got privacy?  Musings on the state of Privacy in a connected world.
 
By Raul Mendez, LLM Information Technology Law, Digital Privacy Professional.

On April 12th, 2010, the Honorable Judge Oscar Magi, Judge for the Tribunale Ordinario de Milano, in composizione Monocratica, Sezione 4 Penale (Milan Court) filed a document entitled Sentenza N. 1972/2010.  

 This Sentenza may be regarded as the most shocking event in the field of privacy duties imposed on Data Controllers (DC) and data controller's officers, since the enactment of Directive 95/46/EC of the European Parliament and of the Council of the 24 October 1995 (privacy directive).

The document created by Judge Magi was in direct result to a guilty verdict imposed on : a) David Carl Drummond, b) George De Los Reyes, and c) Peter Fleischer under Legge 31 Diciembre 1996 n. 675 as punishable under article 167, comma Secondo del DLgs 30 Giugno 2003 n. 1996 (criminal charge).The guilty verdict was handed down by the Honorable Judge Magi on February 24th, 2010.

A fourth person, named Arvind Desikan, was accused under the same cause number for the same crimes, but was found not guilty of all charges.7 When the Sentenza was filed, Judge Magi had already sentenced, in absentia, all of the defendants to a six months prison term with all of the time suspended.

The sentenza handed down by Judge Magi raises a multiplicity of issues. Problematic are the exposure to criminal liability and the freezing effect this decision will bring.

The attached thesis analyzes the following areas:

Nature of the Charges: This section will explain the three different charges brought against the defendants and the ultimate resolution for each of the charges.

The Facts of the Case: This section will discuss the facts as they were found by the court. The role for each defendant and Google Inc. will be presented in different sections.

Background For User Generated Content Providers (UGCP's): This section will explore the roots of the movement and the technologies behind the movement.

Conflict Of Laws: This section will discuss the specific issues created when one or more countries' laws affect the outcome of a dispute. This discussion will be divided in two sections 1) jurisdiction and 2) choice of law.

The Privacy Directive: This section will explore the roots of the privacy directive, the inherit struggle between United States laws and European Union directives, and the amalgamation of laws. Most importantly, this author will explain the basis of jurisdiction for wholly non European Union based Data Collectors.

Jurisdictional Issues: Should Italian law and European Union Directives be applied to the Google case, even though Google's servers and data uploaded are located outside of the jurisdiction of Italy and the European Union.

Personal Data: Did the Italian court apply the wrong criteria for the classification of personal data, and would it make any difference in the outcome. 

Exemption Under Host-Service Provider Classification: Does the European Union directive 2000/31/EC (e-commerce directive)protect Google from liability. 

If you would like to contact Raul, either email raulmendez1@earthlink.net  or call 206.264.0849
thesis.pdf
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