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Conversation 14 Feb 2018

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Question of who can demand to read your emails reaches court

The US Supreme Court is due to decide this month on a case that could go some way to settling a very modern quandary: where does digital data reside and who should have control over it?

The case is the culmination of a five-year legal stand-off between Microsoft and the US Justice Department over whether a warrant issued in the United States as part of a drug-trafficking case can be used to access an email held on its servers in a foreign country, in this case Ireland, where doing so may violate local law.

In a world in which governments, including the UK’s, struggle to assert their authority over the powerful US tech giants, the result could have far reaching consequences for the rights of corporations and individuals to protect their data. It’s particularly important for suppliers of cloud services such as Microsoft, Google, Amazon and IBM, who may hold data on servers in multiple territories

When served with a warrant in 2013, Microsoft agreed to provide records stored in the US, including the email customer’s electronic address book. However, it refused to hand over the contents of the emails, which were stored in Ireland. Its position was that the rules that apply to a search warrant in the physical world should apply online. It is a stance supported by a group of 51 computer scientists in one of many amicus briefs submitted to the court. “Notwithstanding their nearly instantaneous accessibility around the world, personal emails stored in a Dublin cloud data centre are no less physically present in Ireland than are personal letters stored in a Dublin bank safe deposit box,” they argued.

Brad Smith, Microsoft’s president and chief legal officer, contended last year that any other interpretation “puts everyone’s emails at risk”. He added: “If the US government can unilaterally use a warrant to seize emails outside the US, what’s to stop other governments from acting unilaterally to seize emails stored inside the US? At a time when countries are rightly worried about foreign government hacking, the Department of Justice’s interpretation would open the door to accomplishing the same thing.”

The US government countered that an inability to access evidence pertaining to the US would mean that investigations into crimes ranging from terrorism to child pornography would be hampered by the government’s “inability to obtain electronic evidence”.

The case embodies the very different attitudes to data privacy of the US and the EU, where the new General Data Protection Regulations, which come into force in May, stipulate that European personal data should not be exported to a location with lower privacy protections than in Europe.

Serena Tierney, a lawyer in digital business and privacy at Veale Wasbrough Vizards, sees the case as a fight between Article 8 of the European Convention on Human Rights, which provides a right to respect for an individual’s “private and family life, his home and his correspondence” and the Fourth Amendment of the US constitution, which protects individuals from “unreasonable searches and seizures”. As Article 8 is broader in scope, she argues, the Supreme Court may reasonably be expected to allow the wider, European, protection to apply.

Whatever the Supreme Court justices decide, their ruling is likely to redraw the battle lines between the state and the corporate sector.

It should also provide a partial answer to another big conundrum of our days: should nation states be the primary rule-makers over how the internet behaves in their territory and, if not, who, in the absence of an international treaty on the subject, should be in charge of determining global internet policy?

Alexandra Frean

How dreaming about the same person over and over again does mean something

Recurring dreams are more common than we think – two thirds of us experience them

What could it all mean? (Image: Getty)

Dreams can be anything from immensely satisfying, to bittersweet right through to absolutely terrifying – and everything else in between.

Perhaps the most perplexing of all dream models are recurring dreams – in particular if they always feature the same person, over and over again.

Maybe you’re happy to see this person. Or perhaps they’re your sworn nemesis. Either way, their repeat dream-time cameos DO mean something, apparently.

While it’s not uncommon to have recurring dreams (two thirds of us experience them) the reasons behind them are, psychologically, interesting.

What does it all mean?

Luckily, the purpose behind someone cropping up repeatedly in your dreams isn’t as literal as you many think it is. I.e. they’re not a sign you’ll be spending the rest of your life with them (sorry).

Two thirds of us have dreams with recurring people, themes and scenarios 

“The model of the mind is very true to the idea of a computer,” clinical psychologist Dr John Mayer told Elite Daily .

“When we go to sleep, that little computer will keep churning. It doesn’t just turn off and stop. We have a perception that we’re blank when we sleep – but [the brain] keeps going.”

Instead, these appearances may be related to what you’re going through (Image: The Image Bank)

Dr Mayer adds we should not take someone cropping up in our dreams repeatedly in a literal way. That person is instead symbolising a certain stress or anxiety we are going through.

“The dreams are usually not exactly the same each time, but the recurring theme is usually something in your head that is somehow unresolved. It just keeps repeating over and over again in that computer.

