How to Tame Global ISPs

1. APPA Conference, Jeju How to Tame Global ISPs June 3, 2011 Whon-il Park Kyung Hee University Law School

2. Contents • Taming the Shrew? • Google Case in Korea • Movie “Avatar” • Avatar Theory • Avatar - Three Tests • Conclusion

3. Taming the Shrew? • Shakespeare described it as One-sided Relationship. • Rather it would be like taming a Fox, as explained by Saint-Exupery in The Little Prince - Being patient; and - Getting closer day by day.

4. Google Case in Korea (1) • In August 2010, Korean Police investigated Google Korea on suspicion of illegal data collection by Google’s Street View cars. They sought to map towns and cities in more than 30 countries. → To verify unauthorized collection and storage of data on unspecified Internet users from Wi-Fi networks. • A string of code in the production systems of Street View cars allowed Google to retrieve and store information about the networks’ location, names and MAC addresses on wireless networks that were not password protected. Reported by Guardian

5. Google Case in Korea (2) • In January 2011, the Korean NPA Cybercrime Unit found evidence that Google illegally collected private data while producing its Street View mapping service in Korea. • After decoding passwords on the seized disks, which took several months, Police discovered e-mails and online chats individuals exchanged through unencrypted Wi-Fi networks. • Investigations are reportedly underway in 20 countries around the World.

6. Google Case in Korea (3) • Who is responsible for such wrong-doings? • Google Top Management in San Jose? → No presence in the territory of Korea • Google Korea? → No, it’s an independent entity. • Google employees? → No, it’s not so effective enforcement of law. • The Korean Police came to the conclusion of Non-indictment against Google Management.

7. Google Case in Korea (4) • Then is the enforcement of law useless? → Traditionally so in the context of “Piercing the Corporate Veil” or “Disregard of Corporate Entity” doctrine. • In Google Case in Korea, “Alter Ego” theory or “Pure Instrumentality” theory does not work as anticipated because of no physical presence of Top Management accountable for such illegal activities in Korea.

8. Avatar

9. Avatar Theory (1) • An Avatar theory can answer the above question. • In the Movie, the Na’vi tribe was on the brink of total destruction of their Paradise in Pandora. • Those Avatar controllers escaped the fleet and joined the Na’vi to defend the Paradise. • Avatar and its controller became one body. • They successfully defended the Paradise.

10. Avatar - Three Tests • Likewise, global ISPs are subject to the same treatment as in the movie Avatar. Though such ISPs act via Avatar in the cyberspace, • First, violation of the local Privacy law takes place; • Second, infringing upon the privacy of citizens in an irreparably damaging manner; and • Third, Avatar and the accused are regarded undoubtedly as one body.

11. Avatar Theory (2) • One more thing should be added: • Concerted pressure on the wrong-doing global ISPs is in great need. • International cooperative action and exchange of investigation information among the affected Privacy Authorities are necessary. • The ISPs under international siege have no alternative but to surrender.

12. Conclusion • Taming each other? • Yes, in a sense. As in The Little Prince, it is requested - Being patient; - Getting closer day by day; and - Technically smart not to violate the local Privacy law and observe the corporate privacy policy. • It means ISPs are allowed to use personal information anonymous and/or encrypted insofar as they abide by the local Privacy law.