through
Congress. Coming as Congress investigated how Russia used tech companies to
influence the 2016 election, it was considered by many in Washington DC to be
the bare minimum lawmakers could do to address the problem.
The act introduces
disclosure and disclaimer rules to online political advertising. Tech companies
would have to keep copies of election ads, and make them available to the
public. The ads would also have to contain disclaimers similar to those
included in TV or print political ads, informing voters who paid for the ad,
how much, and whom they targeted.
“The benefit of having
disclaimers on all political ads [is] the more suspicious ads would be more
identifiable,” said Brendan Fischer, the director of federal and Federal
Election Commission reform at theCampaign Legal
Center (CLC) in Washington.
In a vote of confidence
from bitterly-divided Washington, the act was rolled out by a bipartisan group
of senators—John McCain, the Republican from Arizona, and Democrats Amy
Klobuchar from Minnesota and Mark Warner of Virginia—and it currently
has the support of 18 senators. But it hasn’t moved from the committee on
“Rules and Administration” since was first introduced, thanks in part to
Facebook’s lobbying efforts.
Fischer, who is a
co-author of a CLC
report on US vulnerabilities online after the 2016 election, accuses
Facebook of “working behind the scenes using the levers of power to stop any
legislation from moving forward.”
Facebook’s lobbying
clout
Lobbyists for the
company have been trying to dissuade senators from moving the Honest Ads Act
forward, some Congressional aides say.
Facebook’s argument to
Congress behind the scenes has been that they are “voluntarily complying” with
most of what the Honest Ads Act asks, so why pass a law, said one Congressional
staffer working on the bill. Facebook also doesn’t want to be responsible for
maintaining the publicly accessible repository of political advertising,
including funding information, that the act demands, the staffer said.
Facebook spent nearly
$3.1 million lobbying Congress and other US federal government agencies in the
last quarter of 2017, on issues including the Honest Ads Act according to its latest
federal disclosure form. It also signed on Blue Mountain Strategies, a
lobbying firm founded by Warner’s former chief of staff, an
Oct. 30, 2017 filing shows.
It’s part of a massive
uptick in lobbying spending in recent years. [my yellow highlighting]
Despite all its lobbying Facebook Inc is not immune from official censure for its deceptive business practices.
Take this analysis of a 2011 binding agreement between the US Federal Trade Commission and Facebook Inc.....
FEDERAL TRADE COMMISSION [File No. 092 3184], 2 December 2011:
Despite all its lobbying Facebook Inc is not immune from official censure for its deceptive business practices.
Take this analysis of a 2011 binding agreement between the US Federal Trade Commission and Facebook Inc.....
FEDERAL TRADE COMMISSION [File No. 092 3184], 2 December 2011:
The Federal Trade
Commission has accepted, subject to final approval, a consent agreement from
Facebook, Inc. (‘‘Facebook’’)……
The Commission’s
complaint alleges eight violations of Section 5(a) of the FTC Act, which
prohibits deceptive and unfair acts or practices in or affecting commerce, by
Facebook:
*
Facebook’s Deceptive Privacy Settings: Facebook communicated
to users that they could restrict certain information they provided on the site
to a limited audience, such as ‘‘Friends Only.’’ In fact, selecting these
categories did not prevent users’ information from being shared with Apps that
their Friends used.
*
Facebook’s Deceptive and Unfair December 2009 Privacy Changes:
In December 2009, Facebook changed its site so that certain information that
users may have designated as private— such as a user’s Friend List —was made
public, without adequate disclosure to users. This conduct was also unfair to
users.
*
Facebook’s Deception Regarding App Access: Facebook represented
to users that whenever they authorized an App, the App would only access the
information of the user that it needed to operate. In fact, the App could
access nearly all of the user’s information, even if unrelated to the App’s
operations. For example, an App that provided horoscopes for users could access
the user’s photos or employment information, even though there is no need for a
horoscope App to access such information.
* Facebook’s Deception Regarding Sharing
with Advertisers: Facebook promised users that it would not share their
personal information with advertisers; in fact, Facebook did share this
information with advertisers when a user clicked on a Facebook ad.
*
Facebook’s Deception Regarding Its Verified Apps Program:
Facebook had a ‘‘Verified Apps’’ program through which it represented that it
had certified the security of certain Apps when, in fact, it had not.
*
Facebook’s Deception Regarding Photo and Video Deletion: Facebook stated to
users that, when they deactivate or delete their accounts, their photos and
videos would be inaccessible. In fact, Facebook continued to allow access to
this content even after a user deactivated or deleted his or her account.
*
Safe Harbor: Facebook deceptively stated that it
complied with the U.S.-EU Safe Harbor Framework, a mechanism by which U.S.
companies may transfer data from the European Union to the United States
consistent with European law.
The proposed order
contains provisions designed to prevent Facebook from engaging in practices in
the future that are the same or similar to those alleged in the complaint.