Can’t sleep? This trick can help you nod off in a minute

“So if the data is the same in the machine, you need to replace it with other data, or resolve that conflict, or solve that problem.”

And if you’re having a dream that’s particularly upsetting, Dr Mayer advises finishing it off yourself by putting your head down and ending the dream in an “unexpected and positive way.”


Nestlé under fire for marketing claims on baby milk formulas

Exclusive: Report finds Swiss multinational is violating advertising codes and misleading consumers with nutritional claims

A boycott campaign poster against Nestlé baby milk products at the Hay festiva, 2002. Photograph: Kathy deWitt/Alamy Stock Photo

The Swiss multinational Nestlé has been accused of violating ethical marketing codes and manipulating customers with misleading nutritional claims about its baby milk formulas.

A new report by the Changing Markets Foundation has found that Nestlé marketed its infant milk formulas as “closest to”, “inspired by” and “following the example of” human breastmilk in several countries, despite a prohibition by the UN’s World Health Organisation (WHO).

The study, which analysed over 70 Nestlé baby milk products in 40 countries, also found that Nestlé often ignored its own nutritional advice in its advertising.

In South Africa, the firm used sucrose in infant milk formulas, while marketing its Brazilian and Hong Kong formulas as being free of sucrose “for baby’s good health”.

In Hong Kong, it promoted its baby milk powders as healthier – because they were free from vanilla flavourings – even as it sold other vanilla-flavoured formulas elsewhere in the territory.

Nusa Urbancic, campaigns director for the Changing Markets Foundation told the Guardian: “We have come to understand that companies manipulate consumers’ emotional responses to sell a variety of products, but this behaviour is especially unethical when it comes to the health of vulnerable babies.

“If the science is clear that an ingredient is safe and beneficial for babies then such ingredients should be in all products. If an ingredient is not healthy, such as sucrose, then it should be in no products. Nestlé’s inconsistency on this point calls into serious question whether it is committed to science, as it professes to be.”

Nestlé is the global market leader for infant milk products with a market share of close to a quarter. It has been dogged by the advertising issue since a 1974 report called The Baby sparked a worldwide boycott.

In 1981, the WHO adopted a strict code of advertising banning the promotion of baby milk products as being in any way comparable to breastmilk. Nestle insists that it follows the code “as implemented by national governments”.

But the new report finds that it touted products in the US such as Gerber Good Start Gentle powder as “our closest to breastmilk”, and sold its Beba Optipro 1 powder in Switzerland as “following the example of breastmilk”.

Similar Nestlé products in Hong Kong and Spain were advertised as being “inspired by human milk”, and having “an identical structure” to breastmilk.

The company did not respond to specific questions about the new study but a Nestlé spokesperson told the Guardian it supported WHO recommendations and believed that breastmilk was, wherever possible, “the ideal source of nutrition for babies.”

However, not all infants could be breastfed as recommended and “where needed or chosen by parents, we offer high quality, innovative, science-based nutritional products for mothers and infants from conception to two years of age,” the employee said. “We market these products in a responsible way at all times, and the claims made on our products are based on sound scientific evidence.”

Some academics, though, have highlighted the way that language used by corporates to promote infant milk formulas can sometimes mislead consumers about this.

Last year, Prof George Kent of the University of Hawaii wrote that describing a product as “closer to breastmilk … is not the same as saying it is close to breastmilk. New York is closer than New Jersey to Paris, but that does not mean New York is close to Paris.”

Breastmilk is a “personalised” and continuously changing nutrition between mother and child that contains live substances – such as antibodies and immune-system related compounds – which cannot yet be replicated in a lab.


From the archive: Love, marriage and extramarital affairs in the 60s

A look back at marital advice from the Observer Magazine

Surface tension: a couple take to the water on the cover of 5 May 1968 issue Photograph: David Franklin/Observer

‘Where has the love gone?’ asked Kylie Minogue, 52 times to be precise, in her 1994 single of the same name. Well, she needn’t have worried – the 5 May 1968 Observer Magazine wrote a piece attempting to get to the bottom of this exact mystery.

The conclusion? It’s quite complicated, but the answer is not perhaps what you would expect from a 1960s publication and a journalist who became one of the foremost religious writers of her generation. Marriage, the Observer journalist Monica Furlong writes, is the succubus of love and spontaneity.

