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UK watchdog would cease to enforce data protection law if Supreme Court sided with Google, its lawyer tells judges • The Register

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A barrister for the Information Commissioner’s Office hinted the regulator would stop enforcing the law on data breaches if the Supreme Court sides with Google in a case about class-action lawsuits.

The startling threat was made on behalf of the ICO by barrister Gerry Facenna QC, who was intervening on the authority’s behalf in the Lloyd v Google data protection case.

“If a large number of data subjects have had their data lost, then they have per se suffered damage: harm of the type that I described, namely loss of control of their data,” Facenna told judges in the UK’s highest court. “That is the commissioner’s view of these provisions, that’s the basis on which she takes regulatory action at the moment. If the word ‘damage’ in this regime does not include mere loss of control, it would have to be taken into account in the exercise of those regulatory barriers.”

Facenna was speaking about the difference between a “loss of control” of data by a data controller and “damage” suffered by data subjects as a result of that loss. A loss of control (as alleged here, using personal data given for one purpose for something else altogether) is against the law.

Google previously argued in the case that in law there should be a difference between loss of control and damage, saying that even though it caused the loss of control of millions of Safari users’ data it shouldn’t be held liable because there is no coherent proof anyone suffered damage (in the legal sense) as a result.

Facenna’s written submissions to the Supreme Court about this made the ICO’s position plain, saying:

The barrister also insisted that the ICO was not siding with Richard Lloyd, whose Google You Owe Us campaign aims to extract up to £3bn from Google for its early-2010s Safari Workaround naughtiness, up to half of which will go to a venture capital fund backing the campaign.

You can’t consent to something that’s unlawful

Before Facenna’s arguments came Hugh Tomlinson QC, who was putting Lloyd’s case against Google to the Supreme Court’s judges. Tomlinson had argued the exact same thing as Facenna; drawing a legal distinction between loss of control and damage caused by a data breach would, he said, create a great big hole in data protection law for companies who set out to deliberately misuse it.

While accepting that British users of Apple’s Safari browser in the early 2010s were “very unlikely” to have “suffered material damage” from Google slurping their browser-generated information to beam targeted ads at them, Tomlinson added: “It’s obvious the members of the class have the same interest in the claim. Their interest is in establishing Google breached their data protection rights by operation of the Safari Workaround.”

Profiteering and vindication

Lord Burrows, one of the judges, pondered why “culpability for the breach is relevant” for a loss-of-control case. How could suing Google for loss of control be “effective” when the alleged naughtiness was “profiteering” by a business rather than an overtly criminal act?

“My lord,” answered Tomlinson, picking his words carefully, “we say, from the point of view of the claimants, that losing control of your data or private information where someone has given it away, is a different and more serious wrong than one where it has been done accidentally.”

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Unsatisfied, Lord Burrows got to the heart of his question: “But it sounds to me – I’m putting it to you now, that what you’re focusing on is not loss of control, you’re focusing on the nature of the breach and that is what you’re seeking the award for. This isn’t compensation at all, that you are in effect asking about something like vindicatory damages.”

It was explained earlier that vindicatory damages wouldn’t be available for Lloyd’s claim against Google. Dropped in front of a treacherous hill, Tomlinson shifted down a gear, looking the least confident that he had at any point in this case since 2018.

“I am certainly, as your lordship knows for reasons which concern the constitution of a representative action – I cannot focus on the individual circumstances of the claimants because that would make it impossible to have a collective action. So I am focusing on the nature of the breach,” said the QC.

And we get back to the money

As for the funding of Lloyd’s case, Tomlinson was blunt: without Therium Capital Partners LLC backing it and paying Lloyd his £50,000 salary, suing Google “wouldn’t have been practical in this case.” He also revealed that Lloyd’s lawyers would be “seeking an order that [if it lost the main case] Google paid damages to the representative on behalf of the members of the class.”

This means Lloyd and his backers would have control of whatever compensation Google was ordered to pay out.

Lord Leggatt, another judge, asked about this. “Suppose damages are awarded on the basis the claimants are entitled to £500 or whatever it is. What is the legal basis for the first part of that sum to be paid out to the litigation funders without their consent? [The members of the class] never signed up to the litigation funding?”