Part I of the proposed
order prohibits Facebook from misrepresenting the privacy or security of ‘‘covered
information,’’ as well as the company’s compliance with any privacy, security,
or other compliance program, including but not limited to the U.S.-EU Safe
Harbor Framework. ‘‘Covered information’’ is defined broadly as ‘‘information
from or about an individual consumer, including but not limited to:
(a) A first
or last name;
(b) a home or other physical address, including street name and
name of city or town; (c) an email address or other online contact information,
such as an instant messaging user identifier or a screen name;
(d) a mobile or
other telephone number;
(e) photos and videos; (f) Internet Protocol (‘‘IP’’)
address, User ID, or other persistent identifier; (g) physical location; or
(h)
any information combined with any of (a) through (g) above.’’
Part II of the proposed
order requires Facebook to give its users a clear and prominent notice and
obtain their affirmative express consent before sharing their
previously-collected information with third parties in any (a) through (g)
above.’’ Part II of the proposed order requires Facebook to give its users a
clear and prominent notice and obtain their affirmative express consent before
sharing their previously-collected information with third parties in any way
that materially exceeds the restrictions imposed by their privacy settings. A
‘‘material . . . practice is one which is likely to affect a consumer’s choice
of or conduct regarding a product.’’ FTC Policy Statement on Deception,
Appended to Cliffdale Associates, Inc.,
103 F.T.C. 110, 174 (1984).
Part III of the proposed
order requires Facebook to implement procedures reasonably designed to ensure
that a user’s covered information cannot be accessed from Facebook’s servers
after a reasonable period of time, not to exceed thirty (30) days, following a
user’s deletion of his or her account.
Part IV of the proposed
order requires Facebook to establish and maintain a comprehensive privacy
program that is reasonably designed to:
(1) Address privacy risks related to
the development and management of new and existing products and services, and
(2) protect the privacy and confidentiality of covered information. The privacy
program must be documented in writing and must contain controls and procedures
appropriate to Facebook’s size and complexity, the nature and scope of its
activities, and the sensitivity of covered information. Specifically, the order
requires Facebook to:
* Designate an employee
or employees to coordinate and be responsible for the privacy program;
* Identify
reasonably-foreseeable, material risks, both internal and external, that could
result in the unauthorized collection, use, or disclosure of covered
information and assess the sufficiency of any safeguards in place to control
these risks;
* Design and implement
reasonable controls and procedures to address the risks identified through the
privacy risk assessment and regularly test or monitor the effectiveness of these
controls and procedures;
* Develop and use
reasonable steps to select and retain service providers capable of appropriately
protecting the privacy of covered information they receive from respondent, and
require service providers by contract to implement and maintain appropriate
privacy protections; and
* Evaluate and adjust
its privacy program in light of the results of the testing and monitoring, any
material changes to its operations or business arrangements, or any other
circumstances that it knows or has reason to know may have a material impact on
the effectiveness of its privacy program.
Part V of the proposed
order requires that Facebook obtain within 180 days, and every other year
thereafter for twenty (20) years, an assessment and report from a qualified,
objective, independent third-party professional, certifying, among other
things, that it has in place a privacy program that provides protections that
meet or exceed the protections required by Part IV of the proposed order; and
its privacy controls are operating with sufficient effectiveness to provide
reasonable assurance that the privacy of covered information is protected.
Parts VI through X of the proposed order are reporting and compliance
provisions. Part VI requires that Facebook retain all ‘‘widely disseminated
statements’’ that describe the extent to which respondent maintains and
protects the privacy, security, and confidentiality of any covered information,
along with all materials relied upon in making such statements, for a period of
three (3) years. Part VI further requires Facebook to retain, for a period of
six (6) months from the date received, all consumer complaints directed at
Facebook, or forwarded to Facebook by a third party, that relate to the conduct
prohibited by the proposed order, and any responses to such complaints. Part VI
also requires Facebook to retain for a period of five (5) years from the date
received, documents, prepared by or on behalf of Facebook, that contradict,
qualify, or call into question its compliance with the proposed order. Part VI
additionally requires Facebook to retain for a period of three (3) years, each materially
different document relating to its attempt to obtain the affirmative express
consent of users referred to in Part II, along with documents and information
sufficient to show each user’s consent and documents sufficient to demonstrate,
on an aggregate basis, the number of users for whom each such privacy setting
was in effect at any time Facebook has attempted to obtain such consent.
Finally, Part VI requires that Facebook retain all materials relied upon to
prepare the third-party assessments for a period of three (3) years after the
date that each assessment is prepared.
Part VII requires dissemination of the
order now and in the future to principals, officers, directors, and managers,
and to all current and future employees, agents, and representatives having
supervisory responsibilities relating to the subject matter of the order. Part
VIII ensures notification to the FTC of changes in corporate status. Part IX
mandates that Facebook submit an initial compliance report to the FTC and make
available to the FTC subsequent reports. Part X is a provision ‘‘sunsetting’’
the order after twenty (20) years, with certain exceptions.
The purpose of the
analysis is to aid public comment on the proposed order. It is not intended to
constitute an official interpretation of the complaint or proposed order, or to
modify the proposed order’s terms in any way.
By direction of the Commission.
Donald S. Clark, Secretary. [FR Doc. 2011–31158 Filed 12–2–11; 8:45
am [my yellow highlighting]
Labels:
Big Brother,
big data,
ethics,
Facebook,
information technology,
Internet,
law,
privacy,
safety
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