‘People in love seem to capture some childish freshness of vision, to see, smell, touch, caress, kiss as if they never have before,’ Monica muses. Marriage on the other hand ‘is the gradual death of curiosity and uncertainty which make the early stages of a love affair so exciting.

‘There is a collapse of the projections which each has placed upon the other. Husband and wife, if they are in love, had invested each other with all kinds of fantasies… Gradually within a year or two of marriage, a couple become able to distinguish their fantasies from the reality of the situation, and each partner may feel that they have married a stranger.’

So much for wedded bliss, eh? Monica, incidentally, did go on to marry and have two children. Although she did also become a keen proponent of the benefits of LSD in her late 30s, so perhaps a lack of projections is one pitfall of marriage she didn’t encounter in the 60s and 70s. She actually wrote a book on the subject entitled Travelling In, which had the distinction of being banned from Church of Scotland bookshops.

The piece ends on a more optimistic note. How does one navigate the rough sea between the joie de vivre of newfound love and the stale marriage bed? Well the answer is simple – sex! In particular, extramarital.


French girl, 11, ‘not a child’ say lawyers for man, 29, accused of sexual abuse

Case rekindles debate about age of consent in France as family argue suspect should be charged with rape

The suspect’s lawyers Marc Goudarzian and Sandrine Parise-Heideiger arrive at court in north-west Paris. Photograph: Francois Mori/AP

A 29-year-old French man went on trial on Tuesday in a Paris suburb accused of sexually abusing 11-year-old girl in a case that has rekindled debate about France’s age of consent.

France does not have a legal age under which a minor cannot agree to a sexual relationship – although the country’s top court has ruled that children aged five and under cannot consent. Lawyers for the suspect argued that the girl was consenting and aware of what she was doing, while lawyers for the girl have said she was simply too young and confused to resist.

In a decision that shocked many, the prosecutor’s office in the town of Pontoise decided to put the man on trial not for rape but on charges of “sexual abuse of a minor under 15”.

Defence lawyers say the man and the girl had met in a park and the girl had voluntarily followed him to an apartment and consented to intercourse. They have also said their client, then 28, thought she was at least 16.

The girl’s family filed a complaint of rape in the town of Montmagny but prosecutors apparently felt the suspect did not use violence or coercion. French law defines rape as sexual penetration committed “by violence, coercion, threat or surprise”.

“She was 11 years and 10 months old, so nearly 12 years old,” the defence lawyer Marc Goudarzian said Tuesday. “It changes the story. So she is not a child.”

His colleague Sandrine Parise-Heideiger went further, saying: “We are not dealing with a sexual predator on a poor little faultless goose.”

She said as soon as children have “sexual expressiveness and you have an attitude of putting yourself in danger” then “it doesn’t necessarily mean the person on the other side is a sexual predator”.

Children’s rights groups and a psychiatrist testifying in the case argued otherwise. Carine Diebolt, the lawyer for the family, asked the court on Tuesday to change the charge to rape.

The suspect “knew very well she was a young child”, said Armelle Le Bigot Macaux, president of the COFRADE, an umbrella group for children’s rights. “This young child isn’t protected today by our French society.”

If convicted of sexual abuse, the suspect – a father of two – faces up to five years in prison. The rape of a minor under 15 is punishable by up to 20 years in jail.

The presiding judge said the prosecutor had chosen the wrong charge and ordered the case to be sent back to investigators for a thorough investigation. As a result, the trial was postponed.

“It’s a victory,” Diebolt told reporters after the trial. “The main thing is that [the girl] can at last be heard as a victim of rape … we can say it’s a victory for the victims.”

Goudarzian, the defence lawyer, said the court’s decision was a result of the wide publicity given to the case.

The Montmagny case is one of several that have prompted an uproar over France’s rules on child sex abusers, which are considered too lax by child rights groups and feminists.

President Emmanuel Macron’s government has proposed a bill to introduce a minimum legal age for sexual consent. It would include a provision saying that intercourse with children under a certain age is by definition coercive.

The proposed minimum age has not yet been decided on, but the cutoff could be between 13 and 15. The bill, a broad-based measure aimed at fighting “sexual and sexist violence”, is expected to be presented to the cabinet next month.

A similar case caused disbelief and outrage. In November a French criminal court in November acquitted a 30-year-old man accused of raping an 11-year-old girl in 2009. The jury in the Paris region of Seine-et-Marne found he had not used violence or coercion.

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