“Because,” replied Tomlinson, “that is the cost of obtaining the damages. It’s the cost of getting in the fund.”

Lord Leggatt replied: “They didn’t choose that the funders should get the first 40 per cent or whatever it is.” Google has previously pointed out in court that Therium Litigation Funding IC is in fact entitled to 50 per cent of the winnings.

Tomlinson dismissed this by saying members of the representative class could take whatever pittance Lloyd offered them or go away and start their own lawsuit, saying: “Your lordship is right, of course, they didn’t authorise it but the position is, without the funders, there’d be no fund at all, and as I say [members of the class] have the option to come to court and say ‘we don’t want anything to do with this action.’ Or ‘we want to proceed on our own.’ Or ‘we’re not interested in it in any way.'”

Realising this approach would mean that damages awarded to millions of people would end up concentrated in the pockets of a tiny handful, Lord Leggatt persisted: “I’m not sure how you say damages awarded to them can be allocated without their permission to litigation funders… what’s the legal principle there, more precisely? Inherent jurisdiction, restitutionary principle? What is it?”

“Mr Lloyd is the trustee of the funds,” explained Tomlinson. “He would hold it on trust for a member of the class. The trustee is entitled to remuneration for getting in the trust’s property. It is on that analogy, we say, one of the costs of getting in the trust property is the cost of funding the litigation.”

The case has now concluded and judgment will be handed down in the not-so-near future. It will set a binding precedent on how class-action lawsuits go ahead in future, so the principles here will set the tone of mass data protection lawsuits for the 2020s.

Once the Supreme Court rules on the legal question being decided here (whether Lloyd should have been refused permission to serve his not-quite-a-class-action case on Google), a lower court will have a full hearing of the Data Protection Act rights and wrongs – and, in turn, that court’s future decision will probably end up being appealed every which way. The odds of any ordinary person receiving a payout from Google are remote in the meantime, but El Reg will be chronicling it all nonetheless. ®

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New York’s mayor is getting paid in bitcoin. But can he pay the bills with it? | Eric Adams

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New York’s new mayor gets his first paycheck on Friday – and as part of his bid to keep the city “on the forefront of innovation”, he’ll be receiving his wages in cryptocurrency.

“New York is the center of the world and we want it to be the center of cryptocurrency and other financial innovations,” Eric Adams said in a press release.

But even in the center of the world, trying to live on ethereum or bitcoin might be a struggle. The subway won’t take it, and it’s hard to fit dogecoin in the quarter slot at the laundromat. So what will Adams actually be able to do with his paycheck?

Will he be able to eat?

Yes. Getting groceries might be difficult – in 2019, Whole Foods began accepting cryptocurrency via an app-based payment system called Flexa, but a customer care representative said on Thursday that the company was not currently taking cryptocurrency.

But the vegan mayor might have better luck at restaurants. Yelp allows users to filter for restaurants that accept cryptocurrency – though calls to the spots and visits to their websites suggest some of the claims are inaccurate.

He could also use a workaround and purchase a gift card with bitcoin using one of various platforms such as Bitrefill and Fold. That could get him a coffee at Starbucks or an order through DoorDash; it also works for Amazon, Netflix and other companies.

(Adams’s cryptocurrency paycheck is itself the result of a workaround, since department of labor regulations require the city of New York to pay employees in dollars. The mayor’s office says the paycheck will “automatically be converted” to cryptocurrency before it is made available to him, using the platform Coinbase.)

That means that Adams’s paycheck must first be converted from dollars to cryptocurrency, then be converted to a gift card, and finally be used to buy a smoothie. Efficient!

Another trick: he could turn to PayPal, which lets users spend cryptocurrency for transactions (Mastercard has a similar program). But the app first converts the cryptocurrency to actual dollars – creating another pointless cycle and contributing to a system that, according to Cambridge researchers, uses more electricity per year than the country of Argentina.

Will he be able to keep the lights on?

Probably not without turning to his actual bank account. Con Edison, New York’s enormous electricity and gas utility, does not accept cryptocurrency payments, a representative said. Cryptocurrency does a great job of draining the world of energy, but using it to buy some back appears difficult.

Of course, he’ll be living in Gracie Mansion, the New York mayor’s residence – meaning, presumably, he won’t be paying these bills anyway. Nor will he have to worry about whether his landlord accepts bitcoin.

Will he be able to get anywhere?

Not if he wants to take the subway like a normal New Yorker or any other transportation provided by the Metropolitan Transportation Authority. The MTA doesn’t accept cryptocurrency, a spokesperson said.

If he gets stuck, Adams might be able to hail an Uber using his paycheck, but it could be a long wait at the corner. Uber’s CEO, Dara Khosrowshahi, indicated in February that he was open to accepting bitcoin in the future, but when is unclear. In the meantime, he could buy an Uber gift card.

Will he be able to use the very internet that cryptocurrency depends on?

Again, he could have trouble. Verizon Fios, New York’s biggest internet provider, does not appear to offer a cryptocurrency option for online payments. Adams may find himself turning to his pre-mayoral savings if he wants to check the price of bitcoin.

So what will he actually do?

Adams’s office did not immediately respond to a request for comment. But he may well just “hold on to it as an investment”, says Neeraj Agrawal, communications director at Coin Center, a non-profit focused on cryptocurrency policy. “That has become the more common use of bitcoin these days.”

Or, if he’s feeling really financially innovative, he could go totally virtual: it won’t get him a ride on the subway, but he could buy the word “MetroCard” as an NFT for the equivalent of about $30.

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The assailants were pixelated, I’d know them anywhere • The Register

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Something for the Weekend, Sir? Stop that uterus! It stole my wallet!

What do you mean, “Can you identify the uterus in question?” It looked like a uterus! Or, as we’ve been singing it all through Christmas, a wooooom*.

Talk about getting the new year off to a bad start – I’ve just been robbed by a delinquent reproductive organ. Yet the all signs were there: I knew 2022 would be doomed back in early December when I read that the Salzburg Schokolade company, inventors of the mighty last-minute-airport-gift-shop chocolate ball Mozartkugel, had gone bust.

No, an oversize Toblerone will not suffice. M&Ms? In the bin, pal. Mr Ambassador, you can stick your Ferrero Rochers up your arse. Mozartkugeln were my faux-posh-but-actually-quite-cheap traveller chocs of choice. And now they’re gone forever!

First Bowie, then this. The world is falling apart.

A kindly officer of the law tries to bring me back to my senses following my unexpected mugging. Yes, thank you, I would like a drink. I’ll have an Adios Motherfucker*, please.

Without batting an eyelid, the policewoman strides down the corridor to the drinks machine, taps a few buttons on the display and returns after just 30 seconds with my glass of blue liquid revival. That was quick. The drinks machine must be a Mixo Two: an ingenious local invention that claims to be able to mix any of 300 cocktails in half a minute.

I glug it down, spit out the lemon slice and cherry, and hand back the little umbrella. I decide I’m feeling particularly agitated and may well need more calming down. 299 to go.

Now that my thoughts are clearing, I admit it’s possible my assailant might not have been a uterus after all. It might have been a whole human. I tell my police interviewers that my initial impression of a uterus suggests that it may have been a woman. I am lectured for the next 10 minutes on my questionable observation with the aid of infographics and a flipchart.

Choosing my words more carefully, I try to provide a full description of the thief. It all happened so fast. The last thing I remember, I had escaped the pandemonium at home – workers fixing the WC again – and settled down in a nearby cafe for a break. Well, primarily for a pee in their restroom, then I felt obliged to order a coffee. While waiting for it to arrive, I opened my laptop and continued browsing the hundreds of images taken during Mme D’s recent MRI scan.

Here’s one.

Screenshot of MRI scan of patient's uterus

Protect the innocent: to avoid identification by a web-scraping AI, this uterus has been pixelated. [Click to enlarge]

Prior to this, my only knowledge of MRI scanning comes from British colleagues at the IEEE who are finalising the unveiling of an IEEE Milestone plaque to commemorate the development in London during the 1980s of active shielding of superconducting magnets.

Mme D had a more detailed prior knowledge of MRI scanning as the result of watching every episode of House on Netflix. She reported that her only disappointment was that the operators seemed to concentrate on the scan rather than discuss their sex lives or call each other an idiot before suddenly dashing out the room after answering a call on their cellphone.

What neither of us expected was to be handed a CD of the highlights.

It doesn’t just contain a folder of images but a Windows autoplay program to browse them in detail. My favourite feature of the CD is the Cinema View, which plays back the scans at 25 frames per second. In fact, I had settled down in the living room with a Kia-Ora and carton of popcorn to watch Mme D’s innards on the big screen when the workmen arrived and enforced an early intermission.

It was when the coffee arrived at my table that I realised my wallet was not in my usual pocket, or indeed in any of my unusual pockets either. “Robbed!” I wailed. “No tip!” wailed the waiter. The police were duly called.

What was the last thing I saw before the incident? Er… a uterus. I describe it in as much detail as possible, at 25 frames per second.

So, I ask, are you going run it through your vast, secretive photo-fit database of the population, using some whizzy AI to shortlist the candidates?

Ah no, they respond, we’re not allowed to do that. And then they wink. All of them, in sync, which is a bit creepy. Then I am sent on my way, gently steered back up the corridor in the opposite direction from the Mix Two.

This is the usual conundrum. Scraping the net for the purposes of building a database for security services is still illegal unless you have really good PR, and the use of AI to crawl around the net and randomly apply face recognition to identify ne’er-do-wells is ethically dubious. In most cases, it can’t be done at all (yet).

On the other hand, machine learning is a fabulous tool for health research, if only we can throw enough data at it. The problem is that more people would be happy to share their medical data if they thought it wouldn’t be subsequently misused. And it will always be misused: that’s what personal data is for.

The last thing I’d want is for my photo to turn up on a hit-list of Interpol’s most-wanted criminal uteruses.

Back home, I am comforted by Mme D, who had been wondering what had prompted me to leave the house while a team of plumbers, electricians, interior decorators, plasterers, architects, stone masons, ironmongers, seismologists, stage illusionists, tap dance instructors, steel drummers, and celtic swordsmen were trampling all over it to refit the toilet for the fifth time.

I mumble a reply, collect the now-soggy popcorn and drag myself back into my office.

“By the way,” she calls, “you left your wallet on the kitchen table so I locked it in the filing cabinet.”

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Alistair Dabbs

Alistair Dabbs is a freelance technology tart, juggling tech journalism, training and digital publishing. Back when he ran an office in London’s trendy Hoxton, he attended several cocktail workshops – an essential skill for the Silicon Roundabout crowd. The one thing he learnt was that everything is topped up with sugar water. Bleuh. More at Autosave is for Wimps and @alidabbs.

*As an infant, I reasoned that “wooooom” was the kind of thing that a sheet-clad apparition moans while a haunting a castle. It was the holy ghost.

**Vodka, rum, tequila, gin, blue curacao, 7 Up, sweet & sour mix.



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‘Hiring is a big challenge for the IT industry’

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Citrix’s Meerah Rajavel discusses the biggest challenges in today’s IT landscape, from remote working and talent shortages to security.

Meerah Rajavel is CIO at Citrix a multinational cloud computing company that provides server, application and desktop virtualisation, networking and cloud computing technologies.

Rajavel has more than 25 years’ experience at well-known tech companies such as McAfee, Cisco and Forcepoint. In her current role, Rajavel she leads the company’s IT strategy.

What are some of the biggest challenges you’re facing in the current IT landscape?

Many companies viewed remote work as a temporary solution to the pandemic and business leaders continue to push for a return to the old days where employees work in the office every day. But we just did two polls on LinkedIn and Twitter that show this isn’t likely to happen.

That’s going to challenge a lot of organisations, because working remote isn’t easy. When it comes to addressing the technical aspects of how employees can cope and remain productive, you’ve got to walk in their shoes and understand how they leverage technology to achieve business outcomes.

The key to keeping employees engaged lies in providing consistent, secure and reliable access to the systems and information they need to get work done – wherever it needs to get done. And it takes more than just flipping the switch on technologies. Culture plays a huge role in adoption.

Another big challenge IT is faced with is hiring. It’s difficult to find high quality candidates in the areas of security, design thinking and user experience, data science and analytics right now. And there are a few reasons for this. Security remains a critical priority for CIOs. In the hybrid cloud, remote working, BYOD world we now live in, more resources are required to ensure that corporate networks and assets remain safe. And demand far exceeds supply.

When it comes to design thinking, the paradigm is shifting away from user-centric thinking toward human-and-machine thinking. This requires designers to be well versed with the constructs of the possibility of artificial intelligence and machine learning and analytics in addition to user experience in their workflow design process. And that’s a skill that’s not widely available.

What are your thoughts on digital transformation in a broad sense within your industry?

In the last decade, the digitalisation of everything has caused every company – regardless of industry – to become a software company. From mobile banking and virtual healthcare visits to self-driving cars and automated food prep and delivery services, software applications are embedded into nearly every aspect of the economy and our lives.

And as they embark on digital transformation initiatives to support this trend, IT leaders need to align with their business counterparts and make sure they’re collectively approaching things from an inside-out, company-wide perspective.

For me, any type of change management needs to be broken down into three key focus areas: people, process, and technology. But it’s imperative that you start with the people because without first establishing a culture around the change, it will be difficult to achieve success.

‘Digitalisation of everything has caused every company – regardless of industry – to become a software company’
– MEERAH RAJAVEL

When it comes to people, we are particularly mindful of two important elements: culture and training. First, we’ve worked to establish a culture that encourages risk taking and organisational success over individual success. Second, we’re investing in training programmes that enable individuals to confidently transition to the new technologies or way of working and be immediately effective.

In digital transformation, technology needs to be integrated into the ‘flow’ of business, which demands IT and business to embrace shared methods and process. For process, we’ve anchored on standards like safe agile frameworks that make culture and operational efficiency key pillars of any project, to help iterative value delivery and ease of adoption across all areas of the business.

And perhaps most important, we’re investing in the technology – including our own – to help automate and integrate workflows so we can reduce time to production, minimise disruption to the business and increase effectiveness.

What are your thoughts on how sustainability can be addressed from an IT perspective?

In embracing remote work and enabling it through technology, companies can drive their ESG goals and create a more sustainable business and future.

Using digital workspace technologies, for instance, they can give employees access to everything they need to engage and be productive wherever they happen to be, reducing the need to commute and the carbon emissions associated with doing so.

They can also eliminate the need for applications and data to reside on endpoint devices and transition from energy-intensive desktops to energy-efficient laptops to increase their energy efficiency. And because no data is required to live on these devices, they can extend the life of their equipment and reduce waste.

What big tech trends do you believe are changing the world?

We did some research that showed 93pc of business leaders think the increased digital collaboration forced by remote work has amplified more diverse voices, resulting in richer idea generation. And as flexible work becomes the norm, the vast majority expect enhanced equity and collaboration to continue and fuel an era of hyper-innovation. And this excites me.

With flexible work, I see more innovation happening to converge physical and digital experiences. Whether it’s concept like metaverse or technologies like AI/ML and VR/XR integrated into the collaboration tools, all aim to enhance the experience and effectiveness for users in a location agnostic fashion.

What are your thoughts on the security challenges currently facing your industry?

The threat landscape has become much more sophisticated as a result of remote and hybrid work and protecting employees has never been more critical – or difficult.

Employees want the freedom to work when, where and how they want using the devices of their choice. And to attract and retain them in what is no doubt the tightest labour market the world has ever seen and keep them engaged and productive, IT needs to serve it up, all while ensuring corporate assets and data remain safe.

It’s among the biggest challenges we face. And to overcome it, we must move beyond thinking that security and user experience are mutually exclusive and take an intelligent approach to workspace security that combines the two following the zero-trust model to give employees simple, unified access to the apps and information they need, when and where they need it, to perform at their best.

We’ve also witnessed two major software supply chain attacks in the last 12 months with SolarWinds and Log4j.

The first is an example of how easily malicious code can be remotely injected into a simple software update delivered to thousands of enterprises and government agencies worldwide. The second highlights how threat actors are increasingly targeting the vulnerabilities in third-party software components to cause widespread havoc.

All of this underscores the importance of securing the software supply chain and adopting practices like DevSecOps.

Don’t miss out on the knowledge you need to succeed. Sign up for the Daily Brief, Silicon Republic’s digest of need-to-know sci-tech news.



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